More industrial action by NSW Paramedics prohibited by Industrial Relations Commission

Michael Eburn: Australian Emergency Law - 14 June, 2023 - 12:56

In an earlier post I reported on the decision of the Industrial Relations Commission to prohibit some industrial action by the Australian Paramedics Association (one of the sponsors of this blog) – see Proposed industrial action by NSW Ambulance paramedics prohibited by Industrial Relations Commission (May 13, 2023).  The date of that decision was 10 May and it related to action that was intended to take place on 11 May 2023.

On 25 May the Commission made further orders prohibiting different industrial action that was planned to commence on that day and run until 1 June – Health Secretary in respect of NSW Ambulance v Australian Paramedics Association (NSW) [2023] NSWIRComm 1056. (All those dates have passed but the judgement has only come to my attention today).  The intended action was a ban on staff movements so that paramedics would refuse to move to another station to fill gaps in the roster (see [3]).

The health secretary argued (at [6]) that the proposed action would pose a risk to public safety as:

  1. It reduces the number of dual crew paramedics and creates a delay in getting care to patients in the community;
  2. It creates more single crew paramedics, and it is preferable to have dual crews; and
  3. It will have an adverse impact on the dispatch of ambulances because of the complications that the Ambulance Service will face in not being able to readily identify where resources are available.

At [14] Commissioner Muir said:

I have concluded that it is common ground that the Ambulance Service is stretched. Almost inevitably then, the public interest will be harmed by industrial action, which will have a negative impact on the ability of the Service to respond to calls for help and to a level that warrants the intervention of the Commission. It appears to be obvious that this would have a greater impact the further the location is from central metropolitan Sydney. Indeed, the examples in evidence were those in such places, for example Katoomba and Moree… It is true that the dispute orders are unlikely themselves to resolve the dispute, but that object is not the only point of a dispute order.

Orders were made requiring the APA, its officers and employees to terminate the industrial action and ‘cease and refrain from authorising, organising, supporting, or encouraging’ the ‘Ban on Staff Movements’ industrial action.  The APA was required to notify its members, via email, of the Commission’s orders and to report to the Health Secretary of the steps it had taken to communicate the Commission’s orders to its members.

The Commission’s orders only related to the action that was intended to run from 25 May to 1 June 2023 that is it is not a blanket ban on such action into the future.

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 need to inform people before detaining them under the Public Health Act 2005 (Qld).

Michael Eburn: Australian Emergency Law - 14 June, 2023 - 12:27

I have previously written about the power of Queensland ambulance and police officers to detain persons who is at immediate risk of serious harm and where that risk arises as ‘the result of a major disturbance in the person’s mental capacity’ (Public Health Act 2005 (Qld) s 157B); see all the posts that appear here: https://australianemergencylaw.com/?s=%22Public+Health+Act+2005%22

The application of the Public Health Act received some discussion in TLE v R [2022] QDC 297.  In this case TLE was detained by police relying on s 157B.  In the course of her detention TLE spat on the three police officers involved and was charged with assaulting police in the execution of their duty.  As a preliminary point, TLE argued that the police were not acting in the execution of their duty because they failed to comply with s 157C(1)(b).  Section 157C(1) says:

The ambulance officer or police officer [who detains a person under s 157B] must—

(a) tell the person that the officer is detaining the person and transporting the person to a treatment or care place; and

(b) explain to the person how taking action under paragraph (a) may affect the person.

It was accepted that there was compliance with s 157C(1)(a) but, it was argued (at [22]):

… that there was not strict compliance with s 157C(1)(b) because the ambulance officers or police officers did not explain how the applicant’s detention and transport would affect her because she was not told that reasonable force could be used, although it was accepted that an officer tried to tell her that (s 157L). Further, the applicant was not told that she could be detained at the hospital for not more than six hours (s 157E).’

Judge Rafter, sitting as the Queensland District Court, had to determine whether s 157C(1) imposed mandatory requirements before action could be taken under s 157B. His Honour said (at [15]) “The approach to the interpretation of a procedure set out in legislation involves consideration of the consequences that would flow from requiring strict compliance.”  His Honour (at [16]) quoted from the judgement of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority where McHugh, Gummow, Kirby and Hayne JJ said:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition…

That is when deciding whether failure to comply with s 157C is intended to make any action under s 157B unlawful, the court had to look at the legislation to determine whether it can be inferred that this was the consequence the parliament intended.

His Honour noted (at [18]) that it is not ‘difficult to contemplate cases where it may be impossible for an ambulance officer or police officer to comply strictly with the requirements in s 157C. A person in the process of attempting suicide may not speak English. A person may have attempted to commit suicide by taking an overdose and be in a state of semi-consciousness’.  In this case ‘the applicant’s hysterical state made it virtually impossible for the ambulance officers or police officers to convey the information which the applicant submits should have been communicated to her.’

His Honour concluded that non-compliance with s 157C does not necessarily invalidate the decision to detain, treat and transport under s 157B.  That does not mean the police or ambulance officers can ignore s 157C but if their attempts to communicate with the patient are frustrated, non-compliance can be forgiven if there were reasonable attempts to comply. In this case (at [24]-[25]) His Honour said:

It is clear from this exchange and observing the recording that the police were taking reasonable steps to ensure that the applicant understood what was occurring… It is clear then that the applicant frustrated any attempts by the police officer to explain the procedure that was being undertaken.

To the extent that there was any non-compliance with s 157(1)(b), this was the result of the applicant’s behaviour which no doubt was due to her mental state.

His Honour held that the police were acting lawfully in exercising their powers under the Public Health Act 2005 (Qld). 

That is not the end of the matter. This decision dealt with the argument put on behalf of TLE that the police were not acting in the execution of their duty.  That argument having been resolved in favour of the prosecution the matter will no doubt be listed for trail but, equally with no doubt, TLE and her advisers will consider that judgment and may, in light of that outcome, elect to enter a guilty plea. That will of course depend on them and all the evidence.  Given that there was no dispute that TLE was suffering the effects of a ‘major disturbance’ in her ‘mental capacity’ she may elect to run a defence of ‘insanity’ under the Queensland Criminal Code s 647.  Whether TLE and her lawyers elect to do that will depend on the evidence and other factors we cannot possibly know or comment on.

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

Challenge to Health Practitioner Regulation National Law

In the post NSW Paramedic suspended after participation in COVID-19 protests (April 14, 2023) I discussed the cooperative legislative scheme that has established the Health Practitioner Regulation National Law and the Australian Health Practitioner Regulation Agency (AHPRA).  In that post I said:

The national scheme is being challenged as unconstitutional: Bay v Australian Health Practitioner Regulation Agency & Others Queensland Supreme Court file number 14178/22. It is my opinion that this challenge will not succeed, but if it does it will certainly cause a major upset in Australia’s health professions including paramedicine. 

The applicant, William Bay attempted to have the matter removed from the Queensland Supreme Court to the High Court of Australia. That application was rejected today (Bay v AHPRA [2023] HCASL 86).  Gordon and Steward JJ said:

The application does not identify any basis to justify interference with the process of the Supreme Court of Queensland. There is no identified urgency and, by granting removal, this Court would be deprived of the benefit of the reasoning of the Supreme Court of Queensland. In the circumstances, including the interests of the parties and the public interest, the Court is not persuaded that it is appropriate to make the order sought.

That is not the end of the matter.  First, Bay say he intends to appeal which is possible. As this was a decision of a single judge there is an appeal to the full bench of the court but I have no doubt an appeal will be unsuccessful.  Assuming there is no successful appeal, the matter will remain before the Supreme Court of Queensland. If Bay is unhappy with the result there he may be able to appeal to the Full Bench of the Supreme Court and then, if leave is granted, to the High Court.

Notwithstanding that I expect Bay’s challenge to AHPRA to fail, I will continue to report on it as it will be of interest to paramedics who are registered under the Health Practitioner national scheme. If by some chance Bay’s arguments actually succeed, that will have significant impact on paramedics and other health professionals. 

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

When does after hours work constitute ‘overtime’? An issue RFS employees

The issue of paying overtime for RFS employees is before the Industrial Relations Commission. In Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary, on behalf of the NSW Rural Fire Service [2023] NSWIRComm 1052 the Commission made recommendations, but not orders, regarding the dispute.

The issue is that the Crown Employees (Rural Fire Service) Award 2019 (the “RFS Award”) refers to ‘overtime’ as work ‘approved or directed’ by the RFS whereas the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 (the “Conditions Award”) says that an employee will only be paid at overtime rates when directed to work overtime.   The Union argued that the RFS should allow hour-for-hour time off in lieu of overtime worked between 7.30am and 6pm.

The Union argued that the phrase ‘direction’ should include work done in response to a request from the RFS and also where ‘work which is performed as a requirement of the employee’s role’ ([13(g)].  This issue is important, as the Commission explained at [23]-[26], because:

The work performed by the relevant members of the [Union] subject of this dispute includes:

  1. Supporting volunteer members with resourcing, training, preparation, and internal brigade management which may include arranging and attending volunteer training, brigade meetings and medal ceremonies.
  2. Supporting volunteer members in relation to operational work, including incident response and risk mitigation and incident response.
  3. Area Mitigation, who supplement volunteers in performing mitigation work such as backburning and cutting fire trails, logistical driving duties and operational support duties on weekends including maintenance of Large Air Tanker (water bomber) bases.
  4. Headquarters, which provides support including senior management, human resources, communications and other supp and legislative functions.…

Those who perform work outside of the hours [7.30am to 6.00pm] … are rarely paid overtime for this work and apart from some members who receive an annualised conditions allowance (“ACA”), they are usually provided time off in lieu at single hour for hour under a “Local Arrangement”, commonly referred to as a “LA”.

It is this failure of the respondent to pay the notifier’s members at overtime rates which is at the heart of the dispute.

The Union argued that this work should be considered ‘overtime’ even if there is no express direction because the work is authorised by implication because, amongst other reasons, ‘the circumstances of the availability of volunteers permit of no alternative manner in which the work can be performed’ ([37(i)]). The union argued that the ‘absence of an express direction or authorisation does not mean that the work is not authorised or impliedly directed’.

Interestingly the RFS said ‘that they would not follow a recommendation made by the Commission in a form sought by the notifier nor any other recommendation for which it did not agree with’ ([39]). The Union argued that the RFS was bound to accept any recommendation from the Commission as the relevant award said (emphasis added):

9.10 The staff member, Association, Department and Secretary shall agree to be bound by any order or determination by the New South Wales Industrial Relations Commission in relation to the dispute.

A recommendation was not, according the RFS an ‘order or determination’ ([41]). The Union argued there was still value in making recommendations as the Commission should not (at [29]):

… countenance the respondent’s threat as it undermines the practical ability of the Commission to resolve the industrial dispute and to satisfy its objects under s 3 of the Act. It also amounts to a rejection of the long standing and effective system of conciliation and arbitration …

In any event the RFS said they were only required to pay overtime where work was directed and this meant ‘overtime which is worked following authoritative instruction, command, order or ordnance’ ([44]). They gave these examples (also at [44]):

25.   A manager sends an email to a group of staff asking who is available to attend to various meetings. No member of staff is obliged to attend any particular meeting, but each is able to indicate that they can or cannot attend a particular meeting. A member of staff indicates that they are able and willing to attend a particular meeting, and does so. It cannot sensibly be said that the manager’s question constitutes a direction to work overtime in circumstances where there is no obligation on any employee to perform any particular task.

26.   If, on the other hand, a manager tells a particular employee that they must carry out a particular task outside hours that would obviously constitute a direction to work overtime.

Result

The Commission agreed that it had the power to make a recommendation but that a recommendation was not binding upon the parties ([46]). Notwithstanding that Commissioner O’Sullivan decided that he would make a recommendation because (at [52]) ‘I have reached the conclusion that neither parties’ interpretation of the meaning of “directed overtime” which gives rise to the payment of overtime for work performed is correct.’ Commissioner O’Sullivan said (at [53]-[54]):

The [union’s] position that all work performed outside of the hours in cl 7.9 [ie 7.30am to 6pm] of the RFS Award is “directed” overtime and is to be paid as such irrespective of even if it is at the initiative/request of the employee is contrary to the evidence … as to the reason why such overtime needed to be “directed”.

And:

The [RFS’] position that the work is only “directed” if there is an authoritative instruction, command, order or ordnance, runs counter to how modern workplaces operates [sic]. Further, if this approach is to be accepted, it may inevitably lead to members of the [union] continuously refusing requests to work overtime until such time they instructed etc to do so in order to receive overtime payment.

The Commission’s recommendation (at [55]) is that the parties ‘confer with a view to agreeing on the requirements of what work is to be treated as overtime and paid as such for the purposes’.

Discussion

This decision is reported as I’m sure many in the RFS, in particular the volunteers, would not be aware of the ongoing issue.  

I also think the attitude of the RFS to the effect that they would not follow recommendations that they did not agree with was surprising, but clearly the law as recognised by the Commission.  And the RFS’ attitude was perhaps not so surprising when it is considered that the Union was asking the Commission to make recommendations basically that the RFS interpret the various clauses in the way proposed by the Union.  If the recommendations were binding the Union was asking the Commission to resole the dispute in their favour without a full hearing of the issues so it is understandable that the RFS would not want to be bound by recommendations, and the Commission would not want to make recommendations that would basically finalise the dispute in proceedings that were not intended to be a final hearing.

At the end of the day though it is not clear what, if anything, was achieved with a recommendation that the parties go back to talking to each other to see if they can come up with an interpretation of the two awards and what ‘directed’ will be understood to mean.

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

Liability for dangers created by smoke on the road

Today’s correspondent wants:

… some insight or advice on the following incident which occurred recently.

 A farmer lit up a paddock of canola stubble roughly 1.5 kms south of an NSW highway and left the fire to burn overnight. The farmer erected cautionary signage on the highway advising of smoke ahead from an agricultural burn.  The canola stubble sustained very little active fire however smouldered significantly overnight and well into the following day. An inversion layer formed overnight resulting in significant smoke impact over a wide area including the previously mentioned highway.

Just prior to midnight a truck crossed onto the wrong side of the highway due to the poor visibility from the smoke impact, emergency services were called and attended the location. Other vehicles were involved in what became a multi-vehicle accident.  Fortunately, there was no injury to motorists nor emergency service personnel in attendance, however this could have easily occurred.

The overarching contributing factor was the smoke which was described as reducing visibility to near white out conditions or less than 5 meters; the highway was closed for several hours due to the smoke.

On this occasion the farmer appears to have acted with good intent (I believe he wasn’t reckless nor careless) however there have been other incidents recently with farmers burning off without any consideration of the smoke impacting roads and the safety of motorists resulting in minor collisions.

Whilst it could be argued that the motorists failed to drive to the conditions and therefore are ultimately responsible the farmer must bear some responsibility for their activity creating unsafe driving conditions.

As a member of the NSW RFS, I am often asked about safe burning practices and the legal responsibilities of land holders who use fire in the open. Apart from leaving the fire unattended this incident appears to fall outside of the Rural Fires Act, can you advise on the following:

  1. Would the Work Health & Safety Act 2011 (NSW) be applicable to the farmer in this situation?
  2. Would the farmer be in contravention of Protection of the Environment Operations (Clean Air) Regulation 2022 (NSW) cl 9?
  3. What other NSW Acts would the farmer likely be contravening if any?
  4. Are you aware of any previous civil action or case law that may be relevant to the above situation?

I’ll answer those questions in reverse order.

Question 4 – Am I ‘aware of any previous civil action or case law that may be relevant to the above situation?’

This scenario is very similar to the situation in Lobsey v Care (1983) 1 MVR [Motor Vehicle Reports] 1.  In this case two landowners, Lobsey and Inglis, were conducting a hazard reduction burn along the side of the road.  A driver came around a corner and was confronted by flames, rather than smoke, from the burn off. The driver moved to the opposite side of the road and ran into a car travelling in the opposite direction. One person was killed and two were injured.  In that case no warning had been given to motorists. 

The legal proceedings were complicated. Mrs Care sued her husband Mr Care for negligence in Queensland. (That is not as silly as it sounds, all cars have compulsory third party insurance, so the passenger sues the driver, and the insurer pays the damages. It does not matter that the passenger is the driver’s spouse or child. She wasn’t really ‘suing’ her husband, she was making a claim for motor accidents compensation under the scheme that existed in 1983. This first action was heard in Queensland because, I infer, the Care’s were resident there and the car was no doubt registered there and the action would have been governed by the applicable motor accident legislation). 

Mr Care (or more probably, the insurer who had paid out to Mrs Care) then sued Lobsey and Inglis. (This action was heard in NSW because that is where the tort or wrong occurred. The relevant law in the claim between the Care’s was the Queensland law, between Mr Care and Lobsey and Inglis the relevant law was the NSW law of negligence and nuisance).  The Court of Appeal confirmed the trial judge’s finding that Lobsey and Inglis ‘were guilty of a public nuisance and negligence’ and liable for damages in excess of $300,000.

(Lobsey tried to argue that he was not liable because he was a local RFS captain and was protected by the Bushfires Act 1949 (NSW) s 48; see now Rural Fires Act 1997 (NSW) s 128. This was rejected and for a discussion of that part of the case see Authority to enter private property for a hazard reduction burn (July 9, 2016)).

Another relevant case would be Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79 (discussed in the post No liability for damage to grapes caused by WA hazard reduction burn (April 25, 2012)).  That case involved a claim for damages when wine grapes were damaged by smoke during a hazard reduction burn.  The Department had statutory functions that required it conduct hazard reduction burns in the areas. There were limited opportunities for those burns, and it was impossible to conduct them outside the period when grapes were subject to ‘smoke taint’. The Department was not liable for the damage done to the plaintiff’s grapes.

Critical to the Department’s defence, aside from statutory defences that would not be open to a private landowner, was the care and consideration that they put into the planning and consideration of the weather.  The same level of care may not be expected from a person with much more limited resources (see Goldman v Hargrave (1966) 115 CLR 458 (UK Privy Council on appeal from the High Court of Australia); discussed in the post Landholders duty of care for fire and other hazards (March 22, 2014) but there would be an obligation to take ‘reasonable’ care to protect neighbours from the impact of the fire.  Whether that would extend to the impact of smoke is debatable. In Southern Properties McLure P referred to an earlier case, Burnie Port Authority v General Jones (1994) 179 CLR 520, that imposed almost strict liability for the escape of fire. McLure P said (at [84]-[85]):

It is immediately apparent that Burnie Port Authority does not provide any authority for the strict duty of care for which the appellants contend. However, the principles in that case relating to duty and breach do not apply for additional reasons.

First, this is a claim about the escape of smoke not fire. Fire is inherently and unequivocally dangerous whereas smoke is not…

An issue relevant to the question of negligence is the amount of control that the defendant has over the hazard. At [101] McLure P said ‘There can be no prescribed burn without smoke. Further, the Department does not have control over all the variables that can impact on the amount, intensity, duration and direction of smoke from a prescribed burn…’.  Where there would be almost strict liability for the spread of fire, there cannot be for the spread of smoke. But that does not mean there can be no liability.

Southern Properties does not establish that the landowner described in today’s question would be liable, but the difference between a private landowner doing what I infer is a land clearing burn, and a government department executing government policy with respect to bushfire hazard reduction and the level of planning that went into that burn preparation would imply that the precedent of Southern Properties is likely to be of little assistance.

The answer to question 4 is therefore yes, I am ‘aware of previous civil action …that may be relevant’ in particular Lobsey v Care that had almost identical facts where liability was established, and Southern Properties v Department of Conservation and Land Management where there was no liability, but the circumstances were so different that it will provide little assistance.

3.      What other NSW Acts would the farmer likely be contravening if any?

Not so much a ‘contravention’ but relevant to the discussion of civil liability, above, is the Civil Liability Act 2002 (NSW) s 5B(1).  That section says:

A person is not negligent in failing 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 to have known), and

(b)       the risk was not insignificant, and

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

Although phrased in the negative, ie when a person is not liable, we can infer that a person may be liable if they fail to take the precautions that a responsible person would have taken to avoid causing harm by a foreseeable and significant risk.

When deciding what precautions a reasonable person would have taken a court will consider (s 5B(2)):

(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 has to avoid the temptation to judge these matters in hindsight so that the fact that the event happened does not say how the risk of harm would have been assessed before the event, but case like Lobsey and Southern Properties would indicate that the risk of harm by smoke was well known.  In Southern Properties it was held (Pullin J dissenting) that was little the defendant could do to avoid the risk given the government’s policy commitment to hazard reduction burns. Pullin J argued that there was a simple and no cost step to avoid the risk – don’t light the fire!  That is more applicable in the described case where there was no duty to light the fire and there was probably a much wider window to wait for favourable weather.

That does not mean that landowners can never use fire for land clearing. It is an accepted use of fire in Australia (see Hazelwood v Webber [1934] HCA 62; Burnie Port Authority v General Jones (1994) 179 CLR 520 [21]-[23]) although it carries undoubted risk. The point is that there is ‘social utility’ or at least private utility in the use of fire and that has to be considered when determining what a reasonable person would do in response to the risk of fire and smoke and whether the only reasonable response is to light no fire.  If it can be reasonable to light the fire, then the duty is to take measures to control the risk of its spread and arguable the impact of its smoke.

As my correspondent has noted, the defendant may be guilty of an offence contrary to the Rural Fires Act 1997 (NSW) s 100(2) which says:

A person who, without lawful authority, leaves whether temporarily or otherwise any fire which the person has lit or used in the open air before the fire is thoroughly extinguished is guilty of an offence.

Maximum penalty–50 penalty units or imprisonment for 12 months, or both.

2.      Would the farmer be in contravention of Protection of the Environment Operations (Clean Air) Regulation 2022 (NSW) cl 9?

The Protection of the Environment Operations (Clean Air) Regulation 2022 (NSW) cl 9 says:

(1)  A person who burns anything in the open or in an incinerator must use all practicable means to prevent or minimise air pollution.

Maximum penalty—

(a)  for a corporation—100 penalty units, or

(b)  for an individual—50 penalty units.

(2)  Without limiting subsection (1), the means of preventing or minimising air pollution may include the following—

(a)  mitigating the potential for smoke impacting on a person, considering—

(i)  wind direction, and

(ii)  weather conditions, and

(iii)  the likely length of burning time of the material,

(b)  taking reasonable measures to ensure the material being burnt is not wet,

(c)  burning only material that is suitable for disposal by burning, considering the possible effects on human health and the environment.

Clearly the landowner in the case described could be guilty of this offence. The issue would be what means did the landowner take ‘to prevent or minimise air pollution’ and were these all the ‘practicable’ means available.

1. Would the Work Health & Safety Act 2011 (NSW) be applicable to the farmer in this situation?

Assuming the farm was a workplace then yes that Act would apply. That Act imposes a duty on the person conducting the business or undertaking 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’ (s 19(2)).  If lighting the fire was part of the work of a PCBU then that duty applies. In this case, we are told, road users were exposed to risk due to smoke and the smoke, in turn, was due to the actions of the PCBU.

Again, the question would be did the landowner do all that was ‘reasonably practicable’ to mitigate that risk.  In deciding what was ‘reasonably practicable’ a court must have regard to (s 18):

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

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

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

(i) the hazard or the risk, and

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

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

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

The farmers intention – recklessness or carelessness

The farmer’s ‘good intentions’ are irrelevant.  Good faith is not a defence to negligence (Vaughan v Webb (1902) SR(NSW) 293; which is why so much legislation including fire brigades’ legislation have sections to say good faith is a defence). Recklessness is a term from the criminal law. It means that a person foresaw the possible (or in the case of murder, probable) consequence of his or her actions but went ahead anyway. He or she can then be liable as if they intended those consequences (R v Crabbe [1985] HCA 22).

In civil law the relevant test is the standard of care, or ‘carelessness’. In law to conclude that someone was not ‘careless’ means that they took ‘reasonable care’.  If they took reasonable care, they were not negligent. Another meaning that may be intended when one says they were not ‘careless’ is that they did care about the outcome, that is they did think about and try to avoid the risk – they did care – but that is not sufficient.  A defendant must meet the standard of applying ‘reasonable care’.  For example, a person may do something they know is not quite right and hope that nothing bad happens, be really concerned that someone might get hurt and think they have done enough to avoid the injury.  But if their response to the risk was not ‘reasonable’ when assessed against the hypothetical ‘reasonable man’ then they were negligent – they failed to use reasonable care – no matter how much they ‘cared’ about the risk or consequences.

My correspondent says this landowner was not ‘careless’ but I don’t think that means he or she took ‘reasonable care’.  It may mean that they were trying to do the right thing but that is not the legal test.

Contributory negligence

We cannot say what the landowner’s liability may be. It is true that drivers owe a duty to all other road users and must drive to the conditions. If visibility is reduced to 5 metres a driver should be driving at a speed that will allow them to stop within 5 metres.  If there was an initial accident and then two other vehicles ran into the first accident there would be a strong claim for contributory negligence in any action for compensation.  What the outcome would depend on many facts that we don’t know.

In Lobsey v Care it was held there was no contributory negligence by Mr Care (the driver). In that case he was confronted with flame that burst across the road when the fire hit particular vegetation. Moving to the wrong side of the road when the vegetation to your left bursts into flame may be more reasonable than doing so in smoke.  A finding of contributory negligence allows liability to be shared between various tortfeasors.  I can be a complete defence, but again we cannot predict the outcome if this matter should come to litigation without many more facts.

Conclusion

Introducing fire onto the land brings with it a responsibility to protect others from the risk of that fire. When it comes to actual fire the duty is almost absolute (Burnie Port Authority v General Jones).  The liability when it comes to smoke is not so well established, in Southern Properties v DEC liability was not established but the position of the Department during hazard reduction burn for the public benefit on public land is quite different from a farmer doing land clearing on private land.

The facts are very similar, but not identical to Lobsey v Care. In Lobsey’s case the defendant put up on warning to traffic and the road users were exposed to risk from both flame and smoke. But I would suggest the circumstances were sufficiently similar to give a strong argument for liability.

Whether there is liability in negligence, under the Work Health and Safety Act or under the Protection of the Environment Operations (Clean Air) Regulation 2022 (NSW) would depend on what steps the landowner took to mitigate the risk including what steps did they take to know the weather forecast and the potential impact of that weather on the fire and potential smoke and what steps if any did they take to coordinate with relevant road and fire authorities to manage the risk to the community.

We cannot say what the outcome would be in any particular case but the potential for both civil and criminal liability is clearly there.

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

Referring complaints of sexual misconduct to police or AHPRA

Today’s correspondent tells me that a state ambulance service is investigating complaints of ‘sexual assault’ by a manager. They ask:

At what point does the service have a responsibility to forward these complaints to police?

If a patient was to divulge a sexual assault police would be attached to the case immediately.

What are the responsibilities of the service to notify the Paramedicine Board/ AHPRA?

What are the responsibilities of his fellow managers and management supervisors who are aware of the current and historical claims of sexual misconduct and assault?

I think the first step is to get some language correct. The language will vary from jurisdiction to jurisdiction, but we should need to make some distinctions. I’ll use NSW law as my template.

In NSW ‘sexual assault’ replaced the old-fashioned offence of ‘rape’. Rape was old fashioned because only a man could be guilty of rape and only if he penetrated a woman’s vagina with his penis (Michael Eburn, Roderick Howie, Paul Sattler and Marissa Hood, Hayes and Eburn Criminal Law and Procedure in New South Wales (5th ed, 2016, Lexis/Nexis) p. 259).  Anything else was not rape – so it was a very gendered offence with very limited application. Today the Crimes Act 1900 (NSW) s 61I creates the offence of Sexual assault when ‘Any person … has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse’.  The reference to ‘any person’ means that the offence can be committed by anyone, regardless of their gender. And ‘sexual intercourse’ means (s 61HA):

(a) the penetration to any extent of the genitalia or anus of a person by–

(i) any part of the body of another person, or

(ii) any object manipulated by another person, or

(b) the introduction of any part of the genitalia of a person into the mouth of another person, or

(c) the application of the mouth or tongue to the female genitalia, or

(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

Much more than penile/vagina penetration.

There are other offences where the conduct does not amount to sexual assault eg Sexual touching (s 61KC) and Sexual act (s 61KE).  These offences replace the older offence of ‘indecent assault’ (s 61L, now repealed) which required an assault (touching without consent) that had a sexual connotation (Rv Harkin (1989) 38 A Crim R 296). And in employment law there is sexual harassment. The Australian Human Rights Commission says:

Sexual harassment is any unwanted or unwelcome sexual behaviour where a reasonable person would have anticipated the possibility that the person harassed would feel offended, humiliated or intimidated. It has nothing to do with mutual attraction or consensual behaviour.

Examples of sexual harassment include:

  • staring, leering or unwelcome touching
  • suggestive comments or jokes
  • unwanted invitations to go out on dates or requests for sex
  • intrusive questions about a person’s private life or body
  • unnecessary familiarity, such as deliberately brushing up against a person
  • emailing pornography or rude jokes
  • displaying images of a sexual nature around the workplace
  • communicating content of a sexual nature through social media or text messages.

Whenever people, including the media, refer to a person and alleged ‘sexual assault’ I wonder whether they mean ‘sexual assault’ as defined by law (ie rape – forced sexual intercourse) or some other offence.  And one can see that there may implications for today’s question. If there was an allegation that a member of staff had raped a number of female colleagues, the obligation to call police may be higher than if the obligation is that he told a number of ‘suggestive comments or jokes’. If what happened was touching – eg slapping someone on the buttocks or grabbing a breast that would be ‘sexual touching’.  No doubt a serious offence (it carries a maximum penalty of 5 years imprisonment) and certainly more serious if done to many people in a subordinate position, but not ‘sexual assault’ (which carries a maximum penalty of 14 years imprisonment).

My correspondent has used the term ‘sexual assault’ but I wonder whether that is the correct legal term. 

Regardless of that we can look at some general rules.

Report to police

First, the Crimes Act 1900 (NSW) s 316 says:

316 CONCEALING SERIOUS INDICTABLE OFFENCE

(1)        An adult–

(a)        who knows or believes that a serious indictable offence has been committed by another person, and

(b)       who knows or believes that he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, and

(c)        who fails without reasonable excuse to bring that information to the attention of a member of the NSW Police Force or other appropriate authority,

is guilty of an offence.

(1A)     For the purposes of subsection (1), a person has a reasonable excuse for failing to bring information to the attention of a member of the NSW Police Force or other appropriate authority if–

(a) the information relates to a sexual offence or a domestic violence offence against a person (the “alleged victim”), and

(b) the alleged victim was an adult at the time the information was obtained by the person, and

(c) the person believes on reasonable grounds that the alleged victim does not wish the information to be reported to police or another appropriate authority.

A serious indictable offence is an offence punishable by imprisonment for life or for a term of 5 years or more’ (s 4). Sexual assault and sexual touching would both be a ‘serious indictable offence’

I will assume that everyone involved is an adult. So the first part of the answer is that there is no obligation to report it to the police if the victim does not want the matter reported to police. And there may be many good reasons why a person may make a complaint to their employer but would not want the matter referred to police. That provision would (or should) apply whether the person making the complaint is a patient or colleague.  

It would also be a reasonable excuse if the person, in this case in their capacity as employer, is conducting an investigation to determine if they are satisfied that they ‘know’ or ‘believe’ that a serious indictable offence has been committed and that have ‘information that might be of material assistance in securing the apprehension of the offender’. The receipt of the complaint would not be sufficient to establish that the employer either ‘knew’ or ‘believed’ these things to be true so an investigation may be warranted. It is the outcome of the investigation that will identify what the employer ‘knows’ or ‘believes’.

Report to AHPRA

With respect to the Paramedicine Board/Council/AHPRA, the Health Practitioner Regulation National Law s 140 says (emphasis added):

“notifiable conduct”, in relation to a registered health practitioner, means–

(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.

Sexual misconduct is not defined but would include any of the offences in the Crimes Act discussed above, and no doubt much more.

A paramedic who is aware that another paramedic has engaged in notifiable conduct must report that second paramedic to AHPRA. An employer must also notify AHPRA if they believe that an employee has engaged in notifiable conduct (s 142). If a patient were to engage in ‘sexual misconduct’ with respect to a patient that would be notifiable (s 140(b)). If the behaviour was directed to a colleague, one might argue that is not conduct ‘in connection with the practice of their profession’.

AHPRA and the various boards define practice as (emphasis added):

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

A person working in management supervising other paramedics and who abuses that position to engage in ‘sexual misconduct’ would probably be held to be acting ‘in connection with the practice of the practitioner’s profession’.

It follows that there is an obligation to report the person to AHPRA when another paramedic or the employer is satisfied that they have a ‘reasonable belief that’ the person the subject of the complaint engage in ‘sexual misconduct’ (not defined) toward either a patient or a colleague.

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture. (George v Rockett [1990] HCA 26, [14]).

In other words, a ‘reasonable belief’ does not require the person to be satisfied either beyond reasonable doubt or on the balance of probabilities, but they would have to be satisfied that they think the allegation is true.

In Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 (discussed in the post Paramedic suspended for sexual misconduct directed to a patient (August 22, 2022)) the Civil and Administrative Tribunal gave this history:

On 7 April 2020 the practitioner and another officer (the second officer), a Level 1, Training Ambulance Officer, attended a call to a home on the central coast of NSW … We will refer to the patient, as identified in the complaint, as Patient A.

On her arrival at Gosford Hospital, Patient A made a complaint about the practitioner to the doctor on duty in the Emergency Department.

On 7 April 2020, following an interview with Patient A at Gosford Hospital by Mr J Mattson, Inspector NSW Ambulance, an interview was conducted with the practitioner. Following the interview, the practitioner was advised that he was suspended from duty.

On 17 April 2020 Mr T Cheung, Senior Investigations Officer, NSW Ambulance interviewed Patient A. In her interview Patient A repeated her allegations of misconduct by the practitioner. We set out the patient’s allegations later in these reasons under the heading “The patient complaint”.

On 6 May 2020 the practitioner was interviewed by Mr Cheung and Ms Natalie Dobie. The interview was recorded, and a transcript of the interview is relied on by the HCCC.

On 2 September 2020 Dr Dominic Morgan, ASM, Chief Executive of NSW Ambulance notified the Australian Health Practitioner Regulation Agency (AHPRA) that it had received a complaint about the practitioner’s conduct.

One can see that it took from 7 April to 2 September (approximately 5 months) for the decision to be made to refer to matter to AHPRA and during this time the ambulance service conducted an investigation no doubt to determine what the evidence established and to allow the Chief Executive Officer to decide what he ‘believed’.

… fellow managers and management supervisors …

The responsibility to report notifiable conduct falls on all registered health professionals so if the ‘fellow managers and management supervisors’ are also paramedics, then they have a duty to report (s 140) but just being aware that a complaint has been made would not be sufficient to give rise to the belief required by ss 141 and 142.

A paramedic is not required to notify AHPRA if they know, or reasonably believe, that ‘the National Agency has been notified of the notifiable conduct’ (s 141(4)(e)).

In their role as managers within the service, the obligation to report falls on ‘the employer’. In a large organisation not everyone represents the ‘employer’ so the managers and management supervisors may have an obligation to raise the concerns up the chain of authority so that the person who is the face of the employer (and in the case of Health Care Complaints Commission v McAlpine it was the Chief Executive) can make the complaint.

Again, merely knowing of the complaint is not sufficient. It cannot be the case that someone has to report to AHPRA because they have heard that a complaint has been made, or that an investigation is occurring. That would not give sufficient grounds to believe that the conduct occurred or that the person making the complaint has relevant information about the complaint. If that were not the case AHPRA would expect to receive a notification from everyone who hears ‘on the grapevine’ about a complaint.

Conclusion

There is no obligation to report a complaint to police if the adult complainant does not want the matter reported to police.  In any event a complaint does not have to be referred to police just because it has been made. The obligation arises when the person is satisfied to the extent that they can say they ‘know’ or ‘believe’ ‘that a serious indictable offence has been committed’ and that they have ‘information that might be of material assistance in … the prosecution or conviction of the offender’.  Those facts might, depending on the circumstances, only be determined after an appropriate internal investigation.

With respect to AHPRA a health professional (including a paramedic) and a paramedic’s employer are both obliged to report a belief that a paramedic has engaged ‘in sexual misconduct in connection with the practice of the practitioner’s profession’.  Merely knowing that a complaint has been made would not be sufficient to establish that belief. Again, it may, depending on the circumstances, require an appropriate inquiry to determine whether another paramedic or the employer has the necessary belief.

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

Northern NSW Helicopter Rescue Service to expand its area of operations

The Northern NSW Helicopter Rescue Service is part of the Surf Life Saving helicopter operations. It wanted to expand its area of operations but, because if the way it is structured, the permission of the Supreme Court was required – Northern NSW Helicopter Rescue Service Limited v Attorney General of New South Wales [2023] NSWSC 515.

The issue was that the Northern NSW Helicopter Rescue Service Limited (‘Northern’) is registered with the Australian Charities and Not-for-profits Commission as a public charitable institution.  Northern’s assets were held on trust to be used for the purposes of Northern as set out in its constitution. Northern, however, felt the terms of the trust were too limiting and no longer ‘a suitable and effective method of using the 2013 Trust property’ ([7]). Further (at [9]) ‘Northern’s management is of the view that the constraints placed upon the operation of the Trust by its current terms will jeopardise the financial viability of the Trust over the medium term’. Court orders were required to change the terms of charitable trust.

A useful summary of the position was set out at [16] where Robb J said:

It may be helpful if I provide the following brief conspectus of the history of the provision by Northern of helicopter surf rescue and other helicopter medical emergency services since the inception of the unincorporated part-time volunteer organisation. From its inception in 1975, the service was provided by the Newcastle Branch of Surf Life Saving Australia. It operated over part of the New South Wales Lower North Coast and Central Coast from Tea Gardens and Hawks Nest in the north to Catherine Hill Bay in the south. The organisation acquired a helicopter that was funded in part by a loan from Westpac and the proceeds of a public fundraising appeal. At around that time, the service also provided helicopter emergency medical services for the Ambulance Service of NSW. Over time, by reason of changes in circumstances, there has been an impetus for Northern to widen the area within this State in which it provides services. That has happened in part because of increases in Northern’s capacity and organisational competence, and the range of its helicopters, as well as the need for the provision of its services outside its original area of operations. However, increases in the area in which Northern has been permitted to provide its services have been constrained by the fact that a considerable proportion of its funds have been raised from communities in particular geographical areas within the State. In the manner that I will shortly explain, that has led to constraints being placed upon the areas in which Northern has been permitted to provide its services. However, for practical and commercial reasons, Northern has faced the need to grow and extend its area of operations, both to provide desirable services out of its current areas of operation and also to maintain its commercial viability. The purpose of the present application is to seek an order from the Court … that further extends the available potential areas of operation for the provision of Northern’s services, and gives Northern flexibility to extend the nature of its services, while maintaining an organisational structure that ensures that it applies charitable funds raised from the public in particular areas to the effective provision of its services to the people in those areas.

The helicopter service had an extensive history. Back in 1991 there had been litigation when ‘a group of Newcastle citizens complained to the Attorney General that funds that had been raised from the Hunter region, including through the “Angel One Helicopter Appeal”, should not be used for the benefit of a helicopter service based outside the Hunter region’ [18]). The result of that litigation was a declaration that the assets of Northern were to be held on trust ‘for the provision of a helicopter service in the Hunter Region’.

In 2000 an application was made to expand Northern’s region of operations and to allow them to operate from a base in Tamworth ([24]-[30]).  In 2013 further orders were made extending Northern’s operations into Lismore. A new clause in the governing documents

… recognised the reality that, when it comes to the provision of emergency helicopter services, the necessity to give aid to persons in distress may require that the services be provided outside the permitted areas, so clause 2 provided that it would not be a breach of the terms of the Trust for Northern to provide its helicopter services, due to an emergency or otherwise, outside the Area or the Extended Area.

It was still the case that money raised in different areas, ie the Hunter, New England or Northern Rivers was to be allocated for the provision of helicopter services in those regions ([31]-[34])

The current application was to change the trust to allow Northern to operate anywhere in Australia ([51]) but still money raised in a particular region will, subject to some exceptions,  be used to fund the service in that region ([61]). At [115]-[118] Robb J said:

Northern is presently dependent for 75% of its operating income on its contract with the Ambulance Service of NSW. ….

The position is that Northern’s financial viability now depends upon it being able to secure a new contract with the Ambulance Service of NSW, or additional or equivalent contracts for the southern area of New South Wales or other parts of Australia. Northern sees the need for it to be able to maintain its financial viability, generally, by being permitted to use its existing assets and facilities to provide services for reward outside its existing contracts.

Northern’s evidence is that, as it will probably have to compete in the tender process for new contracts with established private commercial organisations, it is necessary that its purposes should be expanded in advance by the making of [an order] …that permits Northern to tender for and, if successful, provide, the helicopter services … throughout Australia. Northern perceives that it is not a commercially viable course for it to submit tenders that are subject to the condition that Northern’s authority to provide the services required by the contract will be granted by … orders made by this Court after the date of the award of the contract. Nor will it be realistic for Northern to expect to be able to obtain from the Court …[an] order that permits Northern to enter into the contract between the time the tender is notified to the public and the time when tenders must be submitted.

The essence of Northern’s submission is that it will cease to be financially viable if it is not awarded a new contract by the Ambulance Service of NSW when the current contract expires, unless it has been able in the intervening period to expand the area of its operations by entering into new contracts for the provision of helicopter services in New Service Regions, so that it can make its operations more financially robust. In short, Northern wishes to avoid the risk of extinction faced by all species who are dependent upon one source of sustenance, if that source is lost.

In short, Northern wanted to change its trust deed now, even though it is not currently tendering for contracts, so that they can take advantage of tendering opportunities that may arise in the future.  The court agreed to make the type of orders sought, but the matter was adjourned to allow the applicant to draft appropriate changes to take account of factors raised by the judge and not discussed here.

Discussion

The case will be of interest for readers first to inform of the changes proposed by Northern. No doubt many readers of this blog live in areas serviced by Northern and no doubt many readers actually interact with Northern crews who deliver emergency air ambulance services within the regions.  Those readers will be interested to know of Northern’s plans to expand as will people who may, in the future, work with Northern in any new areas of operation.

The other thing that I anticipate is of interest is the nature of a trust and the issues of corporate governance. The actions by Northern, over its history, show the complexity of these areas and that taking action is not simply a matter for a board to decide what is a good idea. This case shows how seriously the management of Northern and the courts, take the constitutional documents that govern their business. This is important for readers who themselves may be managing a company, particularly the very small, to realise how important it is to understand and comply with foundation documents.

Finally I have written about trusts before when Celeste Barber raised millions of dollars that went to the Rural Fire Service Donations Find – see Search Results for “celeste barber” – Australian Emergency Law. Many were upset that the funds could not be used to support other organisations and other states that had been affected by the 2019-2020 black summer bushfires.  As in this case, the Supreme Court was concerned to protect the integrity of the trust and to ensure that funds held on trust are used only for the legitimate purpose of that trust – see Judgment from the Supreme Court regarding Rural Fire Service Donations Fund (May 25, 2020).

Here the court agreed that extending Northern’s area of operations, provided Norther could isolate the source of funds and use them as intended, would enhance and advance the purpose of the initial trust. The role of the Court, and the Attorney-General who appeared as the ‘protector of charities’ ([13]), was to ensure that trusts are properly managed and those that donate to charities are assured that the funds donated are to be used for the purposes for which they have been donated. This is not a fault in the law (as was suggested in 2020) but a significant public protection.

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

Proposed industrial action by NSW Ambulance paramedics prohibited by Industrial Relations Commission

In Health Secretary in respect of NSW Ambulance v Health Services Union NSW [2023] NSWIRComm 1044 (10 May 2023) the Industrial Relations Commission ordered the HSU to withdraw industrial action that was planned for the next day, Thursday 11 May 2023. The orders remain in force until June 30, 2023.

The HSU advised the Ambulance Service that they proposed industrial action as the “paramedics in training support protest”.  The gist of the action was that HSU members would insist on two qualified paramedics with every trainee rather than the usual one trainee with one paramedic. An email from the HSU said (at [4]):

An additional P1 or above paramedic will work as the ‘third up’ on the car containing a trainee to help support them during that shift. Trainee members are the primary focus of this action. ADHSU members want to enhance training and allow direct one on one mentoring.

The email went on to say:

  • ADHSU members who are part of a training team will announce via the radio at the commencement of shift that the crew is taking part in the protest and request an additional paramedic be added to the team. …
  • If you are unable to form a 3-person crew, members should voice the request over the radio, respond, but no transport will take place until at least two P1 or above paramedics are on the car with the paramedic in training or the patient’s condition deems otherwise. 5T trainees will require at least 1 ICP and a P1 and above.

The Health Secretary sought orders to prohibit this action. At [7]:

The Health Secretary contends that this industrial action will constitute a risk to the health and safety of patients. She contended that the action would require additional staffing resources where a paramedic intern or trainee is in an ambulance, which would reduce the available on-road resources, potentially reduce the number of available double paramedic crews in transport capable vehicles and potentially create delays in the transportation of patients.

The ’worst case’ scenario, predicted by NSW Ambulance was (at [9]):

… the numbers of predicted crews available to respond to “000” emergency calls will diminish by approximately 88 double crewed ambulances within the Sydney metropolitan area during the period of the industrial action and that, as a result of the industrial action, there would be only 260 double crewed ambulances within the Sydney metropolitan area. He stated that he would expect comparable reductions in regional areas.

There was also concern for ambulance despatchers ([12]):

While the dispatchers are highly trained, finding additional backup resources will increase the risk associated with dispatching crews in time critical situations. Crews have not always flagged at sign on their intention to request third on car or assistance to transport. This adds an element of risk and workload to the dispatcher.

The HSU argued that there was discretion in their members.  That is the action would only arise ‘where practicable’ and that the industrial action would be ‘suspended if the “patient’s condition deems otherwise”’ ([15] and [16]). The Ambulance Service argued (at [15]) and the commission agreed (at [16]) that this made the matter more complex as it ‘made the task of contingency planning that much more difficult, as it introduced a further level of uncertainty which made planning difficult’.

The HSU argued (at [20] that there was ‘an entitlement of the paramedics to take industrial action in the course of bargaining’.  The Commission did not rule on any ‘right’ to take industrial action on the basis that ‘there is limited evidence before me that there is in fact bargaining taking place’.  The HSU argued that the action was warranted because ‘… the Government” had made a promise that paramedics would be paid what they are worth as the professionals they are, and that the Government had not met that promise’.  Commissioner Sloan said, however, that there ‘… is nothing beyond what appears to be a protest in the position put by the HSU. There is no evidence of active bargaining in the way that I would normally anticipate would be led if the HSU wished to rely on a “right” to take industrial action.’

It was agreed that the Commission had jurisdiction to make the orders sought but the remedy was discretionary. When deciding whether to make an order the Commission had to consider the public interest (Industrial Relations Act 1996 (NSW) s 146, cited at [22]).

Commissioner Sloan concluded (at [23]) ‘Having regard to the matters to which I have already referred, I am persuaded that this is a case calling for the Commission’s intervention’. He made the orders prohibiting the HSU from continuing with this particular form of industrial action.  The HSU was ordered to take steps to notify its members that the industrial action was not to proceed and to report back on the steps it had taken to that end.

Conclusion

This matter was heard and decided on 10 May and prohibited industrial action that had been planned for 11 May.  I’m reporting it today (13 May) as it takes time for cases to be uploaded and become available.  It follows that today the matter and its effect has largely come and gone save that the orders prohibiting this particular form of industrial action remain in place until 30 June. 

I report the matter, even though the proposed date has passed, on the assumption that it will be of interest to NSW Paramedics, and members of the HSU in particular, to see how the matter was resolved and why the Commission made the orders that it did.

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

Professional indemnity insurance – paramedic taking tour group overseas

Today’s correspondent is a paramedic

… working for Ambulance Victoria.  I’ve been offered a spot as a medic for a group of 20 x 17yo … to do the Kokoda track. Unpaid venture but all expenses sponsored…

Would you have any ideas about professional indemnity insurance in such instances?

I have insurance for my role at AV but doubt that would cover an overseas venture.

Organizer has public indemnity insurance … but unsure of that covers any of my interventions whilst in PNG.

The answer is in the Health Practitioner Regulation National Law (Vic) and the Paramedicine Board’s Professional indemnity insurance arrangements registration standard.

The Health Practitioner Regulation National Law s 129says:

A registered health practitioner must not practise the health profession in which the practitioner is registered unless appropriate professional indemnity insurance arrangements are in force in relation to the practitioner’s practice of the profession.

Section 5 says:

“appropriate professional indemnity insurance arrangements”, in relation to a registered health practitioner, means professional indemnity insurance arrangements that comply with an approved registration standard for the health profession in which the practitioner is registered.

One could argue that if the patients and the paramedic are all in PNG the paramedic is not practicing their profession in Australia but I do not think anyone would take that argument seriously. The paramedic is there because they are an Australian registered paramedic, to treat people from Australia and if he or she fails to engage in appropriate practice it will be the Australian authorities that will review his or her fitness to practice and the quality of the care provided.  Even if there was an allegation of negligence it would be the Australian courts that would judge the matter based on Australian standards as that is what the paramedic was there to practice. It would be different if the paramedic resided in PNG and met the adventurers there, but that is not the case here. There would be sufficient connection to Australia to vest the Australian (and the Victorian) courts in particular with jurisdiction to resolve any legal issue arising between the paramedic and the Victorian students.

I think therefore the paramedic has to have PII that meets the Paramedicine Board’s requirements. The say (at [2]):

Your PII [Professional Indemnity Insurance] cover must include:

a. civil liability cover

b. appropriate retroactive cover for otherwise uncovered matters arising from prior practice,

and

c. automatic reinstatement, or an equivalent approach which ensures that the amount of cover will not be exhausted by a single claim.

or

the equivalent of 2a to 2c above under third-party PII arrangements.

A document – Frequently asked questions – Professional indemnity insurance arrangements (also published by the Paramedicine Board) says:

Does my employer have the PII I need?

If you are employed, and you only work for an employer(s), your employer(s) is likely to have arrangements that will provide appropriate cover for your practice and the risks involved in your work. An employer’s PII arrangements may only provide cover for activities you carry out as part of your duties during your employment. The arrangements may vary between different employers, so if you are not sure about what is covered by your employer’s PII arrangements, you should always check with your employer.

It is almost certain that AV provides the relevant insurance but only when working for AV.  It is also almost certain that the tour operator’s ‘public indemnity insurance’ would not meet the PII Standard. It follows that the paramedic concerned would want to make sure they have their own PII.

There are providers of PII but I do not that:

  1. The Australasian College of Paramedicine (ACP) ‘has established a relationship with Guild Insurance to provide insurance options for members that keep pace with the changing needs of the paramedic profession’ – see https://paramedics.org/insurance; and
  2. The Australian Paramedics Association (APA) includes PII as one of its member benefits – https://www.apansw.com.au/member-benefits/

I note that both the ACP and the APA are sponsors of this blog which explains how I know they both offer PII but this is not an endorsement of either policy. My correspondent would need to read the terms of any insurance to determine if either of those policies would be suitable and would apply when travelling in PNG. 

Conclusion

Professional indemnity insurance is a mandatory professional requirement. It is unlikely that insurance provided by AV would apply when not working for AV and it is unlikely that the organisers insurance would meet the requirements of the Professional indemnity insurance arrangements registration standard. If that is correct my correspondent should make their own inquiries with organisations like the ACP or APA or an insurance broker to obtain appropriate PII insurance.

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

‘Reasonable overtime’ at Ambulance Victoria

Today’s question relates to working overtime for Ambulance Victoria (AV).  The question below is heavily edited to reduce the length but get to what I understand is the gist of the issue.

My correspondent works in ambulance communication.  The comms team is turn between the need to respond ambulances and the need to assist on road paramedics to finish on time. The Ambulance Victoria Enterprise Agreement 2020 provides that crews are required to work ‘reasonable overtime’ but I’m told there is no policy directive from AV as to how this is to be managed.  I’m told that road crews are worried about their careers if they refuse overtime, and comms members are worried about their careers if they take staff ‘off line’ before the end of the shift so that they can finish on time, particularly when they have asked to finish on-time to meet family commitments.

In a nutshell, the communications group are worried about being dragged through the wringer for failing to follow the EA, the crews have had enough with the service for not following the EA and the Union is perpetually fighting the service for not following the EA.

The VAU’s recommendation is that an AV employee contacts the Regional Manager under 45.1(d) relevant manager (NOT a comms person) and requests on time to finish due to personal circumstances as early as practicable, as outlined in the above screen shot. The Regional management team have pushed back and said that this is a resourcing decision and should be left for the communications team to facilitate. It has been pushed up from every angle, H&S, Union, through the comms group, through the roadies and the response from AV is just a holding pattern of ‘awaiting legal advice’ and ‘statistics’ i.e. how would this affect the service’s ability to respond to core business 

I’m asked: do I have ‘knowledge of any case law where ‘unreasonable overtime’ was discussed in the setting of emergency services?’

The short answer is ‘no’ I do not have ‘knowledge of any case law where ‘unreasonable overtime’ was discussed in the setting of emergency services’ and a search on Austlii (“reasonable overtime” near (ambulance or “fire brigade”)) has failed to find any such case.

If I look at the Enterprise Agreement, it says:

45.1 Requirement to work reasonable overtime

(a) Subject to clause 45.1(b), the Employer may require an employee to work reasonable overtime (including incidental and full shift overtime) at applicable overtime rates of pay.

(b) An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable.

(c) In determining whether the requirement to work overtime hours is unreasonable for the purposes of 45.1(b), the following must be taken into account by the employee and the Employer:

(i) any risk to the employee’s health and safety from working the overtime including previous overtime worked;

(ii) the employee’s personal circumstances including any family responsibilities;

(iii) the needs of the workplace or enterprise including the Employer’s primary function to provide pre-hospital care and transport in an emergency setting;

(iv) the notice (if any) given by the Employer of the overtime;

(v) the notice given by the employee of his or her intention to refuse to work any required overtime;

(vi) the usual patterns of work in the industry, or the part of an industry, in which the employee works;

(vii) the nature of the employee’s role, and the employee’s level of responsibility;

(viii) whether the additional hours are in accordance with averaging terms included in this Agreement; and

(ix) any other relevant matter.

(d) Notice given in accordance with clause 45.1(c)(v) should be given to the relevant manager and occur as soon as reasonably practicable and where applicable, prior to or at the commencement of the employee’s rostered shift.

(e) Subject to clause 45.1(f), where an employee considers a requirement to work overtime hours may be unreasonable, the employee must as soon as reasonably practicable, advise the Employer why the employee regards the additional hours as unreasonable and whether they intend to work the overtime.  The discussion must take into account the circumstances set out in clause subclause 45.1(c).

(f) The discussion in clause 45.1(e) must not delay the employee responding to a code one or priority zero case.

(g) Where an employee is required to work reasonable overtime, the Employer will then consider potential options to reduce the overtime hours or mitigate the impact of the overtime on the employee’s personal circumstances such as family responsibilities, including the dispatch of a back-up resource to the case.

What the EB says, as I read it, is that the call is with the ‘relevant manager’ and the on-road paramedic. If the paramedic contacts the relevant manager and says ‘I’m not doing this overtime’ and the relevant manager agrees then it’s the relevant manager who needs to let comms know that the paramedic is not required to attend. And the EB says it is not for the paramedic to tells the comms team that he or she is not going to work the overtime, he or she has to contact the relevant manager, but not if that would delay a ‘code one or priority zero case’. There really is not an option to refuse to respond to that case even at the end of the shift.

A paramedic who needs to finish on time needs to let their ‘relevant manager’ (not the comms team) know that they will not work overtime as soon as possible and ideally at the start of their shift or even before their shift starts – eg if they know they have a commitment later in the week let the manager know as soon as they know.

If the comms team allocate the job, the paramedic can then decide whether they will work that overtime. If they think it is unreasonable they need to call their regional manager and tell them why it is unreasonable and that will include “I told you yesterday I had to finish on time today because of …”

If the manager thinks the request is ‘reasonable’ in all the circumstances, and the paramedic does not, then either the paramedic works the overtime, or they refuse to work it.  Either way, if it were me, I’d be contacting the union and asking them to raise the matter as an industrial dispute.  If the paramedic works, the overtime they want dispute resolution to confirm that it was unreasonable and get directions to assist AV not to make unreasonable requests. And if they refuse to work the overtime they want a resolution saying that decision was justified and not a breach of any employment conditions.  Either way it would suit both AV and the staff to get some direction.

The problem is that the resolution of what is ‘reasonable’ depends on the circumstances of each case. The paramedic who has worked 3- or 4-hours overtime for the last three shifts has a different case to the one who is on their first shift after several days off.  The paramedic who says ‘it’s not reasonable to ask me to respond to a person with a twisted ankle’ is in a different position to a paramedic who wants to refuse to attend a report of a person shot.  Any direction, even from an industrial tribunal, is always going to be general in nature and say that the sort of things to be considered are the things listed in cl 45.

One can certainly see that everyone would benefit from some policy direction on the allocation of tasks in the final 30 or 60 minutes of a shift and what jobs should be held over and what ones must not be delayed and a procedure to facilitate clear communication, but absent that the EA says that the issue is a matter for the ‘relevant manager’ and the paramedic involved.

Conclusion

I agree with the Union’s interpretation that

… an AV employee contacts the Regional Manager under 45.1(d) relevant manager (NOT a comms person) and requests on time to finish due to personal circumstances as early as practicable, as outlined in the above screen shot.

The Regional management team may have ‘pushed back and said that this is a resourcing decision and should be left for the communications team to facilitate’ but that is not what the EA says.  I’m a believer that you “should say what you mean; and mean what you say”. The EA says it’s up to the ‘relevant manager’ and the paramedic involved so that is what should happen. 

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 Police not liable for plaintiff’s drug induced injuries

In Hannam v State of New South Wales (No 9) [2022] NSWSC 648, the plaintiff sued police for assault, battery and negligence.  The plaintiff had consumed ‘several’ schooners of beer during a long session that began around midday and ended with his fall from a fourth floor apartment around midnight. 

After drinking at hotel the plaintiff and a number of other people went to a friend’s apartment.   Some of those people reported taking MDMA; ‘The plaintiff asked whether he could have some too. They agreed.’ ([20]).  At [23] Adamson J said:

As soon as the plaintiff snorted the powder, he felt that people were laughing at him. The drug made him feel “angry”, “not right”, “wrong”, “uncomfortable” and “off”. He recalled saying to “no one in particular”, “I didn’t sign up for this.” He felt that he had been given “something else” which was not MDMA and that he had been “stitched up”. Whatever he took on this occasion made him “angrier than [he] had ever felt before”. MDMA had not previously made him angry. The plaintiff agreed that, before he snorted the drug, he had no way of knowing what it was.

The plaintiff had no recollection of events after that but the evidence was that he ended up on the balcony of the apartment.  Other people at the party were concerned and rang triple zero asking for police and ambulance assistance.

The Triple-0 call lasted for a total of about nine minutes. Ms Glynn told the operator that about 10 people at the residence were “massively concerned” and “really worried” about the plaintiff because he “completely intention[ally]” had some drugs (MDMA) and was threatening to throw himself off the balcony. Ms Glynn told the operator that the plaintiff was “semi-violent” in the sense of being “just not there”, that he was “completely off the planet” and “being a fucking weirdo”. She also told the operator that friends were out on the balcony trying to pacify him “but we’re not trusting this anymore”. Ms Glynn told the operator that he had been “forced into a mental institution”, that he has “issues”. She described the plaintiff as a “big boy” who weighed about 110kg, and who could be expected to become agitated when the ambulance came. She also told the operator that the plaintiff would be “antagonistic”.

A least eight police officers attended the scene. Six officers ended up on the balcony, two were trying to talk to Mr Hannam whilst the other four tried to take up positions to stop him jumping off the balcony. One of the police, Probationary Constable Herold, was armed with a Taser.  At [57]-[61]:

The plaintiff, who was “very angry” and “very abrupt” and “waving his arms”, picked up the picnic table and either slammed it down or let it bounce back down, which caused a loud noise. Probationary Constable Herold recalled the plaintiff clenching his fists and pacing around. The plaintiff took hold of at least one of the planks in the table top and dislodged it from the table. Constable Goulding, who was then about 4 or 5m away from the plaintiff, was impressed by the plaintiff’s strength. …

At about that time, the plaintiff turned 90 degrees to his right … which meant that he had his back to Probationary Constable Herold. Probationary Constable Herold was concerned that this movement indicated that the plaintiff was preparing to jump over the balcony railing…

Constable Goulding heard the plaintiff say “fuck this” and saw him put one foot on the seat of the table on the side closest to Young Street. At this time Constable O’Brien said words to the effect, “Go in, get him, get him”.

Probationary Constable Herold had, in any event, decided to activate the taser because he was worried that the plaintiff was about to jump. He moved the safety switch from the “down” position (where it is in safe mode) to the “up” position (the armed position), pointed the red dot just above the plaintiff’s waistline at his back and squeezed the trigger to discharge the probes in an attempt to stop the plaintiff from leaping over the balcony by immobilising him… When he pulled the trigger, nothing happened. He knew immediately that the taser had not operated properly.

When Constable Goulding realised that the taser had not operated correctly, he charged at the plaintiff to try to stop him from going over the balcony railing by grabbing him but the plaintiff “dove” over the balcony railing. While the plaintiff was diving the taser actually went off “properly”. I accept the truth of what Constable Goulding said in a recorded interview the following day: “he’s just rolled over basically head first over the balcony” and “he’s just sort of leapt head first as if he’s diving into a swimming pool basically without his arms”. At that time, he was aware that the prongs of the taser flew straight past him. He considered that the prong of the taser actually hit the plaintiff as he was already going over the balcony railing. I accept his evidence:

“He was already falling when the taser actually fired.”

The entire event on the balcony took not more than 2 minutes ([79]). The plaintiff suffered severe injuries and is now confined to a wheelchair ([190]-[193]; [197]). In an action against NSW police the plaintiff alleged (at [2]) that

  • The presence of the police on the balcony was an assault in that it put him in fear of physical contact;
  • The use of the Taser was a battery; and
  • In any event the police were negligent in their response in part by having so many police on the balcony inflamed the situation.

Adamson J rejected all those claims entering a verdict in favour of the defendant (ie in favour of the state of NSW). 

The alleged assault

The allegation of assault was not made out as there was no evidence that the plaintiff’s behaviour, including his action in jumping off the balcony was ‘a result of fear or apprehension of police or as a result of the taser’ ([142]).

The alleged battery

It was agreed that shooting someone with a Taser, even if it misfired and only one probe hit the victim, would constitute a battery unless the defendant (ie the police) had a lawful justification or excuse for their conduct. Adamson J said the use of force was lawful on several grounds.

First (at [146])he pointed to the Police Act 1990 (NSW) s 6, which provides that it is the function of NSW Police to protect ‘persons from injury or death … whether arising from criminal acts or in any other way’.  The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) s 230 provided:

It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.

At [148] the judge considered the Mental Health Act 2002 (NSW) s 22 and the power of police to ‘apprehend’ a person who ‘appears to be mentally ill or mentally disturbed’. The Mental Health Act 2002 (NSW) s 81 provides that a police officer authorised to take a person to a mental health facility (as the police were by virtue of s 22) could ‘use reasonable force’.

Finally the Crimes Act 1900 (NSW) s 574B provides:

It shall be lawful for a person to use such force as may reasonably be necessary to prevent the suicide of another person or any act which the person believes on reasonable grounds would, if committed, result in that suicide.”

His Honour found each of those sections justified the use of the Taser and therefore the use of force was lawful.

Other statutory defences

There were several other defences also available to the police. First ([160]) the Civil Liability Act 2002 (NSW) s 48 provides that a plaintiff is not to receive compensation if they were intoxicated, unless the court is satisfied that the injury would have occurred even if they were not intoxicated.  In this case the plaintiff had consumed ‘several’ schooners of beer and an unidentified drug.  At [162]-[163] His Honour said:

… as soon as the plaintiff inhaled the drug, his thinking became disordered and he was unable to appreciate where he was or how he was interacting with others. It made those around him both scared for their own safety and very concerned for his welfare. He threatened to jump off the balcony before the police arrived and was in a position where that was a possibility.

I am satisfied that, but for the intoxication caused by his ingestion of the drug, he would not have experienced significant thought disorder, would not have gone out onto the balcony and threatened to jump (before police arrived) and would not have gone over the railing…

His injuries were due to his self-induced intoxication and that defeated any claim for damages.

The court found that police had made out a defence based on the common-law of self defence ([168]).

The Civil Liability Act also provides that people should not be compensated for injuries arising from their own criminal conduct (s 54). The self-administration or prohibited drugs was a criminal act and was the effective cause of Mr Hannam’s injuries.

The alleged negligence

The court found, and the plaintiff accepted (at [174]), that prior High Court Authority, (including Stuart v Kirkland-Veenstra (2009) 237 CLR 215 discussed in multiple posts in this blog) established that the police did not owe a duty of care to the plaintiff and so the action in negligence could not succeed.  The plaintiff’s lawyers did not ‘abandon’ their case reserving the option of an appeal to see if they can persuade the High Court to make a new ruling, but accepting that Anderson J could not find that there had been negligence.

His Honour therefore still had to consider the other elements of negligence so that if the High Court does make a new ruling on the issue of duty, a further trial is not required. On the issue of causation (ie assuming there had been negligence) Anderson J said (at [182]):

… the plaintiff fails on causation. He has not established, on the balance of probabilities, that anything the police would, or could, have done differently in the few minutes when they were present would have produced a different result.

Even if that were not true there were other defences in particular:

  • The defendant was engaged in a dangerous recreational activity (ie taking drugs). He had observed that the others who provided the drugs had become aggressive and irrational, so he voluntarily accepted the risks to his behaviour (Civil Liability Act 2002 (NSW) s 5L);
  • If required to proportion responsibility (s 5R; at [185]) ‘… the plaintiff (as compared with the police) [was] … wholly responsible for what occurred. He failed to take precautions for his own safety in a marked and extraordinary way. A 100% deduction [for contributory negligence] is appropriate’.

Mr Hannan’s case was dismissed with an order for costs.

The issue of costs

The case returned to court as Hannam v State of New South Wales (No 11) [2023] NSWSC 472 (5 May 2023) for orders as to costs.  The normal rule is that the loser of a case must pay the winner’s costs assessed on a ‘party-party’ basis. Without trying to explain what that means the effect is that the loser pays maybe ½ of the actual costs incurred by the winner.

A court can order costs on an indemnity basis which means the loser must pay 100% of the winner’s costs.  That order may be made where the defendant made an offer which the plaintiff rejected but which, if accepted, would have been a better outcome than the ultimate verdict.

In this case the defendant (ie the State of NSW) wanted an indemnity costs order and they wanted the plaintiff’s lawyers to be personally liable for the costs for running a case that was doomed from the start and no doubt because there is no chance the plaintiff will have the money to meet the costs order.

The court ordered that the plaintiff pay party-party costs up until 2 September 2021 and thereafter pay costs on an indemnity basis. The costs were assessed at $600,000.

The application for a costs order against the plaintiff’s lawyers 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

Responding third parties to 000 ambulance calls

Today’s question relates to the use of third parties – fire brigades or good Samaritan volunteers – to respond to triple zero ambulance calls.  I am told:

This came up from a thread on twitter where there was a discussion around which ambulance services will send other agencies as first responders to emergency calls, particularly to cardiac arrest calls. This then extended my thinking to ambulance services using apps like GoodSAM to send members of the public to a cardiac arrest prior to ambulance arrival. Obviously in terms of getting hands on a chest to do chest compressions and ideally a defibrillator attached to the patient before an ambulance responder can arrive this is excellent, but there’s a few issues that come to mind I’d be interested in your thoughts on.

1. Consent of patients/families.

Presumably by calling 000 and asking for an ambulance to attend are providing consent for the ambulance service to enter their home and provide care to their family member. Does this extend to other responders the ambulance service may send? Could a member of the fire brigade, or a member of the public who receives a notification using the app, be trespassing by going into someone’s home to render assistance?

2. “Good Samaritan” provisions

If a member of the public responds to something having received a notification using the app, are they covered by the same protection if something goes wrong as they would be if they rendered assistance to someone who collapsed in the street? The difference being they’ve been “sent” by the ambulance service as opposed to coming across an emergency while going about their day?

3. Injuries to first responders

If a first responder was to be injured while attempting to render assistance, either physically or psychologically; would the ambulance service be liable for that injury in the same way as they would be for one of their paramedics seeing as they were “sent” by the service?

There’s probably other issues I haven’t thought of yet either. It’s a great idea and the services that do it seem to be having good result with stories like this: https://www.ambulance.vic.gov.au/team-effort-saves-life-of-teen-basketballer/ – these were just the questions in the back of my mind reading them that I’d be interested in your thoughts on.

I’ll deal with each question in turn.

1. Consent of patients/families.

Calling triple zero and asking for an ambulance to attend may be an implied consent to enter but it can be withdrawn.  People can refuse to let the paramedics in if that is what they want to. Paramedics, or police, would then need to find legal authority to enter if they believed there was someone at risk in the home (see The doctrine of necessity – Explained (January 31, 2017) and the discussion under the heading ‘Tort’).

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

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

A fire brigade may also have statutory authority to enter (see for example QFES forcing entry before QAS arrival (November 10, 2022)).  

A person responding to a good sam app call (see Crowd sourcing first aid (August 12, 2014)) would want to be very sure that their attendance was required and that they could safely enter the premises before going in.  Certainly, in the face of objection – ie someone saying ‘no you cannot come in’ they would be wise to not force the point.

But, any responder who has been given notification of an emergency will commit no trespass if they believe:

… in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm (Dehn v Attorney General [1988] 2 NZLR 564, 580 (Tipping J)).

2. “Good Samaritan” provisions

A member of the public who signs up to the Good Sam app or equivalent is not therefore duty bound to attend (see Crowd sourcing first aid (August 12, 2014)).  They remain a ‘good Samaritan’.  To use the NSW definition (Civil Liability Act 2002 (NSW) s 56) they remain a ‘person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured’.

The responder has not been sent by the ambulance service in the way, for example an SES or RFS community first responder is despatched. Rather they are notified of the emergency but it is up to them whether they respond or not.  That is no different than being in a shop and someone saying, ‘help’.  The fact that the ‘someone’, in the case of the Good Sam app, is the ambulance service does not change the responder’s options to go, or not go.

3. Injuries to first responders

No, the responder is not an employee so the ambulance service would not be ‘liable for that injury in the same way as they would be for one of their paramedics’ because employed paramedics are entitled to Workers Compensation.  In NSW a person may be able to argue that they are entitled to compensation under the Workers Compensation (Bush fire, Emergency and Rescue Services) Act 1987 (NSW) if he or she can convince i-care that they are ’ a person who, in the opinion of the Self Insurance Corporation having regard to all the circumstances, should be deemed to be an emergency service worker …’ (s 23). 

Also in NSW a person who ‘(without remuneration or reward) voluntarily and without obligation engages in any ambulance work with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation…’ is deemed to be an employee of NSW Health and entitled to workers compensation (Workplace Injury Management And Workers Compensation Act 1998 (NSW) Sch 1 cl 16).  A good Sam app volunteer may be able to argue this applies to them as they are working in ‘cooperation’ with NSW Health. Deemed employment by NSW Ambulance was discussed in the post Refusing to take ‘no’ for an answer to the question: ‘Are St John (NSW) volunteers deemed employees of NSW Ambulance?’ (March 27, 2020). A St John volunteer on duty is called to assist directly, not by NSW Ambulance. This is different to a good Sam App volunteer so the person who responds to a good Sam call would have a stronger case even though they are not an appointed honorary ambulance officer (Health Services Act 1997 (NSW) s 67H).

Whether any other state ambulance service would be obligated to compensate a good Samaritan volunteer would depend on any agreement that was entered into when the person ‘signed up’, legislation relating to volunteer ambulance officers and whether they would fall within that definition, or whether there was negligence by the ambulance service. Negligence could arise for example if the call was to a house that was flagged on the ambulance CAD as being dangerous and where paramedics were asked to wait for police but that information was not passed to the volunteer.

Everything does depend on context, but as a general principle no the ambulance service would not be ‘liable any injury in the same way as they would be if an employee was injured.

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

NSW Ambulance fined for breach of Work Health and Safety legislation

In early April 2023 it was reported that NSW Ambulance had entered a plea of guilty to an alleged breach of the Work Health and Safety Act 2011 (NSW) following the suicide of a paramedic – see:

In Mr Thomson’s report we are told ‘Judge Wendy Strathdee reserved her judgment on the penalty to a future date…’ Her honour has now delivered judgment in the matter of SafeWork NSW v Crown in the Right of New South Wales in respect of the Ambulance Service of NSW [2023] NSWDC 134 (2 May 2023).

The outcome

The outcome is that the Ambulance Service was fined $187,500 of which 50% ($93,750) is to be paid to SafeWork NSW and the other 50% will go to the state’s consolidated revenue. The Ambulance Service was also ordered to pay the prosecutors costs.

The reasons

The case arose after the discovery on 9 April 2018 that vials of Fentanyl at the Belmont Ambulance station had been tampered with ([19]).  This led to internal investigations that revealed a total of 44 vials had been tampered with across the Hunter Zone and New England Zone [33].  The matter was referred to SafeWork NSW on 11 April 2018.

Following the SafeWork investigation, the Ambulance Service was charged over its failure to comply with its own policies with respect to the safe handling and audit of restricted (schedule 8) drugs ([86]-[91]).

The breaches exposed paramedics, and others, to a risk to their health and safety as it allowed paramedics to misappropriate drugs for their own use and that in turn could impair their ability to provide clinical care to patients and to safely drive an ambulance ([97]).  To be guilty of an offence under the WHS Act it is not sufficient to show that there was a risk to health and safety. It must also be shown that there were steps that could and should have been reasonably taken to mitigate the risk.  SafeWork NSW (at [99]) alleged that the Ambulance Service

… failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate or, alternatively minimise, if it was not reasonably practicable to eliminate, the Risk:

(a) Ensuring that whenever a paramedic was working as part of a dual crew, the removal from the safe, return to the safe, and the disposal of Restricted Medications was witnessed by another paramedic and the witnessing recorded on the Restricted Medications Register;

(b) Conducting unannounced independent station audits to assess compliance with Restricted Medications policies (including policies relating to storage; maintenance of registers (including witness signatures), stock checks and integrity checks) to be conducted by an independent clinician and implementing an escalation process for corrective action;

(c) Conducting regular audits of patterns of use of Restricted Medications as recorded in the eMR by paramedics to create trend reports so as to identify any atypical use which may suggest possible misappropriation and implementing an a policy to respond to and identified atypical use including by requiring notification to and consultation with the immediate supervisors of any paramedic identified as involved in such atypical use;

(d) Creating regular trend reports on reported incidents involving Restricted Medications in the NSW Health Incident Information Management System to identify potential risks associated with the use of such Medication and reviewing these trend reports to identify potential misappropriation;

(e) Providing every managerial staff member with line management duty for paramedics, specific training as to the contents of the MMOP [ASNSW Medications Management Operating Procedure PRO2016 dated 12 January 2017] and MMPD [ASNSW Medication Management Policy Directive PD2016-018 dated 12 January 2017].’

The charge against the Ambulance Service was laid under s 33 of the WHS Act.  That section says:

A person commits a Category 3 offence if—

(a) the person has a health and safety duty, and

(b) the person fails to comply with that duty.

More serious offences under ss 31 and 32 require proof that the defendant’s conduct ‘exposes an individual to a risk of death or serious injury or illness’.  That was not the allegation here (see [104]).

At [105]-[110] Her Honour set out the difficulties facing the defendant. She said:

The offending in the present case is in a unique category. The risk is a risk of misappropriation for consumption of restricted medications. Such misappropriation and consumption is a crime: Poisons and Therapeutic Goods Act 1996 (NSW); Drug (Misuse and Trafficking) Act 1985 (NSW). The reasonable practicability of any measures to address this risk must therefore be analysed in a context where the fact of criminal sanction (and consequential permanent loss of employment as a paramedic) has been an insufficient deterrent for the worker’s behaviour.

Accordingly, the measures in this case are not to prevent an employee suffering injury as a result of the employee’s own negligence, inadvertence or carelessness, but rather taking precautions to prevent a worker’s intentional criminal conduct. Such conduct is committed by trained paramedical professionals who understand the dangers associated with the misuse of restricted medications including Fentynal [sic].

Because it involves intentional criminal conduct, the risk is also one that has to be managed in circumstances where the worker can be expected to be taking care to conceal such offending from their employer, often using sophisticated means to do so.

To some extent, one wonders what else the defendant could do? During the breach period the defendant had in place extensive steps, programs and policies designed to ensure that the Restricted Medications were not used illicitly. The breach of the WHS Act can be summarised here, in my view, as a failure to take adequate steps to prevent knowingly unlawful conduct.

The defendant also confronts a difficulty in that the risk cannot be eliminated. To the contrary, it is imperative that the workers in this case (trained medical professionals with professional obligations) need to have ready access to restricted medications, including Fentynal [sic], for the purpose of discharging their important public safety functions. Any measure aimed to reduce a risk to a worker cannot come at a cost of an increased risk to a patient or the community.

I accept that the context of the present offending therefore, can be readily distinguished, for example, from the types of measures that might be considered to be reasonably practicable to prevent a construction or manufacturing worker from wilfully or carelessly misusing a piece of equipment on the one hand, and from preventing a medical professional from having ready access to lifesaving medical equipment on the other.

In short it is impossible to eliminate the risk of misuse where it is important that paramedics have access to restricted drugs ([116]). But (at [124]) the risk of substance abuse by paramedics was known and had been the subject of reports and in particular a report by the Victorian Independent Broad-Based Anti-Corruption Commission (the ‘Operation Tone Report’). The Ambulance Service had in place relevant ‘policies, directives and operating procedures’ with respect to the management of s 8 drugs but it did not sufficiently take steps to ensure that these were complied with.

Her Honour found that the offending was ‘objectively serious’.  It was not inadvertence or sudden mistake. ‘The seriousness of the foreseeable harm to a worker was known. However as conceded by the prosecutor, ASNSW had measures in place to mitigate the risk, prior to the breach period’ ([128]).

The penalty did not need to have the same strong general deterrence effect (ie a warning to others not to commit the same offence) as other WHS prosecutions because of the unique position of the Ambulance Service. At [137] Her Honour said ‘The breach that the ASNSW has entered a plea of guilty to is of such a unique failure and involves only one employer to whom the message needs to be enforced, cannot be compared to the message that needs to create general deterrence to a group of employers such as the building industry.’

As for specific deterrence, ie the need to deter the ASNSW from further offending, Her Honour said (at [140]):

… I find that the need for specific deterrence is reduced by the fact that the ASNSW has no prior criminal history and by the extensive ameliorative measures that have been taken to date. Such steps also give me confidence that the ASNSW has very good prospects of rehabilitation.

Having taken all those factors into account Her Honour determined (at [146]) the appropriate penalty was a fine of $250,000 (being ½ of the maximum available fine) further discounted by 25% to reflect the ASNSW guilty plea (Crimes (Sentencing Procedure) Act 1989 (NSW) s 25D).

Discussion

In the judgment it is noted that Paramedic Tony Jenkins was suspected of misusing Fentanyl  and he made admissions to that effect ([31]).  The media reports, but not the judgement, tell us that after the meeting Paramedic Jenkins took his own life.  The Sydney Morning Herald Reports, inter alia that

Easter Sunday marks five years since Tony Jenkins was pulled into a meeting with NSW Ambulance and accused of misusing the highly potent synthetic opioid Fentanyl . He was allowed to leave the meeting alone, hours before his shift was supposed to end, and died by suicide a short time later.

On Tuesday, NSW Ambulance pleaded guilty in Sydney District Court to a criminal breach of section 19 of the Work Health and Safety Act, admitting it had failed in its duty of care to the paramedic of 28 years by failing to properly oversee the handling of restricted drugs, including Fentanyl .

And later:

Jenkins’ nephew Shayne Connell, who is also the chief executive of suicide prevention organisation LivingWorks, told the Herald on Tuesday it was “pretty significant” that a NSW government agency had pleaded guilty in a court case.

“Tony asked for help the day that he died. He was clearly in need of support … and that help wasn’t forthcoming,” he said.

Readers of this blog may be surprised to realise that the judgement did not discuss Paramedic Jenkin’s suicide at all. The allegation was not that the Service caused or contributed to Mr Jenkin’s decision to take his own life or that the ASNSW failed to provide adequate support to paramedics who were so affected by their employment that they had developed a drug habit. There was no discussion about the conduct of the meeting with Mr Jenkins on 9 April 2018 or whether he should have been allowed to leave on his own.  These matters were not part of the allegations against the ASNSW.

The allegations were that ASNSW failed to properly implement its own policies to identify whether drugs were being misused and by whom.  This created a risk not just to paramedic Jenkins but to all staff and their patients.  The ASNSW was not prosecuted because of a specific risk to, or the suicide of, Mr Jenkins.

As her honour noted the allegation under s 33 of the WHS does not require proof of ‘a risk of death or serious injury or illness’ and to make any finding to that effect would have been an error on her part ([104]) as she could not sentence the defendant for matters that were not part of the allegation against them (relying on the decision in The Queen v De Simoni (1981) 147 CLR 383).  The fact of Mr Jenkin’s death, and how Mr Jenkins was dealt with after he made admissions of drug use, were not relevant in these proceedings. In short this was not a case ‘relating to the suicide of an employee’, it was a case relating to the management of restricted drugs in the workplace where it was necessary to allow staff to access those very drugs in order to perform their duties.

Conclusion

The ASNSW has entered a plea of guilty to allegations relating to the management of restricted drugs.  It was not charged with any alleged failure to properly support Paramedic Jenkins who later took his own life. The issue was not the risk to him but to all paramedics and their patients. The effect of the fine is that a sum is taken from the ASNSW budget, half is given to fund another NSW department – SafeWork NSW – and the other half is returned to the government which can use it to fund government services, such as the Ambulance Service.

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

Sharing first aid patient care records

Today’s correspondent asks about access to medical records where:

… St John Ambulance (or any private EMS organisation) provides medical services to a venue. The venue wants access to the patient record. What are the legalities around this?

It is quite possible a staff member is treated and discloses quite personal medical information (mental health / HIV) in the course of being treated for an injury e.g. trip.

Can we share records? What are the limitations/considerations?

The critical question is ‘who owns the records?’

The Courts on ownership of medical records

The starting point is the High Court of Australia’s decision in Breen v Williams [1996] HCA 57. In that case the plaintiff, Ms Breen claimed a right to access ‘her’ medical records, that is the records kept by the medical practice regarding her ongoing care. Brennan CJ said (at [11] of his judgment) “Documents prepared by a professional person to assist the professional to perform his or her professional duties are not the property of the lay client; they remain the property of the professional”.

Gaudron and McHugh JJ said (at [7] of their judgment)

The concession that Ms Breen did not own the documents was plainly correct. Professional persons are not ordinarily agents of their clients … Documents prepared by an agent are ordinarily the property of the principal. But documents prepared by a professional person to assist him or her to do work for a client are the property of the professional person, not the lay client.

Dawson, Toohey and Gummow JJ agreed that the practice, and not the patient owned the physical documents that constituted the medical record.

Critical in that discussion was the rule of agency. The doctor was not the patient’s agent and was not completing the documents ‘for’ the patient. That would be different if a patient brought a form in that needed to be completed by a medical practitioner and engaged the practitioner to complete the form. That record would belong to the patient, not the doctor.

Prima facie that suggests that the records are owned by the person completing them, in the context of today’s question, the first aider particularly if they are a registered health professional.  But it’s not that simple. Breen v Williams answered the question of whether the patient owned the record and the court held that she did not. The doctor, in that case, owned them because of the nature of his practice.

In Health Services for Men Pty Ltd v D’Souza [2000] NSWCA 56, Dr D’Souza practised in a health clinic. He was not an employee but a contractor.  The headnote (ie a summary rather than the actual judgment) says:

Contrary to the trial Judge’s view, the relationship between each respondent [doctor] and the appellants [Health Services for Men Pty Ltd] was a contractual one whereby the [doctors] agreed to assist [Health Services for Men Pty Ltd] to provide the diagnostic and treatment service that the appellants offered.

There was no basis upon which it could be inferred, or implied as a matter of contract, that the parties intended that the examination sheets became the property of the [doctors]. …

Mason P said (at [8], emphasis added):

The passages in Breen v Williams (1996) 186 CLR 71 recognising that a professional person may have property in certain documents prepared in the performance of professional duties address the position as between the professional and the lay patient or client. They have nothing to say about ownership as between groups of professionals (eg partners inter se or an employer and employee) or as between a corporation employing or engaging the services of professionals.

What these cases tell us is that unless there is an express contractual term where a health practitioner is asked to complete a record either for the patient, or for another organisation, then the author of the document owns the document.  In Breen v Williams Ms Williams did not contract with Dr Breen for the doctor to complete a certificate as someone might if they need a doctor’s clearance for work or travel so Dr Breen owned his own records. In Health Services for Men Pty Ltd v D’Souza, the company did contract with the doctors that they would, amongst other things, complete the company’s records as the patients were coming to the company, not the particular doctor, for treatment.

In the context of the EMS organisation one can infer that the staff and volunteers are completing the patient care records for the EMS organisation not for themselves. People attend the St John first aid post to be treated by ‘St John Ambulance’ not the particular individual on duty. It is part of the member’s duty to complete the organisations patient care record, so the record belongs to St John, not the member completing it. But that does not suggest that the record belongs to the venue or organiser that requested the first aid services.

The relationship between the EMS organisation and the venue is the issue raised by Mason P of ‘a corporation employing or engaging the services of professionals’.  In that case ownership of the medical records, and therefore access to them, would depend on the terms of the agreement and the practices adopted. 

The EMS organisation owns the records

If the EMS organisation has its own patient records that its staff complete, that are used for its purposes (eg billing, quality assurance and continuity of care) then the inference is that the patient records are owned by the EMS organisation.  As they have collected and recorded the information it is incumbent upon them to use the information in accordance with the privacy principles (Privacy Act 1988 (Cth) Schedule 1).  There are 13 principles but the most relevant one is principle 6 which says, in effect, that the information must only be used and disclosed for the purposes for which the information was obtained.  The information was obtained to allow the EMS organisation to provide care for the patient and, I would suggest, for the EMS organisation’s own purposes (see First aid patient records – who and what are they for? (January 31, 2015)). 

Information could be shared with the venue for its purposes if the patient consents to the sharing of the information or (Privacy Principle 6.2):

… the individual would reasonably expect the [EMS organisation] to use or disclose the information for the secondary purpose and the secondary purpose is:

(i) if the information is sensitive information–directly related to the primary purpose; or

(ii) if the information is not sensitive information–related to the primary purpose;

Sensitive information includes ‘health information’ that is:

(a) information or an opinion about:

(i) the health, including an illness, disability or injury, (at any time) of an individual; or

(ii) an individual’s expressed wishes about the future provision of health services to the individual; or

(iii) a health service provided, or to be provided, to an individual;…

where the person is identified or could be reasonably identified (ss 6FA definition of ‘health information’ and s 6 definition of ‘personal information’).

Therefore, the health information could be shared if a) the patient would reasonably expect it was going to be shared and b) it was directly related to the primary purpose for which the information was retained which, I would suggest, is the provision of health care.  Whether those criteria are met would depend on the particular circumstances of the event and what the EMS provider has been contracted to do.  If the EMS organisation is providing work-based health screening then those conditions may be met, but I infer that is not what is being considered.

If were considering ‘event first aid’ and it is simply by bad luck that the person seeking care is an employee of the venue rather than, say a ticket holder then the criteria above may not be met. The venue would have a legitimate interest in knowing how many people were treated and the nature of injuries or illness. Sharing deidentified statistical information is no breach of privacy. The venue may also have an interest in knowing the identify of those treated as it may want to follow up and may of course face compensation claims. Whether sharing that information is ‘directly’ related to the primary purpose for which the information was obtained or whether a patient would ‘reasonably expect’ that information to be shared would again depend on the context and in particular what the patient is told.

My own feeling is that I was an employee and went to my employer’s health service for first aid I would not expect the health service to report the details to the employer. It would be different if I knew I was going for a physical examination to check for fitness for duty or for a compensation claim, but not just for treatment.  Even if I was injured ‘at work’ it would be up to me to decide to notify my employer. If that is a reasonable expectation, I would also expect that if my employer had contracted with an EMS organisation and I got injured and needed to go to them, they too would keep confidential the ‘sensitive’ information obtained.

If there is a subsequent compensation claim, the patient care records would be available under the legal processes of ‘discovery’ or ‘subpoena’. We don’t need to consider those in detail suffice to say that the release of confidential records in response to legal process is not a breach of privacy, and the venue could access the material but only if and when it becomes necessary to do so.

The venue owns the records

But it may be that the venue owns the records. This would be the case if, for example, the venue provided the patient care record and as part of its contract with the EMS organisation it asked the EMS organisation to complete the company’s records. In that case, as in Health Services for Men Pty Ltd v D’Souza, the person completing the record is doing so as agent for the venue.  If that were the case, then they are the venue’s records and of course they can look at them.

In that case, however, Privacy Principle 3 says that information should only be collected that is necessary for the purpose of the entity collecting it. The venue has a legitimate interest in knowing how many people require care and the nature of the injuries or illness that are reported as that may raise flags about risk and that action somewhere is required. But do they have a legitimate interest in knowing all the personal details of everyone treated as they are not going to be providing any ongoing care? To answer that question, context is everything.

The solution

The solution is to think about it before hand. The EMS organisation should have a privacy policy (Privacy Principle 1) and should have considered its response to this situation. Different organisations will have different business models and different approaches so what I am about to say is out of context and is not legal advice but my own ‘preferred’ model.

If I was running an EMS organisation, I would want a policy that says:

  1. We provide the patient care record, we complete it, we store and secure it and we will only use that information for the purpose for which it was obtained and our legitimate secondary purposes (eg quality assurance, billing).
  2. Patient information will be shared with other health professionals (most usually paramedics) on a needs-to-know basis that is when handing over patient care and a copy of the record will be delivered to form part of the patient record to ensure continuity of care.
  3. A copy can be made available to a patient’s treating GP with written permission from the patient.
  4. A copy will not be made available to the venue/contractor unless required by law.
  5. The venue/contractor will be provided with de-identified statistics on patient numbers and the type of injuries/illnesses only.
  6. If the venue/contractor wants us to complete a record on their behalf, we will only do so with the consent of the patient ie we will tell the patient that this record will go to the venue. 
  7. There will be privacy policy document that can be given to any patient that explains how we will handle information.

If there is such a policy, then that could be provided to the venue/contractor so they know where they stand. If that does not suit them then the matter could be open to negotiation. If the venue wants EMS staff to complete the venue’s documentation the EMS organisation would want to consider –

  • What information are they being asked to record and is ‘the information … reasonably necessary for, or directly related to, one or more of the [venue’s] functions or activities’? (Privacy Principle 3.1).
  • Does the venue have a privacy policy that it too is willing to make available to patient’s explaining why that information is being collected and how it will be used and stored? (Privacy Principle 1).
Conclusion

A short form of the question asked is:

… St John Ambulance (or any private EMS organisation) provides medical services to a venue. The venue wants access to the patient record. Can we share records? What are the limitations/considerations?

My view (like any good lawyer’s answer) is ‘it depends’.  It depends on the contracted terms between the venue and the EMS organisation, it depends on the context so why the venue wants or needs to know, and it depends on what the patient knows or expects.

Having said that my starting point would be no, the records cannot be shared. If the venue wants the EMS organisation to share patient information that has to be negotiated as part of the agreement to provide the services to the venue. Patients should be told before the records are completed that this information will go to the venue; or their consent obtained if that was not made clear at the time.

The EMS organisation, whatever route it wants to take, should have a privacy policy that sets out what information is collected and how it is used and shared and this should be available to organisers who seek to engage their services, and to patients.

A word on the Privacy Act 1988 (Cth)

The Privacy Act 1988 is an Act of the Commonwealth parliament. There is no specific power in the Australian Constitution to give the Commonwealth the power to makes laws with respect to privacy.  As a result, the Privacy Act only applies to entities that fall within another head of Commonwealth power eg a federal government agency, a corporation etc (see Privacy Act 1988 (Cth) s 6 definitions of ‘APP entity’ and ‘agency’ and s 6C definition of ‘organisation’).

Organisations that do not fall within the definition of an APP entity are not bound by the Commonwealth Act but will be caught by state law that also implements the Privacy Principles (see for example Privacy and Personal Information Protection Act 1998 (NSW) and the Health Records and Information Privacy Act 2002 (NSW)).  Any organisation would have to determine for itself whether it is the federal or state legislation that governs its operations but, given the Privacy Principles are adopted nationally, I suggest my opinion on the issues raised would be similar, if not the same, under any state or territory privacy legislation.

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

CFA powers at an accident (not fire) scene

Today’s correspondent has a question about the Country Fire Authority’s

…  powers to order [a] person to withdraw… if they are interfering, by his or her presence or otherwise, with the operations of any brigade or group of brigades or is in or on any land, building or premises that is burning or threatened by fire… (CFA Act 1958 S30(g)).

Thinking of a relevant example, a tow truck and driver has entered a vehicle accident scene, and the CFA Incident Controller (IC) (who has been delegated the Chief Officer’s powers at this emergency) has determined that the tow truck is “interfering” with a car accident by their presence.

It’s clear if there is a risk of fire that the IC has power to remove the tow truck driver, but can the tow truck driver be ordered to remove his vehicle by the CFA IC?
Further to this, if there is no risk of fire resulting from this vehicle accident, does the CFA still have the power to order a person to withdraw from a scene?

One would hope it would never come to ‘directing’ the tow truck driver rather a simple word – to the effect of ‘would you mind moving your truck?’ – would suffice, but let us look at the law.

Victoria’s Road Crash Rescue arrangements

The State Road Crash Rescue Arrangements Victoria 2017, published by Emergency Management Victoria, say:

The State Emergency Response Plan, (EMMV Part 7) designates Victoria Police as the Control Agency for road accident in Victoria.

Victoria Police are supported by a range of agencies at a RCR incident to perform a range of functions including, patient treatment, safety and security of the scene, and the extrication.

The State Emergency Response Plan has been replaced by the State Emergency Management Plan. The current plan continues to nominate Victoria Police as the control agency for ‘accidents or incidents involving road, rail, tram, aircraft and marine (not pollution, cetaceans or wildlife) and other threats to life and property or environment (unless otherwise designated)’ (see https://www.emv.vic.gov.au/responsibilities/semp/roles-and-responsibilities/role-statements/vicpol).

Control is ‘the direction of response activities across agencies, horizontally, including the coordination and tasking of other agencies’ (Victorian State Emergency Management Plan, October 2021), p. 19).  For a ‘level 1’ incident ‘The region and/or state tiers are not activated for control: • the response is day-to-day business and the incident is managed by a control agency’s incident management team…’ (p. 18). 

The CFA may be on the scene of an accident as the Principal RCR provider or to support the RCR provider eg by providing fire protection but the CFA would not normally provide an incident controller as the police are the control agency. One would expect the IC to be a police officer whilst the CFA captain will be in command of the CFA crew and for completing the CFA task (whether that’s rescue or fire protection).

The Country Fire Authority

The Country Fire Authority Act 1958 (Vic) says that the ‘general duty’ of the CFA is ‘taking superintending and enforcing all necessary steps for the prevention and suppression of fires and for the protection of life and property in case of fire …’ (s 20). Further the CFA may ‘…provide a road accident rescue service for persons involved in road accidents by the use of brigades which have been specifically approved for that purpose …’ (s 97B).

Section 30(1) (which my correspondent has quoted) is headed ‘Powers of officers at fires’. It says:

Where the Chief Officer believes on reasonable grounds that there is danger of fire occurring or where a fire is burning or has recently been extinguished anywhere within the country area of Victoria the Chief Officer for the purpose of preventing the occurrence of a fire, of extinguishing or restricting the spread of the fire or of protecting life or property shall have and may exercise the following powers and authorities:

(g)        If a person is interfering, by his or her presence or otherwise, with the operations of any brigade or group of brigades or is in or on any land, building or premises that is burning or threatened by fire, the Chief Officer may—…

(i)         order the person to withdraw and may include in the order a direction to immediately leave any area affected by the fire by the safest and shortest route…

Section 30 is limited to fire events.  It follows that if ‘there is danger of fire occurring or … a fire is burning or has recently been extinguished’ then the CFA IC has the power to remove the tow truck and its driver; but the CFA Captain cannot rely on s 30 to direct a tow truck driver to move his or her truck in the absence of fire.  It also follows section 30 means that ‘if there is no risk of fire resulting from this vehicle accident, … the CFA’ does not have ‘the power to order a person to withdraw from a scene’.

Interfering with the CFA

There are however other sections. Section 107(1) in particular says:

A person must not, without reasonable excuse, obstruct, hinder or interfere with—

(a) the Chief Officer; or

(b) any other officer or employee of the Authority; or

(c) any officer or member of—

(i) a brigade; or

(ii) a group of brigades; or

(iii) an interstate fire brigade; or

(iv) an international fire brigade; or

(d) any other person—

who is exercising a power or performing a duty conferred or imposed by or under this Act.

Penalty:     60 penalty units…

The Emergency Management Act 1986 (Vic) s 36 says:

A person, other than a person engaging in an emergency activity, must not, without reasonable excuse, obstruct, hinder or in any way interfere with a person engaging in an emergency activity.

Penalty:     60 penalty units.

Without exploring precisely what ‘power’ or ‘duty’ the CFA is performing, if the tow truck, ‘is “interfering” with [the CFA response to] a car accident by [its] presence’ then the driver could be asked to move it and be reminded that it is an offence not to.

Conclusion

The power to ‘order [a] person to withdraw’ given by s 30(1)(g)(i) of the Country Fire Authority Act may only be exercised where ‘there is danger of fire occurring or where a fire is burning or has recently been extinguished’.  It follows that the power is not enlivened at say a road accident with no perceived risk of fire.

At a road accident the officer in charge of the CFA will be the CFA commander, but the IC will, or would be expected to, come from, Victoria Police. If a tow truck driver has parked his or her vehicle in such a way to interfere with the CFA operations they should be asked to move and if that does not work, the CFA captain should ask the police to direct the driver to move their vehicle.  If they continue to refuse, they may be guilty of an offence under either or both the CFA Act (s 107) and the Emergency Management Act 1986 s 36.  They may also be putting their licence under the Accident Towing Services Act 2007 (Vic) at risk.

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

Seatbelts and paramedic registration

Michael Eburn: Australian Emergency Law - 17 April, 2023 - 14:55

Today’s correspondent is a Victorian paramedic who has:

… a question about seat belts for your blog. 

There are already several articles about seat belts, and what the legislation says about them in emergency vehicles. But my question is around standards of care and our registration now that we’re registered healthcare professionals. 

Would placing seatbelts on a patient be considered a minimum standard of care? And is it malpractice or medical neglect if we don’t put seat belts on patients without appropriate extenuating circumstances? Could this affect our AHPRA registration? 

There are indeed many posts about seat belts – see https://australianemergencylaw.com/?s=seat+belts

The issue for paramedics is whether any conduct constitutes unsatisfactory professional performance or unprofessional conduct (both defined in the Health Practitioner Regulation National Law cl 5 (as applied in Victoria by the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic)).  Unsatisfactory professional performance is behaviour that demonstrates that:

… the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.

Unprofessional conduct is:

…  professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes— … (c)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.

It is an offence for a driver to not wear a seat belt (Road Safety Road Rules 2017 (Vic) r 264) or to fail to ensure a passenger wears a seatbelt (r 264A).  As noted in earlier posts (see for example Seat belts and passengers in emergency vehicles (May 23, 2022)) there are exemptions for people traveling in an ambulance (see r 267C).  

The question then is whether securing a seat belt, or not, represents ‘practice of the health profession’ or ‘professional conduct’.  Fitting seat belts is not a core paramedic skill but paramedics do owe a duty of care to their patients and their patient may be quite vulnerable eg a child or the unconscious. 

It’s a question where the answer would be the classis ‘it depends’.  If the paramedic consistently refused to put seat belts on all patients because they just ‘couldn’t be bothered’ and were cautioned about that by supervisors or peers, then continued failure may represent inappropriate skill or judgment in the delivery of patient care.  If, on the other hand, a paramedic did not apply a seat belt because they were too busy providing life saving care then it will be a non-issue.

I cannot imagine it is anything the Paramedicine board would see as ‘professional conduct’ at least not in most circumstances.  The best way to answer to question is to look at the definitions of unsatisfactory professional performance and unprofessional conduct and ask yourself whether you think this conduct could, and in what circumstances would, fall within either definition.

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 Paramedic suspended after participation in COVID-19 protests.

Michael Eburn: Australian Emergency Law - 14 April, 2023 - 12:11

The case of NSW Paramedic Sally-Ann John received media attention in 2021 when she posted images of herself taking part in anti-COVID lockdown or vaccination protests ((See Daily Mail https://www.dailymail.co.uk/news/article-9854987/Covid-anti-lockdown-protest-Sydney-Paramedic-Sally-Ann-John-suspended-NSW-Ambulance.html, 3 August 2021). At the time she her registration was suspended by the NSW Paramedicine Council.

In article I wrote for Response – the official journal of the Australasian College of Paramedicine – titled ‘Ways to Lose your job – Part 1’, I described this case (as well as the proceedings against John Larter) as ‘unsatisfactory’.  I said:

… there are no published reasons for her suspension on either AustLII or NSW Case Law nor is there any reference to action against her on the AHPRA web site. In the absence of any published reasons, paramedics might infer, but it is impossible to know, what Ms John did that was considered contrary to professional standards or a threat to the community that warranted her suspension.

In terms of ‘learning lessons’ this situation is problematic.  Without published reasons by either NCAT, a Committee, the Paramedicine Council, AHPRA or the Paramedicine Board, paramedics cannot identify what it is that either Mr Larter or Ms John are alleged to have done, how that breached the professional expectation of paramedics and why their conduct warranted immediate suspension. Without that, other paramedics cannot learn what is expected from them and what constitutes unprofessional conduct or a breach of the AHPRA Policy Statement. That is not a satisfactory position.

We have now seen decisions in both matters – with respect to John Larter see Paramedic John Larter’s appeal to NCAT – you lose some, you win some (February 9, 2023). On 13 April 2023 the NSW Civic and Administrative Tribunal (NCAT) delivered its reasons in the matter of Ms John – Health Care Complaints Commission v John [2023] NSWCATOD 45.

In this matter there was no determination by the Tribunal with respect to Ms John’s conduct as she admitted that her conduct constituted professional misconduct. 

The law

Paramedicine is regulated by the Health Practitioner Regulation National Law. Despite the title this is not a Commonwealth law, rather it is a national law created by the process of cooperative federalism.  Queensland, the lead jurisdiction, passed the Health Practitioner Regulation National Law Act 2009 (Qld). That Act contains, in Schedule 1, the Health Practitioner Regulation National Law. The law has then been adopted by, or copied into, the law of each Australian state and territory (Health Practitioner Regulation National Law (ACT) Act 2010 (ACT); Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW); Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT); Health Practitioner Regulation National Law (South Australia) Act 2010 (SA); Health Practitioner Regulation National Law (Tasmania) Act 2010 (Tas); Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) and Health Practitioner Regulation National Law (WA) Act 2010 (WA). The national scheme is being challenged as unconstitutional: Bay v Australian Health Practitioner Regulation Agency & Others Queensland Supreme Court file number 14178/22. It is my opinion that this challenge will not succeed, but if it does it will certainly cause a major upset in Australia’s health professions including paramedicine).  

Despite the ideal of a national scheme, there are minor variations between the jurisdictions. One of the most significant is that NSW is a co-regulatory participant which means NSW has its own discipline processes including a Paramedicine Council to exercise many functions that in other states are exercised by the Paramedicine Board (including the power to take urgent action to suspend a paramedic). NSW also has its own definitions of unsatisfactory professional conduct and professional misconduct (Health Practitioner Regulation National Law (NSW) Parts 5A and 8).  For this discussion however, the relevant defintiions in NSW are consistent with the National Law adopted across Australia.  Relevant to this discussion are the definitions of unsatisfactory professional conduct and professional misconduct. Unsatisfactory professional conduct (s 139B) includes

Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner’s profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Professional misconduct (s 139E) means:

(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration; or

(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration.

What Ms John did

The allegations (which were admitted) were on 24 July 2021 whilst NSW was subject to mandatory COVID-19 lockdowns, Ms John attended a protest rally. This was contrary to the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 (NSW) that was then in force. It was also contrary to the Public Health (COVID-19 Self-Isolation) Order (No 2) 2021 (NSW) as Ms John had been identified as a COVID-19 close contact and was required to self-isolate for 14 days from 13 July 2021.  Failure to comply with these orders was a criminal offence. Ms John was charged and entered a plea of guilty on 19 July 2022. ‘The Local Court made a 12-month conditional release order without recording a conviction’ ([13]).

Apart from attending the protest, Ms John ([9]-[11]):

… live-streamed her participation in that rally publicly on TikTok, using an account that identified her as a paramedic.

During the livestream, the Respondent made highly offensive remarks about the police who were attending the area, shared anti-vaccination sentiments, and made abusive remarks of members of the viewing public.

The Respondent had earlier made anti-vaccination statements on Facebook.

The complaints

The Health Care Complaints Commission (HCCC) made three complaints. The first was that by attending the protest, Ms John committed an offence under the Public Health Act and that (at [19])

… by reason of this conduct, the Respondent acted contrary to or demonstrated an unwillingness or inability to comply with a range of requirements in the Paramedicine Board of Australia’s Code of Conduct for Registered Health Practitioners (June 2018), specifically:

(a)   that ‘[p]ractitioners have a responsibility to protect and promote the health of individuals and the community’, including by ‘understanding the principles of public health, including health education, health promotion, disease prevention and control and screening’ and ‘participating in efforts to promote the health of the community and being aware of obligations in disease prevention’ (clauses 1.2 and 5.4);

(b)   ‘ensuring that the personal views of a practitioner do not affect the care of a patient or client adversely’ (clause 2.2(m));

(c)   ‘practising in accordance with the current and accepted evidence base of the health profession, including clinical outcomes’ (clause 2.2(n));

(d)   ‘facilitating the quality use of therapeutic products based on the best available evidence and the patient or client’s needs’ (clause 2.2(p));

(e)   that ‘practitioners must display a standard of behaviour that warrants the trust and respect of the community’ (clause 8.1); and

(f)   in relation to the practitioner’s own health, ‘being aware of the risks of self­diagnosis and self-treatment’ and ‘understanding the principles of immunisation against communicable disease’ (clause 9.2(b) and (c)).

The second complaint related to the use of social media. The particulars were (at [19]):

(iv)   Particulars 1 and 2 of this complaint relate to the Respondent’s abusive comments about police set out above. In circumstances where the Respondent’s TikTok account identified her as a paramedic and part of the Respondent’s role as a paramedic required her to work closely with police, those comments contravened the requirements in the Code of Conduct that practitioners:

(a)   engage in effective communication, and act professionally including in their relationships with colleagues (clause 1.2);

(b)   using social media appropriately (clause 3.31);

(c)   behave professionally and courteously to colleagues at all times, including when using social media (clause 4.2(c)); and

(d)   display a standard of behaviour that warrants the trust and respect of the community (clause 8.1).

(v)   Particulars 3 and 4 of Complaint Two relate to the Respondent’s negative comments about the lockdown and COVID-19 vaccine at the rally. Those comments:

(a)   contravened the requirements in clauses 1.2, 3.3(1), and 8.1 of the Code of Conduct set out above relating to appropriate communication and maintaining the trust and respect of the community;

(b)   by expressing scepticism and discouraging use of COVID-19 vaccines contrary to the accepted scientific and public health position, demonstrated an unwillingness or inability to comply with clauses 2.2(m), (n), (p) and 9.2(b) and (c) of the Code of Conduct set out above, and were inconsistent with AHPRA’s position statement on COVID-19 vaccination, which stated (among other things) that:

‘[v]accination is a crucial part of the public health response to the COVID 19 pandemic’; and

‘[a]ny promotion of anti-vaccination statements or health advice which contradicts the best available scientific evidence or seeks to actively undermine the national immunisation campaign (including via social media) is not supported by National Boards and may be in breach of the codes of conduct and subject to investigation and possible regulatory action’; and

(c)   in their language and subject matter, were inconsistent with AHPRA’s social media guidance, which (among other things) stated that ‘you must make sure that any comments you make on social media are consistent with the codes, standards and guidelines of your profession and do not contradict or counter public health campaigns or messaging including ‘to take care when commenting, sharing or “liking” … content if not supported by best available scientific evidence’.

(vi)   Particulars 5 and 6 of Complaint Two relate to the Respondent’s Facebook comments referred to above. These comments contravened or demonstrated an unwillingness or inability to comply with the same clauses in the Code of Conduct, AHPRA’s position statement on COVID-19 vaccination and AHPRA’s social media guidance as set out above.

Complaint three was that taken together Ms John’s conduct constituted unsatisfactory professional conduct that is her conduct was ‘of a sufficiently serious nature’ to justify suspension or cancellation of her registration.

As noted Ms John admitted the complaints so the Tribunal did not have to decide whether or conduct did or did not meet the thresholds for professional misconduct or unsatisfactory professional conduct.  The Tribunal’s decision was to determine the appropriate sanction for the admitted breaches.

The Health Care Complaints Commission sought to have her registration cancelled and she would not be able to apply to become registered again for 12 months. Ms John, via her lawyers, argued that a reprimand would be sufficient ([45]).

It should be noted that the Paramedicine Council had suspended Ms John’s registration so she had been unable to practice as a paramedic since 30 July 2021. She was also subject to disciplinary proceedings by NSW Ambulance that were still ongoing. Although she remained employed by NSW Ambulance she had been suspended initially with pay but then without pay and that situation continued.

As if often the case, the Tribunal found a middle ground between Ms John’s call for a reprimand and the HCCC’s call for de-registration. The Tribunal said (at [45]-[47]):

We reject the Respondent’s submission that a reprimand would be sufficient. The Respondent’s misconduct was serious. It involved a number of breaches of her obligations as a registered health practitioner. It is necessary that there be an element of both specific and general deterrence in our determination. It is also necessary that there be denunciation of her conduct.

A period of suspension as opposed to cancellation will, in our view, meet the protective objectives of the National Law.

We also accept that there have been very significant adverse consequences already endured by the Respondent as a result of her misconduct on one day in July 2021. It is clear her conduct involved an error of judgment for that isolated occasion and that the motivation for her conduct was, in part, a concern for the impact the “lockdown” was having on a family business which had already been impacted by COVID-19 spreading in the community.

The parties agreed to the conditions that would be imposed on her registration.

Interestingly the parties agreed that Ms John should ‘post to her social media accounts a public apology for the conduct that is the subject of the complaints’.  Notwithstanding that agreement the Tribunal did not make that a condition of Ms John’s registration. The Tribunal said (at [57]) ‘In our view, such a step is likely to draw comments and arguments in respect of vaccination or anti-vaccination on social media which will not be helpful or will be counter-productive.’

The effective conditions (set out in Schedule A to the judgment) were that Ms John is have a mentor appointed to assist in her practice, that she complete approved training in professional ethics and infection control, vaccination and public health and that she delete material relating to COVID-19 from her social media pages and comply with the AHPRA ‘Guideline on ‘Social media: How to meet your obligations under the National Law’ dated November 2019 (as amended or replaced from time to time)’.

Discussion

Because the allegations were admitted, there is no judicial determination of what conduct constitutes unsatisfactory professional conduct or professional misconduct nor any analysis of the line between a practitioner’s right to express personal views and their professional obligations. Wherever that line lies, Ms John admitted she had crossed it. That was a reasonable call given, amongst other things, her public recognition as a paramedic.

The decision is still helpful as the complaints have been published so other paramedics can see how the conduct was framed and how the various Codes of Conduct are applied in the practice of one’s profession.

Of particular concern to the HCCC [(32]) was her ‘public attack on the police and encouraging resistance to officers performing their duties on the day.’ In days where violence to front line emergency workers is rightly condemned, having a paramedic urge others to resist police seems particularly egregious.

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

Regulation of NEPT services

Michael Eburn: Australian Emergency Law - 10 April, 2023 - 11:41

Today’s correspondent is:

… trying to find out what regulation or act pertains to Non-Emergency Patient Transport service providers in Queensland. Most other states have something, either under an Emergencies or Health related act or regulation. I can’t seem to find one for Queensland. The only thing in my google searches show is QAS and then some non-JAS providers.

Have you seen anything regarding this?

I’m not sure ‘most’ states regulate Non-emergency patient transport (NEPT) services.  There is specific NEPT licensing schemes in:

  • South Australia – Health Care Act 2008 (SA) s 58;
  • Tasmania – Ambulance Service Act 1982 (Tas) Part IIIA (ss35A – 35P); and
  • Victoria – Non-emergency Patient Transport and First Aid Services Act 2003 (Vic).

In Queensland, New South Wales and the Australian Capital Territory there are prohibitions on providing ambulance services without permission –

There is no specific regulation of ambulance services in either Western Australia or the Northern Territory.

A Boolean search on Austlii for ((“non emergency” or “non-emergency”) near (ambulance or patient or transport)) produces no results for these states or Western Australia or the Northern Territory.  It follows that those terms are not used in any current Act or regulation in those 5 jurisdictions.

It follows that to the extent that NEPT services are regulated in jurisdictions other than South Australia, Tasmania and Victoria it is via the terms of any approval to conduct ambulance services (ACT, NSW and Qld only), the terms of any approval to carry and use drugs and in contractual terms to the extent that providers contract with government to transport patients that the government health service is responsible for.

In New South Wales (Public Health Regulation 2022); Victoria (Health Complaints Act 2016); Queensland (Health Ombudsman Regulation 2014) and South Australia (Health and Community Services Complaints Regulations 2019) NEPT officers and, in NSW NEPT providers, are required to comply with the Code of Conduct for Non-Registered Health Professionals (see Revised Code of Conduct for non-registered health practitioners in NSW (September 23, 2022)).

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

Parkerville (WA) legal action ends in the High Court

Michael Eburn: Australian Emergency Law - 8 April, 2023 - 19:04

In 2019 I reported on the decision of Le Miere J sitting as the Supreme Court of Western Australia in the case of Daniel Herridge & Ors v Electricity Networks Corporation T/As Western Power [No 4] [2019] WASC 94) (see Liability for 2014 Parkerville (WA) bushfire (April 4, 2019)). At the conclusion of my post, I said:

As noted earlier this is the first case where the liability of electricity authorities for bushfire has been judicially determined.  Having said that we must remember that a decision of a single judge, even a Supreme Court judge, does not create a binding precedent. Further, whilst I don’t know I would not be surprised if Thiess and/or Mrs Campbell took this result on appeal. 

It has come to my attention that there were appeals in this matter, first to the Court of Appeal (Herridge Parties v Electricity Networks Corporation T/As Western Power [2021] WASCA 111 (2 July 2021)) and then to the High Court of Australia (Electricity Networks Corporation v Herridge Parties [2022] HCA 37 (7 December 2022)).  Given the High Court gives the definitive ruling this post will report on the decision of the High Court, not the Court of Appeal.

The decision in the High Court was delivered in a joint judgment of Kiefel CJ, Gageler, Gordon, Edelman and Steward JJ.  A brief summary is at [1]-[2]:

This appeal arises from claims made by a large number of plaintiffs for loss and damage resulting from a bushfire in Parkerville, Western Australia. The fire started on 12 January 2014 when a jarrah pole on the land of the fourth respondent (“Mrs Campbell”), to which the electrical cable and other apparatus of the appellant, Electricity Networks Corporation (which traded as Western Power) (“Western Power”), were attached, fell to the ground causing electrical arcing and igniting dry vegetation around the base of the pole…

… The PA pole failed below the ground line due to fungal decay and damage by termites.

Power was supplied by Western Power along their network to a termination pole. From there a service cable carried power to the homeowner’s pole and was connected to the homeowners connection box.  In 2013 Thiess was contracted to replace the service cable running from Western Power’s termination pole to the ‘point of attachment’ or PA pole owned by Mrs Campbell.

The Court said (at [6]):

The trial judge found that industry practice required steps to be taken before performing works like the July 2013 works, including inspecting and sounding (striking with a hammer, axe or solid bar) the PA pole to identify signs of deterioration, as well as digging around the base of the pole to allow detection of one or both of surface decay and termite attack in the below ground critical zone. Thiess’ leading hand did not perform a sounding test on the PA pole in accordance with industry standards: he did not perform the necessary hammer test adequately and he did not adequately dig around the base of the PA pole.

The trial judge found (at [8]-[11]) that the failure to maintain the pole (by Mrs Campbell) and to properly inspect it (Thiess) was negligent and that the parties were liable (30% and 70% respectively) for the damage caused by the subsequent fire.  The trial judge found that Western Power had a duty to ensure a PA pole was safe before it was connected to its power distribution network but that it had met that duty by engaging an appropriate contractor (Thiess) and by imposing contractual obligations upon Thiess as well as crew inductions ([12]-[13]).  The court rejected a claim that Western Power had a broader, and more pro-active duty to inspect poles such as Mrs Campbell’s private PA pole.  In a helpful judgment summary, issued by the Court said (p. 3, point 6):

Western Power did not owe to the plaintiffs a duty to take reasonable care to regularly inspect and maintain the jarrah pole. The imposition of such a duty of care is incompatible with the legislative scheme of the Electricity Act 1945 (WA) in conferring powers, and imposing duties, on Western Power in relation to the maintenance of assets.  Furthermore, Western Power did not have the requisite control over the source of the risk of harm, which is the risk that the pole might fail in service due to rot, termites or other damage and cause harm to life or property.  

On appeal, the Court of Appeal upheld the findings of negligence by both Mrs Campbell and Thiess. Relevantly the Court found that Western Power has also been negligent. It not only had a duty to inspect the PA pole when connecting it, but there was also a duty to periodically inspect the pole to ensure its integrity.  THE Court of Appeal apportioned liability between the three defendants as Western Power 50%, Thiess 35%, Mrs Campbell 15% (Herridge Parties v Electricity Networks Corporation T/As Western Power [2021] WASCA 111 (2 July 2021), [356]).

Western Power appealed. The appeal was dismissed.  The High Court said that the first step in deciding whether a statutory authority owes a common law duty of care is to look at the words of the relevant statute ([20]).  Where a statute authorises an authority to do something (in this case operate the electricity supply network) that does not impose a duty that the authority must do that thing – the presence of a statutory power does not give rise to a duty to exercise that power ([22]).  A duty of care can arise where an authority has taken on some responsibility to exercise a particular power ([22]-[26]) or, where having decided to exercise a power, it fails to exercise reasonable care ([30)] or to put that another way, it does so ‘in a manner which has increased the risk of harm to persons whom it had the power to protect’ ([28]).

In this case (at [50]-[52]):

In direct terms, Western Power exercised its powers in performing its statutory functions of undertaking, operating, managing and maintaining the SWIS [ie South West interconnected system] electricity distribution system and any works, system, facilities, apparatus or equipment required for those purposes. In the exercise of those powers, Western Power’s service cable, fuses and meter were on Mrs Campbell’s land and, in particular, attached to her PA pole and those apparatus remained there as Western Power exercised its powers in performing its statutory functions of undertaking, operating, managing and maintaining the SWIS electricity distribution system. Western Power exercised those powers continuously.

Western Power’s exercise of those powers therefore created a relationship between it and all other persons within the vicinity of its electricity distribution system. And a critical feature of that relationship was that Western Power exercised those powers in a manner which created or increased the risk of harm to those persons – persons it had the power to protect. The PA pole only posed the risk that it did because Western Power had attached its live electrical apparatus to it. Identification of the precise point at which Western Power’s transportation of electricity using its distribution system was made to, or received by, the consumer, Mrs Campbell, was and is not determinative or necessary.

Western Power had a duty to take reasonable care in the exercise of its powers, and the content of that duty relevantly required it to avoid or minimise the risk of injury to those persons, and loss or damage to their property, from the ignition and spread of fire in connection with the delivery of electricity through its electricity distribution system – an electricity distribution system which it undertook, operated, managed and maintained in the discharge of its functions and powers by placing its apparatus on Mrs Campbell’s land. The common law imposed that duty in tort on Western Power which operated alongside the rights, duties and liabilities created by statute.

The critical issue was not who owned the PA pole but, on the dangers, posed by Western Powers actions in particular delivering electricity over what was an unsafe physical network. Further finding a common law duty of care was not inconsistent with the statutory provisions. The court said (at [56]):

… the Electricity Act 1945 (WA) … imposed two duties on Western Power as a network operator. First, a strict or absolute duty to maintain certain apparatus in a safe and fit condition for supplying electricity which applied to service apparatus belonging to Western Power which was on the premises of any consumer; and, second, a duty to take all reasonable precautions to avoid the risk of fire or other damage on a consumer’s premises “in the actual supply of electricity to the premises of a consumer … to the position on the said premises where the electricity passes beyond the service apparatus” of Western Power.

And at [57]-[58]

… the Electricity Regulations 1947 (WA) … imposed a constraint on Western Power, as a network operator, not to supply electricity to any premises unless, among other things, it had ensured that all of its service apparatus that would be used for supplying electricity to the premises was installed and maintained in accordance with the Electricity Act and was safe to us and that the connection of the supply of electricity to the premises did not cause, or was unlikely to cause, any consumers’ electric installations to become unsafe.

Western Power had the power to interrupt, suspend or restrict the supply of electricity (which included transport through a distribution system if, in its opinion, it was necessary to do so because of, among other things, potential danger… [and] Western Power as an energy operator was not bound to supply energy to any person, body or authority, including if in its opinion that supply would interfere with or adversely affect any supply system or would appear to be unsafe or dangerous to life or property.

The court upheld the finding of the Court of Appeal that Western Power had a broader duty to ensure the safety of its network by the regular inspection of the assets on the network regardless of who had legal title to those assets.

Discussion

In my initial post I said:

What is particularly interesting about this case is that it is a judicial determination of liability. Electricity supply companies have been sued for causing many bushfires including those of Ash Wednesday (1983) and the Black Saturday fires (2009). Although there have been payments made, those cases all settled rather than have a judge actually determine whether or not there was liability. This is one of, if not the first case where the liability for fire caused by failing electricity assets has been judicially determined.

The case remains interesting for this reason. Now that it has gone to the High Court the precedent value is significant. Electricity authorities, at least in Western Australia, are on notice that they have a duty that can sound in damages, to maintain all aspects of the network without regard to questions of title or ownership.  Authorities in the past have resisted findings of negligence which allows them to plausibly deny responsibility and to leave the law in doubt that could help settlement negotiations. This case gives a clear statement at least regarding the law in WA.

For related posts see

  • (The rather ironically titled) No legal action after Parkeville (WA) fire (December 4, 2014) – talking about a decision by EnergySafety not to take action against the owner of the pole,  rather than civil litigation bu those affected by the fire. Ironically in the article discussed in that post it is said ‘Western Power is not responsible for private power poles…’.  And later

Mr Unwin [an affected resident] said he believed Western Power should bear some responsibility for maintaining private power poles.

“Even if it is only the inspecting of private power poles, it is their lines that are coming in after all,” he said.

It appears that Mr Unwin was correct.

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

Use of force and urgent medical treatment – WA

Michael Eburn: Australian Emergency Law - 4 April, 2023 - 17:54

This question appears as a comment on the post Treating those without capacity to refuse consent (May 7, 2017):

Following on from the questions above, the WA Guardianship and Administration Act (GaAA) also has similar but slightly different provisions in this area:

http://classic.austlii.edu.au/au/legis/wa/consol_act/gaaa1990304/

In sections 110ZH, 110ZI, 110ZK it contains provisions for doctors in certain circumstances, to provide “urgent treatment” to patients who are “unable to make reasonable judgements in respect of the treatment”, without their consent.

The use of reasonable force and restraint is often be practically required in order to able to provide the urgent treatment to such patients that is allowed by this legislation and it is therefore “implied” by this Act.

Would you agree, that in order to treat such patients without decision making capacity, in order to apply these provisions of the GaAA this would provide an implied right to use force to do so?

Do you know of any case law that has supported the reasonable use of force in application of various state Guardianship Acts?

If so, this would create a “lower threshold” to overcome in order to use force to apply treatment in a patient who was not competent, compared to the Doctrine of Necessity which would I understand requires the pre-requisite of “imminent peril” or “inevitable and irreparable evil”.

Relevant case law

I am not aware of any case law that has discussed the use of force in these types of provisions.  The use of restrictive practices (ie ‘any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability’ National Disability Insurance Scheme Act 2013 (Cth) s 9) is regulated by the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth). These regulations apply to NDIS service providers, not medical and nursing practitioners in a hospital providing urgent medical care ie in the situations anticipated by the Guardianship and Administration Act 1990 (WA) s 110ZI (discussed in detail, below).

There is case law about the use of restrictive practices where substitute decision makers (including a court or tribunal) are asked to give consent. For example, TZD [2021] NSWCATGD 14 involved an application for a guardianship order to allow the use ‘of medication for TZD to manage his agitated and unpredictable behaviours associated with Lewy Body Dementia’ but that was not part of urgently required medical care. 

I am not aware of any case where there has been litigation over a decision to deliver urgent care, without first seeking consent from a substitute decision maker but instead relying on a provision like s 110ZI.

The legislation

Legislation in WA and all states allows for treatment to be given without first obtaining consent where the patient themselves is unable to give consent (see Guardianship and Management of Property Act 1991 (ACT) s 32N; Guardianship Act 1987 (NSW) s 37; Advance Personal Planning Act 2013 (NT) s 54 and Emergency Medical Operations Act 1973 (NT) s 3; Guardianship and Administration Act 2000 (Qld) s 63; Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 13; Guardianship and Administration Act 1995 (Tas) s 35V; Medical Treatment Planning and Decisions Act 2016 (Vic) s 53). The use of force is specifically provided for in Queensland where the Guardianship and Administration Act 2000 (Qld) s 75 says ‘A health provider and a person acting under the health provider’s direction or supervision may use the minimum force necessary and reasonable to carry out health care authorised under this Act.’ 

The Guardianship and Administration Act 1990 (WA) s 110ZI says:

(1)        Subsection (2) applies if —

(a)        a patient needs urgent treatment; and

(b)       the patient is unable to make reasonable judgments in respect of the treatment; and

(c)        it is not practicable for the health professional who proposes to provide the treatment to determine whether or not the patient has made an advance health directive containing a treatment decision that is inconsistent with providing the treatment; and

(d)       it is not practicable for the health professional to obtain a treatment decision in respect of the treatment from the patient’s guardian or enduring guardian or the person responsible for the patient under section 110ZD.

(2)        The health professional may provide the treatment to the patient in the absence of a treatment decision in relation to the patient.

Even without an equivalent to Queensland’s s 75, the authority to treat the person must imply the use of ‘force’ because any touching in the provision of medical care is a use of ‘force’ (Collins v Wilcock [1984] 3 All ER 374). Giving an injection, applying a bandage, sedating and intubating the patient, performing a surgical procedure – in fact any touching at all – are examples of ‘force’.  The use of force is not something separate from the treatment it is inherent in the idea of medical treatment and that is why the section is there.  The critical issue is that the ‘force’ must be clinically indicated in the patient’s best interests. Securing a patient to stop them injuring themselves and to facilitate the delivery of other procedures would be part of the treatment authorised by the Act.  If the use of force is intended to stop the patient hurting others, then it is not the Guardianship Act that is relevant but the law of self-defence which says reasonable force may be used to protect oneself or others even if the person posing the threat could not be charged with an offence because of their mental state – see The Criminal Code (WA) s 248.

Conclusion 1

I infer that the author of the question sees a distinction between force and medical care. I do not agree that there is such a distinction. If it is necessary to restrain a person in order to be able to perform other procedures, then the restraint – if it is reasonable and in the patient’s best interests is as much part of their treatment as any other procedure. All involve the use of force, and all are permitted by the Act. 

Common law v statutory provisions

The question asks whether the statutory provisions give rise to:

… a “lower threshold” to overcome in order to use force to apply treatment in a patient who was not competent, compared to the Doctrine of Necessity which would I understand requires the pre-requisite of “imminent peril” or “inevitable and irreparable evil”.

The post to which this is a comment say that the doctrine of necessity is not a doctrine of emergency.

First for necessity to apply there does not have to be a ‘life threatening condition’ (though the one’s suggested in this post may well be life threatening) nor does the patient have to be unconscious.  Taking a lost child by the hand and guiding them to a police station would be justified by necessity.   As Lord Goff said:

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

Section 110ZI only applies when treatment is required as a matter of urgency. The doctrine of necessity is not so restricted. The reason s 110ZI is there is because of the provisions on substitute decision making (ss 110ZD to 110ZG). Section 110ZI makes it clear that the medical staff do not have to go through those processes when treatment is urgently required.

Even if necessity requires ‘inevitable and irreparable evil” then that would not be significantly different to the requirement of urgency in s 110ZI. 

Conclusion 2

Necessity, when applied in the context of a patient who is unable to communicate, recognises that failure to provide care to those in need is unacceptable so treatment that is reasonably necessary and in the patient’s best interests can be provided. It does not require that the treatment is required urgently. In that sense I think the common law imposes a lower bar than the legislation rather than the other way ‘round.

Conclusion

Section 110ZI allows for the use of force but force is not separate from medical treatment, it is part of the medical treatment where it is clinically indicated and in the patient’s best interests and that can include restraining a patient to allow other procedures to be performed or to stop them injuring themselves.

Section 110ZI does not create a lower threshold than the common law principle of necessity.  Necessity, requires that the treatment given to someone who is incapable of making their own decision, is reasonable and in the patient’s best interests.  It does not have to be urgent.

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