I have previously reported that the Health Practitioner Regulation National Law (South Australia) (Protection of Title—Paramedics) Amendment Bill 2013 (SA) (29 October 2013).  That Bill passed through the legislative process on 21 November 2013 and came into effect on 1 September 2014 (see The South Australian Government Gazette, 14 August 2014, p 4027).

The Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) Schedule 2, s 120A(1)(a) says that a person ‘must not knowingly or recklessly (a) take or use the title of “paramedic” …’ unless they hold the qualifications set out in clause 11A of the Health Practitioner Regulation National Law (South Australia) Regulations 2010.   The prescribed qualifications include a degree in paramedicine from an Australian or New Zealand university, various diplomas or qualifications leading to registration as a paramedic in the United Kingdom, South Africa, or Ireland.

Section 120A(1)(b) (when read with s 120A(2), the definition of ‘paramedic’) says that a person must not:

… take or use a title, name, word or description that, having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate the person is a health professional who provides emergency medical assessment, treatment and care in the pre-hospital, or out-of-hospital, environment.

The Minister may approve other qualifications for the purposes of the regulation (cl 11A(1)(g)) or may grant an exemption from the requirement to hold a prescribed qualification (s 120A(4)).  The Minister has in fact granted some exemptions and these appear in The South Australian Government Gazette, 7 August 2014, p 3957-3958).    Strangely enough, there are two, separate exemptions, the first says:

I, JACK SNELLING, Minister for Health, in accordance with Clause 120A (4) of Schedule 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010, exempt the following classes of persons from the requirement to hold a prescribed qualification to practise as a paramedic in South Australia:

It then lists various categories of people, student paramedics, a paramedic employed by SA Ambulance but who does not hold the prescribed qualifications but has relevant and recent experience, a person employed as a paramedic by an ambulance service ‘which has entered a Memorandum of Understanding with, or is otherwise authorised by, SA Health or SA Ambulance Service Inc. in relation to the provision of emergency medical assessment, treatment and care in South Australia’ or a person assisting during a public health or other declared emergency.

The second exemption begins

I, JACK SNELLING, Minister for Health, in accordance with Clause 120A (4) of Schedule 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010 exempt the following classes of persons from Clause 120A (1):

That exemption applies to ‘a person employed as a paramedical aide by a domiciliary care service provided by Country Health SA Local Health Network or the Department for Communities and Social Inclusion.’  So those ‘paramedical aides’ can call themselves a paramedic, no problem.

The problem is with the first exemption where the Minister purports to rely on s 120A(4) to ‘exempt the following classes of persons from the requirement to hold a prescribed qualification to practise as a paramedic in South Australia’.

Sect 120A(4) says

(4) The Minister may, by notice in the Gazette, confer exemptions from this section—

(a) on a specified person or specified classes of persons; or

(b) in specified circumstances or specified classes of circumstances.

There is, however, nothing in section 120A that says you need these qualifications to practice as a paramedic, only that you need them to take the title ‘paramedic’. The first exemption issued by the Minister simply makes no sense when read in context with the Act.  The inference has to be that he intends to allow those people to use the title ‘paramedic’ but that it is not what the exemption says.

The matter is further complicated by the SA Health.  A colleague from St John Ambulance (ACT) has drawn to my attention their web site where they explain the effect of the new law.  They say

The Act will only apply to those persons practising as paramedics in South Australia.

It will not apply to persons employed as first aid officers, ambulance officers or St John Volunteers.

That the Act will only apply in South Australia is axiomatic.  The South Australian parliament can’t make laws for other states so of course one can be called a paramedic in Victoria without meeting the South Australian requirements.

The statement that the Act ‘will not apply to persons employed as first aid officers, ambulance officers or St John Volunteers’ again makes no sense.  There is nothing in the Act, its regulation or the various exemptions that says that this is the case.  The best that can be inferred is that the Department believes that taking the title ‘first aid officer’ or ‘ambulance officer’, or wearing a uniform that says ‘St John Ambulance’ would not indicate, nor could it reasonably be understood to indicate that the person is a ‘paramedic’ and so there is no breach of s 120A(1)(b).  There is nothing in the Act, the Regulations that would allow any of those people to call themselves a paramedic unless they also fell within the various exemptions discussed above.

This is not the first time where it has appeared that Ministers in the South Australian government have not read or understood the law they appear to be administering – see ‘Compensation for South Australian SES volunteers’ (6 August 2012) (but see also ‘Changed compensation rules for SES and Marine Rescue volunteers in South Australia’ (23 March 2013)).  It’s one thing on the floor of Parliament but here presumably the Minister had the advice of the Department and of Parliamentary Counsel so why the exemption is stated to be an exemption ‘from the requirement to hold a prescribed qualification to practise as a paramedic in South Australia’ when that is not the language of the Act is not at all clear.  It appears to be very poor drafting or a belief that the Act as passed does more than protect the ‘title’ of paramedic, but it doesn’t.

This question comes from a Victorian paramedic

Relating to the use of Patient restraints/Seatbelts (for Safety purposes, not relating to Mental health issues….), is there an obligation for Paramedics to insist on the use of Seatbelts by a Patient being Transported? Is there an onus on the Driver, if a Patient or Child is not appropriately restrained? It is my understanding that the driver of a vehicle is liable for the seatbelt wearing (or lack thereof) of ANY passenger (regardless of age) unless the vehicle is a bus with more than 12 seats. Whilst my employer has a policy to utilise the provided seatbelts as fitted to the Ambulance Stretcher (or the approved Paediatric Harness that can be fitted), this is not The Law. There is a seeming reluctance to utilise the approved harness’ (both adult and paediatric), but as I understand it, there is no specific exemption applying to Ambulance Services (and specifically Paramedics) from the requirement to wear Seatbelt.

Would there be a liability for the driver if a Passenger (Colleague) or patient were not restrained?

The general rule is, of course, that everyone has to wear a seat belt or, in the case of small children, in a child restraint. Where the passenger is 16 or older, the obligation is on both the passenger and the driver; if the passenger is under 16, the obligation is upon the driver (Road Safety Road Rules 2009 (Vic) rr 265 and 266).

There are, however, many exemptions to these rules, for example it is no offence not to wear a seat belt if the car is, lawfully, not fitted with a seatbelt (r 267(1A)). For the purposes of the emergency services, rules 267(5) and (6) says:

(5) A person is exempt from wearing a seatbelt if—
(a) the person is a passenger in or on a police vehicle, emergency vehicle or enforcement vehicle; and
(b) either—
(i) if the vehicle has 2 or more rows of seats —the person is not in the front row of seats or there is not a seating position available for the person in another row of seats; or
(ii) if the vehicle is a police vehicle and has a caged, or other secured, area designed for the carriage of passengers—the person occupies a seating position in that area.
(6) A person is exempt from wearing a seatbelt if he or she is providing or receiving medical treatment of an urgent and necessary nature while in or on a vehicle.

“Emergency vehicle” includes an ambulance.

It follows that a passenger in the front passenger seat of an ambulance (eg the relative of the patient) would be expected to wear a seatbelt if we assume that they could be sitting in the back. If the front seat is the only seat available they wouldn’t need to wear a seatbelt but of course it would be prudent to require them to do so.

As for the patient, then they are exempt if they are ‘receiving medical treatment of an urgent and necessary nature’, as is the treating paramedics. I don’t imagine any court or police officer would quibble with the suggestion that a person being transported on an ambulance stretcher meets this requirement even if the reality is that their treatment is not ‘urgent’. The mere fact that their condition is such that they are being transported in an ambulance would I’m sure be sufficient.

That doesn’t mean one shouldn’t wear a seatbelt, only that there is no offence committed if the seat belt is not worn. In the event of an accident a person would seek compensation under the Accident Compensation Act 1985 (Vic). A claim for compensation can be reduced due to contributory negligent (Wrongs Act 1958 (Vic) s 26). If a person has available to them a seat belt that they chose not to wear, that may reduce any claim for compensation, in fact in New South Wales fail to wear a seat belt, contrary to the regulations, is specifically considered contributory negligence (Motor Accidents Act 1988 (NSW) s 74(2)(c)). If the regulations do not require the seat belt to be worn (as discussed above) then the automatic deduction won’t apply but that does not mean a court could not find that a person did contribute to their injuries if they didn’t wear an available seat belt and there was no good reason not to.

Conclusions
1. It is true that the driver is required to ensure that all passengers who are required to wear a seat belt are wearing a seat belt. If the passenger is aged 16 or over, the passenger also commits an offence if they don’t wear a seat belt.

2. There is in fact specific exemptions applying to Ambulance Services regarding the requirement to wear Seatbelt. A passenger need not wear a seat belt in an ambulance provided they are not in the front passenger seat unless there are no other seats available. Both the patient, and the paramedic providing ‘urgent and necessary’ medical are not required to wear a seat belt.

I’ve received a request for information from a member of a Queensland rural fire brigade.  The details came in a letter that is somewhat too long, and too technical, to put here in full, so I’ll summarise the issue as I understand it.  I’m sure my correspondent will get back to me if I’ve misunderstood anything.

The gist of the issue is that this brigade want to use a ‘Remote Piloted Aerial System’ (colloquially, a drone) to get fire ground information.  The drone weighs less than 2kg and meets the Civil Aviation Safety Authority’s definition of a ‘small’ drone.   The QFES Commissioner has issued a standing order (‘Engagement and Operation of RPA or UAVs in Support of Emergency Operations’, Document number SO-Q-OM-4.28, 1 August 2014) that is directed to QFES, the SES and Rural Fire Service Queensland, to the effect that drone’s can’t be used anywhere on the fire ground without extensive approval from the IC up to the State Air Desk and operators have to comply with requirements to have a ‘UAV Controller’s certificate’ which I’m told costs $160 to obtain. I’m told they would also need an Operators Certificate and a Pilot’s certificate and that would add a further $9800 to the costs.

On the other hand, the operator of a small drone that is used for sport or recreation is effectively unregulated.  The QFES standing order says that in their view the use of a drone on a fire ground does not meet that requirement and so the various licences and certificates are required.

My correspondent asks ‘can QFES usurp CASA’s federal role of controlling all airspace in Queensland’ and as members of a rural fire brigade they are not part of QFES (see Status of Queensland Rural Fire Brigades, September 10, 2014) so are they bound by the standing order?

First let me say that the CASA regulations are complex and area of expert knowledge which I don’t have so I can’t go and verify all the various requirements. I will assume that it is correct that an operator would require ‘an Operators Certificate ($4600) a Controllers Certificate ($160?) and a Pilots Certificate ($5200)’ (but see RPAS Training and Solutions ‘CASR 101 – Are you flying your UAV legally?’ accessed 12 September 2014).

Second the regulation of airspace is a matter of federal law, so the Civil Aviation Act 1988 and its regulations are Commonwealth, not state law.  Where a state law is inconsistent with a valid Commonwealth law, the Commonwealth law prevails (Australian Constitution s 109).  In short the Civil Aviation Safety Regulation ‘trumps’ the Queensland Fire and Emergency Services Act.   QFES can impose obligations upon its members and those operating near a fire ground above the CASA requirements, but it cannot relax or waive the CASA requirements.

Rule 101.235 of the Civil Aviation Safety Regulations 1998 (Cth) applies to ‘the operation of a large UAV; and the operation of a small UAV for purposes other than sport or recreation.’  As my correspondent says

Unfortunately again, there was no distinction made for the middle ground between operating for ‘sport or recreation’ and ‘commercial’. That middle ground is occupied by the service sector where probably the best public use can be made with RPAS in emergency services such as SES, Rural Fire etc.

It’s true; the rules provide for only two cases, a UAV used ‘for sport or recreation’ and all other uses.   Either the UAV is being use for ‘sport or recreation’ or it is not.  I think there can be no doubt that the use of a UAV by a fire brigade in order to obtain fire ground intelligence is not use for ‘sport or recreation’ and so all the CASA rules must apply.

Can QFES limit the use of UAV’s on the fire ground?  The answer has to be ‘yes’.  Section 83 of the Fire and Emergency Services Act 1990 (Qld) relates to the powers of the first officer and other rural fire officers at the scene of a fire. It says, at subsection 4,  ‘Any person exercising a power or discharging a function under this section must comply with any code of practice and with any direction of the commissioner’.     I have no doubt that a standing order directed to QFES, Queensland SES and ‘Rural Fire Service Queensland’ is such a direction.  Further, the Commissioner and an authorised fire officer ‘may take any reasonable measure— to protect persons, property or the environment from danger or potential danger caused by a fire or a hazardous materials emergency’ (s 53).  That has to include a power to protect other air operators who are working above a fire (see also Work Health and Safety Act 2011 (Qld)).

In my view the order that limits the use of the drone, determines how it is to be approved etc is not inconsistent with the CASA rules, that is one can comply with both at the same time and whilst CASA may intend to regulate the use of airspace, QFES has the role of regulating safety on the fire ground so although they overlap, QFES is not impermissibly moving into areas that are intended to be the sole preserve of Commonwealth regulation (see Ex parte McLean (1930) 43 CLR 472 at 483 (Dixon J); Momcilovic v The Queen [2011] HCA 34, [238]-[262] (Gummow J), [314]-[348] (Hayne J)).

I was asked to give my:

… opinion of this attempt by a State authority to impose blunt control over legitimate aspirations for volunteers prepared to risk their lives firefighting, but expecting the best possible leadership in the process.

I will not buy into the debate of whether this is an ‘attempt by a State authority to impose blunt control’ or whether the desire to use the drone is ‘legitimate aspirations’.  That would get into a debate about the merits of the policy which I’m not prepared to do.    What I can do is say:

1. The deregulation of the use of small drones only applies to those that are used ‘for sport or recreation’. The Commissioner is correct, in my view, to conclude that the use of a drone on a fire ground is not a use ‘for sport or recreation’. If that is correct (and I’m sure it is) then all the CASA rules apply.  That has nothing to do with the Commissioner and is not the product of the Commissioner’s standing order but the CASA regulations.
2. The Commissioner can issue a standing order directed to QFES, the SES and rural fire brigades and that standing order must be complied with (Fire and Emergency Service Act 1990 (Qld) s 83).
3. The Commissioner can also give those directions as part of his or her general responsibilities to ensure safety during fire fighting and other operations. (Fire and Emergency Services Act 1990 (Qld) s 53; Work Health and Safety Act 2011 (Qld)).

The web page of the Rural Fire Brigades Association Queensland Inc. is reporting that the Queensland State Government has accepted legal advice to the effect that Queensland’s rural fire brigades are not part of the Queensland Fire and Emergency Service.  They have posted four issues that they ‘demand’ the QFES Commissioner respond to.    I’m not the QFES Commissioner and do not purport to speak on his behalf, but I’ll have a go.

 1. Clear legal definition of what is a Rural Fire Brigade, who constitutes it and what powers and responsibilities it exercises.

A rural fire brigade is ‘a group of persons’ who have been registered with the QFES Commissioner (Fire and Emergency Services Act 1990 (Qld) s 79).     Who constitutes it is the people that seek registration of the Brigade.  The Brigade would remain constituted by the operation of its roles.  A Brigade could be constituted by a group of individuals, an incorporate entity, a local council or anyone else who wants to seek registration.

What responsibilities or powers it exercise are those responsibilities determined by the Commissioner (s 82).   One of the things the Commissioner must do is identify the area where the brigade is in charge of fire fighting operations (s 82).  When working in that area, the first officer of a rural brigade has all the same powers as an authorised officer of the QFES even though the first officer is not a member of the QFES.  The power of the first officer may be exercised by anyone acting under that officer’s direction and where the brigade first officer is not present, the first officer’s powers may be exercised by the senior brigade member (s 83).

2. Clear legal definition of the relationship between QFES, Rural Fire Brigades and the SES.
According to the Fire and Emergency Services Act 1990 (Qld) the QFES is made up of the Commissioner and Fire Service Officers (s 8A). Fire Service Officers are persons employed by the Commissioner pursuant to s 25 of the Act (see s 3 and Schedule 6). It is axiomatic that volunteer fire fighters are not employed so they are not part of the QFES.

Notwithstanding that a rural fire brigade and its members are not part of QFES they are subject to significant direction and control.  The Commissioner of QFES is ‘The commissioner is responsible for the efficiency of rural fire brigades and may provide training and other assistance to them’ (s 85). A brigade may make rules but the rules must not be inconsistent with the Act and must be approved by the Commissioner (s 80).  A rural fire brigade must elect a first officer and such other officers as the brigade thinks necessary but the elections must be held in accordance with the Commissioner’s directions (s 81).  Despite being elected a person only holds office for the period specified by the Commissioner and he or she can be removed by the Commissioner and the Commissioner may disqualify a person from holding office (s 81).  A rural fire brigade has such functions as the Commissioner may determine (s 82).  The Commissioner may, but is not required to, provide equipment to a rural fire brigade or provide a subsidy to purchase equipment.  Any equipment provided or subsidised by the Commissioner remains the property of the State (s 84).

So can we answer the question?  Yes I think we can.  The Act begins by providing for the appointment of a Commissioner (s 5).   The Commissioner is to manage QFES, the SES and to perform any other function given under the Act (s 7A).   So the Commissioner, an individual appointed by the Governor-in-Council has a number of functions.  Along with fire service officers he or she forms the Queensland Fire and Emergency Service and he or she is to manage that service.   He or she is also to manage the SES and ES Units (ss 129-147D) and he or she is to exercise the authority described, above, with respect to rural fire brigades.

The fact that rural fire brigades is subject to the direction and control of the Commissioner does not mean they are part of the QFES.  We can describe the relationship as three services, all lead by the same Commissioner, but not the same service.

3. A re-writing of the Rural Fire Brigade Manual, all Operations Doctrines, Standing Orders and Incident Management protocols reflecting the true position of Rural Fire Brigades and the QFES.

I make not comment on this.

4. Amendments to the Fire and Emergency Services Act 1990, current as at 01/07/2014 to incorporate Rural Fire Volunteers and truly reflect the role that Rural Fire Brigades and Volunteers undertake.

Be careful what you wish for.   As it is the Volunteer brigades are their own entity albeit subject to direction and control from the QFES Commissioner.  If the Act was changed, if for example they became part of QFES they may lose much of their local identity that has been the hallmark of volunteer brigades throughout their history.   Being part of QFES may create a more responsive ‘all hazards’ agency and breakdown barriers between volunteers and paid staff and may open ‘volunteer to career’ channels but it does not necessarily come without a cost.  As QFES brigades may be expected to respond outside their own area and may be under more control.  Do all brigades, or their members, think moves such as the move from the Bush Fires Act 1949 (NSW) to the Rural Fires Act 1997 (NSW) was a universal benefit?  Maybe it was or maybe it wasn’t I’m not sure but if I was advising the Rural Fire Brigades Association Queensland Inc. I would want them to consider what actually is the problem, because their powers are pretty clear (s 83) so how do they want to be incorporated more into the QFES, and why?  There may be very good reasons to want changes to the Act, but they’re not obvious.

See also:

More on the Queensland Road Rules (November 26, 2012)

Malone inquiry into Queensland Rural Fire Service and volunteer protection (April 20, 2013)

A further review of the Malone Inquiry into the Queensland Rural Fire Brigades (June 11, 2013)

This came to me via a Facebook friend in NSW.  She asked:

If there is a bush fire on a property and the adjoining National Park and the Authorities cut Dividing Fences and internal fences, are those Authorities bound to replace and/or repair those fences and if so, is there a statutory time limit for the land owner to give notice of repair to the Authority?

The National Parks and Wildlife Service is responsible for managing fire in National Parks.  An authorised NPWS officer may enter neighbouring land, up to 8kms from land from the National Park, in an attempt to stop the fire spreading from the private land to the national park (but not the other way).  The Act does not specifically say they may use force or cut fences but it does say that the authorised officer may ‘do all such things as are reasonably necessary to suppress, or prevent the spread of’ the bush fire and that could well include cutting fences.  In exercising a power under this section, the authorised officer must comply with ‘any bush fire management plan applying to the land or agreed with the authority responsible for the land’ (ie the owner).  Which does not mean that the owners agreement is required or that there must be a bushfire plan in place, but if there is an agreement or plan, they must be honoured; (Rural Fires Act 1997 (NSW) s 133).  The Act does not say who is to pay for the damage.

The Rural Fires Act also says:

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

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

Finally s 28 says:

Any damage to property that is caused by any person exercising any function conferred by or under this Division [ie Division 3 – Rural Fire Brigades] in good faith and any remedial work necessary to rectify damage to the environment is to be taken to be damage by fire within the meaning of any policy of insurance against fire covering the property so damaged.

So it follows that if the relevant authority is the Rural Fire Service then there is no obligation upon the service to replace or repair the fences.  The damage done by the RFS when fighting a fire is deemed to be damage done by fire.  If the landowner has insurance against loss by fire it must also cover this loss.  If they uninsured they carry the risk just as they carry the risk of loss by fire.

The situation is not so clear if the damage is done by NPWS as s 28 clearly does not apply to them (s 28 relates to action taken under Division 3, ss 15-33) and the NPWS authority is in s 133.  However it is intended that a statutory authority will use the powers that it has been given and absent an obligation to pay damages the only obligation to rectify the fences would arise if the decision was negligent that is, unreasonable in the circumstances.   There is therefore no clear obligation upon them to repair or replace the fence if their actions were reasonable (judged objectively, not by the property owner who may think it was quite unreasonable).

‘Vigilante firefighter league forming across rural Victoria amid fears authorities won’t stop blazes’ is the headline from the Victorian Herald Sun, (28 August 2014) and I was alerted to this by a discussion on the LInkedIN Group ‘Emergency Management Australia’.

The story says

“Rural land holders are spending up to $15,000 each to “armour up” with fire trucks, radios and protective clothing so they can form teams to beat the CFA and police to a threatening blaze before it gets out of control…

Since the Black Saturday Royal Commission, the CFA has declared its top priorities are to protect human life and communicate information to the public.

That means that during some battles, trucks have been on standby near homes and townships, while livestock, paddocks, sheds and fences are left without CFA protection.

Daraweit Guim farmer Tom McDonell lost 9000 sheep during the February Mickleham-Kilmore blaze and said the emotional impact had been traumatic.

Mr McDonell was stopped by authorities from returning to his smouldering property and said the CFA’s failure to also protect farming infrastructure and land had left businesses in a “dire” financial state…”

In the LinkedIN discussion a commentator says ‘Under the CFA Act, it is illegal to form a firefighting organisation outside the CFA framework’.

The Country Fire Authority Act 1958 (Vic) s 26 says

No association of persons shall operate as a fire brigade in the country area of Victoria unless it is first registered and its officers and members enrolled in accordance with this Act, and no persons so operating without such registration and enrolment shall have any powers or privileges or the benefit of any immunity conferred by this Act.

‘Brigade’ is defined as ‘a brigade registered by the Authority…’  So s 26 says

‘No association of persons shall operate as a fire brigade registered by the Authority…’   Section 26 does not say it is an offence to operate an unregistered brigade, just that any such brigade does not enjoy any powers, privileges or immunities.

This is consistent with s 107A which says

(1) A person must not use any name, title or description to imply an association with the Authority, without the written authority of the Authority.

(2) A person must not represent that the person is associated with the Authority unless such an association exists.

(3) A person must not impersonate an officer of the Authority or a member or volunteer.

(4) A person must not use any insignia described or set out in the regulations in any manner contrary to the manner set out in the regulations without the written authority of the Authority.

The Act provides a penalty of 6o penalty units (or 60 x $147.61 (Monetary Units Act 2004 (Vic)) = $8856.60) for each of these offences.

There is no need for legal authority to fight a fire (Stephens v Stephens (1970) 92 WN(NSW) 810); if a fire starts on my property of course I can attempt to extinguish it and equally if my friends and neighbours want to join me, they can.   Not only is this consistent with resilience any law to the contrary would be impracticable and unenforceable.

So what the CFA Act says, in my view, both in s 26 and 107A, is that one must not operate a brigade or purport in any way to be associated with the CFA unless one is actually associated with the CFA.  The so called ‘vigilante firefighter league’ would not commit any offence provided they in no way suggested that they were associated with the CFA.

If I’m wrong about that, then the issue is still ‘what is a brigade?’ In an earlier post, on the prohibition on private fire brigades in NSW (‘What is a NSW fire brigade?’  (27 August 2014)) I said:

I infer that a contractor who’s providing emergency services for a single client and who’s willing to accept the authority of Fire and Rescue NSW if and when they respond, is not operating a fire brigade.  A contractor who establishes an offsite ‘station’ and who has a multiple client base and agrees to provide emergency services that would involve travelling from their station to their various clients in response to an emergency call, would be conducting a fire brigade and would certainly be doing so if they had some agreement or expectation, or promised their clients that they, and not Fire and Rescue NSW would take charge of operations at any particular fire.

Similar reasoning might apply here.  A group of farmers who agree to help each other out in a mutual aid arrangement are not, in my view, a brigade.  It may be different if they had a central shed or station, detailed administration with chain of command, logos and the like.  The story says ‘Negotiations are underway with sponsors including insurance companies and equipment suppliers’ which may, depending upon the terms, make them look like a brigade, but, on the other hand, an insurer that offers a premium discount because people are taking proactive measures to reduce their risk may just be making an actuarially sound judgement.

In any event these farmers will be subject to the CFA Act and the powers of CFA officers at the scene of a fire.  For example s 30(1)(g) says:

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; and

(ii)     in the event that the person fails or refuses to withdraw—remove the person or direct a member of a fire brigade or a police officer present at the fire to remove the person;.

That could well be applied to these volunteers if it is felt they are interfering with CFA operations.

There is no doubt that members of the vigilante firefighter league would enjoy no immunity or other privileges; that is they would have no specific powers to allow them to operate, they would not enjoy statutory immunity from liability for actions taken in good faith to deal with a fire and they would not enjoy statutory rights to compensation.   Equally they would not have obligations to provide fire fighting services or to maintain neighbourhood safer places.  Unlike the CFA, that owes obligations to the entire Victorian community, they would be entitled to focus their resources on protecting their own interests and not on what, in a broader view, is the ‘community’ interest.

Interesting times indeed.

The Fire Brigades Act 1989 (NSW) s 31 says

(1)  It is unlawful for any persons to constitute or maintain a fire brigade for the purpose of extinguishing fire within any fire district except:

(a) as a permanent or volunteer fire brigade under the authority of this Act, or

(b) on premises or land owned or used by the persons or at which they are employed.

But what is a fire brigade?   According to the definitions section of the Act,

“fire brigade” means a permanent fire brigade or a volunteer fire brigade, but does not include a rural fire brigade.

“permanent fire brigade” means a permanent fire brigade established and maintained by the Commissioner, the services of whose members are wholly at the disposal of the Commissioner.

“volunteer fire brigade” means any association of persons for which an approval as a volunteer fire brigade is in force under section 9, but does not include a rural fire brigade.

If we applied those definitions, s 31 would say:

It is unlawful for any persons to constitute or maintain a permanent fire brigade established and maintained by the Commissioner, the services of whose members are wholly at the disposal of the Commissioner or an association of persons for which an approval as a volunteer fire brigade is in force under section 9 for the purpose of extinguishing fire within any fire district except:

(a)       as a permanent fire brigade established and maintained by the Commissioner, the services of whose members are wholly at the disposal of the Commissioner or an association of persons for which an approval as a volunteer fire brigade is in force under section 9…

And that is silly.  It would be impossible for a person to maintain a brigade that is established and maintained by the Commissioner and it can hardly be an offence to maintain a volunteer brigade where there is an approval in force.  And in any event it is a defence to maintain a brigade that is established by the Commissioner etc.  Taken literally s 31 says ‘it’s an offence maintain a fire brigade except where the fire brigade is a fire brigade’.  Clearly ‘fire brigade’ in s 31(1) does not have the same meaning as ‘fire brigade’ in the definition section.

So what is a fire brigade under s 31 and why is it important?  It’s important because of a growth in private emergency service providers.  Companies and event organisers have both statutory and common law obligation to ensure that, after an appropriate risks assessment, they have in place emergency procedures and personnel to provide first aid, rescue and where appropriate fire fighting resources.  If they want to engage a contractor to provide those services is the contractor breaking the law?

Section 31(1)(b) allows for companies to establish their own industrial brigade, so a company can employ people as fire fighters, but would that extend to contractors?  If company A needs to maintain fire fighting capacity at its factory, and it engages company Z to provide those services, company Z would employ the necessary staff.  The fire fighting staff are employees of Z, not A so when they ‘stand by’ at A’s factory, or mine, or public event, they are not on property owned or used by their employer.   But are they a fire brigade?  One might think that if company Z is providing a range of services, of which fire fighting is just one, that they are not, but fire brigades also, increasingly provide a range of services.

Some history may help.  It is understood that fire brigades, historically, were provided by local governments, insurance companies and groups of concerned citizens banding together to form a brigade in their common interest; (see Murray, Robert and White, Kate (1995), State of Fire: a history of volunteer fire fighting and the Country Fire Authority of Victoria (Hargreen, Melbourne); Ellis, Julie-Anne (2001), Tried by fire: the story of the South Australian Country Fire Service (South Australian Country Fire Service, Adelaide); Ruoff, Theo (1966), ‘Links with London’ The Australian Law Journal, vol 40, pp 211-213; Myer Stores Ltd v State Fire Commission [2012] TASSC 54, [41] (Blow J)).   Original moves to bring brigades together was not to bring them into a central organisation but just to provide some uniform training and coordination so they could operate together, but they still remained individual and independent brigades.  Victoria’s first fire brigade legislation, the Fire Brigades Act 1890 (Vic) was an Act to improve the administration of fire brigades. This Act empowered the local municipalities that had an interest in providing fire protection to do so if they wished (Victoria, Parliamentary Debates, Legislative Assembly, 18 June 1890, 381 (Mr Deakin)), it did not require them to do so.  It is still the case that in some states, the bushfire brigades are operated by councils (Western Australia) or are independent legal entities (Queensland).  Organisations such as the NSW Rural Fire Service are relatively new, the RFS being created in 1997 when the Rural Fires Act 1997 (NSW) replaced the Bush Fires Act 1949 (NSW)

Let us then look at the history of s 31.  This section was amended in 1993 but only to add a reference to hazardous materials incidents.  Otherwise the section, and importantly s 31(1) has been in place since the Act was first passed in 1989.

The first fire brigades Act in NSW was the Fire Brigades Act 1884 (NSW).  This Act created the Fire Brigades Board, the Board was made up of one representative from the council of the City of Sydney and one from all the other Councils that would have a fire brigade, as well as two representatives from the insurance industry and one representative from the volunteer fire brigades then operating in NSW.  It was the duty of the Board to:

… establish and maintain an efficient Brigade for the extinction and suppression of fires and protecting life and property from loss and damage thereby and to furnish such Brigade with such fire engines hoses tools implements accoutrements horses and appliances as may be necessary … (s 4).

Further the Board could:

… enrol and take over the present Insurance Companies Fire Brigade and all property thereto belonging and the Colonial Treasurer shall out of the Consolidated Revenue Fund pay such sums as may be required equal to the aggregate amount of the valuation of such property … (s 5)

and

 All Volunteer Fire Brigades … shall be registered at the office fo the Board and shall be subject to inspection by the Superintendent and at all fires shall be subject to his orders … (s 10).

(As an example of qualification creep it is interesting to see that in 1884 the Chief Officer was the Superintendent of Fire Brigades.  Today a superintendent sits somewhere below the Commissioner, Deputy Commissioner, Assistant Commissioner, Chief Superintendent etc).

What is evident is the new Board was to take over insurance brigades and bring the volunteer brigades under their direction and control.  As with today, the Brigade was to be funded from contributions made by the insurance sector and local governments (s 13).  There was no specific offence of maintaining a brigade contrary to the Act but the governor could make regulations to give effect to the Act including creating offences.   The old regulations are not readily available so one can’t see if there was an offence in the regulation.

The 1884 Act was replace by the Fire Brigades Act 1902 (NSW). The Board, established under the 1884 Act continued as the Board under the 1902 Act (s 2(4)).  The Board had similar functions as it did under the 1884 Act but now it was also to fund the Brigade to obtain fire alarms and telephones (s 11).   There is no mention of insurance company brigades, presumably there were none, but again volunteer brigades had to be ‘registered at the office of the Board’ (s 29) and:

All volunteer fire brigades established within the Metropolitan District [were] subject to inspection by the Superintendent, and shall at all fires be subject to his orders. (s 19)

This Act did not have a long life and was repealed and replace by the Fire Brigades Act 1909 (NSW).  The 1909 Act created the Board of Fire Commissioners to replace the Fire Brigades Board.  The new Board was to

… establish and maintain permanent fire brigades, and authorise the constitution of volunteer fire brigades, and [could] suspend or cancel any such authorisation. (s 20(a)).

The Chief Officer could

… inspect volunteer fire brigades and their premises and equipment, and enforce compliance with the by-laws made in respect of the same. (s 30(a)).

In this Act we see the forerunner of today’s s 31.  Section 41 of the 1909 Act said:

It shall not be lawful for any persons to constitute or maintain a salvage corps or a fire brigade for the purpose of salvage of property at fires or of extinguishing fire within any municipality or shire, or any part thereof, to which this Act applies, outside premises or land owned or used by such persons or at or on which such persons are employed, unless such corps or brigade is constituted by the board or is authorised by the board to act as a salvage corps or fire brigade. Any person who acts in contravention of this section shall be liable to a penalty not exceeding twenty pounds.

The definition of ‘fire brigade’, ‘permanent fire brigade’ and ‘volunteer fire brigade’ were similar to those found today.    The 1909 Act was replaced by the current Act of 1989.

It appears that today’s s 31 is largely a ‘cut and paste’ of the 1909 s 41, save that the modern Act does not refer to a salvage corps.  What we can infer is that these prohibitions are aimed at stopping private brigades that provide the type of services that are offered today by Fire and Rescue NSW.    We don’t want to return to municipal or insurance brigades providing an emergency    fire fighting service and an undignified rush by various brigades to fires and perhaps competition or argument as to who is in charge.

Does that extend to private emergency service providers?  On one view it would, a private company that sets itself up as a fire and emergency service and agrees to respond to their client, in return for a fee, would be exactly the sort of operation that I think the Act is aimed at.  On the other hand, a contractor who attends a particular work site, whether its providing standing emergency services at a factory or mine, or an ad hoc service provider who’s attending a community or sporting event just for the few days in which its operating, seems very different.  The emergency service provider in that case is providing the sort of service that a person conducting a business or undertaking (a PCBU) is required to provide under modern work health and safety law (see Work Health and Safety Act 2011 (NSW) and in particular Work Health and Safety Regulation (2011) regs 42 and 43).

We all have an image of what is a fire brigade, a crew of 4 in a fully equipped appliance that is standing by for the emergency call.  A contractor’s response team may look like that, or may look very different but they are still there to respond to fires and other emergencies.  It should be noted however, that there is no need for legal authority to fight a fire; anyone can fight a fire (Stephens v Stephens (1970) 92 WN(NSW) 810).

So I infer that a contractor who’s providing emergency services for a single client and who’s willing to accept the authority of Fire and Rescue NSW if and when they respond, is not operating a fire brigade.  A contractor who establishes an offsite ‘station’ and who has a multiple client base and agrees to provide emergency services that would involve travelling from their station to their various clients in response to an emergency call, would be conducting a fire brigade and would certainly be doing so if they had some agreement or expectation, or promised their clients that they, and not Fire and Rescue NSW would take charge of operations at any particular fire.

I am hoping you can provide some advice regarding Drivers Licences for NSW Ambulance Paramedics.  Specifically, can a holder of a private conditional licence (subject to annual medical review) drive an ambulance?

According to the national Assessing Fitness to Drive publication issued by Ausroads, the Private Standard applies to licenses up to LR (which is what ambulance requires).  The commercial standard only applies to drivers of heavy vehicles, public passenger vehicles for hire or reward (bus drivers, taxi drivers, chauffeurs, drivers of hire cars and small buses etc.).

I cannot find anything, either internally or externally, defining exactly what license a paramedic requires, ie Private or Commercial Standard.  Are you able to offer an opinion on this? If you believe it is the Commercial Standards that apply would this be due to an ambulance being a vehicle that carries public passengers (ie patients) or is it due to it being an emergency vehicle?

The Assessing Fitness to Drive document is incorporated into NSW law by the Road Transport (Driver Licensing) Regulation 2008 (NSW) reg 50 which says:

The Authority may, by notice in writing, require the holder of a driver licence …

(c) to undergo a medical examination, conducted in accordance with Assessing Fitness to Drive , by a medical practitioner or allied professional practitioner, or produce evidence of compliance with the medical standards set out in that publication, to determine the holder’s medical fitness to hold a driver licence, or a licence of a particular class…

The regulation does not however say what standards are to be applied.   Assessing Fitness to Drive says that for car and light rigid licence holders,

Private standards apply UNLESS:

• driver holds or is applying for an authority to carry public passengers for hire or reward (e.g. taxi driver)
• driver holds or is applying for an authority to carry bulk dangerous goods
• driver holds or is applying to hold authority to be a driving instructor.

In these cases the commercial standards apply.

It goes on to say (emphasis added) (p 12):

The standards are intended for application to drivers who drive within the ambit of ordinary road laws. Drivers who are permitted to exceed these laws, such as emergency service vehicle drivers, should have a risk assessment and an appropriate level of medical standard applied.

In New South Wales a public passenger vehicle is:

(a) a bus used to provide a public passenger service, or

(b) a ferry used to provide a regular passenger service, or

(c) a taxi-cab or private hire vehicle, or

(d) a vehicle declared by a regulation under section 6 to be a public passenger vehicle. (Passenger Transport Act 1990 (NSW) s 3).

Tourist service vehicles have been declared to be a public passenger vehicle (Passenger Transport Regulation 2007 (NSW) reg 202).

The Medical Assessment Form that must be completed to obtain a Public Passenger Vehicle Driver authority says ‘The medical examination must be conducted in accordance with the commercial medical standards described in the “Assessing Fitness to Drive, Commercial and Private Vehicle Drivers (2012)”.

It can be inferred that the commercial standards apply when an authority is sought to drive a public passenger vehicle as defined in the Passenger Transport Act 1990 (NSW). An ambulance is not a public passenger vehicle and so, prima facie, the private standard applies, but as noted the standard expects that a different standard may be applied to emergency workers.

Given that the Road Transport (Driver Licensing) Regulation 2008 (NSW) reg 50 does not set a standard and the standard itself says ‘The assignment of medical standards for vehicle drivers is based on an evaluation of the driver, passenger and public safety risk, where risk = likelihood of the event x severity of consequences’ then the RMS can apply whichever standard they see fit. Further, it would be possible for the Ambulance Service to insist on the higher standard as part of its risk assessment and in consideration of its obligations to ambulance officers, patients and the public.

S0 my view is that a paramedic could assume that the private standard applies but the RMS and/or the Ambulance Service could insist on the higher standard and if that was considered unreasonable the paramedic would need to challenge that decision under administrative law remedies.

 

 

This question came via a NSW SES members facebook page, but I repost it here with permission from the original contributor, who asked:

Are SES members covered by the Good Samaritans provisions of the Civil Liability Act 2002 (NSW)?

Also, what is the legal (not moral) obligation to render assistance if say passing (you have not been called officially) a motor vehicle accident
* if you are in uniform,
* not in uniform,
* driving a SES vehicle?

The Civil Liability Act 2002 (NSW) s 57 says:

(1) A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

(2) This section does not affect the vicarious liability of any other person for the acts or omissions of the good samaritan.

For the purposes of s 57, a good Samaritan

… is 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. (Civil Liability Act 2002 (NSW) s 56).

If you are not in uniform, not on duty, just happen to observe or come across the accident, then you are under no legal duty to assist (Stuart v Kirkland-Veenstra (2009) 237 CLR 215). If you do assist there is no doubt the good Samaritan provisions will apply; that’s exactly the sort of circumstances where they are intended to apply. The legislature wants to encourage people, particularly people who may know what they are doing, to come forward and to do so in circumstances where, perhaps, they cannot enjoy protection from an agency like SES as they are not at that stage performing duty’s for the SES or other community organisation.

I don’t think the answer is the same if you are in uniform or driving an SES vehicle (and driving an SES vehicle is the equivalent of being ‘in’ uniform, you are ‘in’ a vehicle that clearly identifies you as the SES). If someone approaches an SES member who is uniform or in a marked SES vehicle and says ‘quick please help, there’s been an accident’ then I think they would expect the SES to assist.   The person approaching the SES member is not coming to ask the particular volunteer, they are coming to ask the SES for help; and that’s the key, it’s not ‘you’ it’s the SES. The SES is one of the States’ emergency services with a number of obligations but more importantly a community expectation that a state emergency service (whether the SES, Fire and Rescue NSW, NSW RFS, NSW Police and the Ambulance Service of NSW) will step up to help in an emergency even if their help is to simply hold the fort until another more appropriate service gets there.

So does the SES (as opposed to you the individual) have a duty to respond? That is a more problematic question. On balance I would say ‘no’ but it is arguable. Cases like Stuart v Kirkland Veenstra (2009) 237 CLR 215 in the High Court of Australia have said that there is no general duty to rescue and that extends to emergency services, in that case the police. If the police were under no duty to assist a person sitting in a car contemplating suicide, then it would seem neither is the SES just because they are aware of an emergency.

On the other hand, Lowns v Woods [1996] Aust Torts Reports 81-376 found a doctor was under a duty to attend when asked and Kent v Griffiths [2001] QB 36 found the London Ambulance service also owed a duty to their patient that was breached when they took over 40 minutes to respond to an emergency call. In Electro Optics & West v NSW [2012] ACTSC 184; (the litigation from the 2003 Canberra fires) Higgins CJ said (at [311]-[314]):

Similarly, whilst it would not be just or reasonable to impose a general duty upon persons to rescue another in distress, a distinction may be observed in the role of those who, by profession, training or statutory role assume and hold out a preparedness to respond to those in distress. For example, police, lifeguards, medical practitioners and, relevantly, fire fighters.

That genesis for a duty of care is illustrated by the case of Lowns v Woods (1996) Aust Torts Reports 81-376. A medical practitioner was approached to come to the aid of a child, not a patient of his, who was fitting. He refused to assist unless the child was brought to his surgery.

At 63 155, President Kirby (as he then was) affirmed that a medical practitioner, by reason of skill, training and professional obligation, had a duty to assist going beyond that imposed on an ordinary citizen.

In my view, the same would be the case in respect of trained rescuers who hold themselves out as skilled, willing and able to assist (see the discussion in N Gray and J Edelman, “Developing the Law of Omissions: A Common Law Duty to Rescue?” (1998) 6 Torts Law Journal 240).

and later [at 334]:

Indeed, in my view, the case of Capital & Counties plc v Hampshire County Council and the general view that police and fire services owe no duty to respond to persons in danger where they are trained and able safely to respond is clearly inconsistent with public expectations and the intent shown by the legislative provisions imposing positive duties on such services to protect the public.

Whilst members of the SES are volunteers they are still holding themselves out, and are held out by the State, ‘as skilled, willing and able to assist’. (This was the decision of a single judge, is the subject of an appeal the ACT Court of Appeal and is not beyond criticism (see my post ‘Judgment in the litigation arising from the Canberra fires of 2003 – updated 19 December 2012’) but even so it shows that the position is at least arguable).

One of the critical issues in Woods v Lowns was there was nothing to stop the doctor attending, he was not then engaged with seeing patients.  A relevant question would be what else is the SES doing. If the members are engaged in some task, they may not be able to meet a request for assistance but that too must be judged on the facts. If the team are tarping a roof and are told that there has been an accident nearby, then it would seem reasonable to expect them to climb down and do what they can. If, on the other hand, they are engaged in a flood rescue and the team on the river bank are supporting the swift water technicians in the river, then clearly they cannot leave their current task to assist at the accident (assuming that is in fact the case, and there are no extra members that can be spared to go and assist).

If the SES members are at a community fete, or just driving along the road and they observe an accident, I would expect that a court would be quite willing to find a duty to attend if there was no explanation forthcoming about why they did not. It may be argued that, for some reason, they do not have to attend as they have not been officially tasked to assist, but the error of that argument is obvious if you think that if someone had rung triple zero and they had been despatched to the case they would have had to attend and it can’t make any legal difference whether they responded in response to a triple zero call, or a knock on their door.

If the volunteers do attend they may be protected by the good Samaritan provision above, but I don’t actually think so. This section is not intended to cover an organisation such as the SES that is holding itself out as a professional and skilled emergency service. The SES is funded to provide emergency services and the volunteers are rewarded with social standing, training, access to events etc. The status and standing that comes with being a volunteer can be quite significant (see Castle v Director General State Emergency Service [2008] NSWCA 231).

Volunteers with the SES don’t need to rely on the Civil Liability Act as they are protected by the State Emergency Service Act 1989 (NSW) s 25. That section says ‘

(1) A matter or thing done by:

(a) a member of the State Emergency Service, including a member of an SES unit …

does not, if the matter or thing was done in good faith for the purpose of exercising the functions of or assisting the State Emergency Service … subject the member, officer or volunteer personally to any action, liability, claim or demand.

Arguably, if the SES unit involved is not an accredited road crash rescue unit they are not performing any of the functions listed in s 8 but they are still assisting the SES to meet its community expectations. If I am wrong and s 25 does not apply, then the Civil Liability Act 2002 (NSW) s 61 says:

A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work: (a) organised by a community organisation …

That is clearly intended to apply to people like SES volunteers and provides, effectively, the same protection as s 57 so the question of which section applies is probably academic.

So my summary thoughts are:

1. There is no obligation upon a off duty volunteer to render assistance at a motor vehicle accident;
2. It would be arguable that there is an obligation on the SES, through its volunteers to assist where the members are approached because they are SES members in uniform or a marked SES vehicle, and they are not engaged in other tasks that mean they cannot assist;
3. If the volunteers do assist I do not think they are good Samaritans as intended by s 57 of the Civil Liability Act but I think they would be protected from personal liability by s 61 and/or the State Emergency Service Act 1989 (NSW) s 25. Even without those sections, if they were negligent, it is my view that the SES would be vicariously liable for any negligent action or omission.

For further discussion on these and related issues see:

• Insurance for first aiders (13 August 2014);
• Doctors as ‘good Samaritans’ – do I have to stop? (23 March 2014);
• Nurses as ‘good Samaritans’ – can I be liable if I do stop? (22 March 2014);
• Failure to attend by NSW Police and Ambulance (18 December 2013); and
• Who to treat? A question for St John first aiders (30 June 2013).

This was a very long question, so I’ve edited to make it shorter.  I am also told that my correspondent has removed this discussion from his assessment task, so I’m only addressing this on the understanding that I am NOT contributing to his assessment task.    My correspondent writes:

I am currently studying unit on Emergency and Crisis management as part of my Masters in OHS at Edith Cowen University WA.    As part of this unit we have been asked to comment on the new WHS legislation and the inclusion of volunteers into the definition of worker, how this WHS legislation might affect volunteers and to summarise the legal health and safety issues that underpin volunteers in your region.

This task set me off thinking about the Emergency Response Teams on WA Mine sites.  My interpretation of the Mines Safety and Inspection Act [WA] 1994(MSIA) is that all members of the ERT working in any capacity, are under direction of the employer, and are employees even though they have volunteered to be members of the ERT.

This then begs the question as to what is the coverage if they as volunteers, utilising the skills and knowledge gained during their employment, along with the resources of the mine, assist in emergency management beyond the mine.  If they attend traffic accidents on the gazetted road, which runs through the mine lease, are they acting as employees or good Samaritans?  Let us assume they apply first aid measures, and transport casualties, in the first instance to the town medical centre.  This is within the boundaries of the community, and on the mine lease.  However the MSIA explicitly exempts these community areas, from the Act. So what now are we employee or Good Samaritan?   If during this patient transfer a member of the ERT injures his back, is he covered by the MSIA act?  Does Workers Compensation cover him?  I would argue this is still within the confines of the mine, and therefore he is an employee and covered, because the MSIA excludes “leisure activities”.   Now let us assume he is transferring the patient from the medical centre to the Royal Flying Doctors aircraft.  During this if the hypothetical ERT member causes harm, by the fault of his actions, were would this stand at law?  Covered by the Civil Liabilities Act 2002?

Now let us assume the accident they attend utilising the equipment and resources of the mine happens out on the North West Coastal Highway.  Now they are well and truly off the mine lease?  They have taken on the duties of the now defunct, volunteer fire brigade.  Defunct as a direct result of the introduction of mine rescue teams by the mining company and the withdrawal of their support to the volunteer fire brigade.  Had they attended the scene as members of the volunteer fire brigade, they were volunteers and therefore entitled to the protection of the State government or the Civil Liabilities Act?   As members of the Mines ERT they are employees who must adhere to the policies and procedures of the mining company as well as the MSIA.  Not possible as the MSIA does NOT cover workplaces outside a mine.  So will we revert then to the Occupational Safety and Health Act?  Looking beyond these semantics, over which act, what happens again if they make a mistake and cause serious harm to the casualty.  Can that person now take action against the individuals or even the mine?  As a corporation the mine is not covered by the “good Samaritan clauses”.  Would members of the team be entitled to coverage?

Good Samaritan clause gives protection via the Civil Liabilities Act.  This is not applicable to the workplace and only covers claims for “damages for harm caused by the fault of a person” the Western Australian Volunteers (Protection from Liability) Bill 2002 specifically excludes a person who is taken to be performing a function under an emergency services act.  Would this include the privately funded ERT units?

This question suggests that the law is much more complex than it actually is or will be and the legislation will not really determine most of the matters.

First, though, the Volunteers (Protection from Liability) Bill 2002 was a Bill.  A bill is a draft law, it is not however ‘the’ law.  The relevant Act in WA is the Volunteer and Food and Other Donors (Protection from Liability) Act 2002 (WA).

I can’t see where or how the Mines Safety and Inspection Act 1994 (WA) explicitly exempts ‘community areas’ or ‘leisure activities’ as those terms are not used in either the Act or its regulations.

To the law:

An employee is an employee when they are doing what they are employed to do.  There is no doubt that a person who is employed at a mine and who joins the Emergency Response Team is still an employee.  They are not a ‘volunteer’ because they volunteered to assume extra duties.  Their employment includes their role in the ERT so they are an employee.

An employer is vicariously liable for the torts or wrongs of their employee.  If they are acting as members of the ERT they are employees, so if there is any negligence it will be the employer (the mine) that is liable (Hollis v Vabu (2001) 207 CLR 21; Sweeney v Boylan Nominees (2006) 226 CLR 161).  This will not be the case if there is gross or wilful misconduct or their actions are so far beyond what they are employed to do they can be described as being on a ‘frolic of their own’.  If they are using the ERT vehicle for drag racing or to provide a cool wedding transport vehicle, without the knowledge or permission of the mine, they may be on a frolic of their own.

So if they are attending to an emergency outside the mine the issue is, is that endorsed by the employer?   If they are just driving along the road and see an accident and stop to help they, and the mine, are good Samaritans.   The Civil Liability Act 2002 (WA) s 5AD says:

 A good samaritan does not incur any personal civil liability in respect of an act or omission done or made by the good samaritan at the scene of an emergency in good faith and without recklessness in assisting a person in apparent need of emergency assistance.

A ‘good samaritan means a natural person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance’.  In law a corporation is also a person (Interpretation Act 1984 (WA) s 5) so the reference to ‘natural person’ makes it clear that this section does not extend to a corporation, so the rescue workers can rely on that provision, but the mine could not.

I do not think this would be sufficiently divorced from their duties to constitute a frolic of their own.  If they’re driving an emergency vehicle and representing a company that is a major player in the community then I cannot imagine for a moment that the employer would in any way want them to drive past and not help. The reputational damage would be immense.  So even if there were no instructions that say ‘you can stop’ I would expect that any court, should it be an issue, would accept that by stopping their emergency vehicle to provide care they were acting in the course of their duties so if they were injured in the course of that work they could still expect to receive workers compensation.

If they turn out because they have ‘taken on the duties of the now defunct, volunteer fire brigade’ that must imply some level of cooperation with the police and emergency services, ie someone has to have called them out.    One can imagine lots of reasons why a mine company would make its ERT available in those circumstances, it makes them a good corporate citizen, maintains good will, maintains the interest and willingness of people to join the ERT as they know they are contributing to their community and the people they are helping are their employees and the community they depend upon.   In that case responding is clearly part of the ERTs duties and should there be any liability it would fall on the mine.  Provisions that are designed to remove personal liability such as the Volunteer and Food and Other Donors (Protection from Liability) Act 2002 (WA) and the Fire and Emergency Services Act 1998 (WA) s 37 don’t apply as the members of the ERT are employees, not volunteers.  Equally the good Samaritan provisions won’t apply as they are turning out as part of their work, but again that doesn’t matter as any liability (if any) would fall to the mine.

If the mine entered into an agreement with the Department of Fire and Emergency services to provide emergency services to help the Department fulfil its obligations under the Fire and Emergency Services Act 1998 (WA), or entered into an agreement with the local council to provide bush fire fighting services (Bush Fires Act 1954 (WA) ss 41 and 42A) then the mine could rely on s 37 of the Fire and Emergency Services Act 1998 (WA) which says ‘a person does not incur civil liability for anything that the person has done, in good faith, in the performance or purported performance of a function under the emergency services Acts’.  Note that it does not say ‘natural’ person so that would include a corporation.  Such an arrangement would be necessary, or at least implied, if the rescue service is being notified of triple zero calls requesting assistance and/or the mine has ‘taken on the duties of the now defunct, volunteer fire brigade’

The ERT members are employees when their responding to an emergency or if they are driving the truck in the course of their duties and come across an accident so the Occupational, Safety and Health Act 1984 (WA) and/or the Mines Safety And Inspection Act 1994 (WA) and the Workers’ Compensation And Injury Management Act 1981 (WA) will all continue to apply in any of the circumstances described above.

My correspondent writes:

When attending a case in which a patient has died, state paramedics in Queensland can cease or withhold resuscitation based on a protocol contained within the clinical practice manual we use. Following this, the paramedic who ceased or withheld resuscitation can complete a Recognition of Life Extinct (R.O.L.E.) form and hand this to the attending police officers in order to provide evidence that an assessment has been undertaken to confirm that the person is deceased so that their body can then be removed from the scene and certification of death by a doctor can be carried out separately. This system works well for state-employed paramedics.

If the same circumstances were to occur on a mine site or gas construction site many hours from a state ambulance response, what would be the position of a commercial paramedic who was in attendance? They can cease or withhold resuscitation based on similar criteria as their state-employed counterparts, but would they, in their commercial capacity, have the ability under legislation to complete a “Recognition of Life Extinct” without input from the state ambulance service? Is this something that would need to be documented in their own clinical practice manual or is there specific legislation that refers to recognition of life extinct and the role of an “Ambulance Officer”.

The relevant protocol is ‘Clinical Practice Guidelines – Other Emergencies’.  Relevantly that Guideline says (at p 3):

Part B – Management of a deceased person

Recording life extinct

Following determination that life is extinct, the paramedic is to complete a Life extinct form and the eARF.

Details regarding the criteria relied upon to determine life extinct are to be recorded on the eARF.

The paramedic is then required to record the following in the eARF:

I declare life extinct at [record exact time of declaration].

Notification of death to police

The Queensland Police Service (QPS) is to be notified of all deaths and provided with information that will assist the police to determine if the death is a reportable death as defined in the Coroners Act 2003 (Qld) (see following for the definition of reportable death).

eARF is the ‘Electronic Ambulance Report Form’ (see https://ambulance.qld.gov.au/records.html).

The ‘Life Extinct Form’ appears to be a Queensland Police form (QP0001).  The Queensland Police Operational Policy on Coronial Matters says (at p 12) that even though they have a form, ‘There will continue to be instances where other versions of a Life Extinct Form will be used. For example, the Queensland Ambulance Service will use an Electronic Ambulance Report form to record the life extinct procedure.’

Queensland Corrective Services have a life extinct form, and whilst that is clearly a Corrective Services’ form I assume it is for all intents and purposes it records the same information as either QP001 or the eARF.  In essence the paramedic is signing either a printed form, or the eARF to the effect that they examined the patient, determined that criteria to determine life extinct had been met, that is:

• No palpable carotid pulse;
• No heart sounds heard for 30 seconds;
• No breath sounds heard for 30 seconds;
• Fixed dilated pupils; and
• No response to centralised stimuli (‘Clinical Practice Guidelines – Other Emergencies’, p 2).

The eARF implies that is the basis of the diagnosis and confirms the time of that diagnosis.

Now to the law.  The relevant law is, as the Practice Guideline says, the Coroners Act 2003 (Qld), as well as the Births, Deaths and Marriages Registration Act 2003 (Qld).

An application to register a death in Queensland must contain, amongst other details, information about the cause of, and the date of, death (Births, Deaths and Marriages Registration Regulations 2003 (Qld) reg 12 and Schedule 1).   The paramedic’s eARF cannot record the cause of death but gives some evidence as to the date of death, or at least that the date of death was not after the date recorded on the eARF.  The cause of death may be certified by a doctor if the doctor

(A) attended the deceased person when the person was alive; or

(B) examined the deceased person’s body; or

(C) has considered information about the deceased person’s medical history and the circumstances of the deceased person’s death; and

the doctor is able to form an opinion as to the probable cause of death.  (Births, Deaths and Marriages Registration Act 2003 (Qld) s 30).

Consideration of ‘ information about the deceased person’s medical history and the circumstances of the deceased person’s death’ would include consideration of the fact that the person was identified as dead at the time and date recorded on the eARF.

Some deaths must be reported to the Coroner, a reportable death is one where:

(a) it is not known who the person is; or

(b) the death was a violent or otherwise unnatural death; or

(c) the death happened in suspicious circumstances; or

(d) the death was a health care related death; or

(e) a cause of death certificate has not been issued, and is not likely to be issued, for the person; or

(f) the death was a death in care; or

(g) the death was a death in custody; or

(h) the death happened in the course of or as a result of police operations. (Coroners Act 2003 (Qld) s 8).

A coroner must investigate a reportable death and record, if possible, ‘when the person died’ (Coroners Act 2003 (Qld) s 45(2)(c)).

None of these Acts, or their regulations make reference to ‘life extinct form’.

It is the duty of Queensland police to assist the coroner in the investigation of deaths (Police Powers and Responsibilities Act 2000 (Qld) s 794).  Police must also complete a Form 1 Police Report of Death.  This form is prescribed under the Coroners Act 2003 (Qld) and that is where the paramedics ‘Life Extinct form’ comes in.  The Life Extinct form is not legally prescribed, it is simply evidence that assists the police to report to the coroner (if the death is reportable) and any doctor who is completing a cause of death certificate to know at least a date time that the patient was dead.  The form is, as I say, evidence but it is not provided for in legislation and so is not something that is unique to Queensland Ambulance.  As noted Corrective Services have a similar form as do others (see Capricornia Department of Health and Ageing, Aged Care Resource Pack, 2005).

So if a private or ‘commercial’ paramedic were to face a case where the person they are called to assist is clearly dead, ‘would they, in their commercial capacity, have the ability under legislation to complete a “Recognition of Life Extinct” without input from the state ambulance service? Is this something that would need to be documented in their own clinical practice manual or is there specific legislation that refers to recognition of life extinct and the role of an “Ambulance Officer”’?

Whether they could complete a life extinct form would depend on their relationship with the local police.  If the private ambulance company developed a form they could speak to the local police about whether or not that would be useful.  In the absence of the form the police would simply need to take a statement recording when the officer’s attended and determined life was extinct.  That may be no more than notebook entry.   Even if they did not liaise with the police, a private ambulance company could develop a form but whether the police decided to accept it at face value would be a matter for the investigating police in each case.   Any ambulance provider would, I suggest, have to have clinical guidelines on determining when life is extinct and resuscitation can be withheld or withdrawn and any such guideline should also provide for appropriate record keeping so yes the use of any designed form should ‘ documented in their own clinical practice manual’.

There is no legislation that ‘refers to recognition of life extinct and the role of an “Ambulance Officer”’ either a QAS officer or anyone else.  As I say all the form is, is evidence; it has no legal effect, it just helps the police, the coroner, and a doctor who may be completing a certificate as to the cause of death, to know that the person was at least dead at the time on the paramedics form.

 

 

This was a comment made in response to my post ‘What is a paramedic’s ‘authority to practice’? (19 August 2014)

This is a very informative post. I would be appreciative if you could confirm a doctor’s ability to legally delegate permission to carry and dispense S4 – S8 drugs to Registered Nurses outside of a hospital environment or government sanctioned medical centre for the purposes of providing first aid.

Responding to this comment was so important that I’ve made it a separate post so it is not ‘lost’ in the comments.

A doctor has NO ‘ability to legally delegate permission to carry and dispense S4 – S8 drugs to Registered Nurses outside of a hospital environment or government sanctioned medical centre for the purposes of providing first aid’.

I’m not sure what state the comment came from, so I’ll stick to NSW.  Section 17A of the Poisons and Therapeutic Goods Act 1966 (NSW) says:

A nurse is authorised to possess, use, supply or prescribe a poison, restricted substance or drug of addiction for the purposes of the practice of nursing, if:

(a) the nurse’s registration is endorsed under section 94 of the Health Practitioner Regulation National Law as being qualified to possess, use, supply or prescribe that poison, restricted substance or drug of addiction, or

(b) the nurse is a nurse practitioner who is authorised in writing by the Director-General to possess, use, supply or prescribe that poison, restricted substance or drug of addiction.

It says nothing about being ‘delegated’ permission by a doctor.  A medical or nurse practitioner must not prescribe or supply drugs of addiction (s 28) without a proper authority.  A proper authority is issued by the Director General of Health, not any doctor who chooses to.

A person must not possess a prescribed restricted substance unless they are, inter alia, a nurse practitioner authorised under s 17A (see above); or is getting the substance in accordance with a prescription, or is caring for the person for whom the drugs have been prescribed or otherwise approved by the Director General (s 16; see also s 23 ‘Possession and supply of drugs of addiction by carers’); not who is authorised by ‘a doctor’.

It is an offence to supply schedule 1, 2 or 3 drugs unless the person is a nurse practitioner authorised by the Director General (s 10); not who is authorised by ‘a doctor’.

A prescription for a restricted (Schedule 4) substance or drug of addiction (Schedule 8) must contain, inter alia, the patient’s name and address (Poisons and Therapeutic Goods Regulation 2008 (NSW) clauses 35 and 80).   Clearly one cannot write some general prescription to issue drugs to someone the nurse thinks should get the drugs.

Both nursing and medical practitioners are registered under the Health Practitioner National Law.  Unprofessional conduct, of a registered health practitioner includes ‘the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession’ (Health Practitioner National Law s 5).  A nurse who is carrying schedule 4 or schedule 8 drugs because ‘a doctor told them they could’, would be acting in contravention of the Poisons and Therapeutic Goods Act 1966 (NSW) (or its equivalent in other jurisdictions) and could expect to  be prosecuted and subject to professional discipline.

A relevant health registration board can establish codes of conduct that are relevant in determining whether or not a practitioner’s conduct ‘constitutes appropriate professional conduct or practice for the health profession’ (Health Practitioner National Law ss 39 and 41).  The Medical Board of Australia’s ‘Good medical practice: a code of conduct for doctors in Australia’ says that good medical practice requires

2.1.1 Assessing the patient, taking into account the history, the patient’s views, and an appropriate physical examination. The history includes relevant psychological, social and cultural aspects.

Somehow ‘authorising’ others to carry and use drugs does not involve making that assessment.    A doctor who purports to authorise people who are not authorised under the relevant drugs legislation to carry drugs and in effect treat people as the doctors’ agent is not engaged in good medical practice.  They can expect to be liable in the event of a poor outcome and to be subject to disciplinary action.

Nurses are, and paramedics want to be, health professionals.  They have their own skills and their own professional standards.  They do not, and should not consider that they practice their professions because doctors authorise them to do so.  Doctors are not the authority that determines who can carry and use drugs, the Parliament is and the parliament determines who can give other authority, in NSW it’s the Director General of Health.

To reiterate: A doctor has NO ‘ability to legally delegate permission to carry and dispense S4 – S8 drugs to Registered Nurses outside of a hospital environment or government sanctioned medical centre for the purposes of providing first aid’.

 

This question relates to paramedic practice.  My correspondent says:

I’m trying to clarify something about the law in regards to paramedics in Australia and I was wondering if you could help.

I know in South Australia that paramedics derive their authority to practice medical acts on members of the public directly from the corporate entity of the Ambulance Service.  This is spelled out in the SA Health Care Act of 2008 (section 6, I believe, covering SAAS [The relevant provisions in the Health Care Act 2008 (SA) is Part 6, not section 6; part 6 contains sections 49-62].  My understanding is that this is true for all state-run ambulance services in Australia.  This is in contrast to, for example, New Zealand and the United States where paramedics are delegated their authority to practice from a physician acting as the Medical Director of the Ambulance Service.  Or, for example, the UK, The Republic of Ireland or South Africa where paramedics obtain their legal authority to practice from their own license as paramedics.

What I’m trying to get an answer to is this – does EVERY state in Australia delegate authority to practice paramedicine through the ambulance service?  Is this a homogeneous national model?  I’m also wondering if the private ambulance services in Australia work under the Medical Director model, wherein their paramedics derive their authority to practice from delegation from a physician.

Thanks for any insight you can offer.

Paramedicine is a largely unregulated profession.  One does not need ‘authority to practice medical acts on members of the public’, one needs authority to do that which is regulated.  In terms of paramedic practice the tasks that they need a licence for are to drive the ambulance and possess and administer scheduled drugs.  We know they have a personal authority to drive in the form of their driver’s licence.

The term ‘authority to practice’ has moved into the lexicon but its really not appropriate in this context.  The term does not appear in law.  The South Eastern Sydney Local Health District defines ‘authority to practice’ as:

A license (this may be a certificate, notice, or other form of documentation) that is issued by the relevant National Registration Board on an annual basis certifying that the holder is eligible to practise in the profession and that the holders details are entered into the relevant Board register. That is, the person is authorised to call themselves a physiotherapist/ podiatrist / psychologist /pharmacist / occupational therapist. Once a name is removed from the register, it is then illegal for that person to call themselves a physiotherapist/ podiatrist / psychologist /pharmacist / occupational therapist.

You can see they’re using the term ‘authority to practice’ as a shorthand or ‘catch all’ phrase to cover the various documents that may be issued for registered health practitioners.  The critical issue here is that paramedics are not registered health professionals.

So a paramedic’s authority to practice is, basically, their job description or the tasks that the employer determines that they are to do.  In short the state run ambulance services determine what their members are authorised to do as part of their duties.  They may issue a document called an ‘authority to practice’ but that is because they have adopted the term, not because the law uses the term.   The idea of an ambulance ‘authority to practice’ is relevant when it comes to the use of drugs.

Using NSW law as an example, it is an offence to be in possession of or supply scheduled drugs.  There are exemptions for paramedics, for example a person employed by the Ambulance Service of NSW as an ambulance officer and who is approved by the Director-General is ‘authorised to have possession of, and to supply, drugs of addiction’ (ie schedule 8 drugs) (Poisons and Therapeutic Goods Regulation 2008 (NSW) clause 101; see also clause 129 and Appendix C for similar authority relating to schedule 2, 3 and 4 drugs).  So it’s up to the Director General to determine who is competent and then authorise them to carry and use these drugs. The Director-General may issue something that they call an ‘authority to practice’ to show that the particular paramedic is authorised under the regulations to use various drugs.   (For another similar example see Drugs, Poisons and Controlled Substances Regulations 2006 (Vic) Reg 5, entry 11 relating to Ambulance Victoria and entry 12 relating to St John Ambulance (Victoria)).

The idea that paramedics ‘are delegated their authority to practice from a physician acting as the Medical Director of the Ambulance Service’ makes no sense at all.  Staying with NSW law medical practitioners may have authority to supply scheduled drugs (see Poisons and Therapeutic Goods Act 1966 (NSW) ss 10) but they need special authority to prescribe drugs of addiction (s 28A).  There is nothing however that would allow a doctor, who is authorised to possess and/or supply a scheduled drug, to give that permission to someone else.   A doctor may give an emergency prescription by telephone or radio (s 36 (restricted substances) and s 81 (drugs of addiction)) but that would depend someone who is with the patient to communicate the relevant signs and symptoms and the medical practitioner to make an informed decision on the treatment. It would not allow a medical practitioner to give some general permission – if you find a person in this condition you can administer this drug – nor does it give permission for that person to be in possession of that drug.  Medical practitioners just can’t authorise someone else to do things that are otherwise illegal but would not be illegal if a medical practitioner did it; nor can a medical practitioner empower someone to practice medicine on his or her behalf, and make decisions in his or her name for a patient the doctor has never seen, and if they did they would be likely to find themselves ‘struck off’.

In New Zealand a person needs the Minister’s consent to deal with restricted medicines (Medicines Act 1981 (NZ) s 20).  I can’t easily locate any approval but it may be that there is some authority to allow paramedics who are working with St John Ambulance or the Wellington Free Ambulance or any other NZ ambulance authority and who has been authorised by the services’ Medical Director in the same way that a NSW ambulance officer is authorised by the Director General, but I can’t confirm that.

It should be apparent that the authority to use drugs is set out in the relevant poisons or drugs Act, not the relevant ambulance service legislation.  It should also be noted that there is no relevant ambulance legislation in either the Northern Territory or Western Australia.   Further authorities may be given but they are not publically available so finding out the exact terms upon which provider is authorised to carry and use drugs is not something that is easily done and would presumably require freedom of information type applications.

So, ‘does EVERY state in Australia delegate authority to practice paramedicine through the ambulance service?’ The answer is “No” as you don’t need an authority to practice paramedicine as paramedicine is not a registered health profession. A paramedic’s employer determines what is, or is not, in their scope of practice, that is what they are employed to do.  A paramedic does need an authority to carry and use scheduled drugs.  The state health authorities issue the relevant authorities so, for example, NSW Ambulance can authorise its employees to carry and use drugs.  , so paramedics employed by the state services are authorised by the state services but that does not extend to paramedics working in the private sector.  Private providers must also be granted approval subject to whatever terms the relevant department choses to impose (see Poisons and Therapeutic Goods Act 1966 (NSW) ss 11 and 29).  That would be how private providers get authority to carry and use drugs but it does not explain how they get authority to operate in those states and territories where there is a prohibition on private ambulance services (see for example Health Services Act 1997 (NSW) s 67E; Ambulance Service Act 1982 (Tas) s 37).  (I have argued elsewhere that it appears, on the face of it, some of these operators must be acting in breach of these laws (see Michael Eburn and Jason Bendall ‘The provision of Ambulance Services in Australia: a legal argument for the national registration of paramedics’ (2010) 8(4) Australasian Journal of Paramedicine Article 4 (previously (2010) 8(4) Australian Journal of Emergency Primary Health Care, Article 990414).)

 

This is a detailed question from a volunteer controller with NSW SES.  My correspondent says:

I would like to have your views on two issues which are concerning Local Controllers and volunteers in NSW SES, and it may affect other States or authorities:

• Entering and performing storm damage control in a property without the owner’s consent: In my early training as a volunteer, we were always educated not to commence any type of storm damage work on a property without the owner’s consent. However, I have been informed that in my appointment as a “Senior Emergency Officer” under the State Emergency Service Act 1989 Sect 22A, I may r. These type of cases come up during storms as there is a large number of rental and holiday properties and often too hard to find the owner. I wish to confirm that SES Controllers may authorize work to commence when an owner has not been informed.
• Referring storm damage to property owners and land manager:
  1. Example 1: A tree has fallen down in a park, it maybe blocking a footpath but it is not causing any significant disturbance to traffic. The SES Local Controller refers the incident to the Local Council as the managers/owners of the park to deal with. As an SES Controller I am satisfied that the Council will deal with the matter accordingly. Is there any legal need for the NSW SES to follow up to make sure the Council completes the task?
  2. Example 2: A tree is resting on power lines which are in the street (pole to pole). The SES Unit refers the incident to electricity authority to attend to. As in example 1, the SES unit is satisfied that the electricity authority will deal with the matter. Is the SES obliged to follow up to ensure it is complete?
  3. Example 3: A tree has fallen next to a main road managed by the NSW RMS. The road is not blocked by the tree may interfere with the break down lane. The SES Unit refers the matter to the RMS to deal with knowing that the RMS will make the incident safe. Is there any requirement for the SES to follow up the RMS to ensure that they have completed the task?

I have been informed ‘informally’ by staff members of SES that the SES Unit must follow up every one of these examples to ensure that the agency or Council has completed the task as the SES is responsible until the task is complete. Some of these tasks may not be completed for over a year as in the example of my own council have stated if it is low priority, then the issue may not be resolved until they can afford to complete the work.

My personal thoughts in these matters that under the State Emergency Service Act 1989 – Section 8 (1)(b) to act as the combat agency for damage control for storms….  , that I as the appointed Controller within the Act, that I am satisfied that they agency or land manager will manage the incident and I have fulfilled my need for damage control.

To compare the example on private property: The SES attend a tree that is on a house, the owner of the house has told the SES that he/she will deal with the tree and no need for any SES action. The SES does not follow up the owner later on to ensure that he/she has completed safe works. I would say this would be the same for damage control in the examples above.

I think there needs to be a clear recognition between say, a fire, and storm damage.  If a tree has fallen onto a house, and assuming it has fallen as far as it can fall, then the damage is inconvenient to the home owner, but hardly an ‘emergency’ for anyone else.  This is different to a fire, a fire starts in a room and if no-one extinguishes it not only will the home be lost but so may the neighbouring properties or whole communities.  For this reason there is no doubt that the fire brigades may enter a property where they have been alerted to the possibility of fire, they may do so with the permission of the property owner, without the permission of the property owner or where the property owner expressly refuses to let them on.  They are not there for the property owner but the greater good so the property owner’s consent is really irrelevant (see for example, Fire Brigades Act 1989 (NSW) ss 6, 7, 11, 12, 13 and 16).

I think that distinction will help inform our answers to the questions raised.  Question 1 relates to ‘Entering and performing storm damage control in a property without the owner’s consent’.   The State Emergency Service Act 1989 (NSW) provides for ‘emergency officers’ and ‘senior emergency officers’.  An ‘emergency officer’ is a person appointed to that position by the SES Commissioner (s 15); a senior emergency officer holds that position by virtue of their position in the SES, Fire and Rescue NSW, NSW RFS, NSW Police or because of their appointment as a Regional Emergency Management Officer (s 18A).  The Commissioner of the SES has certain powers that he or she can use to help bring an emergency under control and he or she can authorise an emergency officer, or senior emergency officer, to exercise those powers on the Commissioner’s behalf.   The Commissioner can authorise an emergency officer to exercise a power to ‘evacuate or to take other steps concerning persons’ (s 22).   He or she may authorise a senior emergency officer to ‘to take other safety measures’.  In particular a senior emergency officer may direct that the supply of water, gas, electricity or other substance is disconnected and he or she may arrange to take possession of, remove and destroy anything that is ‘dangerous to life or property or that may interfere with the response of emergency’ (s 22A).

A person may enter premises in order to comply with a direction under s 22A.  That means if a senior emergency officer requires that the gas is disconnected, he or she may authorise the technician supplied by the gas company to enter premises in order to disconnect the gas, and the owner’s permission is not required (see ss 22E and 22F) though the owner must be notified of the intention to enter the premises unless ‘entry is required urgently and the case is one in which the Commissioner or senior emergency officer giving the direction has authorised in writing (either generally or in a particular case) entry without notice’ (s 22C).

This is not a general power to enter the premises to deal with the effects of the storm; it is a power to enter to ensure that an order under s 22A is carried out.  Section 22A would not allow an IC or a senior emergency officer to ‘authorize a team to commence work without informing the owner’.  There is however a common law principle of necessity.  Here we are not talking about necessary action to save a life, but action to save property.

This is what I wrote in my book, Emergency Law (4th ed, 2013):

“For the defence of necessity to apply it must be shown that there was a real and imminent danger and that the conduct of the defendant was such that “any reasonable man would, in the circumstances of the case, have concluded that there was no alternative to the act of trespass if the property [or life] endan­gered was to be preserved” (Cresswell v Sirl [1948] 1 KB 241, 247)… In 2008 the High Court of Australia 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. (Kuru v State of New South Wales (2008) 236 CLR 1, [40]).

Finally:

In principle, there seems no reason why the common law should not recognise an exemption from liability to pay damages for trespass to goods of “volunteers” or strangers who, from no other motive than the same desire to save the property of others from damage or destruction as they would feel if it were their own property which was in jeopardy, take reasonable steps on an occasion of urgent necessity to remove that property out of the way of danger or safeguard it by some other means. It would seem that in principle the present respondent should not be absolutely liable for damage caused by his interference with the property of another when he acted in the reasonable belief that his interference was justified by the necessity of the situation and was intended to benefit the owner. (Proudman v Allan [1954] SASR 336, 338)

So SES members who move onto a property, acting with the honest intention of protecting the property from further damage, will be able to rely on both the doctrine of necessity as well as the ‘good faith’ provision in the SES Act (s 25).   But here’s the difference between a tree down and a fire.  If the home owner doesn’t want the SES to enter the property then there is no right to do so (except as provided for in s 22A and that only allows entry if it’s needed to disconnect the gas or some other hazard ie if entry is required to ensure the safety of the community or the SES).    Where there is a fire, or even a report of a fire, the fire brigades can enter the property and take action to deal with the fire regardless of the property owner’s wishes.

So the answer to question 1, ‘can SES Controllers authorize work to commence when an owner has not been informed?’ is yes but only if it is necessary to do so and the controller (and SES members) are acting ‘from no other motive than the same desire to save the property of others from damage or destruction as they would feel if it were their own property’ and their actions are reasonable.  What is reasonable would not only refer to SES training (ie it’s reasonable to do what you are trained to do and not what you are not) but also the steps taken to try to contact the owner and the urgency of the situation (could it wait) and the extent of damage that will take place if action is not taken.

The answer to the second questions is more difficult.  The analogy with the house holder is a good one, if the property owner doesn’t need your assistance what obligation is there to give it.  Part of the problem is that the SES Act makes no effort to define ‘emergency’.   The State Emergency and Rescue Management Act 1989 (NSW) (in s 4) defines emergency as:

… an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:

(a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or

(b) destroys or damages, or threatens to destroy or damage, property in the State,

being an emergency which requires a significant and co-ordinated response.

The events described in question 2 meet the criteria as they are caused by a storm that has damaged property but they may not need ‘a significant and co-ordinated response’.  (On that definition a house fire and a heart attack are not emergencies either so the definition is of pretty limited application).  It is true, too, that the SES is ‘to act as the combat agency for damage control for storms’ (State Emergency Service Act 1989 (NSW) s 8(b)) but at what point is the damage controlled?

I can not see that there is any obligation to follow up on the cases described as the SES is no more responsible here than they are to the home owner but that does not meant the SES has no obligations.  There is a real risk that the fallen trees, as described, are dangerous.  The SES is to ‘to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis’ (s 8(aa)) and that’s different, that’s not controlling damage, that’s protecting people.  The SES could therefore be expected to make sure the scene is reasonably safe, taking into account, as always, the magnitude of the risk, how likely it is, the cost and inconvenience of taking action and other conflicting responsibilities (Wyong Shire Council v Shirt (1980) 146 CLR 40).  In examples (1) and (3), above, the SES may want to rope or tape off the relevant area, on the road put up some emergency lighting to warn oncoming drivers.   I would have thought with example (2) you would not want to leave until the electricity authorities attended and rendered the scene safe and in the meantime you would take action to close the footpath and/or road to make sure there was no-one likely to have a tree, or powerline, fall on them.

The other jobs must be assessed in the same way that the Council or the RMS will assess them: What’s the priority? Is it actually safe?  Is it reasonable to leave it in the hands of the occupier (the council or RMS) given it’s there tree and their property?  What other competing demands are on the SES?  If you’ve rendered it reasonably safe I would suggest you have done your duty under s 8(aa) and as for s 8(b) the damage is in effect, controlled, it’s not happening and it’s not getting any worse.  On the other hand, if you think the tree on the road is a clear and obvious danger and there’s no way to deal with it other than by removing it you need to impress that on the RMS and again that may mean standing by to direct traffic, calling the police (who will not doubt get council moving) or otherwise persuading them their risk assessment is wrong.  But if you think the situation is reasonably safe, there is nothing I can see in the SES Act, or common law, that would require the SES, and in particular volunteers who come on duty during an emergency but then have their private lives to return to, to follow up once you have communicated with the ‘owner’ and are satisfied that they are aware of the issue.

The answer will be different if the Commissioner has directed that there is to be follow up.  The Commissioner is ‘responsible for managing and controlling the activities of the State Emergency Service’ and  ‘is to have overall control of operations in response to an emergency’ caused by flood, storm or tsunami (State Emergency Service Act 1989 (NSW) ss 11, 19 and 20).  If the Commissioner decides that he or she requires the SES to follow up on such tasks, as an exercise of his or her control over the service or to satisfy him or herself that the emergency operations are complete, then he or she can require that and a local controller would be required to give effect to that direction (s 17(3)).  Here, however, I was told that this requirement was communicated ‘‘informally’ by staff members’ rather than as a direction from the Commissioner or his or her delegate (eg a Region Controller).  Absent a formal direction my answer is as above.  If there is a formal direction then yes, follow up is required, not because the law requires it but because the Commissioner requires it and the law requires that the Commissioner’s directions are given effect.

I received this question from a Director of a First Aid and Emergency Response Training company in Central Queensland.  My correspondent writes:

I have had questions from our trained first aider about whether they are covered if they render first aid and something goes horribly wrong.

I have been researching and have found nothing that is concrete for our normal everyday mums and dads that are trained in First Aid.  There are acts and regulations that cover Drs, Nurses, Qld Ambulance Paramedics, Qld Fire, Careflight, Royal Flying Doctors Service and others but nothing for First Aiders that don’t belong to an organisation.

I have found an association of first aiders in the UK that seem to be supporting First Aid in some way.  What do we need to do to have something in place that covers our front line first aiders?

I look forward to any assistance that you can provide and I will eagerly await your response.

Nearly all Australian states and territories have in place good Samaritan legislation to ensure that people who step forward to provide emergency medical assistance are not held legally liable for their actions provided they act in good faith (Civil Laws (Wrongs) Act 2002 (ACT) s 5; Civil Liability Act 2002 (NSW) s 57; Personal Injuries (Liabilities and Damages) Act (NT) s 8; Civil Liability Act 1936 (SA) s 74; Civil Liability Act 2002 (Tas) s 35B; Wrongs Act 1958 (Vic) s 31B; Civil Liability Act 2002 (WA) s 5AD).

These provisions were introduced following the Ipp Review into the Law of Negligence even though the Review did not recommend that any such legislation was necessary. The Review’s final report said:

The Panel understands that health-care professionals have long expressed a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations. However, the Panel is not aware, from its researches or from submissions received by it, of any Australian case in which a good Samaritan (a person who gives assistance in an emergency) has been sued by a person claiming that the actions of the good Samaritan were negligent. Nor are we aware of any insurance-related difficulties in this area.

Under current law, the fact that a person (including a health- professional) was acting in an emergency situation is relevant to deciding whether the person acted negligently. It may be reasonable in an emergency situation to take a risk that it would not be reasonable to take if there was no emergency, provided that precautions appropriate to the circumstances are taken to prevent the risk materialising.

Also relevant to the issue of negligence is the skill that the good Samaritan professed to have. Suppose a passenger on an aircraft has a heart attack, and in response to a call for assistance by the cabin staff, a 60 year old specialist dermatologist goes to the passenger’s aid. The standard of care expected of the doctor would be set not only taking account of the emergency nature of the situation, but also of the fact that a doctor who has practised as a dermatologist for many years could not be expected to be as well-qualified and able to provide emergency treatment for a heart-attack victim as a cardiac surgeon or even, perhaps, an active general practitioner.

The Panel’s view is that because the emergency nature of the circumstances, and the skills of the good Samaritan, are currently taken into account in determining the issue of negligence, it is unnecessary and, indeed, undesirable to go further and to exempt good Samaritans entirely from the possibility of being sued for negligence. A complete exemption from liability for rendering assistance in an emergency would tip the scales of personal responsibility too heavily in favour of interveners and against the interests of those requiring assistance. In our view, there are no compelling arguments for such an exemption. (Ipp Review of the Law of Negligence, Final Report (Commonwealth of Australia, 2002), [7.21]-[7.24]).

Even though the Ipp Review saw no need for this type of legislation the states and territories all moved to solve the problem of community fear of legal liability.

The exception is Queensland. Queensland has the Law Reform Act 1995 (which replaces the Voluntary Aid in Emergency Act 1973). This Act (as did the 1973 Act) provides that a medical practitioner, a nurse or a member of an organisation listed in the regulations is not liable for acts done in good faith and without gross negligence. There are no regulations (and so no prescribed organisations) under the Law Reform Act 1995, but the Civil Liability Act 2003 (Qld) also provides legal protection for people who provide first aid as part of their duties as a member of an organisation listed in the regulation (s 26) and the organisation is also protected (s 27).   The list of protected organisations is set out in the Civil Liability Regulation 2014 (Qld) schedules 1 and 2.

So my correspondent is correct, in Queensland there is no legal protection

… for our normal everyday mums and dads that are trained in First Aid.  There are acts and regulations that cover Drs, Nurses, Qld Ambulance Paramedics, Qld Fire, Careflight, Royal Flying Doctors Service and others but nothing for First Aiders that don’t belong to an organisation.

But remember the Ipp Review said no such protection was necessary.   Taking into account the circumstances in which first aid is rendered and the care that can be expected the risk of ‘…normal everyday mums and dads that are trained in First Aid’ being sued, even if ‘something goes horribly wrong’ is so remote that it’s what we lawyers might call ‘far fetched and fanciful’.   It is still the case that there is no reported ‘Australian case in which a good Samaritan (a person who gives assistance in an emergency) has been sued by a person claiming that the actions of the good Samaritan were negligent’. Remember also that Queensland is the State that has had the oldest piece of good Samaritan type legislation in the Voluntary Aid in Emergency Act 1973 and even though that Act (like the 1995) Act was limited in its application to doctors and nurses, there are no reported cases where it’s ever been relied upon. No-one has ever raised it as a defence, now that may be because potential plaintiffs knew it was there and didn’t bother bringing an action, but a more likely explanation is because people just don’t get sued in these circumstances.

People don’t get sued in these circumstances as they will not be under a duty to attend ie there is no duty to rescue, even if you’re trained in first aid (Stuart v Kirkland-Veenstra (2009) 237 CLR 215); if they do provide first aid the standard of care is to act reasonably in all the circumstances which includes the nature of the emergency and their training and what can be expected of someone who perhaps has done two day course sometime in the last three years. In an emergency the courts are very generous to the fact that a person’s conduct is not to be judged as negligent because, in retrospect, it appears that another course of action would have been better.

[A] man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called “agony of the moment”, he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise. (Leishman v Thomas (1958) 75 WN(NSW) 173 at 175).

In these circumstances the good Samaritan’s duty isn’t to ensure a good outcome; ‘If he volunteers his assistance, his only duty as a matter of law is not to make the victim’s condition worse’ (Capital and Counties v Hampshire County Council [1997] 2 All ER 865).

But back to the question of ‘What do we need to do to have something in place that covers our front line first aiders?’ The answer to that depends on what is meant by ‘we’. If ‘we’ is the broader Australian community then everyone, other than those in Queensland, have that protection. To provide that protection in Queensland what ‘we’ need to do is lobby the state government to amend the Civil Liability Act 2003 (Qld) to include a good Samaritan provision that mirrors the legislation in every other state and territory.

If, on the other hand, ‘we’ means my correspondent’s First Aid and Emergency Response Training company then they too can lobby their local MP or they could try to find an insurance company that was willing to offer insurance to be sold to those who do a first aid course. I recall some years ago St John Ambulance (NSW) did offer an insurance policy for a small premium on top of the course fees but I’ve not heard of that in recent times so I assume that is no longer available.

Providing indemnity cover for ‘normal everyday mums and dads that are trained in First Aid’ would be a good risk for an insurance company – they can get the premium to cover a risk that is virtually non-existent. Insurance could however change the risk. One-thing lawyers understand is that litigation for negligence is about the money, courts can offer nothing else but money so there is no value in suing someone who does not have money to pay the claimed damages. That’s one thing that protects ‘normal everyday mums and dads that are trained in First Aid’, apart from almost insurmountable legal difficulties they’re not worth suing. Any injured person would look to a more financial defendant, eg the defendant that caused the accident, the hospital or state ambulance service etc. If, however, there was insurance, that would mean that there is someone behind the first aider with the funds to pay any damages and costs. That could change the risk. In that case the plaintiff’s ‘gamble’ of taking action has better odds so the perverse result of advocating for first aid insurance could be that, rather than protecting first aiders, it increases the risk that they could be sued. The risk of legal action would remain small for the legal reasons mentioned above, but it is something to consider.

A correspondent has written that:

I have become aware of a couple of apps (one of which appears to be seeking start up in Australia) which encourages people to install and activate when they experience an emergency and also seek responders to register to receive notification of emergencies.

The website can be found here –  https://goodsamapp.org/home

Here is an alternate site/service – http://vimeo.com/100220010

My question is whether civil liability / wrongs / Good Samaritan legislation that exists in Australia (especially SA) afford protection to a responder who has registered and subsequently responds to an emergency. Also would it matter where they were a non-health professional v’s a health professional?

I would welcome any insight and thoughts that you might have with this emerging use of technology and whether there is any risk of exposure to the registered responders from a wrongs / liability perspective?

If you don’t want to go to the web sites the gist of these apps is that people who have downloaded the app are alerted to a nearby person in need. In one case the app is related to the San Diego fire dispatch system so the alert is sent out by the fire service. The ‘goodsamapp’ requires that the person in need trigger the app on their phone and that sets off the app on nearby phones. According to the video on the website the person who receives the message can ‘accept’ or ‘reject’ the call and that lets the person in need know that someone is coming. The app also calls the local emergency number and hopefully if the app is available in Australia it will be programed to call triple zero.  I assume it is the ‘goodsamapp’ that might be relevant in Australia so it is that app I’ll discuss basing my comments on my understanding of the app, taken from the video on the website, above.

The South Australian good Samaritan provision is found in the Civil Liability Act 1936 (SA) s 74. That section provides that ‘a person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance’ has no ‘no personal civil liability for an act or omission done or made in good faith and without recklessness in assisting’ the person in need. This Act would apply to a person who responds to a call via the app and provides assistance. In that context it would make no difference whether the responder is a medical practitioner or not.

The issue is not the person who responds, it’s the person who doesn’t. Generally there is no duty to rescue (Stuart v Kirkland-Veenstra [2009] HCA 15) but that position can be doubted. In Woods v Lowns (1996) Aust Torts Reports ¶81-376 a doctor was held liable for not responding to assist when asked to do so in a professional capacity. Further in Kent v Griffiths [2000] 2 All ER 474, the London Ambulance Service was liable for not responding in a timely manner to an emergency call (see also ‘Failure to attend by NSW Police and Ambulance’, 18 December 2013).

Signing up for the app is unlikely to somehow create a legal duty to attend when a call for help is received. Whilst not directly applicable, in Hargrave v Goldman (1963) 110 CLR 40 the defendant knocked down a tree that had been set alight by lightning. The fire ultimately escaped and caused significant damage (see Rodger GJ (1961) ‘Report of the Royal Commission Appointed to Enquire into and Report upon the Bushfires of December 1960 and January, February and March 1961, Western Australia’ (Government of Western Australia: Perth)). The defendant denied that he owed any duty of care as he did not cause or light the fire. The plaintiff alleged that by knocking the tree down and taking effort to extinguish the fire the defendant took ‘ownership’ of the fire and thereby owed a duty of care. Windeyer J said (at p 65):

But here what the respondent did in relation to the fire was not done pursuant to any undertaking to the appellants, nor was it done specifically for their benefit. It did not increase the danger of the fire spreading. Probably it diminished it. It seems to me impossible to say that, because the respondent did something to control the fire, he incurred a liability that he would not have incurred had he done nothing. If that were the law, a man might be reluctant to try to stop a bush fire lest, if he failed in his endeavours, he should incur a liability that he would not incur if he remained passive.

As I say that’s not directly applicable but one can draw some links. The person who downloads the app does not do that for the benefit of any particular person, one cannot know who, when or where will use the app to call for assistance. Downloading the app does not increase the risk to anyone. Holding that downloading the app somehow imposed a duty to assist would be to impose a duty that the person ‘would not have incurred had he [or she] done nothing’. That seems contrary to the policy of law.

Even receiving a request for response but failing to respond does not increase the risk to anyone. Further, in Kent v Griffiths, one of the key issues was that the patient waited at home for the ambulance which may not have happened if he had been told the ambulance was not on its way. The ‘goodsamapp’ also calls the emergency number so the person is not waiting for the good Samaritan rather than calling an ambulance. Further if the call is rejected they know they are not waiting for a good Samaritan.

Using the app to call for assistance is not like the situation in Woods v Lowns. In that case the doctor was asked in his professional capacity at his place of work. The person who sets off the app is not calling anyone in particular so they are not calling a particular person because they know they are a doctor. And a doctor who is out, rather than at work at his or her place of practice but not yet seeing patients (as was the case in Woods v Lowns) is likely to have many reasons why they cannot attend. A doctor who is out shopping, or attending to his or her business will not be under a duty to assist and nothing in Woods v Lowns would suggest otherwise.

Even if the person said that they accepted the call, but then did not arrive that is unlikely to give rise to liability as there is no duty to rescue or even respond (Stuart v Kirkland-Veenstra [2009] HCA 15; Capital and Counties v Hampshire County Council [1997] 3 WLR 331). Further, proving that the rescuer would have made a difference if they did arrive would be difficult.

Even if downloading the app did, in some bizarre way, give rise to a duty of care, the question of whether or not a person had to respond would require consideration of ‘the expense, difficulty and inconvenience’ of responding as well as ‘any other conflicting responsibilities’ (Wyong Shire Council v Shirt (1980) 146 CLR 40). So the fact that a person is out and about, unable to attend because of the distance, what else they are doing, the care of children etc would all give a reasonable excuse not to attend.

The question of a duty to respond may not be so clear if the person with the app is a paramedic or police officer, in particular if they at work.   For them, receiving a signal on the app would be like hearing a person calling for help or knocking on the window of the ambulance and asking for assistance. Those officers could be under a duty to assist, depending on what else they are doing at the time, but that duty could probably be met by simply reporting the call if they cannot personally respond (see again ‘Failure to attend by NSW Police and Ambulance’, 18 December 2013).

The one issue here is whether anyone can identify who received and rejected a call.   A person trained in first aid or emergency care can choose to ignore a call for assistance and most of the time, no-one will know that they were there and chose not to assist. With the app there may be a way to identify who received the call and rejected, or ignored, it. Whilst I do not think that person would be liable we all know liability is not the only issue, the process is the problem. Who knows what someone, particularly someone who lost a loved one, would do with that information. The person who ignores or rejects a call for assistance may be subject to criticism or questioning by the media. If they are a doctor or other health professional there may be a complaint. In an extreme case someone may chose to try a legal action and whilst I don’t think they would win, that would be little comfort.

Without knowing the details of the system, and explicitly not giving legal advice to the app developers, the idea of crowd sourcing assistance seems like a novel use of technology but at least in Australian law it is unlikely to create any legal risk for those who might download the app so that they can make themselves available to assist. The most significant risk that I can see is that it may identify who received the call and so then who ignored or rejected the call may also be identified. They would not, in my view, have a legal liability but being identified as someone who had downloaded the app but who then didn’t help when asked could lead to unintended, and possibly unpleasant, consequences.

That appears to be a question to be resolved by the Victorian courts in a claim for compensation brought by an injured police officer (see ‘State denies duty of care to injured police’ The Age 5 July 2014 ). In that article we are told that

The state government and Victoria Police are using an arcane legal technicality to block seriously injured police officers from suing the force for compensation, claiming they owe no duty of care to members hurt in the line of duty.

Actually the claim is not that arcane. Police officers have never been held to be employees at common law because they are appointed to the office of constable and it is up to a constable to decide, on his or her own initiative, not at the direction of others, how to perform his or her duties, that is who to arrest and when.   The office of constable is one of the oldest offices in law, dating back to the time of Henry I and long before there were recognised police forces. Lord Denning said, in R v Metropolitan Police Commissioner; Ex parte Blackburn [1968] 1 All ER 763 at 769, that a constable:

“… must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself.

“No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.”

(For a detailed history of the office of constable see The Office of Constable: The bedrock of modern day British policing (Police Federation of England and Wales, 2008)).

As far back as 1906 the High Court had to consider changes in the office of constable and they way constables were appointed and the increasing scope of their duties under legislation.   In Enever v R (1906) 3 CLR 969 Griffith CJ said:

… at common law constables had large powers necessarily incident to the discharge of their functions as peace officers or conservators of the peace, amongst which perhaps the most important was the authority to arrest on suspicion of felony. To these powers others of a like nature have from time to time been added by statutory provisions … But there is no reason for thinking that the mere statutory addition to the list of their powers altered the essential nature of those powers. It seems also to have been always accepted as settled law that … no responsibility for such[unlawful or unjustified] acts attached to those by whom he was appointed.

That is the development of modern police forces did not change the essential nature of the role of constable as an independent officer, not a mere employee who would, therefore be subject to direction and control in the performance of his or her duties. The Court (Griffith CJ, Barton and O’Connor JJ) held that the State of Tasmania was not vicariously liable for the torts of a constable as the constable was not the Crown’s servant or agent.

Today police officers, who are sworn constables, must abide by the relevant legislation that establishes the modern police force, in Victoria that’s the Victoria Police Act 2013 (Vic) (though at the time of the injuries complained of in this case the relevant Act was the Police Regulation Act 1958 (Vic)).

The issue of police employment arose in New South Wales v Fahy [2007] HCA 20. In this case Constable Fahy sued NSW alleging that the State was liable for the negligence of other police officers who, by their conduct, caused injury to her.   She alleged that the State was vicariously liable as the employer of the other officers. Kirby J in particular (but also Basten JA in the Court of Appeal) raised the question of whether or not the relationship was really an employment relationship but none of the parties to the proceeding wanted to raise that argument. Accordingly the court had to deal with the matter that the parties put into dispute.   What that means, in short, is that the State did not want to deny that they were liable for the other police even though they had been invited to do so. The case is not authority for the proposition that police are employees as the court did not decide that and it did not decide that as it was not asked to; but the issue was, at least in the mind of two judges, a very real issue.

Victoria Police or, more accurately the insurers for the State of Victoria do not seem so generous but one can’t say they are really relying on archaic law and, further, current Victorian legislation supports the claim. The Victoria Police Act 2013 (Vic) provides that the Victoria police consists of various police officers as well as Victoria Police employees confirming that police officers are not Victoria Police employees (s 7).   Although the Minister may give policy directions to the Commissioner, he or she cannot give a direction that relates to those traditional offices of constable, such as ‘preservation of the peace and the protection of life and property in relation to any person or group of persons’ and ‘enforcement of the law in relation to any person or group of persons’ (s 10).   Police officers are appointed by the Chief Commissioner (s 27), not the Crown and they are not employed in the public sector as the Public Administration Act 2004 (Vic) dealing with public sector employment does not apply to a police officer (Public Administration Act 2004 (Vic) s 106(1)(h)); compare this to the situation of police recruits who are employed (not appointed) (s 36).

The State will be vicariously liable for the torts of police by virtue of the Victoria Police Act 2013 ss 72-81. If police were employees of the Crown then these provisions would not be necessary.  All of this supports the claim that police are appointed, but not employed by the Commissioner.

If police are not employees it does not follow that ‘The Police Enterprise Agreement refers to officers as employees, so the agreement would thus be void’ and ‘No new agreement can be formed because the Fair Work Act only applies to employees’ (see ‘Cowardly Claim’ (Letter to the Editor)).   The Fair Work Act 2009 (Cth) does refer to employees and employers but it has an extended definition of the word ‘employee’. An employee includes a ‘reference to a law enforcement officer of a State …’ (ss 30E and 30P) that is police are deemed to be employees for the purposes of the Fair Work Act.  Members of Victoria Police are also deemed to be employees for the purposes of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (see s 4(3) and Schedule 1).   Provisions deeming a person to be an employee would not be necessary if the person was, in law, an employee.

All of this means that police are treated like employees, the State is vicariously liable for their torts and their work entitlements are governed by the relevant Enterprise Agreement but the State appears to want to ensure that they are not employees so they are not subject to the sort of direction that employees are. They are ensuring that police remain independent law enforcement officers that are to exercise their choice to investigate and prosecute offences, the Constable (whatever their rank) ‘is answerable to the law and to the law alone’.

As noted the current police Act is the Victoria Police Act 2013. The claims discussed in the article that stimulated this post arose under the Police Regulation Act 1958 (Vic). What, if any, the impact of the older legislation may have, and what impact the rule that police are not in fact employees will have on the alleged common law duty of care remains to be seen.

This question from a MICA [Mobile Intensive Care Ambulance] paramedic in Victoria who writes:

… in the course of doing monthly clinical audits I came upon the following scenario and was hoping to get an opinion from you as to appropriate actions and / or responsibilities.

Two ALS paramedics were called to a nursing home in answer to a request to transport an elderly demented patient who had become difficult to physically manage by the nursing home staff, including frequent outbursts of violence – unfortunately not uncommon in dementia but usually medicated for, but not on this occasion.   In Victoria we have a guideline that allows for sedation of the “agitated or aggressive” patient, via intramuscular or intravenous Midazolam.   On this occasion the nursing home staff instructed the ALS paramedics not to administer any treatment including sedation.   A discussion ensued during which the relative with Medical Power of Attorney was contacted, who also refused any treatment but demanded transport to hospital.

My question is this:  in the above scenario what are the obligations, responsibilities and “rights” of the attending paramedics?

Consent to medical treatment is a fundamental issue in bioethics and health law. One cannot give treatment without the patient’s consent or other lawful authority, but that does not mean that you have to give everything the patient consents to. For example a person may go to the doctor seeking antibiotics for their viral infection, they may consent but that does not mean the doctor has to give the prescription.   In a more dramatic scenario, the patient may wish to impose conditions but that may mean the treatment can’t be done, for example a person may consent to surgery but for some reason say that they do not want the doctor or nurses to wear gloves. In those circumstances it may be said that the treatment cannot proceed. The right, indeed the need for consent, does not mean that one has to do everything the patient wants but of course it is prudent and right to consider what the patient wants and accommodate their wants if that can be done. There are lots of reasons why the patient’s wishes cannot be met, they may mean the treatment will be ineffective, that it will be too dangerous, or that it poses an unacceptable risk to the health staff or others.   Let us then consider the scenario we’ve been given.

First, just because ‘the nursing home staff instructed the ALS paramedics not to administer any treatment including sedation’ it does not mean that the paramedics have to follow that direction. Imagine if the boot was on the other foot and a paramedic arrived at hospital and told the doctors and nurses not to administer some particular treatment. I’m sure they would rightly thank the paramedic for his or her advice and then ignore the direction. Paramedics are no more a nurses handmaiden than nurses, today, are the doctor’s handmaiden. Paramedicine is it’s own discipline, with its own professional standards. Providing ‘ambulance’ care is not the same as providing nursing care (though there may be many overlaps). One critical issue for ambulance paramedics is not only the patient’s interest but also the safety of paramedics in the confined space of the ambulance and the risk to other road users.   If the patient is ‘difficult to physically manage … including frequent outbursts of violence’ then they pose a risk to road users should they become violent on the road, and that needs to be managed.

Ambulance Victoria Clinical Practice Guideline CPG A0708 deals with ‘The Agitated Patient’. That guideline ‘does not apply to Pts [Patients] who have been recommended for Tx [treatment] under the Mental Health Act’ and I will assume, therefore, that this patient was not being treated under that Act. As that CPG states ‘Paramedic safety is paramount’.   If underlying causes have been managed appropriately but the patient remains agitated Midazolam may be administered.

In this case a ‘discussion ensued [with] the relative with Medical Power of Attorney … who also refused any treatment but demanded transport to hospital’. An agent who has been given an ‘Enduring Power of Attorney (Medical Treatment)’ may make decisions regarding a person’s health care (Medical Treatment Act 1988 (Vic) s 5A).   The agent may refuse treatment if, and only if, they have been informed of the patient’s condition and understand that information; and

(a)      the medical treatment would cause unreasonable distress to the patient; or

(b)      there are reasonable grounds for believing that the patient, if competent, and after giving serious consideration to his or her health and well-being, would consider that the medical treatment is unwarranted. (Medical Treatment Act 1988 (Vic) s 5B).

The problem with the story that we’ve been given is that we don’t know why it was thought sedation was not appropriate.

It is not clear, if a conversation occurred whilst the ambulance was there wanting to transport the patient, if the medical attorney could have been sufficiently informed to make the decision to refuse particular treatment, in this case, sedation.

Further, we certainly don’t know if it was suggested that the treatment would cause ‘unreasonable’ distress to the patient, but what is ‘unreasonable’ has to take into account the need to transport the patient to hospital in an ambulance. The fact that it causes some distress may not mean the distress is ‘unreasonable’ in the circumstances. It must be noted that one of the criterion in either s 5B(2)(a) or (b), quoted above, must be met for the attorney’s refusal to be binding.

Finally, as noted above, even if there is a right to refuse treatment that does not give a right to demand treatment that is unwarranted or cannot be safely delivered without that treatment that has been refused. Just as one couldn’t insist that a doctor perform surgery without gloves, so too the attorney, who may be able to refuse sedation, cannot ‘demand’ that the patient is transported if the transport cannot be done, safely, without the necessary sedation.

Without these critical clinical details it’s not possible to be definitive but the discussion above, does help to suggest what the rights and duties of the paramedics were, or are.

The first point is that if paramedics are, and want to be, professional they need to engage, and be engaged, as part of the health care team. The nursing home staff can’t tell the paramedics how to do their job but they can and should deliver clinically relevant information to the paramedics to ensure that the patient gets the best possible care in accordance with their wishes. The paramedics need to understand why the nursing home staff are asking (not instructing) the paramedics ‘not to administer any treatment including sedation’ and should be willing to accommodate those concerns if they are clinically and ethically relevant. If there is, or was, a sound clinical reason for the request then the paramedics need to work with the rest of the health care team to determine what alternatives there are that would allow the patient to be transported in a way that meets their clinical needs and also ensures the safety of the paramedics and other road users.

Equally the attorney may consent, or refuse, treatment but they cannot insist on treatment. In the circumstances if there is no way to transport the patient without physical or pharmacological restraint that has to be communicated; it may come down to the fact that if the attorney refuses sedation they are in fact refusing ambulance transport! That cannot be used as a glib answer, ‘take what we offer or nothing at all’. As with the concerns of the nurses, the attorney’s concerns need to be considered and, if possible, accommodated, but if not possible then that too has to be communicated.

In short however, neither the nursing home staff nor the attorney can demand that the paramedics transport the person without sedation if sedation is clinically warranted and essential to ensure the safety of the paramedics and other road users. If they refuse that treatment and the refusal is valid then alternative transport or treatment would need to be arranged.

The Emergency Management Act 2013 (Vic) came into force on 1 July (see ‘New laws come into force’, 7 July 2014).  Even thought this is a new Act it is already subject to amendments. The Emergency Management Amendment (Critical Infrastructure Resilience) Bill 2014 (Vic) was introduced to the Victorian Parliament on 5 August 2014 and this Bill will, if passed, amend the 2013 Act to provide for the further development of critical infrastructure resilience.

In short, the Bill will provide for three categories of critical infrastructure, significant critical infrastructure, major critical infrastructure and vital critical infrastructure. Ministers who have responsibility for infrastructure to assess that infrastructure using prescribed ‘criticality assessment methodology’. Once the infrastructure has been assessed it is to be recorded on the Victorian Critical Infrastructure Register that will be maintained by Emergency Management Victoria. The entity responsible for critical infrastructure will be required to ensure that there is a relevant emergency management plan that is audited every 12 months. Relevant officers with emergency management or counter-terrorism responsibilities may access the register to obtain details of the infrastructure and who is responsible for that infrastructure.

The Bill will, if passed, come into force on 1 July 2015 unless proclaimed to commence earlier.

I have been asked this question about relationships between Fire and Rescue NSW and the NSW Rural Fire Service.

I would like you to advise on the following matter concerning rescue response. Sometime ago a MOU was signed in a particular region between NSW Rural Fire Service (RFS) and Fire & Rescue NSW (FRNSW) with the intention to set out how both services respond to fire calls in a given area.

The way the MOU has been interpreted due to the MOU referring to “all incidents” now sees the local RFS brigade being responded to all and every incident under the MOU, including all rescues.

This was never the intention of the MOU, it was written meaning “fire incidents” and not HAZMAT, rescues or storm damage.

That said, as FRNSW responds the RFS they turn out the RFS to every incident because the computer system flags the RFS to respond to every incident including non-fire related rescue incidents, for example, a child with their finger in a plug- hole!

Section 52 of the SERM Act 1989 clearly states what the definition of a rescue unit is. The RFS have no rescue units in NSW. Furthermore, S.118 of the State Rescue Board Policy (SRB Policy) states accreditation must be approved by the Minister. The RFS have no approval by the Minister to respond to rescue incidents as a rescue unit.

Then at S.2.15 of the Policy it states it is illegal under the SERM Act for non-accredited rescue units (read RFS) to respond without the authority of the police. That said, it is clear that NSW Police Force can call any resource to a rescue under S.1.14, but it is not the police but FRNSW Communications responding the RFS to rescue calls.

At S.2.10 the policy mentions response to motor vehicle accidents with persons trapped. Here it states that the fire service with the operational jurisdiction for the area is to respond and provide fire protection. Again, FRNSW Communication Centres respond the RFS to provide fire protection despite the call being well within FRNSW Fire District….and all because of the word “all incidents contained within the MOU”.

It is clear under S.2.11 of the SRB Policy that not all emergency services maybe required to attend all rescues. That aside, the RFS have no rescue training (GLR), equipment or accreditation.

On the balance of the above, are FRNSW through their Communication Centres in breach, or at the very least not carrying out the intention of the SRB Policy, by responding the RFS to all rescues incidents in the operational area which the MOU covers?

Notwithstanding the above, there is not a shadow of a doubt the RFS are not an accredited rescue unit, the RFS are not trained in rescue and it clearly states it is illegal to respond to such incidents without the approval or the request of the police. Would you advise that action be taken through official channels to have the response of the RFS to all rescue calls, as described, changed to be in-line with SRB Policy? Is the action of FRNSW Communication Centres illegal as described in the Policy?

Your professional consideration of the above matters would be greatly appreciated.

The State Emergency and Rescue Management Act 1989 (NSW) does provide for State Rescue Management (part 3).   The Act establishes the State Rescue Board that is to ‘ensure the maintenance of efficient and effective rescue services throughout the State’ (s 47) and to ‘make recommendations to the Minister on the accreditation of rescue units (both permanent and volunteer) for participation in rescue operations’ (s 48(1)(h)).   Police are required to coordinate all rescue operations (s 50).  It is an offence to operate a rescue unit (that is ‘a unit (comprising a group of persons) which carries out rescue operations for the protection of the public or a section of the public’ (s 52)) or operate a rescue vehicle (that is, a vehicle that is designed, adapted or equipped for use in rescue work and: (a) is clearly marked with the word “Rescue”, or (b) is fitted with warning devices, such as flashing lights or a siren, or both (s 52)) is without appropriate accreditation (s 53) from the Minister (s 54).

The Board is to ‘make recommendations to the Minister on policy matters relating to the provision of rescue services within the State’ (s 48(1)(b)) and an accredited rescue unit is to give effect to the Board’s decisions (s 49).

The Board has published four policy statements (available at http://www.emergency.nsw.gov.au/publications/legislation_polices_guidelines).  They are the:

1. State Rescue Policy;
2. Flood Rescue Policy;
3. State Rescue Board Mandatory Equipment Lists; and
4. Vertical Rescue Directive.

I will accept, without verifying, that the RFS has no accredited rescue units. Paragraph 1.18 of the State Rescue Policy does refer to accreditation by the Minister but that is simply restating what the Act requires.  It is true that police, when exercising their obligation to coordinate rescue (State Emergency and Rescue Management Act 1989 (NSW) s 50) can ‘call-out any resource whether accredited or not to undertake a rescue or to assist in a rescue’ (State Rescue Policy [1.14]).  I assume that Fire and Rescue NSW is the primary accredited rescue unit for the relevant area (State Rescue Policy [1.30] and [2.01]).

Paragraph 2.15 of the State Rescue Policy says ‘It is illegal under the provisions of the Act for non-accredited units to respond to call-outs for rescue without the approval of the NSW Police Force’.   That’s not quite correct.  The Act says that it is an offence to maintain a rescue unit, or have a rescue vehicle without accreditation.  It says nothing about ‘turning out’ and the RFS I assume, does not claim to have a rescue unit nor are any of its trucks ‘clearly marked with the word “Rescue”’; so the RFS is not committing the offence provided for in s 53.

The NSW Rural Fire Service is ‘to provide rural fire services for New South Wales’ (Rural Fires Act 1997 (NSW) s 9(1)(a)).  The Service is also ‘to assist other emergency services organisations at incidents and at emergencies under the control of those organisations’ (s 9(1)(b)).

So where does that leave us?  Fire and Rescue NSW receive a call and respond both their own unit and the RFS.  There is no offence here (there is certainly no breach of s 53) and the RFS is meeting its obligation to assist FRNSW.  It may be that FRNSW have explained to the police and the local rescue committee (s 48A) of the MOU and that they will dispatch the RFS to ‘all incidents’.

In short if the MOU says ‘all incidents’ then what else are ComCen to do?  This is just an example of bad drafting and a misunderstanding.  The action of  FRNSW Communication Centres is not illegal, nor is the action of the RFS in turning out when called.   If the police object to the RFS response they should raise that with the fire agencies.  If RFS volunteers don’t want to turn out to these events as they don’t think that was intended or they have nothing to contribute then the appropriate response is not to point to law or suggest that there is some illegality, rather it is to revisit the MOU and amend it so that it says what was intended.