Queensland paramedics challenge COVID19 vaccination requirements.

Michael Eburn: Australian Emergency Law - 12 February, 2023 - 06:00

In an article that appeared in Response (the journal of the Australian College of Paramedicine) entitled Ways to lose your job (Part 1), I wrote:

What we can conclude, in this first article on how to lose your job – is that paramedics who fail to comply with legal requirements where that means they cannot perform their job can expect to lose their job. An argument that the requirements are excessive or not lawfully made is not an issue the employer or an industrial tribunal can deal with.

As further evidence of that conclusion, I can report on a number of cases determined by the Queensland Industrial Relations Commission where paramedics lodged appeals against decisions to reject their exemption applications, or to suspend or dismiss them after they elected not to get a COVID-19 vaccination.

Cases where the paramedic applicants were unsuccessful in overturning the decision:

  1. Elsworthy v State of Queensland (Queensland Ambulance Service) [2022] QIRC 412 (28 October 2022);
  2. Stys v State of Queensland (Queensland Ambulance Service) [2022] QIRC 415 (28 October 2022);
  3. Shield v State of Queensland (Queensland Ambulance Service) [2022] QIRC 439 (14 November 2022); and
  4. Jones v State of Queensland (Queensland Ambulance Service) [2023] QIRC 022 (24 January 2023).

There were no cases where the paramedic applicants were successful in overturning the decision.

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

Categories: Researchers

UFU seeks release of information provided to VEOHRC fire service inquiry

Michael Eburn: Australian Emergency Law - 11 February, 2023 - 06:00

Back in 2015, the Secretary to the Department of Justice and Regulation wrote to the Victorian Equal Opportunity and Human Rights Commission (the VEOHRC) asking it to undertake a review of the practices within the CFA and MFB with respect to discrimination and sexual harassment. In 2018 the Supreme Court held that the inquiry was beyond the power of the VEOHRC (see Report on discrimination, sexual harassment and victimisation in the CFA and MFB to be withheld (October 5, 2018)).

On 20 March 2018 the United Firefighters Union of Australia, Victorian Branch (the UFU) made a request under Freedom of Information legislation asking VEOHRC

… for all emails, letters and attachments sent or received by VEOHRC ‘in relation to its Independent Equity and Diversity Review of the CFA and MFB during the period 15 December 2017 to 15 March 2018’ between it and the following:

a.            Metropolitan Fire Brigade (MFB);

b.            Country Fire Authority (CFA); and

c.            Emergency Management Victoria (EMV)

VEOHRC made the decision to release one document in full, to grant partial access to three documents and to deny access to 275 documents. The UFU sought a review of this decision, but the outcome was affirmed by the Public Access Deputy Commissioner. The UFU then appealed to the Victorian Civil and Administrative Tribunal (VCAT). VCAT handed down its decision on 17 October 2022 – United Firefighters Union of Australia – Victorian Branch v Victorian Equal Opportunity and Human Rights Commission (Review and Regulation) [2022] VCAT 1193 – 4 ½ years after the initial request.

The concern of the VEOHRC is obvious.  They were conducting an inquiry into discrimination and sexual harassment within the fire services. To do that they went out to seek information from those who could provide that information. Naturally the information was sensitive and was given with a promise of confidentiality. The staff at VEOHRC and those participating in the inquiry believed the inquiry was being conducted under the protection of the Equal Opportunity Act 2000 (Vic).  It was only when the Supreme Court made its ruling in 2018 did it become known that the inquiry was beyond the power of the Commission but by that time the information had been collected.

The UFU argued (at [19]) that it sought access to the documents ‘in order to shed light on what led to the review being commissioned; the decision to continue with the review despite the issues raised by UFU; and the apparent unauthorised disclosure of information to the media’.

Ms Simone Cusack, Head of Policy and Research gave evidence on behalf of VEOHRC. The tribunal summarised the effect of her evidence (at [28]) as:

… the effectiveness of a review in promoting compliance with the EO Act is dependent on ‘a deep level of trust and confidence’ that VEOHRC will conduct its review professionally and sensitively and maintain appropriate safeguards for the collection, analysis and recording of confidential and sensitive information. She said that in order to build the trust required for VEOHRC to receive information of the kind, it must operate with the promise and expectation of confidentiality of communications. She said that VEOHRC ‘currently routinely’ takes precautions when conducting research and reviews to ensure appropriate information is kept confidential and trust is maintained.

Her evidence (at [30]) was:

Individual participants were sometimes the victim of rape or attempted rape or death threats, she said. They were asked about the impact on them of the conduct and the employer’s response. Some participants had attempted suicide. Some still had to work alongside persons alleged to have bullied them. VEOHRC sought to make sure participants felt safe to provide information. There were people who would feel safe to disclose behaviour to VEOHRC as an external, independent organisation. But some people were so fearful of victimisation, so fearful that the employer would find out they had disclosed information, that they had withdrawn from the review. The degree of distress and concern those people had meant that VEOHRC did not draw distinctions between what information would be protected and what information would not be protected. The consent forms provided to them made the confidentiality of their information clear. Ms Cusack said that duty holders [ie agencies like the CFA or MFB (at it then was)] also provided highly sensitive confidential information such as minutes of board meetings and complaints data. She said that they would not do that to the same extent if they were not assured about the confidentiality of the information.

With specific reference to the fire service inquiry, she said (at [32]) ‘VEOHRC set up a ‘confidentiality framework’ with MFB and CFA ‘to document the expectation that all communications would be kept strictly confidential’’.

At [39] the Tribunal reported:

Ms Cusack said that, based on her experience in overseeing VEOHRC’s research and reviews, she expected that release of the documents requested by the UFU would likely result in duty holders being reluctant to engage VEOHRC to conduct a review or to agree to VEOHRC undertaking research. She said that in discussions with organisations considering review or research, confidentiality was always ‘front of mind’… Reviews require organisations to ‘open themselves up’ to an assessment of their performance on issues that are by their nature often sensitive and controversial, she said. Ms Cusack said that while organisations engage VEOHRC to learn and improve their programs and practices, they regularly seek a level of assurance and agreement as to how any information will be shared publicly. VEOHRC is able to reassure organisations that it can maintain confidentiality, pointing to work done previously for other organisations and to the secrecy provision in the EO Act. Ms Cusack said that she had found that this provided a ‘level of comfort’ that allowed organisations to have confidence that VEOHRC is a trustworthy recipient of their information. She said that, in her experience, without that reassurance, organisations were unlikely to be willing to engage in reviews or research.

And at [41]:

Ms Cusack stated in effect that there is a real risk that any order to release the requested documents would significantly limit VEOHRC’s capacity to undertake its work, in the public interest, of improving compliance with the EO Act and identifying lessons for effectively dealing with sexual harassment.

With respect to the Freedom of Information Act 1982 (Vic), it provides for a general right of access to information held by the Victorian government and its agencies, but there are exemptions where information is provided in confidence (s 46) or where the information is protected by a secrecy provision in another Act (s 47).  The Equal Opportunity Act does have a secrecy provision (s 176).  That section:

… applies to information concerning the affairs of any person that is or has been obtained by a person to whom this section applies

(a) in the course of performing functions or duties or exercising powers under this Act or an old Act; or

(b) as a result of another person performing functions or duties or exercising powers under this Act or the old Act. applies to information received.

Counsel for VEOHRC (at [54]):

… acknowledged that, for the documents to be exempt [from production under the FOI Act], VEOHRC must show that the documents contain or would communicate information that was communicated to it in confidence, and that disclosure would be contrary to the public interest because it would be reasonably likely to impair VEOHRC’s ability to obtain similar information in future.

The Tribunal found (at [60]) that ‘the MFB documents, the CFA documents and the EMV documents contain or would communicate information that was communicated to VEOHRC in confidence’.  Senior Member Billings then had to consider the public interest test.  At [63] he said ‘disclosure would be reasonably likely to impair VEOHRC’s ability to obtain similar information in future. Ms Cusack described in detail, including from her personal experience, the need for individual participants and duty holders to be reassured about confidentiality and the real chance that, without that reassurance, they would not engage with VEOHRC.’

The Tribunal rejected the argument that the secrecy provision of the Equal Opportunity Act did not apply because (at [69]) ‘the information in question was not obtained by a relevant person in the course of performing functions or duties or exercising powers under the EO Act’. The Tribunal relied on the words of Gageler J of the High Court of Australia in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 (Kable no.1), quoted at [82].  The effect of his decision was even if a law was found to be invalid or beyond power, that did not deny the fact that the law had been acted upon to affect rights or interests.

The factual existence of the [invalid law] might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the [invalid law] itself.

In the UFU case it was not an invalid law, but an invalid exercise of power under a valid law, but the principle remains.  As counsel for VEOHRC said (at [83])

… while the Fire Services Review was … invalid, the review was not a nullity in the sense that it had no existence or was incapable of attracting legal consequences. The carrying out of VEOHRC’s tasks by its officers had consequences including the creation of a statutory right to confidentiality under section 176 of the EO Act.

Even if the documents were exempt from disclosure, VCAT could order their release if that was in the public interest ([88]).

The public interest must require release in the sense that it demands or necessitates release.  There is a difference between what is in the public interest and what is of interest to the public.

Senior Member Billings found that the public interest was against disclosure.  He said (at [91]):

I consider that disclosure would be contrary to the public interest because would be reasonably likely to impair VEOHRC’s ability to obtain similar information in the future. I have noted the very significant public interest there is in VEOHRC being able to conduct reviews and related functions. The secrecy provisions in section 176 of the FOI Act safeguard that. In the case of the draft report, disclosure would circumvent the order made by the Court of Appeal. Disclosure of at least some of the other documents in dispute could have a similar effect.

At [118] the Tribunal ‘concluded that the disputed documents are exempt under … the FOI Act and that the public interest override does not apply. I have further concluded that it would be not practicable to grant access to a copy of the documents with deletions …’ The decision of the Commissioner was affirmed and access to the 275 documents was denied.

Discussion

I report this case because I can imagine this whole process may have been the subject of discussion within the CFA, MFB (now FRV) and EMV.  If people had provided information to the inquiry it is important to let them know that the decision by VEOHRC to maintain that confidence has been affirmed.

Equally it is important for members of the UFU (which may also include people who gave information to the inquiry) to know what steps the UFU are taking in this matter. Some may support the UFU’s actions, others may not, but it is worth reporting that the issue of the VEOHRC inquiry is still– six years after it commenced – before the courts and still attracting the attention of the UFU. It is certainly an example of the wheels of justice turning very slowly.

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

Categories: Researchers

Disability discrimination in NSW RFS

Michael Eburn: Australian Emergency Law - 10 February, 2023 - 12:25

Today’s correspondent reports they have:

… been a NSW RFS member for close to 9 year and heavily involved in arduous/RAFT team … After finishing Uni, I got a job working in [another area] and last year thought I’d apply for dual membership. In the membership process I declared that I was type 1 diabetic. RFS sent me to GP where I was cleared. Nothing happened for 6-7 months after numerous phone calls and emails I complained to deputy commissioner. Couple weeks after this I was notified that I had been deemed operational not fit and suspended from any operational roles. I then stated that I had been told that when I joined RAFT that type 1 diabetes wouldn’t affect my progress. Now they have just replied that I must be fit, and that diabetes deemed me unfit. They also stated that there had been no changes to RFS policy regarding health.

Is my suspension legal? As an unpaid employee I thought I was protected from being suspended like this? Wouldn’t they have to provide proof that I had been involved in an incident or near miss to suspended me like this?

This is a conflict between obligations under the Work Health and Safety Act 2011 (NSW) and the Anti-Discrimination Act 1977 (NSW).

Work Health and Safety Act 2011 (NSW)

The Work Health and Safety Act requires the RFS to ensure ‘so far as is reasonably practicable, the health and safety’ of workers, which includes volunteers (s 7). So the RFS has to take steps to ensure that both my correspondent is not exposed to a risk to his or her health and safety, and neither are other members of the RFS.  If a volunteer is in remote areas with a RAFT (Remote Area Firefighting Team) then he or she may be exposed to risk if they suffer a hypo or hyperglycaemic episode; and other members of the Team may be exposed to risk if one of the team becomes incapacitated and requires assistance or evacuation.   It is not for me, as I am not a clinician, to comment on the extent of that risk or how it might be managed but I think it is not problematic to say that such a risk must exist and the RFS then has a duty to mitigate that risk. All firefighting carries risk that can be managed by not sending anyone to fight a fire but that is not practicable, so it must be the case that it does not follow that the only response to the risk is to ban a person with type I diabetes from operational roles. The response to the risk that diabetes might pose to a firefighter and his or her colleagues, must be considered and proportionate considering the factors set out in s 18; that is:

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

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

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

(i) the hazard or the risk, and

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

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

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

The Anti-Discrimination Act 1977 (NSW)

The RFS must also consider the Anti-Discrimination Act 1977 (NSW).  That Act says a person must not discriminate against another on the grounds of disability (Part 4A). Disability means (s 4):

(a) total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

(b) the presence in a person’s body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person’s body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

The World Health Organisation (16 September 2022) says ‘Diabetes is a chronic disease that occurs either when the pancreas does not produce enough insulin or when the body cannot effectively use the insulin it produces’. I am not a medical doctor, but I would infer that diabetes could therefore fall into paragraphs (a) (a ‘partial loss of a person’s bodily … functions’) or (c) (‘the malfunction … of a part of a person’s body’).

If that is correct the Anti-Discrimination Act says that a person must not treat a person with that disability (ie diabetes) less favourably than they would treat someone without diabetes (s 49B).  It is not unlawful discrimination if:

… the person because of his or her disability–

(a) would be unable to carry out the inherent requirements of the particular employment, or

(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

The Anti-Discrimination Act does not apply to volunteers

The prohibition on discrimination does not apply everywhere – it applies to work, and in particular with respect to employees, and in education, the provision of goods and services, accommodation and in registered clubs (ss 49D-49O).  My correspondent refers to volunteers as ‘an unpaid employee’ but that is not correct.  Volunteers may be workers for the purposes of the Work Health and Safety Act 2011 (NSW) but that does not make them employees or the equivalent of employees for all other purposes (and if you can access the Facebook version of this blog, see the discussion following the post Taking photos whilst deployed as a volunteer emergency worker (January 19, 2023)).

It is therefore hard to see how the Anti-Discrimination Act would apply to prohibit disability discrimination against a volunteer unless one could argue that by providing training and opportunities to serve, the RFS is providing ‘goods or services’ to its volunteers – see Anti-Discrimination NSW Volunteers and voluntary organisations (28 July 2021), and see also:

RFS Service Standards

Even if the RFS is not bound by the Anti-Discrimination Act vis-à-vis its volunteers, it should behave as if it is – and that is, arguably, the effect of Service Standard 1.1.42 Respectful and Inclusive Workplace (8 September 2015). That standard says (at [3.19]) ‘Discrimination occurs when someone is treated differently or unfairly because they have a protected characteristic pursuant to anti-discrimination legislation’ and one of those protected characteristics is disability. That standard also says ‘Discriminating against a member of the NSW RFS in any of the following ways is against the law …’ but as noted that may not be true if the member is a volunteer.  But we can, I think, infer that the RFS does not intend to discriminate against its volunteers in ways which would be illegal if they were employees and has adopted this Standard to set out that objective and to provide redress for all members of the RFS – volunteers and employees.

If we assume that the RFS wants to apply the Anti-Discrimination Act to its volunteers, then we can return to the question of whether this decision is contrary to the Act.  Here it becomes a question of opinion, and the evidentiary basis of that opinion.  The GP who assessed my correspondent as fit for duty has particular knowledge about the individual and their ability to manage their diabetes, but may or may not have specific knowledge about the roles and duties of remote area firefighting.   The RFS has specific knowledge about remote area firefighting but not about the individual and we have no idea of who wrote any policy or the science behind any conclusions about type I diabetes.

Firefighting health standards

Service Standard 3.1.4 Remote Area Firefighter Fitness Testing sets out details of fitness testing for RAFT firefighters, but makes no mention of diabetes.  That document does refer to the Australasian Fire Authorities Council (AFAC) (2002) Guidelines for Health and Fitness Monitoring of Australasian Fire and Emergency Service Workers, AFAC, Melbourne. A summary of those guidelines is published by AFAC. That document refers to Category A and Category B conditions.

Category A      Category A conditions relate to circumstances that are not safely compatible with firefighting. Reasons for inclusion of medical conditions in Category A include a heightened risk of a serious adverse event or significant likelihood that a pre-existing condition will be made worse when the affected person performs the essential tasks of firefighting. Applicants should be aware that the presence of a Category A condition will usually preclude a person from firefighting duties unless there is specialist medical advice based on sound medical evidence to the contrary.

Category B      Category B conditions indicates that a more detailed medical assessment is required.  Usually, this must be conducted by an appropriately qualified specialist. The presence of a category B condition will commonly preclude firefighting, unless specified conditions are met.

Diabetes is listed under the heading Endocrine Conditions and Other Systemic Diseases as follows:

Category A

• Diabetes mellitus associated with:

(a)        A history of disabling hypoglycaemia (low blood sugar) such as loss of consciousness

(b)       Where the person has a poor awareness of the symptoms of impending hypoglycaemia

(c)        Where there is evidence of any diabetes-related disease of other organs including eyes, kidney, heart, vascular system or neurological system

Category B

• Diabetes mellitus of any type without the features mentioned above

The RFS document also refers to NPWS Interim Guidelines for Fire Fighter Health and Fitness September 2003, but I am unable to locate them online.

I note that the Fire and Rescue NSW Health Standard for Firefighters (March 2016) says:

9.3.4 Diabetes

As diabetes is a risk for cardiovascular disease, and good cardiovascular health is required for firefighting, diabetes screening and assessment is important. Diabetes treatment associated with risk of hypoglycaemia is also assessed, as the absence of conditions resulting in impairment or acute incapacity is required for safe firefighting. Diabetes assessment is also relevant due to complications such as retinopathy (can result in visual impairment) and peripheral neuropathy (may affect balance), which can also impact on the effective and safe undertaking of firefighting duties. 

This document sets out various factors to be considered when assessing cardiac risk.  A very high risk applies with:

  • diabetes and age >60 years
  • diabetes with microalbuminuria (>20 mcg/min; or urinary albumin:creatinine ratio >2.5 mg/mmol for males or > 3.5 mg/mmol for females)

With respect to diabetes, the Health Standard says (at [12.2]):

Treatment with insulin has been assessed by Fire & Rescue NSW (FRNSW) as representing an unacceptably high risk in the firefighting context and will therefore attract permanent restrictions on firefighting activities. This takes into account the significantly increased frequency with which hypoglycaemia occurs in those treated with insulin, compared with those on non-insulin agents…

The following information therefore relates to firefighters who are not on pharmacotherapy, or on noninsulin treatment. When assessing a firefighter’s medical fitness for firefighting duties, consideration must be given to:

  • satisfactory glycaemic control
  • absence of severe hypoglycaemia (i.e. hypoglycaemia that results in impaired level of consciousness)
  • presence of hypoglycaemic awareness
  • absence of complications that impact on medical fitness for firefighting duties.

I don’t know about my correspondent’s status nor am I a medical practitioner, so I don’t need to know. The point of the above is to show that diabetes is a factor to be considered in firefighting and to indicate the sort of factors and risk management that has been adopted by the fire agencies.

What we can conclude is that the RFS do not need to ‘provide proof that I had been involved in an incident or near miss to suspended me like this’ rather they need to consider the factors listed and determine whether the risk is acceptable.  That begs the question of how detailed was the history taken by the GP and the report to the RFS.  It certainly implies that type I Diabetes is not a necessary bar to firefighting but it ‘will commonly preclude firefighting, unless specified conditions are met’ and particular consideration has to be given the unique nature of RAFT work.

Conclusion

The decision to suspend a firefighter from operational duties is legal if it is based on a proper assessment of their ability to perform the essential tasks of the job. Diabetes is clearly a legitimate concern.  Whether the RFS has considered the relevant considerations such as those adopted by FRNSW, or simply adopted a blanket ban would be the relevant consideration.  If they have adopted something like FRNSW, then one would hope they would help a person such as my correspondent to obtain a relevant specialist opinion, or an opinion from a treating practitioner to identify the patient’s history and their ability to control their diabetes. There previous successful service would also be a relevant consideration.

As for a remedy a volunteer could make a complaint to Anti-Discrimination NSW but as noted, prima facie the Anti-Discrimination Act does not apply.  They may be able to help mediate an issue if everyone agrees but there would be no jurisdiction to impose a remedy.  In that case the best solution would be to formally raise the concerns through the RFS grievance processes.

In short:

Is my suspension legal?

I cannot answer that without knowing how the decision was made, the nature of the reports provided, the RFS policy etc. Diabetes is clearly a legitimate consideration but in some circumstances a diabetic may be fit for duty but whether that extends to RAFT duties would be a matter for specialist medical consideration and the application of RFS policy.

 As an unpaid employee I thought I was protected from being suspended like this?

A volunteer is not an ‘unpaid employee’.  The Anti-Discrimination Act does not apply to volunteers.

Wouldn’t they have to provide proof that I had been involved in an incident or near miss to suspended me like this?

No, a risk assessment can identify a risk without having to wait for adverse consequences to actually arise. 

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

Categories: Researchers

Paramedic John Larter’s appeal to NCAT – you lose some, you win some

Michael Eburn: Australian Emergency Law - 9 February, 2023 - 17:51

John Larter is a NSW paramedic who has been actively involved in opposing mandatory vaccination for health care workers as well as the response to COVID-19 generally.  Mr Larter is also a councillor in the Snowy Valleys Council and stood as a candidate at the last federal election.  He was the plaintiff in an action in the NSW Supreme Court challenging various public health orders made by NSW Health Minister Brad Hazzard – see Requiring COVID vaccines for emergency workers(April 1, 2022) and Paramedic’s appeal against NSW COVID orders dismissed (November 24, 2022).

Mr Larter has been dismissed from NSW Ambulance and I understand his claim for unfair dismissal is still proceeding.

Mr Larter’s registration as a paramedic was suspended by the NSW Paramedicine Council (‘the Council’) on 17 September 2021.  The suspension was lifted on 14 June 2022, but the Council imposed conditions on his registration placing restrictions on his ability to practice as a paramedic.  On 15 October 2021 Larter lodged an appeal against the decision to suspend his registration.  On 12 July 2022 he appealed against the decision to impose conditions on his registration.  Both matters were heard by the New South Wales Civil and Administrative Tribunal (NCAT) in November 2022. On 7 February 2023, NCAT published its reasons dismissing the appeal – Larter v Paramedicine Council of NSW [2023] NSWCATOD 12 (and I thank Bill Madden, author of Bill Madden’s WordPress, a blog about ‘Medical law, abuse law, NDIS & civil liability’ in Australia for bringing this to my attention).

The decision to suspend Larter’s registration was in response (at [8]) to:

… six complaints in relation to the Appellant (the 2021 Complaints). The 2021 Complaints all relate to the Appellant expressing his views in the media (newspaper, radio and Facebook video interviews) about the COVID-19 pandemic, public health orders for lockdowns in NSW, and the NSW Ministry of Health Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 dated 26 August 2021. In the media posts, the Appellant identifies himself as a paramedic, and in the newspaper and Facebook video interviews he is seen wearing his NSW Ambulance paramedic uniform. In one photo he is seen standing in front of a NSW Ambulance vehicle in his uniform.

Health Practitioner Regulation National Law s 150

The power to suspend a practitioner’s registration is set out in s 150 of the Health Practitioner Regulation National Law (NSW). It is a power to be used ‘where immediate action of an emergency kind requires the Council to act’ ([26]). Section 150 (quoted at [9]) says:

(1)        A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest-

(a)        by order suspend a registered health practitioner’s or student’s registration; or

(b)       by order impose on a registered health practitioner’s registration the conditions relating to the practitioner’s practising the health profession the Council considers appropriate;…

That is, there are two separate tests in s 150 – the protection of the health and safety of any person or persons, and the public interest. Finding action under s 150 is warranted by consider of either of those tests is sufficient (Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 quoted at [38]).

In Ghosh v Medical Council of New South Wales [2020] NSWCA 122 (quoted at [27]) the Court of Appeal set out relevant principles to guide NCAT when considering appeals of this type.  They said that because of the emergency nature of the powers the decision maker, whether the Council or NCAT, is not bound by the rules of evidence, is not required to make conclusive findings about the complaints, nor determine whether the practitioner’s conduct amounts to ‘professional misconduct’ or ‘unsatisfactory professional conduct’.  The issue for the decision maker is:

… to consider whether, on the material before it, allowing the practitioner to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or otherwise involves a risk not in the public interest.

Because the measure is protective there does not need to proof of actual harm, the potential for harm is sufficient.

With respect to the question of the public interest:

The “public interest” consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession.

The Tribunal noted that the exercise of the powers under s 150 is quite separate to the normal process of receiving complaints, giving the respondent practitioner the time to respond, conducting an inquiry, determining the issues of fact and whether the complaint is made out and then applying an appropriate sanction.  The section 150 powers are (at [41]) ‘only to be invoked as an emergency power where the circumstances are urgent’.

The appeal

Mr Larter was able to appeal on two grounds. The first, provided for in s 159 was an appeal that simply asked the Tribunal to consider the matter afresh and make its own decision. The second under s 159B was an appeal based on an claimed error of law by the Tribunal.

With respect to s 159B and an error of law, Larter’s appeal claimed (at [47]):

  1. A lack of procedural fairness;
  2. That the action of the council infringed the principal of legality as it
    1. Infringed his freedom to engage in political communication (a freedom recognised by the High Court of Australia); and
    1. Infringed his right to bodily integrity;
  3. The decision was harsh and disproportionate to any risk; and
  4. The council acted from an improper motive.
Procedural fairness

Larter appealed on the basis that he had not had a chance to obtain legal advice or to consider the documents sent to him on the 16th of September that were relevant to the hearing scheduled for the 17th.

NCAT rejected these arguments.  They noted that Larter had been advised of the date of the Council’s hearing on 9 September and had been in regular contact with his legal advisers since that time ([51]). In fact he believed his advisers had contacted the Council to seek an adjournment of the matter but that clearly did not happen.

Importantly for readers of this blog, on 16 September 2022, Larter was sent ‘a bundle of documents’ relevant to the hearing scheduled for 17 September and therefore he did not have time to consider the content of the documents.

The Tribunal said (at [52]-[53] emphasis added):

The Appellant’s concerns about “no time to consider and read the policies relied upon” must be seen in context where, as a registered paramedic he was obliged to be aware of the policies which from the time of his registration were binding on him and he was required to comply with their terms.

The bundle of documents sent to the Appellant late on 16 September 2021 was a resending of documents earlier provided to him plus the following: Paramedicine Board of Australia – Code of Conduct; AHPRA Social Media Guideline; AHPRA statement on Registered health practitioners and students and COVID-19 vaccination; and AHPRA Guidelines for advertising a regulated health service. Each of these documents were relevant to his registered status and he was required to comply with their contents, thus required to have knowledge of their contents.

Further Mr Larter was asked, before the hearing before the Council commenced whether there was any written material he wanted the council to consider. And after the hearing he was invited to make any further written submissions by 20 September.  He declined both offers ([59]).

The Tribunal said (at [62]):

In our view, the Appellant was not denied procedural fairness. He made no real effort to prepare for, or deal with, the contents of the complaints prior to 17 September 2021 despite the warnings as to the seriousness of the matter. He adopted a dismissive approach to the proceedings. He went about other business, pursuing a workers compensation claim on 16 September 2021. He clearly had every opportunity to obtain legal advice. He did not provide a response or arrange for his legal representatives to provide further information to the Council as he was advised he could do. The Appellant chose not to take up the opportunity offered to him to respond further in writing by 20 September 2021.

Legality and the implied freedom of political communication

The High Court has determined that the Australian Constitution implies a freedom of communication about governmental and political matters (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, McCloy v New South Wales (2015) 257 CLR 178 cited at [65]).  That is not however an individual right, rather it is a limit on the legislative powers of the Commonwealth – that is the Commonwealth cannot pass laws that are intended to limit that right ([66]).  But no freedoms are absolute and they can be restricted where the restriction is a proportionate response to a legitimate concern – for example the right to political communication could not extend to blowing up a federal building nor the incitement of violence.  At [68] the Tribunal said:

The Appellant made no attempt to address the legal principles, and made no submissions as to whether the “freedom” claimed was unjustifiably burdened by the exercise of legislative power …

In the circumstances where the appellant, Larter, failed to address the relevant legal issues, this ground of appeal was rejected.

Legality and the right to bodily integrity

This argument has been put and rejected in other cases including Kassam v Hazzard (discussed in Requiring COVID vaccines for emergency workers (April 1, 2022)). The gist of the argument is that everyone has the right to refuse treatment but the obligation upon employees to be vaccinated denied them that right. The problem is that none of the public health orders compel anyone to be vaccinated. The choice to be vaccinated remains, but as with all choices there are costs and one of those costs may be that the person cannot do their job.  And where they cannot do their job because their employer is required to comply with the law and the law says a person doing that job must be vaccinated, then the employer may have no option but to terminate the person’s employment. 

With respect to this case, the Tribunal said (at [74]-[75]):

… so far as the right to bodily integrity is concerned, it was not violated as the suspension did not in any way amount to an act of vaccination, or authorise the involuntary vaccination of anyone (Kasam v Hazzard at [9], [55] per Beech-Jones CJ at CL). As his Honour found in that case, a consent to vaccination “is not vitiated and a person’s right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry into a construction site.” The particular Public Orders under consideration in that case, his Honour held, did not violate any person’s right to bodily integrity any more than a provision requiring a person undergoing medical examination before commencing employment does (at [63]).

We reject the Appellant’s arguments as to a failure by the Council to take account of the Appellant’s asserted right to bodily integrity, a right which has no application to the present appeals.

Harshness and Proportionality

Larter argued that he

… posed no greater risk in the workforce than a worker who had been vaccinated but who had not received a booster shot within 6 months… He then argues that he represented no greater risk than any member of the public who was not vaccinated but who presented to a hospital. No evidence was put forward to support these assertions.

In the absence of any supporting evidence, this ground was also rejected.

That the suspension led to the termination of his employment did not constitute any reason to find that the decision was too harsh or disproportionate – at [82]:

… the exercise of the powers under s 150 are to protect the health and safety of persons and to protect the public interest. The exercise of the power to suspend registration on an interim basis clearly will impact on a practitioner’s ability to work as a registered paramedic. The consequence, however, flows from the practitioner’s conduct considered to be an immediate and unacceptable risk. The Council, however, has no control over how the practitioner’s employer reacts to that outcome.

Improper Purpose and Ultra Vires

The appellant also argued (at [84]) that the actions of the Council were motivated by an improper purpose ie a desire to punish him for expressing his views.  The Tribunal said (at [85]):

The reasons published by the Council on 7 October 2021 address the risks posed by the Appellant’s repeated conduct. There is, in our view, no basis for asserting that the power was exercised “to punish” the Appellant and this argument is rejected.

Having rejected all these arguments, the Tribunal concluded there was no demonstrated error of law.

The appeal under s 159

With respect to the more general appeal, in affect an application for a rehearing, the Tribunal considered there was no value in determining the matter. The Tribunal noted (at [94]) that ‘the evidence before the Council and before us as to the state of affairs as at September 2021 justified the exercise of the s 150 powers’.  Any decision now could not affect the legality of the decision in September 2021 and the Tribunal could not make orders affecting the suspension that is no longer in force. The Tribunal said (at [100]-[103]):

… The setting aside of a decision which is no longer operative by reason of the decision of the Council in June 2022 would have no practical effect in the scheme provided by the National Law.

We take into consideration also that the making of the decision under s 150 did not involve the Council arriving at concluded views on the facts, but was simply the result of a risk assessment made at the time.

There is, in our view, no utility in the Tribunal now reconsidering the decision giving rise to the Suspension Appeal in the different circumstances which now apply.

In respect of the s 159 Suspension Appeal we therefore do not propose to rehear that appeal in circumstances where the suspension was lifted in June 2022 and there is now no record of the suspension on the publicly available registration sites which recorded the suspension in the first place.

Appeal against the imposition of conditions on his registration

Here Larter was successful. The Tribunal noted (at [107]) that Mr Larter was no longer employed by NSW Ambulance and is unable to return to that service, or any other paramedic employer, whilst he remains unvaccinated so he is not going to pose a risk to patients. The Tribunal also noted that many of the public health restrictions have now been lifted.  Finally the Tribunal noted that whilst Mr Larter continued to make the sort of public statements that brought him to the attention of the Council there is ‘no evidence of the Appellant doing so in the capacity as a paramedic and/or wearing his uniform’. 

The Tribunal said (at [110]) ‘We are not satisfied on the evidence before the Council on 14 June 2022, or now before us, … that it was or is appropriate to impose conditions on the registration of the Appellant …’. Accordingly, the Tribunal made orders replacing the decision of the Council.  On 14 June 2022 the Council had revoked Mr Larter’s suspension and imposed conditions. The new order from the Tribunal was that on 14 June 2022 Mr Larter’s suspension was revoked, but no conditions are imposed on his registration.

That is not the end of the matter

This appeal dealt only with the interim or emergency action under s 150 to first suspend Mr Larter’s registration and second, to impose conditions on his registration. As noted above the normal process for dealing with complaints about a health practitioners conduct is to conduct an inquiry to allow the relevant decision maker (in this case the Paramedicine Council) to determine whether the allegations have been established and whether the established facts constitute ‘professional misconduct’ or ‘unsatisfactory professional conduct’.  If that is established, then the Council can impose some sanctions but if the Council is of the view that the practitioner’s should be ‘struck off’ then the matter must be referred to NCAT. Again, as noted above, taking action under s 150 is an emergency measure to protect the public in circumstances of urgency, it does not replace that ‘normal’ process and in Mr Larter’s case, that process is ongoing.  We can expect that he will still be called before the Council to respond to the complaints and the Council, and if necessary NCAT, will proceed to hear and determine the matters.

Value as a precedent

This case is of little value as a legal precedent as it is a decision of NCAT, not a superior court. But it is of value to paramedics who may be called before the Council or (in other states) a committee.  Importantly paramedics should be aware that:

  1. Action under s 150 is an interim or emergency measure – a decision to suspend a practitioner’s registration or impose conditions is not a determination of ‘professional misconduct’ or ‘unsatisfactory professional conduct’.
  2. Paramedics are expected to know of and comply with documents relevant to their registration including ‘Paramedicine Board of Australia – Code of Conduct; AHPRA Social Media Guideline; AHPRA statement on Registered health practitioners and students and COVID-19 vaccination; and AHPRA Guidelines for advertising a regulated health service’ – and see also New research on paramedic use, and understanding, of the Code of Conduct (November 7, 2022).
Conclusion

No doubt Mr Larter’s issues with the Paramedicine Council will continue and there will be further reports on the outcome of his matters in due course.

In this matter the Tribunal declined to revisit the issue of his suspension on 17 September 2021 given that suspension has now been lifted. The Tribunal was satisfied that the decision to suspend him was, at the time it was made, justified by the evidence and Mr Larter was given appropriate opportunities to take part in the process and respond to the Council. The suspension was lifted in June 2022 and there was now no point reconsidering whether the Council should have made that decision given that any order of the Tribunal – dealing with his suspension – would make no difference to Mr Larter’s current position.

With respect to the decision to impose conditions on his registration, made in June 2022 the Tribunal was of the view that the change in Mr Larter’s circumstances since September 2021, and the change in the public health response meant that the Council should not have imposed conditions.  Concerns about Mr Larter’s past, and ongoing behaviour and whether that warranted any action by the Council or NCAT, should be left to the ‘normal’ processes. There was insufficient risk to warrant the imposition of conditions.  Accordingly, the Tribunal made a new order confirming that Mr Larter’s suspension was revoked and withdrawing the conditions on his registration.

For Mr Larter it was a lose one, win one outcome.

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

Categories: Researchers

Fire Rescue Victoria successfully opposes clothing company’s trade mark

Michael Eburn: Australian Emergency Law - 8 February, 2023 - 16:32

Due to a glitch in the software that delivered latest cases to my desk, I have missed out on reporting some relevant, recent cases.  I will attend to that over the next few weeks to clear that backlog. In the meantime, today I can report on an interesting matter involving Fire Rescue Victoria – Fire Rescue Victoria v CBS (Aust) Pty Ltd [2022] ATMO 209.

ATMO is the Australian Trade Marks Office. In this case CBS (Aust) Pty Ltd wanted to register as trade marks, logos that they printed on t-shirts and other clothing.  The sort of images that they used, and wanted to register are shown below. 

Fire Rescue Victoria (FRV) opposed the application.

An issue was whether the term ‘Fire Rescue’ on the applicant’s range of clothing was obviously a trade mark (eg a brand name on the label) intended to distinguish the applicant’s clothing from the products of others.   An example of one of the applicant’s t-shirts is shown below:

The applicant provided ([35]):

… links to websites showing t-shirts bearing the words ‘FIRE RESCUE’ typically on the left breast (essentially the same design t-shirt in the image reproduced, above). Other images show hoodies bearing the ‘MELBOURNE FIRE RESCUE’ logo shown above. These images do not demonstrate use of FIRE RESCUE in a manner which is likely to be seen as a trade mark and, consequently, do not assist the Applicant.

In other words, the use of the words ‘Fire Rescue’ were not clearly intended to distinguish the brand of the applicant’s products from those of others, but was designed (at [18]) to appeal to ‘24–49 year old males, particularly those with interests including … the fire brigade and trades …’.  It did not distinguish the applicant’s product from those of others, including Fire Rescue Victoria.

The Delegate agreed with Fire Rescue Victoria and refused to register the Trade Mark.

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

Categories: Researchers

Emergency use of a volunteered EpiPen in WA

Michael Eburn: Australian Emergency Law - 6 February, 2023 - 06:00

Today’s correspondent asks

… in Western Australia does a person with appropriate pre-hospital care training such as a first-aider or paramedic acting in good faith act reasonably according to law if they come across a situation in public whilst not at work where someone they determined to be in a life-threatening (anaphylaxis) and whilst at that situation another person volunteers an EpiPen that is in its packaging and in-date administers the EpiPen to the person in the life-threatening situation out of the principal of necessity?

I think I have largely answered that question in the post Using someone else’s EpiPen (June 9, 2016) but I’ll do it again with specific reference to WA legislation.

The simple answer is yes, a person who is trained to recognise anaphylaxis and to use an EpiPen is acting lawfully if they use someone else’s EpiPen in circumstances where they believe its use is indicated.

An EpiPen is a schedule 3 drug. In this situation we have three people

  • Person 1) the owner of the EpiPen – the supplier;
  • Person 2) the first-aider or paramedic who administers the drug; and
  • Person 3) the patient.
Medicines and Poisons Act 2014 (WA)

A paramedic is authorised to supply schedule 3 drugs and to administer, possess and supply schedule 4 or 8 drugs provided they do so in accordance with a relevant structured administration and supply arrangement (Medicines and Poisons Act 2014 (WA) s 25 and Medicines and Poisons Regulations 2016 (WA) r 62).  Given in our scenario the first-aider or paramedic are ‘off duty’ I’m going to assume that r 62 does not apply.

The Western Australia Department of Health says (Requirements of the Medicines and Poisons Legislation: a summary for public health service facilities (2020) at [8]):

The Medicines and Poisons Legislation is silent about who can administer doses of Schedule 2 and Schedule 3 medicines. These medicines are packaged and labelled in a manner which includes directions and warnings to allow a consumer to safely self-administer doses.

Further (at [5]):

There are no possession offences relating to Schedule 2 and Schedule 3 medicines: these medicines are primarily subject to supply controls.

The Medicines and Poisons Act 2014 (WA) s 8 defines ‘supply’ as ‘to supply the poison, or a substance that contains the poison, to another person, but does not include administering a poison or substance directly to another person’.   Section 13 says:

(1) A person who …  supplies a Schedule … 3 poison commits an offence unless —

(a) the person does so —

(i) under and in accordance with an appropriate licence or a professional authority; and

(ii) in accordance with the regulations;

or

(b) the person does so in accordance with subsection (2) or (3).

(2) A person may supply a Schedule … 3 poison to another person (the patient ) if —

(a) the person reasonably believes that the use by the patient of the poison would be appropriate for therapeutic purposes; and

(b) the amount of the poison supplied is reasonable in the circumstances; and

(c) the person reasonably believes that the patient will use the poison for therapeutic purposes.

(3) A person may supply a Schedule 2 or 3 poison to another person (an agent ) if —

(a) the person supplies the poison to the agent for the purpose of it being supplied or administered to another person or to an animal (the patient ); and

(b) the person reasonably believes that the use by the patient, or the administration to the patient, of the poison would be appropriate for therapeutic purposes; and

(c) the amount of the poison supplied is reasonable in the circumstances; and

(d) the person reasonably believes that —

(i) the agent will —

(I) supply or administer the poison to the patient; or

(II) supply the poison to another person for the purpose of it being supplied or administered to the patient;

and

(ii) the poison will be used by, or administered to, the patient for therapeutic purposes.

What section 13 tells us is that if Person 1 gives their EpiPen to either Person 2 or the patient it is an offence (s 1) unless ss 2 or 3 apply.  Section 2 is relevant if Person 1 gives their EpiPen directly to the patient. Given they believe the patient needs it, and the dose they are giving is the dose in the EpiPen then we can conclude s 13(2) would ensure that Person 1’s action is legal.

If Person 1 gives the EpiPen to person 2 (the first aider or paramedic) who in this context is ‘the agent’ to administer to the patient then subsection 3 also provides the relevant defence.  So person 1 does nothing wrong when they volunteer their EpiPen to be used for the benefit of the patient.

If person 2 gives the EpiPen to the patient, then again s 13(2) provides the necessary legal authority.  If Person 2 actually injects the patient with the EpiPen then they have administered the drug. As noted legislation does not provide an offence of administering a schedule 3 drug.

Conclusion 1

The first conclusion is that neither Person 1 nor Person 2 in our scenario commits an offence under the Medicines and Poisons Act 2014 (WA) by giving Person 1’s EpiPen to the patient or injecting the Patient with the EpiPen in the circumstances described.

Good Samaritan legislation

The Civil Liability Act 2002 (WA) s 5AD(1) 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 is (s 5AB) ‘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 the circumstances described the off duty first-aider or paramedic would be a good Samaritan as would person 1 who volunteers their EpiPen.

Given that they believe that the person requires the EpiPen they are acting in good faith and would enjoy the protection of this section should there be adverse consequences.

Conclusion

In Western Australia a person with appropriate pre-hospital care training such as a first-aider or paramedic who comes across a situation whilst not at work where they believe a person is suffering from life-threatening (anaphylaxis) does not act contrary to law if they use an EpiPen, volunteered by another person volunteers to treat the life threatening emergency.  Such conduct is not only not prohibited by the Medicines and Poisons Act 2014, it is specifically authorised by that Act, and is encouraged by the Civil Liability Act 2002.

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

Categories: Researchers

Carer performing CPR despite known NFR order

Michael Eburn: Australian Emergency Law - 4 February, 2023 - 16:05

Today’s correspondent asks “Is a carer protected under law if they commence CPR in an emergency situation, knowing the person has an NFR order with an advanced care plan?” The answer is, in short, no.

By NFR I infer we mean ‘Not for Resuscitation’.  As for ‘carer’ we do not know whether that means employed as a carer or a person caring for a family member or close friend.

Common law

Remember the common law says that treatment like CPR can be given when there is a necessity to act ‘when it is not practicable to communicate with the assisted person’ and ‘the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person’ (In Re F [1990] 2 AC 1).  But, continued Lord Goff

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified … when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

A person caring for another person not only has personal knowledge of that person, including in this context that they have ‘an NFR order with an advanced care plan’ they also have a duty to provide care that is in the person’s best interests – and that would include respecting and honouring their wishes.  If the carer knows the person has ‘an NFR order with an advanced care plan’ then they know that CPR is either futile, has been determined to be not in the patient’s best interests or is ‘contrary to the known wishes of the assisted person’.  In any of those cases commencing CPR cannot be justified by the principle of necessity.

And would a reasonable person administer CPR to a person they are caring for when they know the person has ‘an NFR order with an advanced care plan’?  My answer to that question would be ‘no’.  The right to consent and refuse consent to treatment is a fundamental principle in law. That right is not lost just because the person needs a carer or because the choice being made is one of life and death.  And if the patient is not capable of making the choice but the medical staff in consultation with relevant family members have determined that the treatment will be futile or not in the patient’s best interests, then the patient has a right not to be subjected to that care even if it would make the carer feel better.

Good Samaritan legislation

In most states there is what is colloquially know as ‘good Samaritan’ legislation – see https://australianemergencylaw.com/civil-liability-legislation-in-each-state/. If we take the NSW provision as an example it says (s 57(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.

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’ (s 56).  If the person provided assistance is the injured person’s carer, and they know that the person has ‘‘an NFR order with an advanced care plan’ then I fail to see how it would be an exercise in ‘good faith’ to administer CPR that you know has been contra-indicated and/or refused.

If the care is paid, then they are paid to assist the person and they are not therefore a ‘good Samaritan’.

Consequences

If the carer is a family member there is not really anyone to complain to and legal consequences are less likely even if simply because no-one would want to take them to court or the police.  But if the person is employed as a carer, providing CPR contrary to the know NFR order could see the carer civilly or criminally liable (for battery) and at the least putting their job at risk. They are, I hope, employed to provide the care the patient needs and consents to and if an NFR order is in place, then CPR is not indicated care. The family or the patient may rightly complain that the carer is not an appropriate carer if they are not willing to accept the judgement of the patient and/or their treating team as to what is and what is not appropriate care. 

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

Categories: Researchers

Use of the blog in disciplinary proceedings

Michael Eburn: Australian Emergency Law - 4 February, 2023 - 15:33

Today’s correspondent writes to tell me that the content of my blog has been used in disciplinary proceedings against a member of the RFS. They want to know whether I was aware of that and whether I had given specific permission for the use of the blog in those proceedings.  They quote the comment I wrote on the page ‘Publications’.  There I say:

You are free to download the material here for your personal use, as a training aid or for fair comment.  If you do use the material in any way, I reserve my intellectual property rights (including moral rights).  In any use you must acknowledge my authorship and the source of the material.

The links on that page include links to articles published in journals and books where I do not hold the copyright.  That is a page about those publications rather than the blog itself. 

Whether it’s published material or the blog itself, the  problem is once something is published it is out there and can be quoted or relied on as people see fit. As the author I cannot know what use people make of it nor could I practically stop them unless they were making commercial profit from it.

With respect to the specific issue, I have had no communication with anyone, nor given permission for my blog to be use in disciplinary proceedings, but I don’t think I need to.   Using my blog to help identify applicable law – ie to research what the law is and then citing the blog as a source – would I suggest fit within the concept of ‘fair dealing’ for the purpose of research (Copyright Act 1968 (Cth) s 40). 

I write the blog to help inform relevant stakeholders on what the law – or at least the law as I understand it – is. And one day the RFS may want to rely on the blog to say ‘this is what Eburn thinks the law is’ and on another occasion it may be a person who is trying to hold the RFS to account. I am (hopefully) neutral in regard to those positions – if I help everyone understand the law then the consequences fall where they may. The blog is for the benefit of RFS members and the RFS (and other agencies).

The advantage of the blog, and what separates the blog from legal advice, is that it is public. This means it is available to everyone.  If it has been relied upon to someone’s detriment, that person can also see what I wrote and may, if they like, argue that I’ve been misunderstood or misquoted, that what I said doesn’t apply in the circumstances or that I was wrong.  And if I’m not wrong and the conclusion is relevant then it’s better that everyone understands the law and can then make their decisions accordingly.

In short, I am not aware of the blog being referred to as part of disciplinary action against a NSW RFS member, but I can no more object to that than I can object to someone relying on one of my textbooks as a guide to the law.  It is not only unobjectionable, it is why I and other academics write what we do – to communicate the law so that the law can be understood, critiqued if necessary and relied on where appropriate.

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

Categories: Researchers

First aid and drugs in Queensland

Michael Eburn: Australian Emergency Law - 2 February, 2023 - 18:00

Today’s correspondent works for a first aid training company that is based in Queensland and where they are:

… having trouble clarifying the law on medications and First Aid …

We usually train that a first aider cannot administer their own medication to a casualty with the exception being 1 aspirin in the case of a suspected heart attack. In all other circumstances, they can assist a casualty in taking their own medications (EpiPens, salbutamol, Panadol etc). We have had several teachers ask us the law on EpiPens. I read your article about medications, and I just want to clarify, does that mean that if they hold a current Asthma and Anaphylaxis training, they can administer an EpiPen or puffer even if it’s not the students own? Also, does the law change with an Advanced First Aider?

I’ve answered this type of question before, but this may be a way to bring other answers together.

Sources of law

First, we have to distinguish what we mean by ‘law’.  There are two sources of law, the statute laws made by Parliament and with them associated regulations made by a delegated authority (the Governor or a Government Department or committee); and the common law.  Statute law is usually quite specific, it is a set or rules made to deal with particular issues. The relevant example here is the Medicine and Poisons Act 2019 (Qld) and the Medicines and Poisons (Medicines) Regulation 2021 (Qld).

But not all legislation is specific. There is a trend to make legislation broad brushed to leave those bound by the Act wide scope to determine how they will comply.  A leading and relevant example is the Work Health and Safety Act 2011 (Qld) which (like the Acts in all jurisdictions other than Victoria) imposes a general duty on the Person Conducting the Business or Undertaking (the PCBU).  It sets out factors that a PCBU must consider but, because every undertaking is different, the PCBU is expected to come up with their own assessment of what is ‘reasonable’ and apply that in their own business.  There are not clear or defined rules which leaves lots of freedom, but also consequences if the PCBU’s assessment of what is a reasonable response to a risk does not accord with the regulators.

Finally, there is the common law.  The common law is developed on a case-by-case basis.  A case has direct and specific application to those who are parties to the case. But a judge will set out relevant legal principles but not specific rules.  As with legislation like the WHS Act it is up to those that come afterwards to decide how those principles apply to their business.

With that brief lesson in Law 101 behind us we can turn to some specific issues.

Poisons laws

State laws are trying to apply the Poisons Standard that is itself a Commonwealth standard (see Medicine and Poisons Act 2019 (Qld) s 9). The current standard is the Therapeutic Goods (Poisons Standard—February 2023) Instrument 2023; but the standard is updated every 6 months or so; so this won’t be current for long.  You can find the current version on the Federal Register of Legislation.  The February 2023 standard is here.  It is this standard that defines the various schedules of drugs.

The first thing to note is that the Queensland law says that is an offence to administer a medicine (Medicine and Poisons Act 2019 (Qld) s 35). The term ‘medicine’ means a drug listed in schedules 2, 3, 4 or 8 of the Poisons Schedule (s 11).  (Poisons are those substances listed in schedules 5, 6 and 7 (s 12)).  The term regulated substance refers to all the items listed in all the schedules and various substances regulated by the Australian Pesticides and Veterinary Medicines Authority (s 17).

So, the first thing we can see is that the Medicine and Poisons Act does not say ‘a first aider cannot administer their own medication to a casualty with the exception being 1 aspirin in the case of a suspected heart attack…’. What s 35 does say is:

A person must not administer a medicine to someone else … unless the person—

(a) administers the medicine in the authorised way; or

(b) has a reasonable excuse.

To administer a medicine includes ‘give a dose of the medicine to a person to be taken immediately’ (s 26).  To administer the medicine in an authorised way means that the person is authorised under the Act in this case to administer the medicine (s 31). 

Non-scheduled drugs

But a medicine is a drug listed in schedules 2, 3 4 or 8.  Not all drugs are, in particular common pain killers such as paracetamol, ibuprofen and aspirin provided they are packaged appropriately, do not appear in the schedules -see Non-scheduled drugs (July 27, 2022).  It follows that there is no law that says if someone asks for a Panadol because they have a headache, that a first aider – or anyone – cannot give them one (or two) from the pack they have in their bag and that they bought from a supermarket; but that doesn’t mean it’s a good idea.

Work Health and Safety Law

That is the specific law, but then there are the general laws. Remember the WHS imposes a duty on a PCBU. That duty includes a duty to provide first aid equipment and access to people trained to provide first aid (Work Health and Safety Regulation 2011 (Qld) r 42).  In the event of a misadventure at work, a PCBU can point to reliance on a published Code of Practice as evidence that it complied with its duty under the law (Work Health and Safety Act 2011 (Qld) s 275).  There is a published First aid in the workplace  Code of Practice   2021 (Workplace Health and Safety Queensland).  The Code of Practice says (at p. 30):

Medication including analgesics like paracetamol and aspirin should not be included in first aid kits because of their potential to cause adverse health effects in some people including pregnant women and people with medical conditions like asthma. The supply of these medications may also be controlled by drugs and poisons laws. Workers requiring prescribed and over-the-counter medications should carry their own medication for their personal use as necessary.  

However, workplaces may consider including an asthma-relieving inhaler and a spacer to treat asthma attacks and epinephrine auto-injector for the treatment of anaphylaxis or severe allergies. These should be stored according to the manufacturers’ instructions and first aiders should be provided with appropriate training. Queensland Health regulates the purchase and administration of emergency first aid medicines and should be contacted for more information.

That would give some support to the belief that a first aider – certainly one at work – should not carry or administer any drugs.  It makes no exception for ‘1 aspirin in the case of a suspected heart attack…’ but it does refer to ‘analgesics’. I note that aspirin in the case of a suspected heart attack is recommended by the Australian Resuscitation Council, and it is not being used, in that context, as an analgesic (ARC Guideline 9.2.1 – Recognition and First Aid Management of Suspected Heart Attack (April 2021)) so one would argue that its place in a first aid kit is not inconsistent with the Code of Practice.

With respect to analgesics, there is an issue of why you would need analgesics in a workplace first aid kit. If the workplace environment is inducing headaches or other pain then there is a structural problem – about ventilation, or noise, or air quality, or ergonomics, or something – that’s causing the workers to develop pain and that needs to be addressed.  And if it’s only one worker who needs them then there is something about that worker and their working conditions that needs to be addressed. 

But never say never.  A PCBU that has workers working outside in remote areas, a long way from other support, may think it’s quite reasonable to include a packet of paracetamol in the first aid kit. That is up to them and their risk assessment.

The common law

The common law principles that most people think about is negligence. A first aider owes a duty of care to their patient, and it may be unwise to give non-scheduled drugs to a person without at least first making enquiries as to their signs and symptoms. 

Conclusion 1

There is no law that says ‘a first aider cannot administer their own medication to a casualty with the exception being 1 aspirin in the case of a suspected heart attack’.  If we are talking about non-scheduled drugs, which includes some pain killers that you can buy from a supermarket, a first aider commits no offence if they administer that medication (which means give some to a person to be consumed immediately). But if they are at a workplace that is discouraged by the Code of Practice and it may be negligent if the first aider does not consider the patient’s signs, symptoms and history and consider any contra-indications.  But in some circumstances, it may be quite reasonable– eg an event first aid provider at an outdoor event where a person has been in the sun a bit too long but is now sitting in the shade, rehydrating and asks for a pain killer. The risk of an adverse event (if you ask about prior history etc) may be very low and you may be reasonably acting in the patient’s best interests by giving an adult what they ask for.

Scheduled drugs

Scheduled drugs an entirely different kettle of fish.  It is an offence to administer a scheduled poison (or in Queensland ‘a medicine’) without an authority to have that medication.  Adrenaline as found in a EpiPen is schedule 3 as is salbutamol found in a asthma puffer.  Unless a first aider carries an EpiPen or an inhaler for their own use they should not be carrying those drugs without an authority.

In Queensland a person who holds ‘a current certificate granted by a registered training organisation for the provision of first aid’ (ie a first aid certificate) may possess and administer methoxyflurane, adrenaline in an (epinephrine) autoinjector, naloxone and/or an inhaled asthma reliever provided they have completed training in the use of those drugs (Medicines and Poisons (Medicines) Regulation 2021 (Qld) Sch 5, Part 2).

Conclusion 2

An appropriately trained first aider can carry and administer medication methoxyflurane, adrenaline in an (epinephrine) autoinjector, naloxone and/or an inhaled asthma reliever.  To put that another way, in Queensland, if they hold a first aid certificate plus ‘current Asthma and Anaphylaxis training, they can administer an EpiPen or puffer even if it’s not the students own’.

Emergency

Remember too there is the doctrine of necessity or, to refer to s 35, ‘a reasonable excuse’.  If a person has an EpiPen or inhaler for their own use and can see another person is suffering an emergency, then of course you can administer the medication to save the other person’s life or relieve their critical symptoms.  It would be outrageous for a person to recognise for example, that a person was suffering an anaphylactic reaction but do nothing even if they have an EpiPen in their own pocket for fear that a regulator will prosecute them.  As noted s 35 allows for a defence of ‘reasonable excuse’ and saving the person’s life will meet that criteria – see Using someone else’s EpiPen (June 9, 2016).

Conclusion

The law does not say ‘a first aider cannot administer their own medication to a casualty with the exception being 1 aspirin in the case of a suspected heart attack’.

The law says a first aider cannot administer a medicine, that is substances listed in schedules 2, 3, 4 or 8 of the Poisons Schedule (Medicine and Poisons Act 2019 (Qld) ss 11 and 35) without an authority.  

Aspirin, paracetamol and ibuprofen when packaged appropriately are not in the Poisons Schedule so a first aid can administer those (which includes give a dose of the medicine to a person to be taken immediately’ (s 26)) but they should stop and think ‘is this is a good idea?’   As a general rule it is not a good idea in a workplace (First aid in the workplace  Code of Practice   2021 (Workplace Health and Safety Queensland, p. 30) but as noted it may, on a risk assessment be reasonable to have aspirin to administer in the case of a suspected heart attack.

In Queensland an appropriately trained first aider can possess and administer methoxyflurane, adrenaline in an (epinephrine) autoinjector, naloxone and/or an inhaled asthma reliever.  The law does not distinguish between ‘first aid’ and ‘advanced first aid’ but to carry these drugs the person must have a first aid certificate and the appropriate training in the drug involved.  A training organisation may recognise that extra training as the difference between ‘first aid’ and ‘advanced first aid’ but the law does not use those terms.

In an emergency of course you can use someone else’s medication if it’s a choice between life and death.  That may not be true if you don’t know the indications and contra-indications for the drug, but it will be a non-issue if we’re talking about an EpiPen or asthma inhaler and a person who knows when and how to use them eg a person who generously uses their EpiPen to save someone else’s life.  (And if you remember the scene from the movie ‘Pulp Fiction (1994) (viewer discretion advised) where John Travolta injects the Uma Thurman character with adrenaline to save her life, I doubt whether any authority would prosecute for unlawful administration of that drug.

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

Categories: Researchers

The use of CCTV in hospital emergency departments

Michael Eburn: Australian Emergency Law - 27 January, 2023 - 06:00

Today’s question is:

… about the use of CCTV in areas of an Emergency Department where a patient may assume are private.

I’m working in … Queensland. I’ve recently been made aware that there is a surveillance camera in the Fast Track area positioned in such a way as to show the entire room including all four beds. If the curtains are drawn most of the view to private areas is blocked, however not all curtains are able to be drawn completely. I believe there is a sign on the front door of the facility regarding CCTV but the scope of possible footage in this particular room surprises me. Views of common areas within the Fast Track area and corridor could likely still be achieved without full view of patient beds. The camera is certainly visible in the corner, but I am not sure patients would be aware of the scope of footage.

What is the legality of positioning cameras in areas which patients may have an assumption of privacy?

That’s a complex issue.

The Code of Conduct for Nurses (Nurses and Midwifery Board, 1 March 2018) says (at [3.5]):

Nurses have ethical and legal obligations to protect the privacy of people… To protect privacy and confidentiality, nurses must: …

b.         provide surroundings to enable private and confidential consultations and discussions, particularly when working with multiple people at the same time, or in a shared space.

The AHPRA shared code of conduct (29 June 2022) that applies to the other registered health professionals, including paramedics, says:

You have ethical and legal obligations to protect the privacy of patients…

To protect privacy and confidentiality, good practice includes that you:…

b.         provide surroundings to enable private and confidential consultations and discussions, particularly when working with multiple people at the same time, or in a shared space

The code of conduct published by the Medical Board (Good Medical Practice: a code of conduct for doctors in Australia (1 October 2020)) is not that explicit, it says that a good doctor-patient partnership involves a doctor ‘Protecting patients’ privacy and right to confidentiality, unless release of information is required or permitted by law’ ([4.2.3]).

The first thing to consider is that these clauses must be contextualised. A GP working in their private rooms can conduct private consultations, but in an emergency room, or public ward, where all that divides the patients is a curtain, meeting the requirements set out in any of these codes will be difficult so the practitioner must do the best they can in the circumstances.

Second, particularly in an emergency room, consultations will not be between doctor or nurse and patient but between the team. So, a doctor may be asking the patient questions in the presence of other members of the treating team, but no-one would suggest that this was a breach of the Codes of Conduct.  It’s not a breach to share medical information – on a need-to-know basis – with others in the team or to have a discussion with the person whilst other members of the team are doing their work.

Finally, details of the consultation are then recorded in the health care record. These entries may be written by the doctor, a nurse or even a clerk whose job it is to keep those records. And the records may be accessed by those providing care but also for hospital administrative purposes (for a related discussion see First aid patient records – who and what are they for? (January 31, 2015)).

The critical issue is that everyone who can access the record is bound by the same duty of confidentiality and can only access the record on a needs-to-know basis.  And the duty of confidentiality also belongs to the health care institution (Privacy Act 1988 (Cth) and state and territory privacy legislation) so the hospital has to ensure that the records are properly maintained and staff understand their obligations.

Let us then consider the issue of the CCTV.  The recording forms part of the hospital’s record. One can see why a hospital would want that record. It could form relevant evidence if something happens, or something is omitted. Whether that ‘something’ is violence in the hospital or a claim that a treating practitioner did, or failed to do something that they should have.   Did the doctor assault the patient? Did they perform a procedure that the patient alleges they did not?

If it is part of the hospital record it would, we anticipate, be subject to the same sort of controls.  Only accessed by those who need to know, so I would hope it is not being monitored by security staff whilst procedures are taking place.

The use of a CCTV may be subject to the Surveillance Devices Act 2004 (Cth) and equivalent legislation in the states and territories.  A surveillance device includes a listening device that can overhear or record a conversation. It’s not clear whether the CCTV in question records audio but I think we can infer that it can ‘record visually or observe an activity’ so it is an optical surveillance device (s 6).

The Surveillance Devices Act 2007 (NSW) s 8 says:

A person must not knowingly install, use or maintain an optical surveillance device on or within premises … to record visually or observe the carrying on of an activity … without the express or implied consent of the owner or occupier of the premises …

Clearly there is no offence when the owner of the premises – the hospital – installs the devices.

It follows that there would appear to be few legal issues provided that the recording is protected like all hospital patient records.

I should note that I take a very different view where the cameras are recorded by television stations to record entertainment such as ’24 hours in emergency’ or the various ‘fly on the wall’ paramedic shows – see How are reality ambulance shows legal? (Updated) (October 9, 2018).

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

Categories: Researchers

First aid and public passenger vehicles

Michael Eburn: Australian Emergency Law - 25 January, 2023 - 11:56

Today’s question is about a

…  public/commercial transport driver’s duty of care to their passengers in terms of first aid. By public/commercial transport driver I mean to include privately operated taxis and coach services that provide transport as well as state operated or contracted transit services.

For the purposes of the Model WHS Act and its various implementations into state legislation, the PCBU has a duty of care to their workers and others in their workplaces to ensure that there is provision for first aid to be available. Workers also have responsibility for ensuring they do not endanger themselves or others.

The Code of Practice for First Aid in the Workplace is also unambiguous in that a vehicle operated by a worker also falls under the definition of “workplace” and has the same requirements of ensuring workers have access to first aid as would a fixed premises.

That said I understand that while individual workers have an obligation to take reasonable care for the health and safety of others, they do not necessarily have a duty to provide any first aid treatment. The exception being unless they are appointed as a first aid officer, which many public transport drivers certainly are not.

However, in the case of a public or commercial transport driver these occupations are frequently regulated, and the drivers are held to have specific safety obligations to passengers.

  1. My question is to what – if any – extent a public or commercial transport driver owes a duty of care to a passenger in relation to providing first aid should a passenger become unwell or injured during a journey?
  2. I take it as a given, they cannot simply abandon a passenger who becomes unresponsive or severely unwell (extreme breathing difficulty, etc) in the middle of transport without at least calling an ambulance. However, must a driver provide CPR, or follow any other instructions for care given by 000 operators?
  3. Must they supply first aid items to passengers if available and practical to do so, for example to control bleeding if the passenger sustains a wound?
  4. In addition, does it matter to the duty of care if the injury is or is not the result of actions by the driver (e.g. a bus driver pulls away from the stop while passengers are still walking down the aisle, causing the passengers to lose their footing and sustain an injury)?

These are interesting questions as I have in the past worked as a bus driver! 

The driver of any vehicle owes a duty of care to all road users, and it is axiomatic that they owe a duty of care to their passengers.  The driver of a public passenger vehicle – a bus, a ride share service, a taxi, a hire care – must owe a common law duty of care to the passengers (see for example Imbree v McNeilly [2008] HCA 40).

Work health and safety

Added to that is the obligation of the PCBU which in the cases of buses would be the bus company, but for taxis and ride share services, the driver themselves maybe the PCBU.

I’m not given a specific jurisdiction for this question, so I’ll use NSW law as my exemplar. As noted a PCBU must (Work Health and Safety Regulation 2017 (NSW) r 42(1)):

… ensure–

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

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

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

If I think if my time ‘on the buses’ we were not trained in first aid nor did the buses carry a first aid kit; but there were field staff that we could contact by radio who did carry that equipment and could (and did) respond to incidents when required.  That may be sufficient for the PCBU to have meet these WHS requirements taking into account the nature of the workplace and the risk (r 42(3)).  

For a situation where the driver is self-employed, so they are the PCBU it would seem that they would need to, at least, carry a first aid kit. 

Public transport regulation

Public passenger services are indeed regulated, but neither the Point To Point Transport (Taxis And Hire Vehicles) Act 2016 (NSW), the Passenger Transport Act 1990 (NSW) nor the Passenger Transport Act 2014 (NSW), or their associated regulations (the Point To Point Transport (Taxis And Hire Vehicles) Regulation 2017 (NSW), the Passenger Transport Regulation 2014 (NSW) and the Passenger Transport (General) Regulation 2017 (NSW)) make any mention of first aid or emergency procedures, save that it is an offence under the Passenger Transport (General) Regulation to interfere with an emergency passenger help point or emergency equipment on a train or railway station (r 68B).

These Acts do allow the regulators, Transport for NSW and the Point-to-Point Transport Commissioner to set standards for operators.

Buses

An accredited bus operator must have a safety management system and apply with accreditation standards.  The Accreditation standards do not make specific mention of first aid requirements (Bus Operator Accreditation Package (January 2020)). A safety management system has to be developed by each operator taking into account the nature of their business. It must include, as a minimum, procedures for incident management (Safety Management System (SMS) Guidelines, NSW Government Gazette No 142 of 25.11.2005, p 9811).  A Bus Operator Guide: Managing Critical Incidents (November 2020) published by Transport for NSW says this about the Operator’s obligation to provide assistance to passengers:

2. Assistance to driver and passengers

  • Dispatch a suitable manager to attend the site to lend assistance to driver and passengers and to liaise with emergency services and media 
  • Provide Site Manager with passenger list or group contact person for long distance, tourist or charter services 
  • Inform driver who the Site Manager is and their expected arrival time on site.

The Bus Driver’s pocket guide for Managing Critical incidents (November 2020) tells drivers to take steps to ensure passenger safety by securing the bus, calling for assistance and ‘Render first aid as required’ (p. 3).  As noted above however, I cannot find any rule that says drivers have to be trained in first aid or buses have to carry first aid kits other than the general obligations under the WHS Act.

Taxis and ride share vehicles

The holder of a taxi licence has to ensure that ‘Taxis that stand or ply for hire in Sydney, Newcastle, Wollongong or the Central Coast must be fitted with a duress alarm system and a vehicle tracking system’ (Taxi licence holder obligations undated; Point To Point Transport (Taxis And Hire Vehicles) Regulation 2017 (NSW) r 16). The standards do not say anything about a first aid kit being required in the taxi. 

Taxi, ride share and hire car operators must have a safety management system in place (Point To Point Transport (Taxis And Hire Vehicles) Regulation 2017 (NSW) r 7).

Road transport regulation

The driver of a vehicle that is involved in a crash must stop and exchange particulars with others involved in the collision (Road Rules 2014 (NSW) r 287). They must also ‘give any assistance that may be necessary and that it is in the person’s power to give’ to any person injured in a collision (Road Transport Act 2013 (NSW) s 146; Crimes Act 1900 (NSW) s 52AB).

Discussion

With that identification of the law I can try to answer the questions.

  1. My question is to what – if any – extent a public or commercial transport driver owes a duty of care to a passenger in relation to providing first aid should a passenger become unwell or injured during a journey?

The driver owes a common law duty to take reasonable care of their passengers. The passenger is not a stranger so the rule that there is no duty to come to the aid of a stranger – no duty to rescue – cannot apply here.  If a passenger is injured or becomes unwell the driver would have to take reasonable steps to care for them. That may be no more than call for an ambulance or deliver them to somewhere safe, but as my correspondent notes, they cannot simply be abandoned. 

  • I take it as a given, they cannot simply abandon a passenger who becomes unresponsive or severely unwell (extreme breathing difficulty, etc) in the middle of transport without at least calling an ambulance. However, must a driver provide CPR, or follow any other instructions for care given by 000 operators?

The driver must do what is reasonable in the circumstances which includes their own circumstances and their own capabilities. It would be reasonable to follow instructions given by a 000 call taker but it may simply be beyond them, in the circumstances, to perform CPR.  Those circumstances may be their own emotional ability, or it may be due to other conflicting duties eg to secure the bus, ensure the safety of the other passengers, direct other traffic to avoid a collision etc.

And remember if we’re talking common law duty of care, and civil liability, it is only relevant if the plaintiff can prove that some other action would have led to a different outcome – eg that CPR would have been effective.

  • Must they supply first aid items to passengers if available and practical to do so, for example to control bleeding if the passenger sustains a wound?

Whether that’s a legal obligation or not it would make sense, I’m sure the driver doesn’t want people bleeding in their cab or hire car.  Again, it would depend on what is ‘reasonable’.  If the person has a blister and wants a band-aid, or asks for a headache tablet, then I don’t think there is any obligation to provide that.  If they suffer more serious injuries in the vehicle eg a passenger who falls when standing in a bus then it would seem like a reasonable response but it does beg the question of what is available.  To repeat when I was a bus driver we did not have a first aid kit so I could not provide that sort of equipment; but that does not deal with whether the bus operator should have provided first aid kits.

  • In addition, does it matter to the duty of care if the injury is or is not the result of actions by the driver (e.g. a bus driver pulls away from the stop while passengers are still walking down the aisle, causing the passengers to lose their footing and sustain an injury)?

It makes a fundamental difference.  As noted, the driver who is involved in a collision or crash (which could include a passenger in a bus colliding with the inside of the bus) has obligations to render assistance, this would not apply where the driver did not cause the injury or illness.  A driver has a duty not to cause an injury so if the injury is caused by the action of the driver (whether or not they are legally at fault) their duty to their passenger to deal with the impact of that emergency is much clearer, but it is still a duty to take reasonable care.

Further duties under the WHS Act are to ensure that a PCBU’s conduct does not expose a person to risk (s 19(2)). Where a person gets onto or into a passenger vehicle injured or unwell, they were not exposed to that risk by the PCBU. Where however they are injured in the PCBU’s vehicle, either by falling in a moving bus or being injured in a collision then it is the action of the PCBU that has exposed them to injury.

Conclusion

The Work Health and Safety Act does require a PCBU to have in place emergency plans and ensure access to first aid equipment and services.  The bus and point-to-point transport regulators also require operators to have in place incident management systems to deal with incidents that should include injury to or illness in passengers.   There is however no clear statement as to what that system should look like and taking into account all the circumstances, having a system to call for assistance may be sufficient. 

There is no clear statement in either the case law or the legislation that a driver must be trained in first aid and that a bus, taxi, hire or ride share car must carry a first aid kit.

The best we can say is that anyone who operates a public passenger service should have a plan on how they are going to deal with the issue and that plan has to be reasonable in all the circumstances.

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

Categories: Researchers

No power to detain a patient just because it’s good for them

Michael Eburn: Australian Emergency Law - 22 January, 2023 - 17:43

A correspondent has drawn a WA case being reported by the ABC – David Weber, ‘Court case highlights concerns over patients being held unlawfully in WA hospitalsABC (Online) 21 January 2023 – to my attention.  

The gist of the story is that a person was transported to hospital unconscious.

When he came to, he said he wanted to leave to “have a smoke” and walked out of the building, still wearing his hospital gown.

A ‘code black’ was issued, suggesting there was a threat to staff or patients or property, and five security guards responded.

Security officers grabbed him and brought him back into the hospital…

One of the guards suffered a fractured right ankle…

The officer who was injured told the court nursing staff had informed him that while the man had been physically cleared, he had not been “psychologically cleared” to leave.

The man had been charged with causing grievous bodily harm and went to trial in October 2022.

District Court Judge Linda Black raised concerns about the prosecution case in the absence of the jury.

“The use of force is predicated on a right to detain him,” she said.

“There was no right to detain, therefore no right to use any force at all.”

The prosecution case was that the man’s actions were deliberate, while the defence case was essentially the restraint was wrongful, so he had every right to break free.

Addressing jury members before they retired to consider their verdict, Judge Black said the man was entitled to leave.

“He was unlawfully brought back into the hospital, and after force was unlawfully applied to him, he was then unlawfully detained and put onto a stretcher, and kept in hospital overnight.”

Judge Black said nobody was suggesting the hospital staff acted with malice, and “no-one was deliberately trying to breach the accused man’s rights”.

But to reinforce her main point, she said, “the law is that he should have been allowed to leave”.

“No one was allowed to touch him.”

After deliberating for about 90 minutes, the jury found the man not guilty of causing grievous bodily harm, and he walked free from the court.

We’re told that ‘Lawyer John Hammond said the decision had cleared up a grey area.’  I’m not sure I agree with that assessment for two reasons.

First, this is a decision of a jury.  Juries do not give their reasons they simply return a verdict of ‘guilty’ or ‘not guilty’.  A jury’s decision does not set a precedent nor does the judge’s directions to the jury.  It is less significant as a precedent as the judge’s comments to the jury are not published so we cannot read them directly.  The case would (or will) have precedent value if it is subject to an appeal and the Court of Criminal Appeal gives a definitive legal ruling even if it simply quotes the judge and says ‘she was right; that is the law’.  Until then it’s an interesting example of the application of the law, and something hospitals and security staff should be aware of and consider, but it doesn’t actually set a legal precedent (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016).

My second objection to Mr Hammond’s assessment is that I don’t see this as a ‘grey’ area.  People have a right to refuse treatment, hospitals are not prisons so people are free to leave unless they are not competent to make a decision and treatment is then justified under legislation such as Guardianship or Mental Health legislation. Detaining people who do not fit that criteria is not justified by law even if the intention is to act for their benefit (and see Relying on the concept of ‘duty of care’ to impose treatment on the unwilling (September 30, 2020)).

Detaining a person for the practitioner’s benefit (ie to ‘cover your arse’) is not justified by law. That does not deny that health staff are not in a difficult position – if the patient is competent, they are free to go even if they are making a bad decision; if they are not competent or are mentally ill there may be allegations of negligence in failing to recognise that and take steps to detain them.

In Presland v Hunter Area Health Service [2003] NSWSC 754 the plaintiff, Presland, sued the Health Service after he was allowed to leave the hospital and then went and killed his brother’s fiancée. He was acquitted of her murder on the grounds of mental illness. Prior to the killing he had been at the James Fletcher Hospital (JFH), a psychiatric institution where he was assessed by a psychiatrist.  That doctor allowed Mr Presland to leave with his brother and the deceased. He killed her six hours later. In his claim for negligence, he argued that the health service had been negligent as they failed to exercise their powers under the Mental Health Act 1990 (NSW) to detain him and to subject him to involuntary treatment. The patient’s claim was successful before Adams J but was set aside by the Court of Appeal in Hunter Area Health Service v Presland [2005] NSWCA 33 and the law was amended to try and defeat any similar claim in the future (Civil Liability Act 2002 (NSW) s 54A inserted into the Act by the Civil Liability Amendment (Mental Illness) Act 2003). 

To return to the ABC article, another lawyer is quoted as saying:

“There’s a misconception in the department and amongst doctors that the principle of duty of care somehow authorises them to restrain and detain patients and that’s just not the case,” he said.

That’s clearly correct.  In Presland’s case there was no suggestion that there was a common law power to detain or the common law duty of care somehow justified detention.  The finding by Adams J depended on the presence of the Mental Health Act and, as noted, his finding that there was a duty to detain Mr Presland was set aside.  In Stuart v Kirkland-Veenstra [2009] HCA 15, the High Court of Australia rejected a claim that police had some common law duty to detain Mr Veenstra who later took his own life.  In that case French CJ said (at [5]) “The case for a duty of care depended upon the existence of the power to apprehend. That power did not exist in this case.”  If there was no power to detain, there could be no liability for failure to detain.

Conclusion

A patient who wants to leave must be allowed to leave unless there is a legal authority to allow them to be detained. They cannot be detained just because it is a good idea or because the hospital would like to undertake further examination.  And a person who is being threatened with treatment they don’t want is entitled to resist – see also Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police – Part 2 (October 5, 2015).

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

Categories: Researchers

Taking photos whilst deployed as a volunteer emergency worker

Michael Eburn: Australian Emergency Law - 19 January, 2023 - 15:59

Today’s correspondent has a

… question is about control of intellectual property and copyright while persons are deployed as volunteers by an emergency service. 

Who would have control of photographs or videos taken by a volunteer member of an emergency service while deployed and who takes photos or videos of incidents not related to the emergency service deployment. As well, what about the situation when photos and videos are taken as part of the deployed role. 

Does the fact of volunteering create a contractual arrangement and lead to a valuable consideration situation where the intellectual property and copyright rights are a} passed to the organisation, b) share between the organisation and the originator of the material, or c) retained by the originator of the material.

I have addressed similar issues in earlier posts – see

To recap on my thoughts, the Copyright Act 1968 (Cth) s 35(1) says “the author of a literary, dramatic, musical or artistic work is the owner of any copyright subsisting in the work …” so prima facie the person who takes a photo or video is the owner of the copyright in that work. That rule is subject to some exceptions. In particular where a photo is taken by a person as part of their employment and for the purposes of publication by the employer then the copyright is held by the employer (s 35(4)).  Further if a photograph is taken as part of an agreement to take the photo – for example a studio photograph for a family portrait or for someone to add to their portfolio – then the photograph is owned by the client, not the photograph (s 35(5)).  Finally, where any work is made pursuant to one’s employment then the employer owns the copyright.

The first thing to note therefore is that a ‘volunteer member of an emergency service’ is not an employee so none of those provisions will apply. On the face of it, therefore, where a volunteer member of an emergency service takes a photo or records a video then they own the copyright.

Copyright may be assigned (in effect transferred or sold) to others (s 196). Further a person may assign future copyright, that is they can enter an agreement so that the copyright is transferred when they produce the work – the photo, the book etc, even though at the time of the agreement, no such work exists (s 197).   These agreements must be in writing (s 196(4) and 197(1)).

Finally, where a work is produced ‘by, or under the direction or control of … a State’ then the copyright belongs to the State (s 176).

We can then look to specific policies.  Let us take, as an example, the NSW Rural Fire Service Service Standard 1.1.9 Intellectual Property (31 March 2009).  It says:

2.9 Any IP made or created by an RFS volunteer in carrying out their role or service as an RFS volunteer will vest upon its creation in the State. 

The RFS cannot rewrite the law. Even if the RFS Service Standard had the force of law it is a state law and it must not be inconsistent with a valid Commonwealth law (Australian Constitution, s 109).  The Copyright Act is a Commonwealth law so it would override an inconsistent state law.  Prima facie, then, [2.9] seems to be ‘overreach’ –  but it has to be read in context.  First the context includes [2.10] which says:

2.10 The RFS must ensure that any agreement entered into with an RFS volunteer includes a specific provision providing that any IP or IP rights, which are created as a result of the agreement vest upon their creation in the State.

Every membership is in effect an agreement – a person applies to be a member of the RFS, the application is accepted (or not) and if it is accepted the member agrees to be and is bound by the relevant procedures, rules and service standards etc. I cannot see the terms of an application for membership but it may (and [2.10] says it ‘must’) contain a clause assigning copyright.

Further the Rural Fire Service (like most, if not all Australian fire services) is part of the state.  If a member takes photos or records videos whilst acting under the direction of the service, then by virtue of s 176 the copyright will belong to the state.

That then begs the question of when and how is the photo being taken.  As I’ve noted in earlier posts if the volunteer is a volunteer media officer, taking photos for publication by their agency then I think there is little problem in saying the agency is the owner of the copyright. That is the terms of the agreement between the agency and the member and they are taking the photos subject to the direction of the service.

I think it is a very different issue if the photo is taken by a member whilst at the staging area where they take a photo of the crew they’ve been working with for the purposes of putting it in their photo album (physical or electronic) as a keepsake of the deployment.  I also cannot see how the service could own the copyright of photos taken of the scenery in downtime ie photos taken ‘while deployed … [but] not related to the emergency service deployment’.  It’s different if the ‘photos and videos are taken as part of the deployed role’ and in particular if the specific role is to take photos.

Conclusion

To turn to my correspondent’s questions, it would depend on all the circumstances. First of all it would depend on the terms of any membership application and whether it contained an express provision assigning copyright in any works produced. Second and I think this is more likely, it would depend on whether the works were produced whilst the member was acting under the ‘direction’ or ‘control’ of the state.  Even where the production of the photo is not part of the task if a member is deployed to say fight a fire they are under the direction of control of the state even if they stop to take a photo of the fireground.

Finally there are other policies relating to discipline and conflict of interest that may be breached by taking photos particularly where access is limited so the person can only get the photo because they are a member of the emergency services, where there is a conflict of interest or where taking photos of crime or rescue scenes. All those issues are discussed in the earlier posts referred to above.

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

Categories: Researchers

Disaster reconstruction authority for NSW

Michael Eburn: Australian Emergency Law - 10 January, 2023 - 15:50

Today’s correspondent asks what do I “make of the new Reconstruction Authority Act. I would like your opinion on the Functions and what the interactions are with EM [Emergency Management]?

The Act in question is the NSW Reconstruction Authority Act 2022 (NSW) (the Reconstruction Authority Act). This Act received Royal Assent on 28 November 2022.  Some parts of the Act are not yet in force, but in this discussion I will write as if the whole Act is in force.

The introduction of this Act was a response to the 2002 Flood Inquiry by ‘former Chief Scientist Professor Mary O’Kane, AC, and former NSW Police Commissioner Mick Fuller, APM’ (NSW, Parliamentary Debates, Legislative Assembly, 9 November 2022, p. 53  (Anthony Roberts, Minister for Planning, and Minister for Homes) (‘Hansard’).  In his second reading speech (Hansard, p. 54), Minister Roberts said:

The structure, functions and powers proposed for the NSW Reconstruction Authority draw on our recent experience responding to the impacts of fires and floods, and provide a single point of reference for reconstructing infrastructure, strengthening government’s recovery response and building our communities to be stronger and more resilient.

The State Emergency and Rescue Management Act 1989 (NSW) (the SERM Act) gives a definition of ‘emergency’ (s 4). The Reconstruction Authority Act now adds to the official lexicon a definition of ‘disaster’ (s 6).  A disaster

… includes the following—

(a)  natural disasters, including, for example, bushfires, coastal hazards, cyclones, earthquakes, floods, heatwaves, landslides, severe thunderstorms, tornadoes and tsunamis,

(b)  hazards caused by natural disasters including air pollution, water and soil contamination and water insecurity,

(c)  other emergencies in relation to which the Minister has requested assistance from the Authority,

(d)  other emergencies in relation to which—

(i)  a public authority, including a Minister other than the Minister administering this Act, has requested assistance from the Authority, and

(ii)  the Authority has agreed to provide assistance,

(e)  events, incidents or matters, or classes of events, incidents or matters, prescribed by the regulations.

The use of the word ‘includes’ suggests that this definition is not comprehensive.  Other things may also be a disaster even if we are not sure what those other things may be.

The list of the Authority’s functions (s 10) is very long. That section says:

(1)        The Authority’s functions are as follows–

(a)        disaster prevention and preparedness, including–

(i)         identifying, assessing and managing the risks from disasters, and

(ii)        leading disaster resilience, adaptation and mitigation activities, and

(iii)       building community capacity and resilience to disasters, and

(iv)       developing and implementing methodologies for disaster resilience, adaptation and mitigation activities,

(b)       reconstruction and recovery following disasters and other emergencies, including–

(i)         assisting the Minster administering the State Emergency and Rescue Management Act 1989 and the State Emergency Recovery Controller to exercise the Minister’s and Controller’s functions in relation to recovery under that Act, and

(ii)        facilitating, coordinating and directing the recovery, planning and rebuilding of affected communities, including repairing and rebuilding land and infrastructure and other development, and

(iii)       balancing constraints to enable a focused, timely and expedited recovery of affected communities,

(c)        information provision and exchange and community engagement, including–

(i)         supporting collaboration and coordination between government agencies, local councils, service providers and communities to improve disaster prevention, preparedness, recovery, reconstruction and adaptation, and

(ii)        increasing the flow of information and enabling community participation to support the development of strategies for disaster prevention, preparedness, recovery, reconstruction and adaptation,

(d)       to coordinate the development and implementation of whole-of-government policies for–

(i)         managing the risk of disasters in the State, and

(ii)        ensuring communities can recover, reconstruct and adapt effectively and efficiently following disasters, and

(iii)       improving the preparedness and resilience of communities for potential disasters,

(e)        to prepare and implement a State disaster mitigation plan for disasters in the State,

(f)        to provide advice and support to local councils to help maximise the effectiveness of councils’ disaster preparedness and reconstruction programs,

(g)        to provide advice and assistance to local councils and relevant strategic planning authorities under the Environmental Planning and Assessment Act 1979 to ensure strategic plans prepared under that Act, Division 3.1 and the State disaster mitigation plan align,

(h)       to lead the management and coordination of housing and infrastructure renewal and recovery within affected communities,

(i)         to work closely with affected communities to ensure the needs of each community are recognised in the recovery and reconstruction of the community, and to improve the disaster preparedness and resilience of communities,

(j)         to lead public education on disaster risks and certain disaster preparations,

(k)        to carry out research, and provide advice, proposals, recommendations and reports to the Minister, about–

(i)         disaster prevention and preparedness, and

(ii)        recovery and reconstruction following disasters,

(l)         to enter into joint ventures, project delivery agreements and other arrangements with landowners, developers, State and Commonwealth government agencies and local councils in relation to disaster prevention, recovery and reconstruction,

(m)      to implement funding schemes to provide financial support in relation to disaster prevention, recovery and reconstruction,

(n)       to carry out rezoning and land use planning, including exercising the functions of local councils for the purpose of land use planning in relation to disasters,

(o)       to carry out flood modelling and the determination of flood planning levels, particularly in relation to high risk catchments,

(p)       to assist with the development of flood plans,

(q)       to monitor the cumulative impact of disasters on the State, including by collecting and storing data about the impact, or likely impact, of disasters across the State,

(r)        to exercise other functions conferred or imposed on the Authority by or under this Act or another Act,

(s)        to do anything supplementary, incidental or consequential on the exercise of the Authority’s functions under paragraphs (a)-(r).

(2)        To avoid doubt—

(a)        the functions of the Authority are not intended to limit functions given to agencies by the State Emergency Management Plan under the State Emergency and Rescue Management Act 1989, and

(b)       to the extent of any inconsistency between a direction given by the Authority or chief executive officer in exercising functions under this Act and a direction given by the State Emergency Recovery Controller in exercising functions under the State Emergency and Rescue Management Act 1989, the direction given by the State Emergency Recovery Controller under the State Emergency and Rescue Management Act 1989 prevails.

Emergency management

Emergency management covers the principles of preventing, preparing for, responding to and recovering from an emergency ranging from a localised incident to a complex disaster.  NSW has agencies do deal with specific hazards – in simple terms the State Emergency Service for floods and storms, the Rural Fire Service for fires in rural areas, NSW Fire and Rescue for urban fires, urban search and rescue and hazardous material events, NSW Health and NSW Ambulance for health issues such as disease outbreaks along with others identified in both legislation and the SEMP.

Reviewing the functions of the Reconstruction Authority shows that the focus on prevention and recovery will belong to the Authority.  This makes sense as agencies like the SES and the fire brigades have had little capacity to control the development of risk (see Building risk (June 4, 2022)) and have also had no responsibility for the longer term recovery of communities after the fire or flood.  The Reconstruction Authority Act moves the P for prevention and the R for Recovery to the Authority rather than the agencies that will be seen more clearly as emergency response rather than emergency management agencies.

To this end, Minister Roberts said (Hansard, p. 54):

The authority will be required to work closely with the emergency service agencies and will establish formal agreements or memorandums of understanding with the combat agencies across all hazards to ensure effective collaboration across disaster prevention, preparation, response and recovery.

In terms of prevention the Authority will have significant powers to affect land use planning.  Declarations may be made about specific projects or areas of the state that are declared to be a ‘reconstruction area’ or a ‘disaster prevention area’ (ss 39-41). With respect to those projects or those areas, the Authority can acquire land, including by compulsory acquisition, and can then clear, develop or dispose of that land or dedicate the land to a public purpose (ss 45-48).  The Authority could for example, after a flood, acquire land that was flood affected and, at the same time acquire other, less hazardous land. They could clear the flood affected land, build new housing on the acquired land and then dedicate the old land to be used as a park and flood mitigation zone.

The Authority can give relevant decision makers notice requiring them to make their decision or complete their processes.  This would be important post-disaster for example, where there is an application to redevelop land or take urgent remedial action such as clearing land, but where the relevant council is taking too long to make a decision.  The Authority can issue a Notice to Decide (s 50) or a Progression Notice (s 51) to compel the decision maker to act.  If the decision is not made within the time the Authority can ‘step in’ and become the relevant decision maker (ss 52-58).  This should have an impact on decisions, particularly for large projects, that are often held up by delays at local levels where local decision makers are themselves impacted and overwhelmed by a disaster.

With respect to a declared project (s 39), that is a project that:

… is necessary to help—

(i)  facilitate the protection, rebuilding and recovery of an affected community, or

(ii)  mitigate against potential disasters for an affected community, or

(iii)  improve the resilience of an affected community for potential disasters through, for example, the betterment of the community

The Authority may step in to complete or take over the project and may complete the project (ss 60-67) and, in some circumstances, without the need for the assessment under the Environmental Planning and Assessment Act 1979 (NSW) (s 68).

The Minister said (Hansard p. 55) that these powers

… will enable the authority to exercise functions to expedite decision-making processes and to step in to manage projects and development where necessary to avoid delays in delivering critical development or to pause development that is inappropriate in the face of a disaster…

One of the authority’s biggest successes will be in ensuring that development for the purposes of reconstruction and mitigation happen faster. The authority will do that by permitting development, supporting development approvals and, in some circumstances, undertaking development where it is appropriate to do so…

These powers are not designed to strongarm or encourage unnecessary or unwanted development in New South Wales… The powers exist to ensure that the red tape can be removed when action is required to protect people and property. They will ensure that the authority can work with local councils to keep things moving so that communities can recover from disasters as soon as possible.

Of course, this brief review does not do full justice to the Authority or explain the full extent, and limits of its powers.  Identifying how the Authority exercises its powers, fulfils its functions and what impact it has on disaster resilience will take time as the Authority commences its operations and establishes its credentials. For those interested in learning more about the authority, you can visit the website – https://www.dpie.nsw.gov.au/about-us/our-agencies/nsw-reconstruction-authority – or read the legislation – https://legislation.nsw.gov.au/view/html/inforce/current/act-2022-080.

Conclusion

Emergency management runs across the spectrum described as PPRR – Prevent, Prepare, Respond and Recover.  It is a feature of regular commentary that the emergency services have to live with and respond to events where the creation, or prevention, of the hazard lies with others eg with those responsible for land use planning and development. The management of the recovery of communities has been developed on an ad hoc basis either by community leaders who step up when the need arises or the creation of specific recovery arrangements such as the current Northern Rivers Reconstruction Corporation or the deployment of retired military leaders to lead the recovery (think for example of the appointment of Major General Mick Slater to lead a Queensland flood recovery task force, before the creation of Queensland’s Reconstruction Authority that he was then tasked to lead).

The new NSW Reconstruction Authority has the power to take the lead in both the management of projects designed to prevent and recover from future disasters.  It significantly moves responsibility for ‘Prevention’ and ‘Recovery’ from the emergency response agencies to a single authority that will, hopefully, allow those aspects of emergency management to attract more consistent consideration.

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

Categories: Researchers

Paramedics drawing blood for patients whilst ‘ramped’

Michael Eburn: Australian Emergency Law - 4 January, 2023 - 21:14

Today’s correspondent is ‘… a paramedic with Ambulance Victoria’ who says:

… as I’m sure you are aware the hospital ramping issue is a hot topic within the industry at present.

There is currently a lot of discussion regarding the paramedic scope of practice while ramping for hours, in particular paramedics taking blood tests from their patients once a doctor has seen the patient on the stretcher and ordered the blood tests. I’m just wondering if there are any legalities around paramedics taking blood tests, in particular a paramedic who is also trained and currently practises as a Registered Nurse on their days off from Ambulance Victoria.

For related posts – see

The issue will always be what is ‘reasonable’ and that requires consideration of all the circumstances including the patient’s needs and the paramedic’s skill set. 

There is more to a blood test than simply taking blood.  A phlebotomist has to know how much blood to take for particular tests and which tube to put the blood in given that some carry additives for the various tests (see https://phlebotomygeeks.yolasite.com/resources/TUBEZ%20AND%20USES.pdf).  There must also be a process to get the blood to relevant laboratory for the necessary tests to be done. And it has to be recorded that the sample has been taken and the necessary paperwork completed to ensure that the sample is correctly identified, tested and the results accurately reported in the correct patient record.  I imagine that paramedics treating a patient whilst ‘ramped’ cannot access the hospital’s record keeping system nor the various pathology requests.  And if the patient is not yet admitted, how does the sample get linked to the particular patient?  If on the other hand, it’s a simple test like blood sugar levels then presumably paramedics can test that and record the result on their own patient record form.

If you take blood and it turns out it cannot be tested or used there is little damage done other than the patient has a needle inserted in their arm that they did not need and even if that were negligent, or a battery, it is not going to sound in significant damages.  But it is unprofessional to expose a patient to a procedure that is not in their best interests or that has no therapeutic benefit.

Conclusion

In simple terms if a paramedic is asked to do something that is clinically indicated in the patient’s best interests and is within the paramedic’s skill including their skill set because they are also a registered RN, then I cannot see any legal issues in performing that task. It is consistent with both the paramedic’s and the hospital’s duty to act in the patient’s best interests.  But one should always stop and consider whether the task really is within their skill set taking into account not just the procedure but the context in which it is to be performed. 

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

Categories: Researchers

NSW retained firefighter as Health and Safety Representative (HSR)

Michael Eburn: Australian Emergency Law - 1 January, 2023 - 07:00

Today’s correspondent, and the first for 2023 sees an ‘apparent tension in the law’ with respect to retained (part time) firefighters who have taken on the role of health and safety representative (HSR) under the Work Health and Safety Act 2011 (NSW). They say:

…  an elected HSR, and … Retained Firefighter … recently undertook some station inspections in line with s 68(1)(b) and (c), and (2)(a)(i) of the WHS Act.

The employer emailed to say that they did not support the inspections occurring, and the HSR went ahead and did the inspections anyway. They submitted a timesheet for approval, which was rejected by the employer.

The HSR then submitted a PIN under s 90 of the WHS Act, alleging that the employer failed to approve payslips as required under s70(3) of the WHS Act. 

Given that a Retained Firefighter is “not on duty” outside incidents and training or other authorised duties pre-arranged, are they able to go on duty without the consent of the employer in order to fulfil the obligations of the WHS Act as a HSR?

The position being taken by SafeWork and the employer seems to be that unless the employer pre-approves HSR work, then a Retained HSR is unable to conduct any HSR work, which seems to be in breach of the WHS Act, and really brings into question what the point of a Retained HSR is, if the employer can withhold payment from them for those duties being performed in every and all cases?

Thank you for considering this very interesting tension, my friend is currently applying for an internal review of the SafeWork decision per s224 of the Act.

The sections of the Work Health and Safety Act 2011 (NSW) referred to above (s 68(1)(b) and (c) and s 68(2)(a)(i)) say:

68 POWERS AND FUNCTIONS OF HEALTH AND SAFETY REPRESENTATIVES

(1) The powers and functions of a health and safety representative for a work group are–

(a) …

(b) to monitor the measures taken by the person conducting the relevant business or undertaking or that person’s representative in compliance with this Act in relation to workers in the work group, and

(c) to investigate complaints from members of the work group relating to work health and safety, and …

(2) In exercising a power or performing a function, the health and safety representative may–

(a) inspect the workplace or any part of the workplace at which a worker in the work group works–

(i) at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace…

A PIN is a Provisional Improvement Notice.   A PIN may be issued by an HSR ‘if a health and safety representative reasonably believes that a person– (a) is contravening a provision of this Act…’ (s 90(1)).

We are told that the failure to pay the HSR was an alleged breach of s 70(3) which says;

Any time that a health and safety representative spends for the purposes of exercising his or her powers or performing his or her functions under this Act must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.

Section 70(2) says:

The person conducting a business or undertaking must allow a health and safety representative to spend such time as is reasonably necessary to exercise his or her powers and perform his or her functions under this Act.

Discussion

A permanent firefighter may have time during their shift to perform HSR duties even if it meant they are not required to attend a training drill or even a response call.  Equally if a retained firefighter is to perform those duties it has to be at a time when they are not attending training or a fire call.  It could be that if a brigade has a regular training time, the HSR could be asked to perform his or her duties at that time rather than attending training, but that may not be practical. It may not be practical as the firefighter does need to attend training and it may not be practical as that may not be a convenient time to consult with other firefighters who are attending training. 

It seems to me that ss 70(2) and (3) would require that retained firefighters must be given time, and paid for that time, to complete their HSR duties outside time spent on training and responding.  What is ‘reasonably necessary’ would depend on all the circumstances including the nature of any specific complaint or issue and the nature of the workgroup.

The next thing to note is that s 68(2) says that an HSR can inspect the workplace ‘at any time after giving reasonable notice…’. It does not say that the HSR needs the Person Conducting the Business or Undertaking’s (the PCBU’s) permission.  Once notice has been given the HSR may conduct the inspection whether the PCBU supports ‘the inspections occurring’ or not.

It seems to me that the issues are dealt with by the classic legal term of ‘reasonable’.  An HSR cannot demand to be paid whenever they think they are doing HSR work as determined by them. They may be very inefficient, and demand pay for many hours to complete a task that a reasonable person could and would have completed in much less time.  They may ask for time to perform tasks that they say are HSR work but which a reasonable observer would think is not related to their HSR duties.  They may ask for time that is not reasonable given various operational demands on the PCBU.  But equally if an HSR is to meaningfully perform their role and do the things required by the Act a PCBU cannot (s 70(2)) deny them the time they need to do that work and in the context that may indeed require time outside their normal duty hours given for a retained firefighter they do not have normal duty hours and regular training time may not be adequate for a number of reasons.

I can imagine that in the context FRNSW may argue that the inspection was not required and so the time claimed was not ‘reasonably necessary’.  For example a person at a regular training night can monitor the various WHS measures in place.  But if the HSR for example is responsible for a workgroup that covers more than one fire station or there is a specific complaint about something that cannot be monitored on those training nights, then the HSR would say that the inspection was ‘reasonably necessary’.

To repeat myself, what is ‘reasonably necessary’ would depend on the specific circumstances.  And that is where SafeWork comes in as the regulator so it will be interesting to see what the final outcome from their review is.

In simple terms however I agree that on my reading of the Act it cannot be the case ‘that unless the employer pre-approves HSR work, then a Retained HSR is unable to conduct any HSR work’.  The issue arises as to whether the time claimed is ‘reasonably necessary’ in all the circumstances.

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

Categories: Researchers

Revisiting DNR orders and first responders

Michael Eburn: Australian Emergency Law - 22 December, 2022 - 09:23

With today’s question we revisit the issue of DNR orders and first aid:

My question is about DNR orders in an emergency situation. One of our Fire service teams attended a cardiac arrest recently. At the time of the cardiac arrest a DNR order was not present, but a member of the public advised our team that a DNR order was in place. Where does a first responder stand in this situation? If a family member is present, do we take this as valid in an emergency situation for first responders.

I have addressed these issues in a number of posts – see

The key issue is that the justification for treating someone who cannot communicate their wishes (including someone in cardiac arrest) is the common law doctrine of necessity – see

Lord Goff in In Re F [1990] 2 AC 1 said (emphasis added):

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

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

The important phrase is ‘known wishes’ of the patient.  Being advised by ‘a member of the public … that a DNR order was in place’ would not be sufficient to give anyone confidence that they were being informed of the patient’s wishes.  The ‘member of the public’ would need to be interrogated as to who they are, how they claim to know this, what they know of the patient etc. That is not a process anyone could go through where time is of the essence and will be an issue for the hospital assuming the patient makes it to hospital.

But where the responding crew are advised by someone clearly identified as the ‘person responsible’ (eg the patient’s spouse where there is no doubt that they are indeed the spouse) and there is evidence that lends weight to what they are saying – eg the person is in cardiac arrest in a room that has the equipment and drugs to indicate they were receiving end of life care, then the crew may be more confident in what they are being told.

Conclusion

Applying the law in the particular circumstances of a cardiac arrest does not allow time to fully investigate the patient’s wishes.  First responders would be well advised, particularly if they are a fire service responding to a triple zero call, to commence CPR as making the decision to withhold treatment is better left to paramedics or hospital staff.  Where however there is a sufficient degree of satisfaction that the patient has indicated that they do not want CPR (as discussed in the post Listening to the patient’s family (June 2, 2022)) then the patient’s known wishes should be respected.

In the circumstances described there would be almost no chance of legal liability for continuing CPR as a fire fighter could not reasonably determine what the patient’s wishes were. The ‘reasonable’ response, given someone was sufficiently motivated to ring triple zero, would be to commence CPR and, except in the most clear cut cases, leave the hard choices to the medical professionals.

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

Categories: Researchers

Season’s Greeting and all the best for 2023

Michael Eburn: Australian Emergency Law - 20 December, 2022 - 15:45

Australian Emergency Law would like to wish all of my readers the very best for the holiday season, a joyous celebration of any holy days that have meaning for you and all the best for 2023.  For those in the emergency services volunteering or working over the period I hope you have some down time as well as time to celebrate with both colleagues and families. 

I also pause to reflect on the service of Constables Matthew Arnold and Rachel McCrow and reflect on how hard this Christmas, and all Christmas’ to come, will be for their families.  I pay special thanks to all in Queensland Police, and police services across Australia, who continue to get up and report for work. 

The blog in 2022

Since resuming the blog on 1 April 2022, I have published 110 posts (an average of 12 a month). There have been 93,565 visits to the blog and those visitors looked at 177,297 pages (ie on average each visitor looked at 1.89 posts per visit).  There were 123 ‘likes’ and 255 comments.  The single most viewed page (after the ‘home page’) was ‘Red/blue lights but no siren?’ (November 29, 2015) with 5118 views.

7204 people subscribe to the blog that is they receive updates via email or Facebook or other social medial platforms. On Facebook the blog has 5032 followers and posts reached 17,646 people.

Visitors to the site came from Australia, the United States, the United Kingdom, Canada, New Zealand, India, Singapore, Ireland, the Philippines and China.

I would like to thank all my readers for their support and hope that I have continued to contribute to the work of those on the front line of the emergency services.  I look forward to working with you all in 2023. 

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

Categories: Researchers

Revealing the value of a death benefit to potential dependents

Michael Eburn: Australian Emergency Law - 20 December, 2022 - 15:05

Today’s correspondent has a family member who is entitled to a death benefit under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) (see Death benefits are the same for employed and volunteer firefighters in NSW (September 30, 2022). My correspondent says:

We have been led to believe that before a death payment in a worker’s compensation can be paid to an estate, all possible people who might be able to make a claim against an estate (including parents, grandparents, siblings, children and ex-spouses) are advised of the amount due to the estate and requested to provide a statutory declaration that they will not be making a claim against the estate.

We don’t have an issue with a statutory declaration being completed. However, I think that the amount due to the estate should not be divulged under any circumstances. This completely compromises the beneficiaries of the estate and seems to contravene the intent of privacy laws.

If I was a beneficiary of an estate in these circumstances, I would be horrified that my extended family, divorced partner, or any others, became aware of my imminent circumstances.

Would it be possible for you to please let me know, how the privacy legislation works in these particular circumstances? Which takes precedence in NSW law – the privacy legislation or worker’s compensation under iCare.

Although this question is related to the emergency services, it is not really an emergency management or emergency services question so I am wandering outside my area but I’ll give it a go. This question however really needs an answer from a solicitor with experience in privacy law and/or wills and estates law.

It appears to me that the question is somewhat misguided. Where a person dies, they leave an estate.  Assuming it is big enough (and it’s big enough if there is any ‘real property’ (eg a house)) then a legal personal representative will be appointed.  Ideally, we should all have a will identifying who is to be the executor of our estate.  That person applies to the Supreme Court for a grant of probate. The grant of probate is sufficient evidence for anyone dealing with the estate that the person named has all the necessary legal authority to call in or sell assets.  The executor has to call in all the assets and distribute the estate according to the will.

Whether a death benefit under the Workers Compensation Act is payable to the estate depends on whether or not there are dependants.The Practice Guidance – Death Claims published by the State Insurance Regulatory Authority sets out guidance for insurance to help them determine who is entitled to a share of any benefit.  If the insurer identifies any dependents, then they get the value of the death benefit.  That money never forms part of the estate and is not administered by the deceased’s executor. The dependants do not make a claim ‘against’ the estate, rather they make a claim to the insurer.  Accordingly if they are advised of the value of the benefit they are not being advised of ‘the amount due to the estate’ because, at that point, it is not due to the estate.  It only becomes due to the estate if there are no dependents.  

As for the value of the benefit, that is not private information. The Workers Compensation Act 1987 (NSW) s 25(1) says

If death results from an injury, the amount of compensation payable by the employer under this Act shall be–

(a) the amount of $750,000 (the “lump sum death benefit”), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker’s legal personal representative…

The sum of $750,000 has been indexed and currently stands at $871,200.  The present value of the death benefit is published in a publicly available booklet – Workers Compensation Benefits Guide (October 2022).  If people are told that there is an entitlement to a death benefit, then anyone can look up the benefits guide to see what the value of that benefit is. It is public information.

I can see that writing to potential dependents may reveal private information – eg that the deceased is in fact dead and that they died in a work related injury, but releasing that information to potential dependents is consistent with the purpose for which the insurer receives it – ie to give effect to the Workers Compensation Act.  The value of the benefit is not information ‘about’ either the deceased or the beneficiaries of the estate.

Conclusion

As I say this is outside my area of claimed expertise. It only arises here because, I am told, compensation was payable because of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).  With that limitation in mind, I cannot see how telling potential beneficiaries the value of the death benefit, given that is set by statute and published in a publicly available booklet, is breaching anyone’s privacy.  It is not revealing information that i-care has collected ‘about’ anyone.  The only information that might be private is the conclusion that the deceased died due to work related injuries but releasing that information as part of the insurers due diligence to identify potential dependents is using the information for the very purpose that i-care collected it – ie to give effect to the Workers Compensation Act.

I cannot see that the question raises an issue of “Which takes precedence in NSW law – the privacy legislation or worker’s compensation under iCare?” because I cannot see that the issues as described – ie the potential dependents ‘are advised of the amount due’ – raises issues under the Privacy Act because the value of a death benefit is not private information.

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

Categories: Researchers

Maintaining competency and currency within NSW SES rescue units

Michael Eburn: Australian Emergency Law - 14 December, 2022 - 06:00

Todays question raises issues regarding the competence and currency of SES Rescue Operators.  My correspondent reports that the available operators in their local rescue squad:

… on most days contains inexperienced operators and operators who have not attended professional development or monthly training for extended periods of time and do not have the knowledge and competence to undertake extrications involving complex extrications or involving vehicles with emerging and current  technologies (Ultra high strength steel, Advanced High Strength steel, Carbon Fibre, EV’s and Hybrids).

Questions have been raised by various concerned operators as to the requirements as to “currency” of training and “competence”. Information has been provided to the unit leadership that all members “are competent” as they have certificates issued in RCR and once “accredited” there is no need to demonstrate ongoing competence or take part in continuing professional development.

The NSW State Rescue Board State Rescue Policy (https://www.nsw.gov.au/sites/default/files/2021-04/state-rescue-policy.pdf) says:

1.17     Currency means the process that recognises member’s skills, training and capabilities, captured via operational activity or skills maintenance, as determined by the agency.

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

NSW RFS service standard 3.1.17 – NSW RFS Rescue Operations (https://www.rfs.nsw.gov.au/__data/assets/pdf_file/0008/99314/3.1.17-NSW-RFS-Rescue-Operations.pdf) says, inter alia:

2.10     NSW RFS Rescue Operator certification will be valid for three years, before a recertification needs to be undertaken. 

2.11     Certified Rescue Operators are required to maintain regular training to ensure operator currency and skills maintenance. 

2.12     A training schedule will be provided by Remote Area Fire and Specialist Operations (RAFSO) to the District for each rescue unit to ensure all components of general land rescue are covered in a 12 month cycle. Targeted training topics will be scheduled on multiple occasions during the 12-month program.

My correspondent says they would be interested in:

My comments in relation to demonstration of competence and also maintenance of currency.

My assessment of the different Standards, Qualifications, Currency and Re-qualification periods between the Volunteer agencies; and

My comments around the legal liability of the Paid Staff (Assistant Commissioner Regional Operations, Zone Commander and Deputy Zone Commander), the Cluster and Unit Leadership Volunteers  (Cluster Commander, Unit Commander, Deputy Unit Commander) and a Rescue team leader at an extrication if the competence and technical ability of a rescue operator who has been allowed to remain “on roster” as a “qualified Rescue Operator” is insufficient (through lack of competence or otherwise) to undertake an extrication and there is injury or death occasioned to a patient as a result of an extended duration extrication.

1 and 2. Demonstration of competence and also maintenance of currency

The issue of competency and currency are always problematic. The idea of training is that a person who has completed training has, at the time of their assessment, demonstrated their competence.  That does not mean they will remain competent or actually be competent when they are called upon to act.  For an agency like the SES or RFS if the training has been conducted properly and assessment has been genuine then the determination that someone is ‘competent’ is evidenced by the issue of the training qualification and in the case of the NSW SRB by their registration as a rescue operator (State Emergency and Rescue Management Act 1989 (NSW) s 57).  If they have passed the training and are registered, they are ‘competent’ but that doesn’t mean that they either must be, or should be, accepted as team leaders.  An agency can have its own hierarchy to determine how much experience is required by a newly qualified operator before they can take on added responsibilities.

As noted, however the State Rescue policy adds another key term – currency.  An operator maintains their currency via ‘via operational activity or skills maintenance’ and it is incumbent on an agency, like the SES to ensure that the skills of their operators are ‘kept current’.

As seen from the documents referred to, the NSW RFS requires its rescue operators to recertify as competent every three years and to undertake ongoing training on an annual basis.  We are told NSW SES has no similar policy.

Fundamentally it is up to each agency to determine how competency and currency are demonstrated subject to the Policy requiring training to be based on SRB policies and currency does need to be maintained. 

My correspondent has been told ‘there is no need to demonstrate ongoing competence or take part in continuing professional development’.  I am not given any document where those precise words have been used so I’m not sure if that’s a quote or a summary of my correspondent’s understanding.  Clearly if it is a verbatim quote, it’s wrong. State Rescue Board policy [7.02] envisages that there must be some process to ensure currency.  For busy rescue units that may be achieved by operational responses ([1.17]) but for others it would require ongoing training.

At the end of the day, it must be up to the agency (the SES) to consider the operational exposure of its members and to have policies in place, that can satisfy the SRB, that they ‘ensure that their rescue operators are trained in accordance with the SRB Policy and their skills are kept current’.

3.         Legal liability

The question of legal liability has been raised many times. The short answer is that there will be no personal liability attaching to the Paid Staff (Assistant Commissioner Regional Operations, Zone Commander and Deputy Zone Commander), the Cluster and Unit Leadership Volunteers  (Cluster Commander, Unit Commander, Deputy Unit Commander) or a Rescue team leader at an extrication if the competence and technical ability of a rescue operator is insufficient and there is injury or death occasioned to a patient as a result of an extended duration extrication.

First officers in a position such as an Assistant Commissioner have to develop policy limited by the resources of the agency and taking into account all of the agency’s functions.  100% of the agency’s budget could be spent on rescue but that would deny it the ability to do anything else; so the budget must be allocated and with it comes trade-offs.   Where decisions are made about training and skills maintenance based on a risk assessment and taking into account the budget and competing demands on the agency, this cannot establish liability even if other decision may have led to different outcomes (Civil Liability Act 2002 (NSW) ss 42 and 43).

Officers below that rank have to implement the policies they are given within the range of their discretion.

If a registered rescue operator is sent to a job but is not up to the task then (hopefully) they are not alone so others may point out errors.  Unit management may have the ability to ask a member not to respond or arrange further training.  The team leader is stuck with the people they have and they have to make the best of the situation with what they have got.

But let us assume the worst-case scenario and a rescue is unnecessarily delayed and it can be shown, conclusively that the delay made the patient’s condition worse than it would otherwise have been.  First in a negligence action that is not the relevant comparator. For a successful action the person in need of rescue would need to show that the rescuer made the situation worse than if they had not come at all.    Presumably if a ‘reasonable’ squad could have extricated the patient in 10 minutes, but the not-so-competent squad took ½ hour the patient is still better off by being rescued in ½ hour than not being rescued at all.  The duty is a duty to not make things worse – see Capital and Counties v Hampshire Council [1997] QB 2004; Stuart v Kirkland-Veenstra [2009] HCA 15; Electro Optics and West v NSW [2012] ACTSC 184; Hamcor Pty Ltd v State of Qld [2014] QSC 224; Ibrahimi v Commonwealth of Australia [2018] NSWCA 321 and see also No duty to prevent a disaster and no duty to rescue (December 26, 2018) and UK case on liability of statutory authorities (June 7, 2019)).

Second, even if the plaintiff could prove negligence by the rescue squad that caused their damage (eg they are injured by the cutting tools) then the liability will belong to the Crown in Right of NSW.  The NSW State Emergency Service is part of central government – the Crown.  The Crown is vicariously liable for any negligence of its staff and volunteers.  Further both the volunteers and the Crown have statutory protection for acts done ‘in good faith’ (State Emergency and Rescue Management Act 1989 (NSW) s 62; State Emergency Service Act 1989 (NSW) s 25).

Good faith requires more than ‘honest ineptitude’ (Mid Density Developments Pty Limited v Rockdale Municipal Council [1993] FCA 408, [34]). In that case the trial judge said (at [24])::

… the statutory concept of “good faith” in the performance of the functions in question, included two criteria. The first was that the act be done bona fide and not maliciously or to achieve an ulterior purpose. The second was that there be “a genuine attempt to perform the function correctly, that is to say that the function should not be performed without caring whether or not it be properly performed”.

In West v NSW [2014] ACTCA 45 (the 2003 Canberra fires case) Katzmann J said (at [596]).         

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

(For a related post, see Meaning of ‘good faith’ (July 3, 2021)).

My correspondent, if told that ‘there is no need to demonstrate ongoing competence or take part in continuing professional development’ or that the SES has to focus on flood response, or that policy decisions are limiting the capacity of experienced operators to attend, may think that is not ‘good faith’.  But if it came to be tested in court I would imagine that the agency would have evidence to put the decisions in the context of the agency’s resources and all of its functions (State Emergency Service Act 1989 (NSW) s 8).  Even if on the ground operators think the agency’s direction is misguided, wrong and dangerous that does not mean that those making the decisions are acting for an ‘improper or ulterior purpose’ or not actually caring whether the agency is an effective rescue agency.  The good faith (or lack thereof) would be a high bar to get over.

In short liability will be very hard to establish because it is not the rescue squad, or lack of rescue squad, that causes the person’s injuries – it is whatever caused them to require rescue in the first place.  Even where it is the rescue squad that causes the injuries (cutting off the patient’s leg instead of the ‘A’ pillar) it is the Crown in Right of NSW that will be liable.

Conclusion

The State Emergency Service has many functions. One of them (s 8(1)(e)) is ‘to carry out, by accredited SES units, rescue operations allocated by the State Rescue Board’.  The Board requires therefore requires the SES ‘to ensure that their rescue operators are trained in accordance with the SRB Policy and their skills are kept current’.  How the SES meets that requirement is a matter for the SES taking into account the other demands on its resources.

It is not a function that can simply be ignored – that would not be acting ‘in good faith’.  But beyond that it is up to the agency to determine using a genuine risk assessment what is required to keep operators current and to ensure its accredited rescue units are up to the task assigned to them.

Where the SES (which includes its paid and volunteer members) fails in that task then, in the unlikely event of legal liability that liability will belong to the Crown in Right of NSW. 

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

Categories: Researchers