Researchers | Bushfire & Natural Hazards CRC

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.

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.

Categories: Researchers

Bill for mandatory installation of AEDs passes in South Australia

Michael Eburn: Australian Emergency Law - 11 December, 2022 - 18:30

In 2019 I reported on A Bill to require installation of AEDs in South Australia (October 29, 2019). In that post I said:

Private member’s Bills rarely succeed, and it is unlikely that the government would want to accept a Bill that would impose significant costs on the government to develop the register, public awareness campaign and training requirements as well as installing AEDs in all emergency service owned vehicles. My guess is that this Bill will never become law, but assuming that it does I can turn to the questions asked:

Well I was wrong about that. The Automated External Defibrillator (Public Access) Bill 2002 was passed by the SA Parliament on 30 November 2022 and is now awaiting Assent by the Governor to become law (and I thank ‘The Paramedic Observer’ for drawing this to my attention). The Act will come into force for government agencies (‘the Crown’) on 1 January 2025 (s 2), and for everyone else on 1 January 2026 (Schedule 1), giving time for necessary regulations to be written and for Automate External Defibrillators (AEDs) to be purchased and installed.

The Act refers to a ‘designated building or facility’ which means (s 3 definition of ‘public building’ and s 5)

Public building or facility (such as a public swimming pool, library, local government office or town hall);
Sporting facility listed in the regulations;
School, tertiary education or skills training facility;
Correctional facility;
Custodial police station;
Retirement village;
Residential aged care facility;
Caravan park;
Residential park;
Casino or other gambling facility;
Theatre;
Commercial building; or
Other building types listed in the regulations.

The term ‘prescribed building’ means (s 5)

Any building ‘used for commercial purposes’ built or subject to major works after the commencement of the Act (1 January 2026) if the building has a floor space greater than 600m2; or

The owner of a ‘relevant designated building or facility or prescribed building’ must install at least one AED, and one AED ‘for every 1 200 m2 of floor area of the building or facility’ (s 7(1)) Not all ‘designated’ or ‘prescribed’ buildings are caught by the obligation to install an AED.. The obligation applies to a ‘relevant designated building or facility or prescribed building’ (emphasis added) which means (s 7(7)):

… a designated building or facility or prescribed building that—

(a) is on land used for commercial purposes; and

(b) has a floor area of more than 1 200 m2’

I’m not sure if or where a ‘custodial police station’, ‘correctional facility’ or even a ‘local government office is ‘on land used for commercial purposes’. If they do not meet that requirement, then it appears the obligation to install the AED will not apply to them creating an anomaly as they are listed as a ‘designated building or facility’ (s 4) but not a ‘relevant designated building or facility’ (s 7).

The Chief Officers of the South Australian Country Fire Service, the South Australian Metropolitan Fire Service, the South Australian State Emergency Service and any other prescribed organisation as well as the owner of any train, tram, public bus or other prescribed vehicle must ensure that AEDs are installed in all of their vehicles (s 8).

A person required to install an AED in a building or vehicle must ensure that the AED is maintained and tested every 12 months (s 9).

In buildings there must be signs near the AED and, if the AED is inside the building there must be a sign outside and near to the entrance to the building, indicating that an AED is ‘nearby’. For vehicles there must be a sign on the vehicle indicating that there is an AED in the vehicle (s 10).

The Minister is required to maintain a register of the AEDs installed as required by the Act. The register must record where the AED is located and when it may be accessed (s 12). That information must be published on a website (s 12(3)) and made available via a smartphone application (s 13). Anyone required to install an AED must provide those details information to the Minister within 14 days of installation (s 12(4)).

The Minister must develop a public information strategy to inform people how to locate an AED and to confirm that people do not need to be trained to use them (s 14). Even though people do not need to be trained to use an AED the Minister must establish a training scheme for people required to complete first aid training by either the Education and Care Services National Law (South Australia) or the Work Health and Safety Act 2012 (s 15). The Minister must provide a report to the Parliament within 6 months of the Act receiving assent (ie before it comes into full effect) explaining ‘how the Government will provide support to persons who are required by this Act to install an Automated External Defibrillator’ (s 18).

It will be an offence to damage or remove an AED unless it is removed, or the damage occur, whilst it is being used to ‘treat a person who the defendant reasonably believed to be suffering from cardiac arrest’ (s 16).

In my earlier post I said:

The Bill does not require anyone to actually use the devices should the need arise. Even though the Bill is called the Automated External Defibrillators (Public Access) Bill 2019 there is nothing in the proposed Bill to say that the AEDs, once installed, actually have to be made available to the public.

Those comments are equally applicable to the 2022 Bill.

Conclusion

The Bill has passed Parliament. It now awaits assent from the South Australian Governor. One that has happened, the Minister will have 6 months to deliver the report explaining ‘how the Government will provide support to persons who are required by this Act to install an Automated External Defibrillator’. The Minister will also have to attend to drafting necessary regulations, developing the website and smartphone application and the necessary training program.

Government departments will have until 1 January 2025 to install AEDs in compliance with the Act; everyone else will have until 1 January 2026.

Categories: Researchers

How fast is too fast in an emergency vehicle?

Michael Eburn: Australian Emergency Law - 11 December, 2022 - 11:50

Today’s correspondent tells the story of:

A fully authorised and experienced emergency vehicle driver in NSW, responding to a life-threatening emergency, in a marked “emergency vehicle”, passes a fixed speed camera doing 130kph in an 80kph speed limit area.

Assume a modern, well maintained, regularly serviced light truck driving under lights and sirens at 1 pm. The weather on the day is recorded as being showers and rain throughout the day. Let’s assume at least damp roads on a Monday with regular traffic volumes.

Policy and procedure-wise, the emergency service does not have a stipulated maximum speed. It instead instructs the drivers to drive to the road conditions, their skills, experience and fatigue levels.

No complaints or accidents have happened regarding this response. But we do have the data from the speed camera.

The driver is relying upon being reasonably exempted from the road rules because they are actioning a life-threatening rescue response. The manager has concerns that driving 50kph above the area speed limit, and 20kph above the national speed limit, in that vehicle is a questionable risk and possibly unreasonable.

That has me asking, how do we interpret what a “reasonable person” might think on whether this speed is reasonable? Normally that would that be determined by a magistrate or a panel of jurors – correct? Here, we have two laypersons – the driver and their manager (and potentially anyone in the community who witnessed it).

As a manager, leader, and mentor to these drivers, how should I determine what a reasonable person may have concluded regarding that situation in order to give them valuable feedback for the future?

For related posts see:

The reasonable person

The legal ‘reasonable person’ is not the same as an ordinary person. Prosper Law give this concise summary:

The reasonable person refers to a hypothetical person who demonstrates average judgment or skill. The reasonable person has various generalised attributes including risk aversion, sound judgment, and a sense of self-preservation, which prevents them from walking blindly into danger.

The reasonable person is pure legal fiction. It was crafted by judges to represent the concept of the Common Law and used as a tool to standardise the application of the law.

The reasonable person is not an average person or a typical person, and the average person is not necessarily guaranteed to always be reasonable.

Ultimately the only judge of whether one’s conduct meets the test of ‘the reasonable person’ is indeed a judge or jury. But lawyers, police, insurers, drivers and managers can all think about the ‘generalised attributes’ to come to a conclusion – which they do when deciding whether to defend or settle cases, issue infringement notices etc.

The reasonable response to risk

When deciding what a ‘reasonable person’ would do in response to a risk, the leading case (still) is Wyong Shire v Shirt [1980] HCA 12 where Mason J said (at [14]):

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

That was a civil case, and in this question we’re talking about criminal law, but the issues are still the same. So the first things that both the driver and the manager have to consider are:

the magnitude of the risk; and
the degree of the probability of its occurrence;
along with the
- expense;
- difficulty; and
- inconvenience

of taking alleviating action and

any other conflicting responsibilities which the defendant may have.

The issue is the risk of a vehicle collision. The magnitude of the risk, particularly at 130km/h in a laden truck is very high. Collide and someone is likely to die.

What is the probability of its occurrence? One might think quite high, that’s very fast in an urban street and increasing the risk is the fact that roads are wet and the presence of other traffic. Also adding the probability is the fact that the vehicle is not designed for that sort of driving. In a comment on an earlier post I said ‘…you’re not driving a racing car…’. It was suggested that this demonstrated ‘a level of bias’ but I took the view that it is simply true. A loaded emergency services appliance is not a racing car. Racing cars are designed to be driven very fast on tracks that are designed for that purpose with all the traffic made up of similar cars going in the same direction. That is not true when driving a laden emergency services truck that I would suggest is being pushed to its limits.

What can be done to reduce the risk? One way to reduce the risk is police motorcycle escorts riding ahead and closing off intersections but one can see immediately that the cost and inconvenience of that response is impracticable, so it is not ‘reasonable’ to try and implement those responses.

Light/sirens will go some way to reduce the risk as will the obligation on other drivers to make way for the emergency vehicle. But equally they can increase risk as other drivers try to react and the driver of the emergency vehicle themselves may become too focussed on the task. The pressure of ‘goal seduction’ that is focussing on the goal of getting to and responding to the emergency can lead to bad decisions by the driver of the emergency vehicle (Christopher Bearman and Peter A Bremner, ‘A day in the life of a volunteer incident commander: Errors, pressures and mitigating strategies’ (2013) 44 Applied Ergonomics 488-495).

Another, simple way to reduce the risk, is to slow down. There is an inconvenience in that response as it delays response time but then one has to ask by how much. Even you can do 130km/h the driver is not going to keep that up for the whole trip; so how much time is it really saving?

Finally, there is the issue of ‘conflicting responsibilities’. There the assigned task of rescue is relevant. There is a conflicting responsibility to try to get on scene to affect the rescue as soon as possible. But that will be defeated if the vehicle is involved in a collision and the desire to save someone cannot justify killing someone else. There would be no legal duty to rescue the person in danger, but there is a legal duty not to kill another road user (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)).

Traffic law

To these factors we need to look at the relevant traffic law. We should all be familiar with the exemption from the Road Rules (Road Rules 2014 (NSW) r 306) which says:

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

(a) in the circumstances–

(i) the driver is taking reasonable care, and

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

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

Rule 306 is not an exemption from all the rules that apply to drivers and driving. It is an exemption from the rules set out in the Road Rules 2014 (NSW). There are however many rules of the road that are not in the Road Rules 2014. The Crimes Act 1900 (NSW) deals with offences such as manslaughter, dangerous driving occasioning death or grievous bodily harm and causing injury by ‘wanton or furious riding, or driving, or racing, or other misconduct, or by wilful neglect’. The Road Transport Act 2013 (NSW) provides for the offence of driving ‘at a speed or in a manner dangerous to the public’. There is no exemption from these offences so if the driving, objectively judged, meets the standard of criminal negligence (explained in the posts Leaving a property owner to face a bushfire won’t be criminal negligence (November 26, 2019) and Medical mistake and manslaughter (April 10, 2022)) or an unreasonable danger to the public then the use of lights and sirens provides no exception.

The Road Transport Act 2013 (NSW) s 117 says:

(2) A person must not drive a motor vehicle on a road furiously, recklessly or at a speed or in a manner dangerous to the public.

(3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following–

(a) the nature, condition and use of the road on which the offence is alleged to have been committed,

(b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road,

(c) any obstructions or hazards on the road (including, for example, broken down or crashed vehicles, fallen loads and accident or emergency scenes).

In deciding whether driving a laden emergency services truck at 130km/h is dangerous a court would have regard to the road conditions (in the scenario at hand, a wet road) and the fact that the road authority have determined that a driver should not exceed 80kh/h on that road. 130km/h may not be objectively dangerous on a divided motorway with light traffic and a speed limit of 110km/h, but that is not the same as a road with oncoming traffic, perhaps a single lane and a speed limit of 80km/h.

The Crimes Act 1900 (NSW) s 52A(1) says

A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle–

(a) …

(b) at a speed dangerous to another person or persons, or

There is a similar offence of causing grievous bodily harm (GBH) (s 52A(3)).

In both cases the offences are made worse if there are ‘circumstances of aggravation’ (ss 52A(2) and (4)). The circumstances of aggravation include ‘driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road’ (s 52A(7)). The maximum penalty for causing death in those circumstances is 14 years imprisonment; for causing GBH it is 7 years imprisonment.

In R v Jurisic [1988] NSWSC 597 the NSW Supreme Court set out guidelines to be followed when sentencing a person convicted of an offence under s 52A. They said ‘A non-custodial sentence for an offence against s52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgement’. In sentencing a court would not doubt take into account the fact that the driver was the driver of an emergency vehicle and they were not ‘racing’ or abandoning their responsibility as a driver but the prospect of a custodial sentence (which can include an Intensive Correction Order to be served in the community (Crimes Sentencing Procedure Act 1997 (NSW) s 7) but that is still a custodial sentence (and see Suspended jail sentence for firefighter involved in a fatal accident (October 24, 2009) and RFS firefighter sentenced over fatal collision (December 5, 2016)).

Whilst these provisions do not have direct application, we can infer that the legislature thinks exceeding the speed limit by more than 45km/h is not only dangerous, it is extremely dangerous and the Supreme Court has said that if you do that, and someone dies or suffers GBH, you can expect to go to gaol. A driver of an emergency vehicle may want to argue that r 306 applies and the speed limit does not apply to them in the circumstances to try to get out of a traffic infringement. But if they are involved in a crash and someone dies or suffers GBH they can expect a custodial sentence. Is that worth the risk?

In another post, Victoria Police and Ambulance Victoria MoU determines maximum speed for responding ambulance (July 4, 2019) I was told about an MOU where police would not issue an infringement provided the ambulance was travelling not more than 25km/h over the speed limit. Ambulance Victoria confirmed that they did not have a policy that set a maximum speed but that if the driver is exceeding 25km/h an infringement will be issued that Ambulance Victoria will follow up to see if they should make representations to have the ticket withdrawn and the driver can always elect to challenge the infringement in court. Again that’s not directly applicable to this NSW scenario but it gives some indication of how other jurisdictions view the issue.

The driver’s personal risk assessment

Let us assume that there is no accident, but an infringement notice is issued so the police have formed the view that the conditions for the application of r 306 do not apply. Let us also assume that for whatever reason taking the matter to court is ruled out or not successful. If r 306 does not apply the driver is subject to the normal penalties for speeding. The offence of exceeding the speed limit is set out in the Road Rules 2014 (NSW) r 20. The maximum court penalties for exceeding the speed limit are:

by less than 30km/h – 20 penalty units.
by 30km/h or more – 20 penalty units and automatic disqualification from driving for 3 months;
by 45km/h or more – 30 penalty units and automatic disqualification from driving for 6 months;

The periods of disqualification mentioned apply if the court makes no specific order. A court can increase or, in some circumstances, decrease that period of disqualification (Road Rules 2014 (NSW) r 10-2). A penalty unit is $110 (Crimes (Sentencing Procedure) Act 1999 (NSW) s 17) so the maximum fines range from $2200 to $3300.

If the matter is dealt with by way of a penalty notice, ie without going to court, the penalties are (Road Transport (General) Regulation 2021 (NSW) sch 5 (fines) and Road Transport (Driver Licensing) Regulation 2017 (NSW) Sch 1 (demerit points)):

Exceed speed limit by less than 10km/h $128 and 1 demerit point;
Exceed speed limit by more than 10, but less than 20km/h $295 and 3 demerit points;
Exceed speed limit by more than 20, but less than 30km/h $507 and 4 demerit points;
Exceed speed limit by more than 30, but less than 45km/h $970 and 5 demerit points; and
Exceed speed limit by more than 45km/h $2616 and 6 demerit points

Where the driver has exceeded the speed limit by more than 30km/h, Transport for NSW may elect to suspend or cancel their licence (Road Transport Act 2013 (NSW) s 59 and Road Transport (Driver Licensing) Regulation 2017 (NSW) cl 67). Further if the driver is exceeding the speed limit by more than 45km/h and is stopped by police (rather than detected by a speed camera) the police officer can immediately suspend the driver’s licence for a period of 6 months or, if a person is killed or injured, until the matter is finalised in a court (Road Transport Act 2013 (NSW) s 224).

The driver can do a personal risk assessment.

I’m exceeding the speed limit by less than 10km/h; I think I meet the conditions for r 306 but if I’m wrong, I face a fine of $128 and 1 demerit point. At this speed the risk of crashing is not materially increased so it will be easier to argue that notwithstanding the fact that I’m speeding, I’m taking ‘reasonable care’.

Versus:

I’m exceeding the speed limit by more than 45km/h; I think I meet the conditions for r 306 but if I’m wrong, I face a fine of $2616 and 6 demerit point; if I’m stopped by police I will lose my licence for 6 months and if I’m fined Transport For NSW may cancel my licence. The risk of crashing is materially increased so it will be hard to argue that I am taking reasonable care. If I crash at this speed, and someone is killed or seriously injured, I can expect to go to prison or be subject to an intensive correction order”.

What risk are you willing to take?

Conclusion

The question asked was

As a manager, leader, and mentor to these drivers, how should I determine what a reasonable person may have concluded regarding that situation in order to give them valuable feedback for the future?

The answer is consider the matters listed in Wyong Shire v Shirt

… the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities.

When considering those things remember:

Any advantage you try to gain by travelling fast is lost the moment there is a collision;
The single most important job for the driver of an emergency vehicle is to get to the scence – and that means don’t crash;
The risk of death or GBH must go up the faster the vehicle is travelling;
The speed limit is based on the road condition, type etc. It is the official view of the maximum safe speed on that road. Emergency services are given some leeway and the use of lights and sirens is meant to reduce the risk, but the use of lights and sirens does not affect the performance of the vehicle or the road. If the nature of the road makes it dangerous to drive on it at 130km/h then it’s dangerous whether there are lights and sirens or not;
If there is a collision and another person is killed or seriously injured, the driver can expect a custodial sentence if they failed to take reasonable care and the fact that there is a collision is almost certain proof of a lack of care;
The road laws specifically provided that exceeding the speed limit by more than 45km/h is an aggravating factor;
Eburn’s rule of thumb: If a person on the side of the road watching the emergency vehicle go past would say ‘gee they’re moving’, then you’re going too fast.

The driver also needs to assess their own risk appetite. If it goes wrong and neither the police nor the court thinks r 306 applies (and if you crash, r 306 won’t apply) what is the amount of penalty you’re prepared to risk?

My own view is that travelling 50km/h over the posted speed limit could never be justified and it would be very hard to persuade a police officer, or a court, even in the absence of a collision, that the driver was taking ‘reasonable care’ – but I’m not the magistrate and the driver can argue the point if they want.

Categories: Researchers

Changes to Queensland emergency services announced

Michael Eburn: Australian Emergency Law - 9 December, 2022 - 06:00

Back on 26 October 2022, Queensland’s Minister for Fire and Emergency Services announced the development of ‘Enhanced emergency services for Queenslanders following independent review’. The government promised more staff and money. They also announced

… the establishment of a new Queensland fire department, while the Queensland Police Service will have primary responsibility for disaster response and coordination.

The fire department will have a clear focus on fire prevention, response and control.

It will encompass the Fire and Rescue Service and the Rural Fire Service as a separate entity with its own dedicated budget.

The reform will also see the State Emergency Service and volunteer marine rescue services – to be named Marine Rescue Queensland- aligned more closely with, and hosted by, the Queensland Police Service.

See also Heidi Sheehan, ‘Major shake-up of Queensland’s emergency services sees budgets and frontline workers boosted’ ABC News (Online) Wednesday 26 Oct 2022.

I am yet to see any legislation to give effect to these changes but first impressions are:

It sounds like a bit of ‘back to the future’. The last major reform of Queensland emergency services legislation was in 2014 with the Passage of the Public Safety Business Agency Bill 2014 (Qld) (May 8, 2014). That Act (as it became) transferred responsibility for the State Emergency Service from the old Emergency Management Queensland (EMQ) to the new Fire and Emergency Service bringing the Queensland Fire and Rescue Service (as it was) the Rural Fire Service and the SES all under the command of the Commissioner of the (now) Fire and Emergency Services. Taking the SES away from QFES and placing it under the command of Police sounds like the government is disentangling the relationships created in 2014.
Hopefully this will give the Parliament the chance to draft afresh the Queensland legislation and remove many of the anomalies and confusion around the legal status of volunteer fire brigades see:
- Malone inquiry into Queensland Rural Fire Service and volunteer protection (April 30, 2013);
- A further review of the Malone Inquiry into the Queensland Rural Fire Brigades (June 11, 2013);
- Status of Queensland Rural Fire Brigades (September 10, 2014);
- Revisiting the status of volunteer rural fire brigades in Queensland (March 9, 2018);
- Rural Fire Brigades as part of Queensland Fire and Emergency Services (not Queensland Fire and Emergency Service) (August 6, 2018);
- Gaps in Queensland fire legislation exposed in failed prosecution (October 23, 2022); and
- Gaps in Queensland fire legislation exposed in failed prosecution – Part 2 (October 28, 2022).

Categories: Researchers

Recency of paramedic practice or employment?

Michael Eburn: Australian Emergency Law - 8 December, 2022 - 09:15

Today’s question comes

… in the setting of it being the time of year to renew registration for Paramedics. When renewing Paramedic registration one of the questions is along the lines of ‘in the last week how many hours were you EMPLOYED in Paramedicine?’ It goes on to ask in what type of area i.e clinical, management, education, charity, academic etc. It further goes on to ask what type or organisation i.e public, private, retrieval, defence, charity etc.

The part ‘employed as a paramedic’ I believe makes it confusing to those whose job title isn’t Paramedic but meet all the AHPRA requirements as set out in the Recency of Practice Standard. I am currently employed as a Registered Paramedic, Critical Care Nurse, Registered Midwife, and Aeromedical Nurse. I also volunteer with a Paramedic charity. I see my variety of work not only overlaps but compliments in providing safe and quality clinical care.

The Recency of Practice Standard has the following definitions:

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

Recency of practice means that a health practitioner has maintained an adequate connection with, and recent practice in the profession since qualifying for, or obtaining registration.”

Based on the above definitions I was of the belief your employment contract/job title doesn’t need to be Paramedic to be working as a Paramedic in regard to recency of practice. It was my understanding that it is the type of work you do that uses Paramedic specific professional skills and knowledge which is of important as well as maintaining competency, education, link to the profession and not the employment/job title.

Could you please confirm for me whether the title of what you are EMPLOYED as matters or is it what you are practicing?
If what the Registered Paramedic is employed as isn’t the most relevant aspect in maintaining recency of practice (as is written in the AHPRA requirements under the Recency of Practice Standard) do you believe this wording should be change or further clarified in the registration renewal questions? For example “I.e How many hours within the last week have you WORKED paid or unpaid in a role that can be defined as Paramedicine?

After sending this question my correspondent sent through a screen shot of a conversation, they had been having with AHPRA that says that this question was part of a workforce survey ‘used for gathering statistical information’ and that completing the survey is ‘an optional step in the renewal application and will not affect your renewal if you do not submit it’.

First if the question about employment is part of a ‘workforce survey’ rather than part of the recency of practice declaration then the Board can, I suppose, ask whatever they want and they may be interested in how many people are employed as a paramedic, and the number of hours per week as that does give them data that they may be interested in.

I agree that it shouldn’t really matter what one’s job title is. Here I note the word ‘employed’ can have two different meaning. On the one hand it means to be engaged for wages or salary – “I was employed as a paramedic”; on the other hand it means to be “occupied; devoted to some pursuit” (https://www.dictionary.com/browse/employed) – “I spent many hours happily employed in my gardening”. In the latter sense one might interpret the question ‘how many hours were you EMPLOYED in Paramedicine’ as how many hours did you spend doing paramedicine type work, regardless of the actual title of the job.

If we assume the question was about recency of practice and the Recency of practice registration standard (17 May 2018), my correspondent has quoted the relevant definition. That standard says:

To meet this registration standard you must complete a minimum of:

a. 450 hours of practice in the previous three years, or

b. 150 hours of practice in the previous 12 months, or

c. 750 hours of practice in the previous five years with no continuous absence from practice of greater than two years.

The standard refers to hours of practice, not hours employed.

Conclusion

If I was going to suggest a change of words, I would suggest “How many hours within the last week have you practiced as a Paramedic?” The reason that I start this paragraph with an ‘If’ and why I don’t commit myself to that recommendation is because the question that my correspondent referred to was in a voluntary workforce survey. In the survey the Board may be asking about employment because that is specifically what they want to know. And I don’t suggest any change in the current renewal application because I cannot see what Paramedics are currently asked when they renew their registration so I don’t know what the current form of questions is, so I cannot make any sensible recommendation for change.

Categories: Researchers

New research reported in “The Conversation”

Michael Eburn: Australian Emergency Law - 6 December, 2022 - 12:11

My colleague, Phillipa McCormack from the University of Adelaide reports on the need for ‘Clashing laws … to be fixed if we want to live in bushfire-prone areas’ (The Conversation, 6 December 2022). This is a summary of the findings of a research project, led by Phillipa with contributions from Professors Jan McDonald and David Bowman, Drs Stuart Little and Rebecca Harris and myself.

In that research we tried to map all laws that impact upon bushfire management to explore the complexity of the regulatory world and the interrelationships between laws in one area, and bushfire risk. We concluded that ‘Bushfires are not a ‘problem’ that the law can solve. Even so, our laws and policies have an important role to play in preparing communities and environments for a future that will be defined by our experience of fire. (The research report was published in the Melbourne University Law Review and you can read it here).

In the summary article in ‘The Conversation’ Phillipa gives examples of how laws designed for one purpose conflict with others focussed on bushfire risk. She argues that law reformers should ‘look across the whole range of laws governing or touching on fire’ to ‘find new ways to help us adapt’.

Phillipa is an early career researcher supported by Natural Hazards Research Australia – see https://www.naturalhazards.com.au/about-us/board-and-staff/phillipa%20mccormack.

I congratulate Phillipa on the outcomes of her work to date and look forward to seeing her future contributions in the field of fire management and law.

Categories: Researchers

The need for private consultation space

Michael Eburn: Australian Emergency Law - 5 December, 2022 - 06:00

Today’s correspondent has a

… question re privacy and confidentiality. At a mine site the Paramedic office is placed in a team office where four offices are able to overhear conversations in each room.

1) Open door policy: This would breach privacy and confidentiality would it not? Assessing and treating a patient where anyone can hear and see.

2) Paper thin walls allow personal information to be heard by others. Is this a breach of privacy/confidentiality?

How is this situation best approached in a diplomatic way. I believe a number of mine sites have paramedic offices within the same office space as the safety team whereas for others the paramedic’s office is far removed for privacy reasons.

I’m not sure what is meant by an ‘open door policy’ – usually that means that managers or colleagues are available to consult, eg when I was a young barrister we were told that the bar had an open door policy which meant that we could in fact knock on anyone’s door (form our junior colleague to the most senior QC) and ask for advice or guidance. Not that their door would be physically open or that we could ask at any time – if they were busy there were busy. I find it hard to believe that there is a policy that insists office doors are open at all times.

However we can put aside the details as the issue is clear – what is the obligation when conversations can be heard and treatment seen.

The starting place is the AHPRA Code of Conduct adopted by the Paramedicine Board. The Code says, at [3.3] (emphasis added):

3.3 Confidentiality and privacy

You have ethical and legal obligations to protect the privacy of patients. Patients have a right to expect that you will hold information about them in confidence, unless the release of information is required or authorised by law, or is required to facilitate emergency care.

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

a) …

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 NSW Health Privacy Manual (2015) says (at [9.2.8], emphasis added) “It is important to ensure that patient information is not discussed in public areas such as corridors or lifts or anywhere where it is likely to be overheard”.

It is an expectation that you will not treat patients where they can be seen or your consultation overheard (which again causes me to ask ‘How are reality ambulance shows legal? (October 9, 2018)).

Conclusion

In short, treating people in circumstances where “anyone can hear and see” and “personal information [can] be heard by others” is a breach of privacy/confidentiality and contrary to professional expectations. It is not for me to answer ‘How is this situation best approached in a diplomatic way’ because that depends on the employer and your relationship with them; but it should be raised and reference should be made to the Code and the expectations that apply to a paramedic because they are a paramedic, not because they are an employee of a particular company.

Categories: Researchers

Deemed membership of Association of Volunteer Bush Fire Brigades WA

Michael Eburn: Australian Emergency Law - 3 December, 2022 - 16:17

Today’s correspondent says:

In Western Australian the Association of Volunteer Bush Fire Brigades of WA Incorporated has a constitution (2017) which states that all WA volunteer bush fire brigades are automatically members, and that membership is an opt out system. The clause states –

“Local Government Volunteer Bushfire Brigades that are formally registered in accordance with section 41 of the Bush Fires Act 1954 as amended at the time of this constitution coming into being are deemed to be members of the Association unless otherwise advised in writing by the Brigade to the Secretary in accordance with this constitution.

The constitution then goes on to provide an application and approval process for Brigades which are formed after the constitution comes into effect, which is a normal membership application and approval process.

Is this clause likely to be lawful, given the Association purports to represent brigades without their knowledge or consent? Your thoughts on this would be much appreciated.

The constitution of Association of Volunteer Bush Fire Brigades of WA is available via the website of the Australian Charities and Not For Profits Commission, as are the Constitutions of the other Associations referred to below.

The first thing to note is the WA Association is an association of Brigades. First and foremost, it is the Brigades and not the volunteer firefighters that are members of the Association. The Rural Fire Brigades Association Queensland Incorporated is also an association of Brigades (RFBAQ Constitution (July 2016) cl 5) as is Volunteer Fire Brigades Victoria (Association Rules (February 2018), cl 3.1). Compare that to say South Australia’s Country Fire Service Volunteers Association and the NSW Rural Fire Service Association where the members are the volunteer fire fighters, not the brigades (Constitution of the Country Fire Service Volunteers Association (November 2016), cl 5; Constitution of the NSW Rural Fire Service Association Incorporated (June 2019) cl 2.1.1)).

Membership

The Constitution Association of Volunteer Bush Fire Brigades of WA says it was accepted on 5 August 2017. Clause 8 is headed ‘Membership Transition’. It says:

Local Government Volunteer Bushfire Brigades that are formally registered in accordance with section 41 of the Bush Fires Act 1954 as amended, with Local Government and the State Agency responsible for administering the Bush Fires Act 1954 as amended, at the time of this constitution coming into being are deemed to be members of the Association unless otherwise advised in writing by the Brigade to the Secretary in accordance with this Constitution.

It is not clear what the transition is ‘from’ – presumably the previous Constitution that was replaced with the 2017 document (see cl 5). Whilst the language of the clause could be clearer, I think it’s meaning is obvious. As at 5 August 2017 any Brigade registered with both the relevant Local Government and the relevant department (now DFES) was, and unless they have advised the Secretary in writing, remains a member of the Association. Brigades that are not members by virtue of cl 8 must apply for membership (cl 11.1).

Notwithstanding what I said above, ie that first and foremost the members of the Association are the Brigades, individuals can be members. The Constitution says (at cl 10) ‘’For a person to become a member he/she must apply in writing to the Association”. That is not what is reported on the Association’s website. That says (at https://www.bushfire.org.au/about-us/) “Every registered member of a Volunteer Bush Fire Brigade in Western Australia is automatically a Bushfire Volunteer member…”.

Even though there is inconsistency between the website and the Constitution (and the Constitution must prevail), the idea that every member of a brigade is also a member the association is not unique to WA. The same is said to apply in South Australia (“CFS volunteers are automatically a member of the CFS Volunteers Association”); but in NSW members must apply to join the RFSA even if that is done by ticking ‘the ‘I Accept’ box at the bottom of your RFS membership application’ (https://www.rfsa.org.au/member-benefits/).

Even though cl 10 says of the Constitution of the Association of Volunteer Bush Fire Brigades of WA says an individual must apply for membership, clause 9.3 says

Any Brigade admitted to membership of the Association shall ensure that each member of the Brigade undertakes to abide by the Constitution and Business Rules of the Association and such further provisions as the Committee may from time to time direct.

It is not clear how a Brigade could impose those conditions on members of the Brigade if those members have not applied to be a member of the Association.

Freedom of Association

The International Covenant on Civil and Political Rights (ICCPR) cl 22 says “Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.” Joining an Association such as the Association of Volunteer Bush Fire Brigades of WA is consistent with that right. The Commonwealth Attorney General says:

There is no settled international law on whether the right to freedom of association encompasses the right not to be compelled to join an association, such as a trade union or professional association. In Australia, the Fair Work Act 2009 provides that persons are free to not become members of industrial associations.

Whilst there would be an issue if a brigade or an individual could not refuse membership that is not the case. The constitution provides that members may resign their membership, so membership of the Association is not compulsory even if membership is managed by an ‘opt out’ rather than ‘opt in’ system.

Industrial law

As the Commonwealth website (quoted above) says, ‘the Fair Work Act 2009 provides that persons are free to not become members of industrial associations’. The Industrial Relations Act 1979 (WA) s 96B says

An award, industrial agreement or order under this Act, or any arrangement between persons relating to employment must not —

(a) require a person —

(i) to become or remain a member of an organisation…

The Association of Volunteer Bush Fire Brigades of WA Incorporated is not an industrial organisation and is not governed by the Industrial Relations Act. In any event the Industrial Relations Act has provisions (akin to cl 8) that allow membership to be transferred where there are changes to the structure or rules of an association (see ss 71(9) and 72). Even if it were an industrial organisation a clause that says ‘everyone who was a member before we adopted this new constitution is a member now’ would not be objectionable. For a Brigade the issue would be if, prior to 5 August 2017 it was not a member of the Association under the old rules but was made a member by virtue of cl 8 when the new rules were adopted. I do not know if there were any Brigades in that position.

Discussion

The Association of Volunteer Bush Fire Brigades of WA has no statutory authority or power. It is an association of like-minded entities (Brigades and members) that seeks to collectively advance their interests. Its success depends on the ability of the management team to persuade its members, government and the community that it is an effective representative body. (Compare that to Volunteer Fire Brigades Victoria and the Country Fire Service Volunteers Association, both of which are specifically mentioned in the governing legislation so have a statutory right to represent their members (Country Fire Authority Act 1958 (Vic) s 6G; Fire and Emergency Services Act 2005 (SA) s 69).

Membership if the Association is an ‘opt out’ system but only for brigades that were in existence on 5 August 2017. I cannot think of any situation where it would make sense to ask whether that clause was ‘lawful’ given that Brigades can leave the Association if they don’t agree with the direction the Association is taking. It could be a question if the Association tried to impose conditions on a Brigade eg a fine but they don’t have the power to do that. If a Brigade simply refused to do what the Association asked (or demanded) then the only sanction is to cancel the Brigade’s membership which might be mutually acceptable in any event.

I can see the issue with ‘opt out’ membership and if say there was an association that by its rules made me a member without telling me, I would not feel bound by its rules or by any outcome it might purport to negotiate on my behalf. But I find it hard to believe in the small world that is the Rural Fire Brigades of WA that any brigade leadership is not aware of the Association, its aims, and their right to resign should they wish to. It may be that in 2017 every brigade was consulted on that clause and agreed to it.

Conclusion

Clause 8 is said to be a transition clause presumably as the Association transitioned to the 2017 Constitution. It gave the Association a starting membership and any Brigade that wanted to leave has had 5 years to do so, and any new brigade could have joined. In the absence of any specific context that may have concerned my correspondent I cannot see any meaningful way to say that the clause is ‘unlawful’ but I’m sure if push came to shove and the Association wanted to insist that a Brigade executive do something that they did not want to do, this clause and membership of the Association would not compel the executive to act as directed by the Association.

Categories: Researchers

Authority of Qld ambulance office to detain and transport a mentally ill person

Michael Eburn: Australian Emergency Law - 28 November, 2022 - 14:29

A Queensland based paramedic has a question regarding Emergency Examination Authorities (EEAs). They say:

…when completing an EEA we must provide the time of which we hand the patient over to the care facility. I was wondering what power we have during transport of the patient as we are not under the time of the EEA during transport?

EEAs are provided for in the Public Health Act 2005 (Qld). An emergency examination authority is issued by an ambulance officer (s 157D). The issue of the authority authorises others to detain the person the subject of the authority (s 157E). It follows, as my correspondent says, that a person detained by an ambulance officer is not subject to an EEA; the powers of an ambulance officer are found in s 157B which says:

(1) This section applies if an ambulance officer or police officer believes—

(a) a person’s behaviour, including, for example, the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and

Example—

a person is threatening to commit suicide

(b) the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and

(2) …

(3) The ambulance officer or police officer may detain the person and transport the person to a treatment or care place…

The ambulance officer must (s 157C) tell the patient that they are ‘detaining the person and transporting the person to a treatment or care place’ and must tell them:

(a) in an appropriate way having regard to the person’s age, culture, mental impairment or illness, communication ability and any disability; and

(b) in a way, including, for example, in a language, the person is most likely to understand.

The ambulance officer may use ‘the force, that is necessary and reasonable in the circumstances’ (s 157L).

The Act does not specifically say what if any treatment may be given but the use of necessary and reasonable force would imply the use of both chemical and physical restraints where they are provided for in the ambulance service clinical practice guidelines and are based on appropriate health science.

Conclusion

Ambulance officers may detain and transport, using reasonable force, a patient who meets the criteria set out in s 157B. The authority of an ambulance officer is not found in the EEA as ambulance officers issue an EEA to authorise future detention by others.

For related posts see

Paramedics and the mentally ill – Queensland – An update (October 14, 2019);
In Queensland, is threatening suicide evidence of ‘a major disturbance in [a] person’s mental capacity’? (August 6, 2020);
Involuntary detention by police or ambulance officers under the Public Health Act (Qld) (March 16, 2021);
No power of generic ‘involuntary transport’ in Queensland (May 15, 2021); and
Completing a Queensland EEA with the paramedic’s name (May 20, 2021).

Categories: Researchers

Paramedic’s appeal against NSW COVID orders dismissed

Michael Eburn: Australian Emergency Law - 24 November, 2022 - 15:54

At the start of the Covid pandemic I wrote two posts on potential challenge to the restrictions and orders that were then being implemented:

Challenging COVID restrictions – part 1 (April 23, 2020) and
Challenging COVID restrictions – part 2 (April 23, 2020).

In part 1 I said:

If you think the current restrictions on your liberty is a breach of your fundamental and inalienable human rights, you could challenge them. You could apply to a human rights watchdog and in some states, you may be able to seek a declaration in the Supreme Court. My prediction is that, given the near universal international response, you would have no chance of persuading any tribunal that the current powers are not lawful. (I would also predict that it would take so long that by the time you got a result the restrictions will have been lifted anyway).

In part 2 talking about the power of the State Ministers I said:

… an individual may think the orders ‘go too far’ but that is not grounds to set them aside if the Minister held the necessary belief and the orders are such that it is not unreasonable to think they are necessary even if it could also be reasonable to think they are not. It is the Minister’s state of mind that is relevant and the fact that some people would have made a different decision does not mean that the Minister’s decision does not stand.

Larter v Hazzard

One person who has taken these issues to the Supreme Court is NSW paramedic John Larter. Mr Larter has declined the COVID vaccine. As a result of complaints concerning his public statements about the COVID-19 pandemic and public health orders for lockdowns and vaccinations, his registration as a paramedic was suspended. That suspension has been lifted but there are conditions on his registration. He was dismissed from his position with NSW Ambulance. He has ongoing cases challenging the actions of the Paramedicine Council and NSW Ambulance.

Apart from those actions, he also challenged the power of Health Minister Brad Hazzard to issue orders under the Public Health Act that required health workers to be vaccinated. His original application was heard, and dismissed, by Adamson J on10 November 2021 (Larter v Hazzard (No 2) [2021] NSWSC 1451). On 9 December 2021 Mr Larter was ordered to pay the state’s costs in responding to the litigation (Larter v Hazzard (No 3) [2021] NSWSC 1595).

Mr Larter appealed to the Court of Appeal. That appeal was dismissed, with costs, on 22 November 2022 (Larter v Hazzard [2022] NSWCA 238; Brereton JA with whom Mitchelmore JA agreed).

In the course of dismissing the appeal, Brereton JA found that there may have been one arguable point. The order that was the subject of the appeal – the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW) – was made on 26 August 2021. That order said that any person doing health work had to have had at least one dose of a COVID vaccine between 30 September 2021 and 30 November 2021; and after 30 November 2021 they had to have had two doses ([3]-[4]).

The Public Health Act provided the Minister the power to make such an order, but pursuant to s 7(5) of the Act, the order would only be in force for 90 days. 30 November was more than 90 days after the order was made and so, it was argued, the obligation to have two vaccines after 30 November was beyond the Minister’s power ([5]).

At [25]-[26] Brereton J said

… I doubt that it could be a valid use of the power to make an order which could only operate for a period of 90 days, to include in it a provision which would only be effective after its expiry… In my view, the proposition that the Original Order, in its purported application to work done on or after 30 November 2021, was ultra vires, is at least arguable.

However, the Original Order was repealed by the October Order, made on 22 October 2021, before that provision would purportedly have had any effect (from 30 November 2021). Moreover, clause 4(1)(b) would in my opinion have been severable, without affecting the validity of the remainder of the Original Order. Thus even if, insofar as it purported to require double vaccination from 30 November, the Original Order was ultra vires, that would not result in invalidity of the order as a whole.

That is, it may have been beyond power to say that workers had to be double vaccinated after 30 November, but it is of no relevance. Even if the argument succeeded it would mean that the requirement of the August order – that workers be double vaccinated after 30 November 2021 would have had no effect but the rest of the order including the requirement to be vaccinated after 30 September would have remained, and in any event the August order was repealed before 30 November and replaced by another order that had the same effect.

The court therefore declined to hear an argument on whether that part of the order – requiring double vaccination after 30 November – was beyond power as it was moot – it would not make any difference to anyone’s legal position.

As for the argument that the requirements imposed by the August (and subsequent) orders were ‘unreasonable’, Brereton AJ said (at [27]):

… the Act confers a broad discretion on the Minister in accordance with its intention of affording the Minister the maximum flexibility possible to address and counter risks to public health and their potential consequences, and any judicial review of the Minister’s exercise of power must be undertaken not by reference to what may have been objectively necessary but by reference to whether it was open to the Minister, acting reasonably, to “consider” that the measures given effect by the Orders were necessary.

And at [34] and [36]:

At the core of the applicant’s argument was the proposition that it was unreasonable to require a very small number of conscientious objectors within NSW Health to be vaccinated, while not at the same time requiring private general practitioners and pharmacists not employed by NSW Health to be vaccinated…

… In this context, the focus must be on what the order required, and not on what more it might have required (nor what less it might have required). The fact that an order does not go so far as it might does not mean that it is unreasonable. While the order may not have dealt with the whole of the risk posed by unvaccinated health practitioners, it dealt with an aspect of it, namely the risk posed by unvaccinated NSW Health workers. In addressing the increased risk of transmission posed by unvaccinated NSW Health workers, it was a direction that it was not unreasonable for the Minister to consider necessary to deal with the risk.

As for the argument that the orders infringed on fundamental human rights in a way that was not necessary it was said (at [40]):

… the orders did not provide for compulsory medical treatment by way of vaccination. The orders did not interfere with Mr Larter’s privacy, family, home or correspondence; and even if they did authorise any such interference, such interference was not arbitrary or unlawful, but pursuant to a valid exercise of a statutory power.

… [and] just because a person’s exposure depends on a stance which is informed by his or her religious beliefs does not mean that he or she is discriminated against on the grounds of religion. The Order does not attach consequences to adhering to a particular religion, but to unvaccinated status, and it does so regardless of religious belief.

Finally, the orders have now expired. Brereton AJ said (at [50]):

… no action adverse to Mr Larter depends on the impugned orders, and no practical benefit would accrue to him from having them declared invalid. The professional complaints against Mr Larter under the HPR [Health Practitioner Regulation National] Law which have been referred to the Paramedicine Council do not depend on any of the Orders. It is not suggested that Mr Larter has contravened the Orders; in compliance with them, he has not done work as a health care worker while they have been in force. The letter of 22 March 2022 terminating Mr Larter’s employment referred to his failure to provide evidence of vaccination or exemption so as to comply with the Original Order, the October Order or the December Order, and also the Secretary’s Determination No 33 of 12 November 2021 (“the Determination”), made under s 116A(1) of the Health Services Act 1997 (NSW) (the “HS Act”) … Non-compliance with [the Determination’s] requirements provided an independent basis for Mr Larter’s termination. Declaring void any or all of the Orders would not result in his reinstatement.

His Honour concluded:

For the foregoing reasons, in my opinion, only [one] … issue is sufficiently arguable to potentially justify a grant of leave to appeal. However, because even if it succeeded the relevant part of the Original Order would be severable, there are insufficient prospects of ultimate success to justify a grant of leave. Moreover, no action against Mr Larter depends on that Order… All the impugned orders, and those to like effect which replaced them, have expired. Declaring void any or all of the Orders would not result in Mr Larter’s reinstatement. There is no utility in granting leave to appeal.

Conclusion

The decision is consistent with those views I expressed back in April 2020. In any challenge to executive decision making, it is not sufficient to say that the decision maker did not make the decision the person challenging would have made or thinks should have been made. In this case the argument that the orders did not go as far as they could, or went too far was not to the point. The question was whether the Minister held the belief required by the Act.

The fact that minds may differ on how the Minister should have responded is irrelevant. These issues do attract different views and there are many different options open to the Minister. Courts are not there to make those decisions or to decide if the Minister (or other delegated decision maker) made the objectively ‘best’ decision – the legislature has given that decision making power to the Minister. The Courts are there only to ensure the Minister has acted in accordance with the legislation.

Categories: Researchers

NSW emergency services and the use of a special purpose lane

Michael Eburn: Australian Emergency Law - 23 November, 2022 - 12:33

Today’s question relates to:

The use of Bus Lanes, Bus Only Lanes and T-Ways by NSW SES vehicles has come up in a recent discussion and we would be interested in your take.

The NSW SES recently issued T-Way stickers/magnets to all NSW SES vehicles within the Metro Zone, along with information regarding stating along the lines that the T-Way stickers can only be used by NSW SES when attending an incident call out, and only on designated T-Ways (not in Bus Lanes or Bus Only Lanes).

Rule 154 of the Road Rules 2014 (NSW) states:

154 Bus lanes

A driver (except the driver of a public bus) must not drive in a bus lane, unless the driver is permitted to drive in the bus lane under rule 158.

Maximum penalty—20 penalty units.

Looking at rule 158 as mentioned above it states:

158 Exceptions to driving in special purpose lanes etc

(2) The driver of any vehicle may drive in a bicycle lane, bus lane, tram lane, transit lane or truck lane if—

(a) …

(v) driving a police vehicle, ambulance or fire brigade vehicle in a transit lane or bus lane (other than a bus only lane) while returning to base after proceeding to the scene of an accident or other emergency, or

Further to the above two rules, when looking at the dictionary for the Road Rules, a “Public Bus” is defined as:

public bus means a coach.

Note 1—

Coach is defined in the Act to mean a motor vehicle that is—

(a) constructed principally to carry persons, and

(b) equipped to seat more than 8 adult persons, and

Also, if we take a look at rule 306 for exemptions for drivers of emergency vehicles:

306 Exemption for drivers of emergency vehicles

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

(a) in the circumstances—

(i) the driver is taking reasonable care, and

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

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

In rule 157:

157–1 NSW rule: T-Way lanes

(1) A driver (except the driver of an authorised T-Way vehicle) must not drive in a T-Way lane.

Maximum penalty—20 penalty units.

TfNSW has issued NSW SES with an authorisation to use T-Ways and also issued a T-Way label/plate to NSW SES Metro Zone vehicles.

With all this information we have the following questions:

There is no definition of “fire brigade vehicle” in the dictionary of the Road Rules, is it reasonable to believe this also includes vehicles of the NSW State Emergency Service?
Depending on the above question, for arguments sake if an NSW SES vehicle is within the exemptions outlined in rule 158, is it then reasonable to believe that the NSW SES has an exemption from driving in a bicycle lane, bus lane, tram lane, transit lane or truck lane, when returning to base after proceeding to the scene of an accident or other emergency?
The NSW SES has a mini bus (Toyota Coaster) with more than 8 seats, under the definition of “Public Bus” does the NSW SES mini bus meet this definition? Whilst the mini bus is not being used to convey passengers for hire or reward, it is in a way being used in the course of business, noting the State Emergency Service NSW is a registered corporation with an ABN.
Looking at rule 306, when the NSW SES is responding and invoking the exemptions of rule 306, does the driver of an NSW SES vehicle displaying either a red/blue flashing light or sounding an alarm also exempt from rule 154 and is then allowed to use bus lanes?
If a driver of an NSW SES vehicle is invoking rule 306 and displaying either a red/blue flashing light or sounding an alarm, can they use a T-Way without having to display a T-Way sticker or symbol?
A NSW SES vehicle displaying a T-Way label/plate also be exempt from rule 154 and be authorised to use a bus lane (not a T-Way just a normal bus lane)?

Some further information

In an earlier post – Changes to NSW Road Rules regarding U-turns by emergency vehicles (November 18, 2022) I referred to changes made by the Road Transport Legislation Amendment Regulation 2022 (NSW). That Regulation also changed the rules regarding Bus Only lanes. From 18 November 2022 a new r 154A says:

A driver, except the driver of a public bus, must not drive in a bus only lane, unless the driver is permitted to drive in a bus only lane under subrule (2).

There is no exemption for the drivers of a ‘police vehicle, ambulance or fire brigade vehicle’

T-Ways are unique to NSW. Further, I would infer (given that I haven’t seen a T-Way anywhere else in NSW and my correspondent says ‘T-Way stickers/magnets [have been issued] to all NSW SES vehicles within the Metro Zone’) that they are unique to the Sydney metropolitan area. According to the TfNSW website ‘T-way lanes are special lanes for authorised buses and service vehicles’. Rule 157-1(4) says ‘authorised T-Way vehicle means a vehicle … approved by Transport for NSW that displays in a prominent position on the vehicle adjacent to each number-plate an authorised T-Way vehicle label or plate’.

One the permit is attached there does not appear to be any limitation, but I note the advice from my correspondent that ‘the T-Way stickers can only be used by NSW SES when attending an incident call out’. I will accept, without looking into it, that TfNSW can impose conditions on the use of T-Ways beyond the requirement to have the relevant permit.

Bus lanes (r 154) and bus only lanes (r 154A) are not T-Ways (r 157-1). The T-Way permit is irrelevant when it comes to travelling a bus or bus only lane.

What follows from all of the above is that in the answers we have to consider driving in a T-way, a bus lane and a bus only lane separately.

Answers to the questions

There is no definition of “fire brigade vehicle” in the dictionary of the Road Rules, is it reasonable to believe this also includes vehicles of the NSW State Emergency Service?

An emergency vehicle is a vehicle driven by an emergency worker (Road Rules 2014 (NSW) Dictionary). An emergency worker includes:

a member of a fire or rescue service operated by a NSW Government agency, a member of the State Emergency Service or a member of a fire brigade (however referred to) or rescue service of the Commonwealth or another State or territory, providing transport in the course of an emergency

There is a new definition in r 317(1-1) that only applies where there is a sign that refers to an emergency vehicle. That definition includes

(b) a fire fighting vehicle being driven by a member of any of the following services in the course of the member’s duties—

(i) a fire brigade, within the meaning of the Fire and Rescue NSW Act 1989

(ii) the NSW Rural Fire Service or a rural fire brigade, within the meaning of the Rural Fires Act 1997

(iii) a rescue service,

(c) a State Emergency Service vehicle being driven by a member of the State Emergency Service in the course of the member’s duties,

If a vehicle of the State Emergency Service fell within the definition of a ‘fire brigade vehicle’ there would be no need for r 317(1-1)(c) above or to distinguish the SES from the fire brigades in the dictionary definition of an ‘emergency worker’.

The Fire and Rescue NSW Act (NSW) s 3 defines the term ‘fire brigade’ as either ‘a permanent fire brigade or a retained fire brigade, but does not include a rural fire brigade’. A rural fire brigade is ‘a rural fire brigade formed under Part 2’ of the Rural Fires Act 1997 (NSW). Arguably the exemption that allows a ‘fire brigade vehicle’ to travel in a bus lane only applies to a Fire and Rescue NSW brigade. One could argue that the term ‘fire brigade’ should extend to a rural fire brigade but that is not what it says. I don’t think it is arguable that it extends to the State Emergency Service.

2. Depending on the above question, for arguments sake if an NSW SES vehicle is within the exemptions outlined in rule 158, is it then reasonable to believe that the NSW SES has an exemption from driving in a bicycle lane, bus lane, tram lane, transit lane or truck lane, when returning to base after proceeding to the scene of an accident or other emergency?

If the SES did fall within the exemptions in rule 158 then yes they could drive ‘in a bicycle lane, bus lane, tram lane, transit lane or truck lane if— returning to base after proceeding to the scene of an accident or other emergency’, but my answer to question 1 is that they do not fall within the exemptions listed in r 158.

3. The NSW SES has a mini bus (Toyota Coaster) with more than 8 seats, under the definition of “Public Bus” does the NSW SES mini bus meet this definition? Whilst the mini bus is not being used to convey passengers for hire or reward, it is in a way being used in the course of business, noting the State Emergency Service NSW is a registered corporation with an ABN.

That’s an arguable point but I suspect the SES is not operating ‘the course of trade or business’. Having an Australian Business Number (ABN) is not the same as being a ‘corporation’. An ABN is used to keep track of payments for tax purposes. It is separate from issues of incorporation.

The Country Fire Authority has been found to be a trading corporation – see United Firefighters Union of Australia (‘UFU’) v Country Fire Authority (‘CFA’) [2014] FCA 17 (31 January 2014) (February 12, 2014). But that is because the CFA did have trading activities (in simple terms where it provided a fee for service) and it is indeed a corporate entity (ie an entity that can sue and be sued and hold property – Country Fire Authority Act 1958 (Vic) s 6(2)). The New South Wales SES is not a corporate entity, it cannot sue and be sued. The relevant legal entity is the Crown in Right of NSW – the SES is a part of government. That does not mean it cannot be involved in ‘trade’ but it is not a corporation.

Whether the SES is involved in ‘trade’ would require the sort of analysis that Murphy J applied to the CFA. I don’t think however that the use of an SES bus to transport SES volunteers would be the use of the vehicle in ‘trade or business’.

My conclusion is that there may be an argument depending on what the bus is being used for but I think it is most likely that it is not being used in ‘trade’ or ‘business’ so cannot be used in a bus lane.

4. Looking at rule 306, when the NSW SES is responding and invoking the exemptions of rule 306, does the driver of an NSW SES vehicle displaying either a red/blue flashing light or sounding an alarm also exempt from rule 154 and is then allowed to use bus lanes?

Yes, if the driver of an SES vehicle is ‘providing transport in the course of an emergency’, has the vehicles red/blue lights and/or siren operating, is taking reasonable care and it is reasonably in the circumstances to travel in a bus lane then the driver is exempt from r 154 and may travel in a bus lane, or a bus only lane, or a T-Way, or any other special purpose land.

5. If a driver of an NSW SES vehicle is invoking rule 306 and displaying either a red/blue flashing light or sounding an alarm, can they use a T-Way without having to display a T-Way sticker or symbol?

Yes, see my answer to question 4, above.

6. Is a NSW SES vehicle displaying a T-Way label/plate also be exempt from rule 154 and be authorised to use a bus lane (not a T-Way just a normal bus lane)?

No, the T-Way label/plate has no relevance to the use of a bus lane.

Discussion

There is no doubt the law here is a mess. One infers that part of the problem is that the law is written by people who don’t understand the sector. Parliamentary counsel write law to meet the instructions of their client. When it comes to the road rules their client will be Transport for NSW, not the relevant emergency services. It may be that the person in TfNSW doesn’t really understand what the emergency services do.

Rule 158(2)(c)(v) suggests that whoever gave instructions thought that fire brigades and ambulance crews sit on station, respond to an emergency then return to the station to wait for the next emergency. But of course, much of their work is non-emergency work. For example, rule 158 does not allow an ambulance to be driven in a bus lane if the crew are tasked with a non-emergency inter-hospital transfer even though allowing an ambulance to use the bus lane would be better for both the patient and the efficient use of ambulance resources.

Second the fact that the Rules now have at least two definitions of what is an ‘emergency vehicle’ doesn’t help. If the sign said ‘Bus lane; emergency vehicles excepted’ then ambulance crews, the SES etc could all use a bus lane. If rule 158 said ‘the driver of an emergency vehicle may drive in a bus lane’ then that would be an SES vehicle or an ambulance but only when responding to an emergency – and they can, in any event, use a bus lane when responding to an emergency because of r 306.

If the definition of emergency vehicle that is now in rule 317(1-1) had been put, instead, in the dictionary as a definition of ‘emergency vehicle’ for all purposes, rule 158 could have simply been applied to ‘emergency vehicles’ and covered everyone.

Finally, given that we are meant to have national road rules, it’s good to know the rules are not national. For example, in the ACT there is no exemption for the emergency services (Road Transport (Road Rules) Regulation 2017 (ACT) r 158). As a former ACT bus driver, I have seen ambulances and police cars in bus lanes – but that’s not permitted by the Rules (emergencies excepted). Equally there is no exception in WA – see WA ambulance in a bus lane (June 21, 2019).

One would hope most of these issues are resolved by the application of discretion. The law is not self-executing so it is up to a police officer to take the first step and I imagine most police officers will not want to prosecute a NSW SES driver in a bus lane, or stop an ambulance and ask the driver whether they are returning from an emergency or not. But I believe that in life and law, one should ‘say what you mean, and mean what you say’ so if the government wants to exempt all emergency service vehicles (using the definition in r 317(1-1)) they should say so, and if they don’t say so, then one should assume that they do not mean to give that exemption to everyone and they have not given it to NSW SES.

The issue will arise when an SES vehicle collides with a bus in a bus lane. At that time police will attend, and they cannot simply ignore the rule. They will have to ask, ‘and why was this vehicle in a bus lane when it’s not entitled to be there?’ It may not determine who was at fault in the accident but the driver could then expect a ticket even though, if there had been no collision, no-one would have cared.

Conclusion

That’s a long answer. My short answers are:

There is no definition of “fire brigade vehicle” in the dictionary of the Road Rules, is it reasonable to believe this also includes vehicles of the NSW State Emergency Service?

Depending on the above question, for arguments sake if an NSW SES vehicle is within the exemptions outlined in rule 158, is it then reasonable to believe that the NSW SES has an exemption from driving in a bicycle lane, bus lane, tram lane, transit lane or truck lane, when returning to base after proceeding to the scene of an accident or other emergency?

The NSW SES has a mini bus (Toyota Coaster) with more than 8 seats, under the definition of “Public Bus” does the NSW SES mini bus meet this definition? Whilst the mini bus is not being used to convey passengers for hire or reward, it is in a way being used in the course of business, noting the State Emergency Service NSW is a registered corporation with an ABN.

Looking at rule 306, when the NSW SES is responding and invoking the exemptions of rule 306, does the driver of an NSW SES vehicle displaying either a red/blue flashing light or sounding an alarm also exempt from rule 154 and is then allowed to use bus lanes?

Yes

If a driver of an NSW SES vehicle is invoking rule 306 and displaying either a red/blue flashing light or sounding an alarm, can they use a T-Way without having to display a T-Way sticker or symbol?

Yes

A NSW SES vehicle displaying a T-Way label/plate also be exempt from rule 154 and be authorised to use a bus lane (not a T-Way just a normal bus lane)?

No.

Categories: Researchers

Charles Sturt University Higher Degree Research Conference

Michael Eburn: Australian Emergency Law - 20 November, 2022 - 14:50

I had the privilege of attending Charles Sturt University’s Faculty of Business, Justice and Behavioural Sciences Higher Degree Research Conference at Wagga Wagga on 16 and 17 November.

I was invited to give a keynote on my own PhD experience and what I have learned over many years in the sector. More important was the opportunity to listen to research students presenting reports on their research and the new learning that will inform the emergency management sector. All the students were doing a professional doctorate, that is a doctorate based on their work in the sector so research that was both theoretically informed and practically focussed. Research projects included:

Developing a Multi-Aerial Platform Operating Model to enable multi-agencies to operate helicopters, planes and drones safely and cohesively within uncontrolled airspace above disasters;
Emergency Management Planning for Domestic Family Violence;
Private sector contribution to community resilience and sustainability; and
A new sustainable volunteer emergency services model.

Thank you CSU for the chance to contribute and I look forward to seeing the outcomes from these projects in due course.

Categories: Researchers

Changes to NSW Road Rules regarding U-turns by emergency vehicles

Michael Eburn: Australian Emergency Law - 18 November, 2022 - 12:57

I previously reported on proposed changes to the NSW Road Rules. The changes were announced but the text of the new rules had not been provided (see Changes to the Road Rules 2014 (NSW) announced, but not yet made (September 18, 2022)). The government has now published the Road Transport Legislation Amendment Regulation 2022 (NSW).

The Road Rules 2014 (NSW) r 317(1) says:

(1) A traffic control device may, by the use of words, figures, symbols or anything else, indicate any of the following—

(a) the times, days or circumstances when it applies or does not apply,

(b) the lengths of road or areas where it applies or does not apply,

(d) the vehicles to which it applies or does not apply,

(e) other information.

The Road Transport Legislation Amendment Regulation 2022 adds a new rule 317(1-1) that says:

(1–1) A reference, on or with a traffic control device, to emergency vehicles is taken to be a reference to the following vehicles—

(a) an ambulance being driven by a member of the Ambulance Service, or the ambulance service of another State or a Territory, in the course of the member’s duties,

(b) a fire fighting vehicle being driven by a member of any of the following services in the course of the member’s duties—

(i) a fire brigade, within the meaning of the Fire and Rescue NSW Act 1989

(ii) the NSW Rural Fire Service or a rural fire brigade, within the meaning of the Rural Fires Act 1997

(iii) a rescue service,

(c) a State Emergency Service vehicle being driven by a member of the State Emergency Service in the course of the member’s duties,

(d) a vehicle used by an accredited rescue unit, within the meaning of the State Emergency and Rescue Management Act 1989, being driven by a member of the unit,

(e) an Airservices Australia vehicle, within the meaning of the Road Transport (Vehicle Registration) Regulation 2017,

(f) a police vehicle,

(g) a vehicle used by Transport for NSW being driven by a Transport Commander or Traffic Emergency Patroller, appointed or employed by Transport for NSW, in the course of the Commander’s or Patroller’s duties.

When the rule changes were announced (OAD rule change gives emergency services the all clear (18 August 2022)) it was said that the changes would ‘allow all emergency service vehicles, including those driven by volunteers, to legally and safely use U-turn bays.’ The Minister for Regional Transport and Roads Sam Farraway was quoted as saying:

“This important amendment makes it clear that all emergency service workers, whether it be Police, paramedics, Fire and Rescue NSW, RFS or SES, are legally allowed to use U-turn bays, which puts other drivers on notice to give way,” Mr Farraway said.

The press release also said:

RFS Commissioner Rob Rogers said the new road rule will cut down the time it takes for volunteers to respond to emergencies along the State’s motorways.

“The RFS has been championing this amendment for some time and I’m pleased we can now give our firefighters the confidence they need to respond to emergencies while following the road rules,” Commissioner Rogers said.

SES Commissioner Carlene York said the change will assist volunteers in responding to life-threatening situations.

“The SES is pleased to see this change coming into effect to ensure our teams are able to respond safely to emergencies,” Commissioner York said.

RFS Association President Scott Campbell said the amendment is a big boost for volunteers.

“This rule change is what our volunteers needed to ensure that they are legally permitted to use U-turn bays when responding to fires and car crashes, cutting down on response times and potentially saving lives,” Mr Campbell said.

With respect to those quoted, the law change will achieve very little and will not make the difference suggested.

The law before the changes

First let us look at the law without the amendments. I will focus on the NSW Rural Fire Service and this discussion must, inevitably, lead to a discussion of the facts in the case of R v Wells [2017] NSWCCA 242 (see Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017) and whether these changes would make a difference if those circumstances arose again.

The effect of r 317(1) is that the roads authority can put up a sign and the sign has effect according to its terms. If it says ‘no parking’ it means no parking, if it says ‘no U-turn’ then you cannot perform a U-turn. If it says ‘no U-turn – Police, RTA, NRMA and emergency vehicles excepted’ then the driver of a police, RTA, NRMA or emergency vehicle can make a U-turn, other drivers cannot.

Under the Road Rules (and without rule 317(1-1)) an emergency vehicle is defined as:

… any vehicle driven by a person who is—

(a) an emergency worker, and

(b) driving the vehicle in the course of his or her duties as an emergency worker.

The term ‘emergency worker’ includes

(a) …

(b) a member of a fire or rescue service operated by a NSW Government agency, a member of the State Emergency Service or a member of a fire brigade (however referred to) or rescue service of the Commonwealth or another State or territory, providing transport in the course of an emergency, or

A member of the Rural Fire Service, ‘providing transport in the course of an emergency’ is an emergency worker so the vehicle they are driving is an emergency vehicle. The critical point is that they have to be ‘providing transport in the course of an emergency’. If it’s an emergency they are driving an emergency vehicle and could make a U-turn if the sign said ‘emergency vehicles excepted’. If they were not ‘providing transport in the course of an emergency’ then they were not driving an emergency vehicle and they could not make the U-turn.

Even if a sign said ‘no U-turn’ the driver of an emergency vehicle could make a U-turn if they had their red/blue beacons activated or their siren on, they were taking reasonable care and it was reasonable in the circumstances to make that turn (Road Rules 2014 (NSW) r 306).

First conclusion

Even without the new rule 317(1-1) the driver of a rural fire appliance, or an SES vehicle, could use the U-turn bays if they were responding to an emergency such as ‘fires and car crashes’.

What do the changes do

The changes give another definition of ‘emergency vehicle’ -a definition that only applies when reading a road sign. Now, for that limited purpose, an emergency vehicle is, amongst other things,

… a fire fighting vehicle being driven by a member of … the NSW Rural Fire Service or a rural fire brigade, within the meaning of the Rural Fires Act 1997…

Now if a sign says ‘‘no U-turn – Police, RTA, NRMA and emergency vehicles excepted’ the driver of an RFS appliance may make a U-turn, whether there is an emergency or not.

They must still make the U-turn safely. Rule 38 still applies and it says ‘A driver making a U-turn must give way to all vehicles and pedestrians’ (maximum penalty, 20 penalty units). If the driver of an appliance is making a U-turn he or she must give way to other vehicles.

If it is an emergency, they have their beacons and/or siren activated then other vehicles must give way to them (r 79; see also r 78 ‘Keeping clear of police and emergency vehicles’). The driver of the emergency vehicle may proceed even when those other vehicles have ‘right-of-way’ (that is the driver of an emergency vehicle is exempt from the obligation to ‘give way’ to all other road users) provided they take reasonable care as they do so.

The new rule does not put ‘other drivers on notice to give way’. The driver of another vehicle does not have to give way to an emergency vehicle making a u-turn unless that vehicle has it’s red/blue beacons on or its siren activated, or both. The new rules don’t change that. With or without r 317(1-1) other drivers have to give way to an emergency vehicle with its lights/siren on, they do not have to give way to one that does not have the warning devices on. Rule 317(1-1) makes no difference in that regard.

Second conclusion

The effect of the change is to allow the driver of an emergency vehicle as defined in rule 317(1-1) to make a U-turn whether there is an emergency or not. The driver is still required to give way to all other vehicles. They are exempt from the obligation to give way, and other drivers are required to give way, only if they are responding to an emergency, have the warning lights or siren activated, take reasonable care when making the U-turn and it is reasonable in all the circumstances for that exemption to apply.

R v Wells

Whilst not specifically stated, I’m sure that these changes were brought in as a reaction to the decision in R v Wells [2016] NSWDC 169 (trial decision); R v Wells (No 2) [2016] NSWDC 313 (sentencing decision) and Wells v R [2017] NSWCCA 242 (Court of Criminal Appeal decision).

At the time of the accident involving Mr Wells, the relevant law was the Road Rules 2008 (NSW) rr 38; 78; 79; 306. The 2008 rules have been repealed and replaced by the Road Rules 2014 (NSW). The current, relevant section numbers are the same – ie rr 38; 78; 79; 306.

Mr Wells made a U-turn at a turning bay. According to the trial judge Berman DCJ ([2016] NSWDC 169, [8]) ‘There was a sign at the U-Turn bay which said “no U-turn” but a supplementary sign positioned underneath said “Police, RTA, NRMA and emergency vehicles excepted”’. His Honour continued (at [12]):

… the RFS tanker was heavy and slow to accelerate. It had remained in second gear as it went through the U-Turn bay at walking pace. As the accused told police in his interview with them conducted early the following morning, it was easier for him to keep the momentum going rather than stop and go back into first gear. As the tanker moved into lane 3 of the northbound carriageway the Corolla also moved back into lane 3. The accused saw this manoeuvre in his rear view mirrors and so steered the tanker left, intending to get out of the way of the Corolla. He had partly entered lane 2 at the time the Corolla collided with the rear left hand side of the fire tanker. The tanker was moving slowly at the time of the collision, its speed being in the order of 10-15kph.

Mr Wells was charged with two offences – ‘negligent driving occasioning the death of Mrs Mihailidis and an offence of making a U turn without giving way to a vehicle’ ([2]). With respect to the U-turn offence, the trial judge said (at [61]-[65]):

That brings me to the question as to whether the accused has breached Road Rule 38. Has the prosecution proved beyond reasonable doubt that the accused, as a driver making a U-turn, did not give way to Mr Mihailidis’ approaching vehicle?

It is here that Mr Higgins relied on the exemption in Rule 306 to which I have earlier made reference. As noted above, if necessary I would have found that the accused was not driving an emergency vehicle and so the exemption would not apply to him. But in any case it is to be noted that the exemption only applies if, among other circumstances, “the driver is taking reasonable care”.

As I have concluded above, the accused’s manner of driving was negligent. It follows that he was not taking reasonable care. In the course of submissions Mr Higgins conceded that he could not contemplate a situation where a driver found to be driving negligently could be found to have been taking reasonable care.

For that reason I find that the exemption in Rule 306 does not apply and that Mr Wells did not give way to Mr Mihailidis’ approaching vehicle when he, Mr Wells, was making a U-turn.

I thus find him guilty of breaching Road Rule 38.

The question of whether the appliance was, or was not an emergency vehicle and therefore permitted to use the U-turn bay was not the issue. The issue was whether he had to give way to the other driver. He was only exempt from the obligation to give way if he was taking reasonable care. He was not taking reasonable care so the exemption under r 306 did not apply. The new rule 317(1-1) does not change that law and would not affect the outcome if the same situation arose today.

The new r 317(1-1) might be relevant if the driver was charged with making a U-turn contrary to a no U-turn sign (Road Rules 2014 (NSW) r 39). If that had been the charge Mr Wells had faced then the question of whether it was or was not an emergency vehicle would have been critical. But that was not what Mr Wells was charged with – if it was not an emergency vehicle (as he was not responding to an emergency) he had to give way to Mr Mihailidis; if it was an emergency vehicle (as it now would be) he still has to give way unless he is taking ‘reasonable care’ – and he was not. Even with the new rule, a driver who uses a U-turn bay but fails to take reasonable care and collides with another vehicle will still be guilty of an offence contrary to r 38.

The other offence that Mr Wells faced was negligent driving causing death. This is an offence that was contrary to the Road Transport (Safety and Traffic Management) Act 1999 (NSW) (repealed), s 42 (but see now Road Transport Act 2013 (NSW) s 117). The exemption on rule 306 has only ever extended to the Road Rules set out in the Road Rules 2008 and now the Road Rules 2014. Rule 306 has never provided an exemption from the obligation to drive with due care ie it is not permission to drive ‘negligently’. Mr Wells did not, and any driver of an emergency vehicle today does not, have an exemption from rule 117.

Mr Wells’ negligence was not making a U-turn contrary to a ‘no U-turn sign’. It was ‘… the act of commencing and continuing the U-turn of the tanker, in all of the surrounding circumstances…’ ([2017] NSWCCA 242, [74]). The trial judge said (at [46]-[48]):

The accused was negligent in that he failed to take what is the obvious decision when the driver of a heavy vehicle intends to enter the carriageway of a high speed expressway while a vehicle is approaching – wait the 11 seconds or so necessary to allow that vehicle to go past before entering the carriageway.

By failing to do that, by entering the carriageway while the Corolla was approaching, the accused’s manner of driving was such a serious departure from the standard of care that a reasonable driver would have exercised that it merits criminal punishment. A reasonable and prudent driver would not have entered lane 3 of the northbound carriageway of the F3, where the speed limit is 110 kph, at night, in a slow moving vehicle, while he or she could see a car approaching in lane 2. By doing what he did he created a risk which was real, obvious and serious. The accused did not exercise that degree of care which the ordinary prudent driver would exercise in the circumstances I have outlined above.

Mr Wells didn’t want to lose momentum and have to change down to first gear. Mr Wells didn’t want to stop. It was negligent of the accused to fail to do so.

Back in 2016 the NSW RFS set out an operational brief that said, amongst other things

A recent court matter, relating to a fatal accident on a motorway north of Sydney and involving a NSW RFS member driving a tanker has lead to uncertainty about emergency vehicles legally using these facilities.

At the time I wrote ‘The court in this case said nothing to the effect that U-turn bays should not be used… If there is any lesson it is “If you are going to use a u-turn bay, make sure it is an emergency and make sure other drivers have in fact given way”’ (see RFS response to volunteer’s conviction for fatal traffic accident (October 13, 2016)).

Third conclusion

The change to the Road Rules with the introduction of rule 317(1-1) would make no difference to that outcome should an accident, similar to that involving Mr Wells, arise again. Rule 317(1-1) does not reduce a driver’s obligation to take reasonable care in all the circumstances. Rule 317(1-1) would only be relevant if the alleged negligence was making a U-turn contrary to a no U-turn sign. If Rule 317(1-1) had been in place in 2012 it would have made no difference to the outcome Mr Wells’ case.

Other issues

The new rule 317(1-1) defines an emergency vehicle as

a fire fighting vehicle being driven by a member of any of the following services in the course of the member’s duties— … (iii) a rescue service,

As well as ‘(d) a vehicle used by an accredited rescue unit, within the meaning of the State Emergency and Rescue Management Act 1989, being driven by a member of the unit’. I don’t know what is meant by a ‘rescue service’ if it is not ‘an accredited rescue unit, within the meaning of the State Emergency and Rescue Management Act 1989’. It is unclear who r 317(1-1)(b)(iii) will apply to.

Given that police and Transport for NSW vehicles are now included in the definition of emergency vehicle, future signs presumably won’t need to say ‘no U-turn: Police, RTA, NRMA and emergency vehicles excepted.’ They will only need to say ‘no U-turn: NRMA and emergency vehicles excepted.’

It is bizarre to have multiple definitions of the same term ‘emergency vehicle’ in the one instrument. It is still the case that for every rule, other than r 317(1), a reference to an emergency vehicle still requires that the vehicle is being driven or used as part of an emergency response. The varying definitions is likely to lead to confusion.

It would have been better, rather than insert r 317(1-1), to change the definition of emergency vehicle to the definition now in the rule. That would mean an RFS vehicle, for example, is an emergency vehicle for all purposes and at all times. That would not give them carte-blanche exemption from the Road Rules. The driver would still have to comply with the road rules unless they were taking reasonable care, using the warning devices and it was reasonable in all the circumstances, which would include whether there was an emergency or not (r 306). There would not, however be this confusing situation where the status of the vehicle changes from ‘not an emergency vehicle’ to ‘emergency vehicle’ depending on whether they are responding to an undefined emergency.

Conclusion

The new road rules, and the quotes from the relevant Ministers and Commissioners suggest they still don’t understand why Mr Wells was convicted. Mr Wells was convicted because he failed to take reasonable care. Because of that failure he could not enjoy the exemption provided by r 306 and he was guilty of negligently driving causing death. Mr Wells was not charged with making a U-turn contrary to a no U-turn sign and it was not his decision to make a U-turn that was negligent, it was the manner in which he performed that turn.

The new rules will not change that. The driver of an emergency vehicle must still take care when making a U-turn and the must still give way to other drivers. They are only exempt from the obligation to give way if it is an emergency, they have their warning devices activated, they are taking reasonable care and it is reasonable in all the circumstances for that rule not be applied.

The effect of the new r 317(1-1) is that the driver of an RFS appliance (or other emergency vehicle) may now make a U-turn if there is a sign that says ‘no U-turn: emergency vehicles excepted’ whether there is or is not an emergency.

Categories: Researchers

Asking or answering questions on social media – pitfalls for paramedics

Michael Eburn: Australian Emergency Law - 17 November, 2022 - 14:54

Today’s correspondent says:

I have noticed an increasing trend on some social media channels (particularly a Facebook paramedic group) an increasing incidence of Paramedics requesting assistance or contacts for specific crews. Examples include “I’ve got an uncle/friend/relative in ED and we’re not getting any information. Can someone contact me, so you can let us know what’s going on?” Another is “I’m trying to contact the crew who attended xyz job the other day in abc location. They did a great job and we / family / neighbours just want to thank them / gather some more information about what happened on-scene.”

These are just examples, but I’m wondering whether they breach the Social Media guidelines as set by AHPRA and/or the Code of Conduct?

The website of the Paramedicine Board has a page on Social media: How to meet your obligations under the National Law (November 2019). There they say:

Inappropriate use of social media can result in harm to patients and the profession, particularly given the changing nature of privacy and the capacity for material to be posted by others. Harm may include breaches of confidentiality, defamation of colleagues or employers, violation of practitioner–patient boundaries or an unintended exposure of personal information to the public, employers, consumers and others. Information stays on social media indefinitely. Information published on social media is often impossible to remove or change and can be circulated widely, easily and rapidly. Therefore, it’s important that you are very careful about what you like or post online-regardless of where in the world the site is based or the language used.

It’s hard to see how the questions identified by my correspondent lead to harm unless they identify too much material about the incident or the patient. For example, a paramedic who said ‘my mother’s friend was treated at xyz nursing home for abc condition and I heard the doctor failed to do 123. Can the paramedic crew who treated her contact me?’ Paramedic practitioners ‘must display a standard of professional behaviour that warrants the trust and respect of the community’ [Code of Conduct Principal 8] and divulging what a paramedic knows, or should know, is confidential information may be in breach of that obligation because the mother’s friend should be able to expect a registered health professional to respect their privacy, even if they did not ever treat the patient.

The real issue is not asking for that sort of information but answering it. The Paramedicine Board gives the following example of an inappropriate use of social media:

A mother posts an update about her daughter’s admission to hospital, following a car accident. The mother tags her friend, a health practitioner, who happened to be on the ward the night the daughter was admitted. The tag is complimentary about the care received at the hospital. The nurse responds publicly to the comment, thinking it was a private message and inadvertently provides information about the daughter’s recovery and the status of the other passengers in the car.

Parents of the other passengers make a formal complaint about the privacy breach.

A paramedic has to be careful about giving information about ‘an uncle/friend/relative in ED’ or ‘giving more information about what happened on-scene’ but that is true whether they are giving that information privately or on the social media platform where the question was asked. Regardless of where the answer is given, to provide details of a patient’s care to someone other than the patient or other treating practitioner would be a breach of confidence (Code of Conduct [3.3]). The person may ‘not [be] getting any information’ because the information is confidential, and they are not entitled to that information. The paramedic could not determine, via social media, whether the person asking was the patient’s legal guardian, person responsible or otherwise legally entitled to the information. A person who is entitled to information would have to contact the institution where the person is being treated or would need to apply to the service for access to the patient care record.

Equally a paramedic who answered a question with – “yes that crew was Paramedic A and Paramedic B – here are their phone numbers and email addresses” may be in breach of their professional responsibilities including an obligation to ‘behave professionally and courteously toward colleagues and other practitioners at all times, including when using social media’ (Code of Conduct [5.1]).

Trying to identify the treating crew to thank them for their work or to ask for information is not a breach of the social policy rules or the Code of Conduct. Answering those questions, whether on social media or not, may be.

Categories: Researchers

‘Former paramedic convicted for practising while suspended’

Michael Eburn: Australian Emergency Law - 11 November, 2022 - 11:53

The Paramedicine Board is reporting that

A former paramedic who continued to work at a remote mine site in Queensland after their registration was suspended was sentenced yesterday after pleading guilty in the Magistrates Court of Queensland.’

I am unable to access the decision of the Magistrate (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)) so I can add little beyond the Board’s report, which you can read here: https://www.paramedicineboard.gov.au/News/2022-10-18-Former-paramedic-convicted.aspx.

The only useful comment I can make is to explain what it means to impose a fine without a conviction. The Penalties and Sentences Act 1992 (Qld) s 12 says:

(1) A court may exercise a discretion to record or not record a conviction as provided by this Act.

(2) In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—

(a) the nature of the offence; and

(b) the offender’s character and age; and

(i) economic or social wellbeing; or

(ii) chances of finding employment.

We don’t know anything about this former paramedic so we do not know what factors, listed in s 12(2), were relevant or how they influenced the Magistrate to impose the penalty without conviction.

The effect is that this person can say that he has not been convicted of any offence. Where there are provisions that apply on conviction they do not apply here. For example, the Australian Constitution provides that a person may not be elected to either the Senate or the House of Representatives if they ‘been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer’. Sentences ‘can be very short; however, if the maximum sentence is 12 months or longer, the person is disqualified’ (Professor Anne Twomey, Committee Hansard, Canberra, 8 December 2017, p. 10, cited in Joint Standing Committee on Electoral Matters The history and interpretation of section 44). The penalty for holding out as a paramedic contrary to s 116(1)(c ) is a fine of $60,000 or 3 years imprisonment. This paramedic has not been convicted (nor is he still under sentence) for this offence so the disqualification in the Australian Constitution does not apply.

Although he has not been convicted, details of the proceedings appear on the defendant’s criminal history so may be considered if he is convicted of any future offence (s 12(4)(b)). Further if this person were to apply for registration as a paramedic sometime in the future he would have to disclose these proceedings. The Paramedicine Board’s Registration Standard: Criminal History (17 May 2018) and the Health Practitioner Regulation National Law (Qld) s 5, defines criminal history to include:

… every plea of guilty or finding of guilt by a court of the person for an offence … whether or not a conviction is recorded for the offence…

Categories: Researchers

QFES forcing entry before QAS arrival

Michael Eburn: Australian Emergency Law - 10 November, 2022 - 10:14

Today’s question is about forced entry to a private residence for the purpose of access by the Queensland Ambulance Service (QAS). Queensland Fire and Emergency Services (QFES) are often:

… called to assist to make entry to assist with accessing someone with a medical episode needing assistance… usually we were met by an ambulance unit onsite who had already tried to make entry but needed our help to complete the task.

In the past 2-3 years it is more common that we are called for the same reasons however the ambulance unit has not arrived, is enroute or may not get there for another 20 minutes or more.

The Questions:

Who actually has Authority to make forced entry?
QFES by virtue of the request, or should we be waiting for the arrival of a QAS unit to confirm that we should make the forced entry?
Does QAS have their own ‘powers of entry’?

The relevant provisions will be found in both the Ambulance Service Act 1991 (Qld) and the Fire and Emergency Services Act 1990 (Qld).

Authorised ambulance officers

The Ambulance Service Act provides emergency powers for ambulance officers authorised by the Commissioner (s 37). Those powers (s 38) include the power to

… take any reasonable measures—

(a) to protect persons from any danger or potential danger associated with an emergency situation; and

(b) to protect persons trapped in a vehicle, receptacle, vessel or otherwise endangered; and

In particular, they may (emphasis added):

(a) enter any premises, vehicle or vessel; and

(b) open any receptacle, using such force as is reasonably necessary; and

(d) remove from or otherwise deal with, any article or material in the area; and

(e) destroy (wholly or partially) or damage any premises, vehicle, vessel or receptacle; and

(f) cause the gas or electricity supply or motor or any other source of energy to any premises, vehicle, vessel or receptacle to be shut off or disconnected; and

(g) request any person to take all reasonable measures to assist the authorised officer; and

(h) administer such basic life support and advanced life support procedures as are consistent with the training and qualifications of the authorised officer.

Authorised QFES officers

Similarly, the Fire and Emergency Services Act s 53, says that officers authorised under that Act:

… may take any reasonable measure—

(a) to protect persons, property or the environment from danger or potential danger caused by a fire or a hazardous materials emergency; or

(b) to protect persons trapped in any premises or otherwise endangered.

In particular, they may:

(a) enter any premises;

(b) open any receptacle, using such force as is reasonably necessary;

(d) destroy, damage, remove or otherwise deal with any vegetation or any other material or substance, flammable or not flammable;

(e) destroy (wholly or in part) or damage any premises or receptacle;

(f) shore up any building;

(g) close any road or access, whether public or private;

(h) shut off the supply of water from any main, pipe or other source to obtain a greater pressure or supply or take water from any source whether natural or artificial;

(i) cause to be shut off or disconnected the supply of gas, electricity or any other source of energy to any premises or area;

(j) require any person who, in the opinion of the authorised fire officer, is—

(i) the occupier of premises, being the site of or near to the site of the danger; or

(ii) in charge of anything that is the source of the danger or likely (in the opinion of the officer) to increase the danger;

to take any reasonable measure for the purpose of assisting the officer to deal with the danger or answer any question or provide any information for that purpose;

(k) require any person not to enter or remain within a specified area around the site of the danger;

(l) remove from any place a person who fails to comply with an order given pursuant to paragraph (k) and use such force as is reasonably necessary for that purpose;

(m) if unable to identify the person entitled to possession of property found at or near the site of the danger, take possession of the property and retain it for safe custody.

My correspondent says ‘We are talking about permanent crews in the metropolitan area hence we are Authorised Officers’. In the post Gaps in Queensland fire legislation exposed in failed prosecution – Part 2 (October 28, 2022) I said:

It is not axiomatic that all paid firefighters are authorised fire officers. The Act does not say that. The Act says (s 52) that ‘The commissioner may authorise a fire officer or fire officers belonging to a class of fire officer …’. If all ‘fire officers’ were authorised fire officers that section would not be necessary. It may be the case that the Commissioner has authorised all fire officers but that would need to be proved.

However, for the sake of this discussion we do not need to consider this further, and I will accept that we are only talking about duly authorised fire officers.

State of mind

Neither Act specifies the level of satisfaction the authorised ambulance or fire officer is required to have. The legislation does not say the officer must ‘reasonably believe’ or ‘reasonably suspect’ that a person is endangered. Their actions are justified if they are motivated by a desire to protect a person and the decision is ‘reasonable’ in the circumstances. An authorised officer may concede they did not know if there was a person in need of assistance but given all the circumstances (including the fact that someone called triple zero) it may be reasonable to force entry to find out.

Two scenarios

There are two scenarios here:

(1) where QAS is in attendance with QFES and

(2) where QFES are there before QAS particularly where there is likely to be a significant delay before QAS get there.

In either case an important issue will be the amount of information or, if you like, the degree of confidence that any authorised ambulance or fire officer has that there really is an emergency inside the house. The circumstances are quite different if you can see the patient incapacitated on the floor versus a response where a neighbour has rung concerned for someone’s welfare simply because they haven’t seen them for a few days. I accept that a ’concern for welfare’ check is more likely to be a job for the police, but I put it here as an example of one end of the spectrum of confidence.

Scenario 1

Let us consider scenario (1) – QAS and QFES are jointly in attendance. The authorised ambulance officer may take reasonable measures to protect the person from danger posed by the emergency. They may ‘enter any premises’ and may request assistance from anyone, include the QFES officers, to assist. If the QAS officers are satisfied that entry to the premises is reasonably required, then their request is sufficient authority for QFES to act. And the responsibility for the decision lies with QAS.

Scenario 2

In scenario 2 QFES are on scene but QAS are not. Again, we can consider the degree of confidence. If the person inside can be seen or heard calling for help, or perhaps they are incoherent but making noises that suggest they are in distress, then I suggest no-one would doubt that the person is ‘endangered’ and entry is permitted by s 53(1)(b).

The common law that would also justify entry.

… the necessity for saving life has at all times been considered a proper ground for inflicting such damage as may be necessary upon another’s property. (Southport Corporation v Esso Petroleum Co Ltd [1956] AC 218, 228).

A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm. (Dehn v Attorney General of New Zealand [1988] 2 NZLR 564, 580 (Tipping J)).

The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire fighters, police and ambulance officers will often invoke application of that principle. (Kuru v State of New South Wales [2008] HCA 26, [40] (Gleeson CJ, Gummow, Kirby and Hayne JJ)).

The common law defence of necessity will justify almost any property damage in order to save life.

Where it is not obvious that a person is inside and requiring assistance for example the premises appear secure and there is no response and no-one at the scene who can give any information then a decision has to be made quickly. The first consideration is that someone has rung for an ambulance, so someone thinks there’s an issue. That begs the question of what information QFES has. Have they been called to assist with the lift of a heavy, bed-bound patient, known to QAS and being transported to hospital for a routine event? Is the call a ‘concern for welfare’? Is the call to a ‘person in cardiac arrest, CPR in progress’ (which may explain why no-one is bothering to answer the knock on the door)? Has QAS or QFES been despatched with ‘urgent’ priority (‘respond’) or not?

The risk/benefit calculation is, one hopes, reasonably obvious. If entry is not forced, and there is someone in need of urgent assistance, they may die. If entry is forced and there is no person in need, then what’s the worst that happens – a damaged door or window? My correspondent notes that ‘In many cases it can be as easy as making entry via the garage or through an unlocked window without any damage’. If you can access the premises without doing damage, there could hardly be any reason not to. The justification for that entry is that the emergency services have been called – by someone – and that must give rise to a suspicion that there is a person ‘otherwise endangered’ (s 53(1)(b)). In the same way a fire officer would probably enter a building where there is a report of fire even if on arrival, they cannot see either flame or smoke. The risk is such that it is incumbent upon them to check, given someone went to the effort to ring.

Liability

My correspondent then asks:

Who now becomes responsible for damage?

The fire service because we made the entry, or
The QAS because we were doing the job on their behalf?
Firefighters know basic first aid, usually for ourselves – without someone who knows what they are doing (medically) are we really helping by getting inside to someone having a medical episode?

(3) The value of first aid

Let me answer question 3 first. If you are not ‘really helping by getting inside to someone having a medical episode’ then you have just defeated the purpose of the entire first aid industry. If knowing ‘basic first aid’ is not really ‘helping’ then the first aid industry is a con. I’m not going to try and resolve the science, but I think we should accept that basic first aid helps. Putting a pad on a bleeding wound, putting an unconscious person on their side, commencing CPR are life saving techniques that anyone can do. Simply being with the patient and letting them know that help is there, and more help is on its way is ‘really helping’. I’m not a clinician but I’ve been involved in first aid for many years – and yes you are ‘really helping by getting inside to someone having a medical episode’.

(1) and (2) liability

In some sense it doesn’t really matter whether one asks whether it’s QAS or QFES responsible – in either case the liable party will be the State of Queensland (see State of Queensland STILL liable for paramedic negligence (October 25, 2017) for a discussion of the legal status of QAS – and the same reasoning would apply to QFES).

As for who is liable for the damage, possibly no-one. As we have seen both QAS and QFES have statutory powers to force entry, and the parliament intended those powers to be used.

I need hardly say that, if the legislature authorises that to be done which must of necessity cause injury, no liability can accrue to the person carrying out the will of the legislature… (Vaughan v Webb (1902) SR(NSW) 293).

Breaking down a door as permitted by the legislation does not make anyone responsible for the damage.

But, said Vaughan v Webb, there can be liability if the powers are exercised without due care. It was that decision that led to legislation in most states and territories (but not, it appears Queensland) providing that ‘good faith’ is a sufficient defence for the emergency services. Based on Vaughan v Webb, which is still the law in Queensland, there could be liability for damaging the door if a quick, and reasonable check, would have revealed that the back door was unlocked, or entry could have reasonably been made without damage. But assuming the decision for force entry, either by an authorised fire or ambulance officer, was reasonable in all the circumstances (including the potential urgency and the information vacuum) there is prima facie no liability.

If the decision was not reasonable, but made in good faith, then QAS is liable for the decisions of its officers (Ambulance Service Act 1991 (Qld) s 39).

For the fire service, the Fire and Emergency Services Act 1990 (Qld) s 153B(1) says:

No liability attaches to any person for an act done, or omission made, honestly and without negligence under chapter 3 .

Chapter 3 is about the Queensland Fire and Emergency Services. This section is next to, if not actually, useless. Compare the Queensland section to the Fire and Rescue NSW Act 1989 (NSW) s 78. The NSW Act says:

A matter or thing done, or omitted to be done, by the Minister, the Commissioner, any member of staff of Fire and Rescue NSW, any member of a fire brigade, any member of a community fire unit or any person acting under the authority of the Commissioner does not, if the matter or thing was done, or omitted to be done, in good faith for the purposes of executing this or any other Act, subject such a person personally, or the Crown, to any action, liability, claim or demand.

If it was done in good faith, even if it was done negligently (as was the case in Vaughan v Webb) then the Crown and everyone else is protected from liability.

The Queensland Act says that the protection only applies for acts done honestly and without negligence. None of us are liable for acts done ‘honestly and without negligence’. In a claim for compensation a plaintiff has to establish why the defendant is liable and merely pointing to a causal link between the defendant’s actions and the plaintiff’s injuries is not enough. The plaintiff has to show that the damage was deliberate or negligent, that is in any claim, even without s 153B, a claimant would have to prove either mala fides (ie dishonesty) or negligence. To say there is no liability in the absence of dishonesty or negligence is to restate the common law. Section 153B(3) then says the burden of proving a lack of honesty or negligence falls on the person claiming damages. Again, that is no different to the common law. This section really says nothing useful other than to codify what a plaintiff would have to prove in any event (see Michael Eburn, Emergency Law (4th ed, 2013, Federation Press) pp. 285-286).

The only value s 153B may have is that it may extend to protection from criminal liability but again, the common law, the Fire and Emergency Services Act 1991 (Qld) s 53 and the Criminal Code 1899 (Qld) s 25 (‘Extraordinary emergencies’) would provide relevant defences.

What follows is that if the decision by the fire crew is negligent – ie not reasonable in all the circumstances, then QFES (or more accurately, the State of Queensland) may be liable to repair the damage, noting again that if the reasonable response was to damage the premises to gain access, that is authorised by the legislation.

The State of Queensland will be vicariously liable for any negligence by QFES and QAS staff.

Some specific questions

My correspondent raised some specific questions which I’ll now address. They said:

Section 53(1)(a) – This wouldn’t allow us to make forced entry

s 53(1)(a) refers to ‘danger or potential danger caused by a fire or a hazardous materials emergency’ so I agree that is not relevant in the context.

Section 53(1(b) – A bit hard to decipher from where I stand….,

They can’t be trapped if they are in their own home can they?

I don’t see why a person isn’t trapped in their own home if they cannot get out or if they cannot get out of their room. But in any event s 53(1)(b) talks about a person trapped or ‘otherwise endangered’ and a person suffering a medical emergency is endangered if they don’t get assistance.

A medical episode on the toilet might be a situation but they would have to ring the 000 themselves?

Otherwise endangered, again, if they ring 000 to ask assistance?

I don’t see why patient has to be the person to ring 000.

It can hardly be either of those if the QFES is used to respond instead of the QAS if the phone call didn’t come directly from the occupant via QAS communications centre?

I don’t see why those conditions – the phone call came directly from the occupant via QAS communications centre – must be true. There is no reason why the call has to come from the occupant. My understanding is that QFES are not dispatched ‘instead’ of QAS, they are dispatched with QAS (even if they get there first). It then depends on the information in the tasking – what was reported to QAS? What has QFES been tasked to do? What is the priority assigned by both QAS and QFES? What further information can be collected on scene? The question will be ‘what information did you have?’ but that information will always be incomplete.

Just because a neighbour or family member hasn’t heard from them or seen them doesn’t allow damage to occur just for the purpose of making entry, shouldn’t we wait for QAS/QPS in that circumstance?

The law allows for damage to be done if that is a reasonable response given the information available. The neighbours may have a deal that they raise their blinds or make some other signal each morning and the signal has not been made. Perhaps the call has come from the Red Cross when the person failed to answer their pre-arranged welfare check phone call (see https://www.redcross.org.au/services/telecross/) That is a different to a neighbour who hasn’t been seen, but where their car is not there and they have arranged to have their mail held at the post office. Context is everything.

Conclusion

The three key questions were:

Who actually has Authority to make forced entry?
QFES by virtue of the request, or should we be waiting for the arrival of a QAS unit to confirm that we should make the forced entry?
Does QAS have their own ‘powers of entry’?

The answers are:

Authorised officers from both QAS and QFES have the authority to force entry.
Whether QFES should wait for QAS depends on all the circumstances – the information given when dispatched, what can be observed at the scene, the assigned task and if necessary getting back to COMCEN to get them to confirm with QAS what they want QFES to do.
Yes QAS have their own ‘powers of entry’.

Categories: Researchers

New research on paramedic use, and understanding, of the Code of Conduct.

Michael Eburn: Australian Emergency Law - 7 November, 2022 - 06:00

My friend and colleague, Dr Ruth Townsend, along with Derek Collings-Hughes and Brett Williams has written a paper on ‘Paramedic use and understanding of their professional code of conduct’ published in the journal Nursing ethics. (Collings-Hughes D, Townsend R, Williams B. Paramedic use and understanding of their professional code of conduct. Nursing Ethics. 2022;0(0). doi:10.1177/09697330221130607 )

The authors say:

This study was the first known to the authors examining paramedic perspectives and understanding of their professional code. The findings of this study are consistent with the existing literature in both nursing and medicine and add to the growing understanding of health professional interaction with professional codes. Existing research suggests professional codes are poorly understood and utilised in the health professions. Overall, paramedics also appear to lack specific knowledge surrounding the content of their professional code. … As regulation, including the code, is new to paramedicine, participants were still navigating the increased responsibility associated with the introduction of a national set of professional standards, and some felt there was still some way to go before paramedics understand their place in the post-registration era of paramedic professionalism.

The study was based on a survey of a small number of paramedics (n = 11) and that brought its own limitations, which the authors acknowledge. Further, the study was limited by ‘a notable shortage of representation from both paramedics in the private sector and female paramedics…’ and:

Self-selection bias also may have been present in the participants of this study and several participants stated they expressed interest in participation due to an existing interest in the subject matter. Thus, the results of this study may not adequately capture the broad views of those who practice within the Australian paramedic profession.

Another issue that arises in my mind is when was the study done, and what code does it refer to? The Paramedicine Board has replaced the original, interim code of conduct that was put in place when registration commenced with a new, generic code. The Code of Conduct that applies to Paramedicine is not a stand alone Code but is now shared with 11 other registered health professions (see https://www.ahpra.gov.au/Resources/Code-of-conduct/Shared-Code-of-conduct.aspx). This generic code may make it even harder for paramedics to identify how the Code is to be applied to their practice

This shared code of Conduct came into effect on 29 June 2022 so I infer that when Collings-Hughes, Townsend and Williams were conducting their interviews, the participants were discussing the old code. This may be a limitation in the Collings-Hughes, Townsend and Williams paper. If their study was how paramedics use and understand the ‘old’ code the results may not be transferable to the new code.

On the other hand, and I think more importantly it may also mean that the author’s conclusions are even more important and relevant. In their discussion the authors note

Some felt the code was too vague, broad or not relevant to ‘actual paramedic work’, citing a lack of detail and specificity to the role paramedics performed to be of any practical use. Because the document was not interpreted as being specific enough, they were concerned it left too much open for interpretation and as such, they felt the application of the code was likely to be difficult and inconsistent….

A few participants understood that the broadness of the code was necessary to allow for it to cover all possible situations and the varied working environments (including outside of emergency ambulance work) in which paramedics work. There was also a strong desire for the general principles within the code to be more clearly articulated or annotations added to help make the code both more relevant to paramedic practice and user friendly.

Now that the Code is shared across 12 health professions, the lack of direct application to paramedicine and paramedic practice is likely more pronounced. To that extent the conclusions, in particular that ‘Most participants felt the integration of clearly articulated principles through annotations or examples would increase their understanding and use of the code’ is timely. This paper demonstrates to the Paramedicine Board of Australia the value they could add by adding ‘annotations or examples’ to the shared code to show paramedics how the code can be applied to their practice.

Conclusion

The paper by Collings-Hughes, Townsend and Williams does not purport to explain the Code of Conduct, rather it explores what paramedics know of the Code and, importantly, it makes the case why paramedics should have a better understanding of the code. To that end the paper also has some recommendations to make the Code more ‘user friendly’. Those recommendations are particularly timely given that the Code is now a shared, rather than paramedic specific code of conduct. The Paramedicine Board, as the regulator of the profession should consider the recommendations to take steps to assist paramedics to apply the code in their daily practice.

Paramedics may also find the paper interesting particularly if they want to better understand why they should understand the Code of Conduct that applies to them.

Categories: Researchers

Private paramedics transporting patients on public roads – Part 2

Michael Eburn: Australian Emergency Law - 5 November, 2022 - 12:13

In Private paramedics transporting patients on public roads – Part 1 (November 4, 2022) I said

What I infer we are talking about are companies that provide event health services or on-site work health services. I will assume that the relevant providers are employed by a company that contracts to provide on-site services at say, a mine, rather than paramedics directly employed by the mine site. The power of employees of a mine to transport will be the discussion of a second post on this subject.

This is that second post.

The issue here is whether a company that employs paramedics, provides them with an ambulance and expects them to provide onsite health services which may include transporting injured workers around the work site is operating an ambulance service and whether those paramedics may take their injured colleague on a public street to a public hospital.

General principles

Let’s start with general principles. Assume that someone you know is injured and needs to go to hospital. In no jurisdiction would anyone consider that you are operating an ambulance service if you decided to drive them to hospital in your own car. You may do that without reference to the jurisdictional ambulance service, or you may ring triple zero and being advised of the probable wait time decide to take them yourself. Further ambulance services encourage everyone to save triple zero for an emergency, so if you determine the person needs to go to hospital but it’s not a life-threatening emergency you are encouraged to transport them yourself. In any event you do not need permission and no-one would suggest an offence has been committed – so prima facie anyone can take anyone to hospital if they want to.

Further even a taxi driver commits no offence if he or she drives someone to hospital even though he or she will expect to get paid for that transport.

If that’s true let’s change the story a bit and assume that two paramedics live together. A neighbour knocks on their door and asks for assistance. For whatever reason the paramedics decide to take the person to hospital rather than wait for the ‘duty crew’. One drives, the other is in the back with the patient. They provide care within their scope of practice taking into account the limited equipment that they have. Perhaps they are controlling bleeding by continuing to apply pressure and are monitoring pulse/BP/SPO2. They are not operating an ambulance service in that there is no formal service, no advertising that a service will be provided. They are driving their neighbour to hospital. The fact that they are paramedics is just their neighbour’s good luck.

The conclusion from the discussion, above, is that anyone can drive someone to hospital if they want to.

Work Health and Safety

Now let us assume a person is at work and they become ill or are injured. The model Work Health and Safety Regulations 2011 (adopted in all jurisdictions other than Victoria) r 42(1) says:

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

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

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

Further regulation 43(1) says

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

(a) emergency procedures, including:…

(iv) medical treatment and assistance;

Just as anyone can driver their neighbour or friend to hospital, so may a person drive their work colleague to hospital. Again, ambulance services urge people to only call triple zero in an emergency. The first aid officer may think whatever happened it is not an emergency that warrants an ambulance so drives the person to hospital. Again, they commit no offence even if paramedics at the hospital think the case was an emergency (so they were providing ‘emergency’ transport) and even if they are getting paid their first aid allowance.

In short, anyone can drive someone to hospital if they want to. So, what’s to stop paramedics employed by a company who operates a business with a large industrial site or, for the purposes of our discussion let us assume a mine site, from driving their colleague to hospital? In that earlier post – Private paramedics transporting patients on public roads – Part 1, I identified the legislation that prohibits private ambulance services to operate without a relevant licence or authority. I won’t repeat those here but it may be worth referring back to those.

Big Hole Mining Company

Assume Big Hole Mining Company employs paramedics and buys an ambulance. The paramedics are directly employed as part of the onsite medical service. It could be argued that Big Hole Mining Company is then providing ambulance services, but I don’t think so. In the context of my fictitious Big Hole Mining Company, they have WHS responsibilities to provide emergency care for their staff taking into account the nature of their work and their work site which may be very large and diverse. They are required to consider the nature of their workplace, the size of their site, the possible injuries and have appropriate emergency including emergency health services. If they determine they need paramedics (and/or doctors or nurses) on site they are meeting their obligations. Having on site paramedics who can collect and transport injured workers to an on-site medical centre is not holding them company out as providing an ambulance service but rather they are meeting their duty to their employees and others on their work site.

Can their staff transport on the road?

I think so, but the answer does depend on the jurisdiction.

First rules prohibiting private ambulance services in NSW and Victoria are limited to services that operate ‘fee or reward’ or ‘payment’. Provided the onsite paramedics, or the employer, is not charging the employees, or anyone else (eg a workers compensation insurer) for the service they are not acting for ‘fee or reward’ or for payment so are not caught by those provisions.

Second, I would also argue that they are not providing services ‘similar’ to those provided by NSWAS or Ambulance Tasmania. NSWAS and Ambulance Tasmania provide fee for service operations where they will respond to anyone that calls even though they have no pre-existing relationship with the caller. They will also provide an on-site event health service at a concert or sporting event, but they do not set up ongoing medical centres at someone’s workplace. A workplace crew that only transports staff and visitors from the workplace as part of the employer’s WHS responsibilities is not, arguably, providing a service similar to the NSWAS or Ambulance Tasmania as that is not a service that either Service offers.

The mining company may be in breach of the law in Queensland, the ACT and South Australia. In Queensland the company must not ‘directly or indirectly imply that the person provides or participates in providing ambulance transport’. But they are providing ambulance transport even if that is only around their own work site – see Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548.

In the ACT ambulance services are ‘the provision of medical treatment and pre-hospital patient care, and includes the transport of a patient by ambulance or medical rescue aircraft’ (Emergencies Act 2004 (ACT) s 60). The staff paramedics are employed exactly to provide those services, so arguably even having an onsite ambulance that never leaves the workplace is, without approval from the Minister, a breach of the Emergencies Act 2004 (ACT) s 63.

The clearest prohibition appears in South Australia. In South Australia an emergency ambulance service (Health Care Act 2008 (SA) s 3):

(a) responds to requests for medical assistance (whether made by 000 emergency telephone calls or other means) for persons who may have injuries or illnesses requiring immediate medical attention in order to maintain life or to alleviate suffering; and

(b) is set up to provide medical attention to save or maintain a person’s life or alleviate suffering while transporting the person to a hospital;

A work-based ambulance service responds to requests for medical assistance so meets the criteria in paragraph (a). If they transport them to a work medical centre that’s fine; but if they proceed to hospital they then meet the criteria in (b) so would appear to be an emergency ambulance. If they are just driving an injured worker home, then there’s no issue, so they could transport a patient on a public street, but not a patient who needs intensive care enroute to hospital.

The mischief rule

One of the rules of statutory interpretation is the ‘mischief rule’ where you ask what is the mischief or problem that the statute was trying to fix. I think the aim of all those prohibitions was to stop private ambulance companies competing with state services and entering the emergency market without supervision and regulation (remembering that these provisions have their history before paramedic registration). The governments don’t want inner-city firms entering into contracts with All Paramedic Ambulance Pty Ltd where All Paramedic says, ‘call us, don’t call 000 and we’ll get their faster’. Part of the issue is that the parties who contract cannot know or identify who is a good service provider and who is not. It seems to me that a company that employs its own paramedics to work within a work site, and even transport staff to hospital, is not the sort of service that the legislation is intended to prohibit but on a literal interpretation they may be caught at least in Queensland, South Australia and the ACT. I would suggest that in all cases what is meant to be prohibited is a person or company setting up and advertising that they will provide ambulance services and particularly in NSW and Victoria, will charge to provide those services.

The ‘mischief rule’ can only be relied on where a literal reading of the legislation is incoherent or would lead to absurd results (such as a taxi driver being guilty for taking a person to hospital and wanting payment for the fare). It would be hard to apply in SA where the law is clearest. In that state if you are driving a person to hospital and you are ‘set up to provide medical attention to save or maintain a person’s life or alleviate suffering while transporting the person to a hospital’ then you need an emergency ambulance service licence, or to call the SAAS (or seek to rely on the ‘sudden defence’ exceptions discussed in Part 1).

Discussion

There is no simple rule that says private paramedics cannot transport on a public street. To that extent it is either a myth or a useful shorthand given all the other prohibitions.

The problem with the prohibitions on the provision of ambulance services is that they are written in such broad terms they could, arguably, cover many services and actions that are not intended to be caught – taxi drivers driving a person to hospital, people doing first aid and work places providing the very emergency medical services that the WHS legislation requires them to provide. There has to an interpretation to limit the application of the literal provisions.

To resolve that the mischief rule asks us to look at why those prohibitions are in place. I suggest they are a consumer protection provision to stop people approaching workplaces and event organisers and offering to provide emergency services where those potential clients are not in a position to judge the service being offered. And we don’t want private ambulance companies competing for work or – as in the bad old days of the tow truck industry – fighting for work at the scene of a car accident.

The prohibitions are, in my view, out of date given paramedic registration (see Michael Eburn and Ruth Townsend ‘Paramedicine in 10 years: What will it look like?’ (2019) 46 Response 18-20) but even so they remain. The critical question then for paramedics employed by industry asking whether they can transport patients on a public road is to look at the terms of the prohibitions on the provision of ambulance services, and ask whether they are providing the sort of services that the legislation is intended to prohibit.

Where a hypothetical company like Big Hole Mining Pty Ltd employs paramedics as part of its WHS responsibilities, I don’t think the Mining company is providing ambulance services any more than it is operating a hospital if it has doctors on site. It’s arguable that if they transport patients by ambulance – whether on site or on a public road – they may be breaching various prohibitions (particularly in Queensland, South Australia and the ACT), but I don’t think that is the mischief the law is intended to prevent. And is there really a problem if mining staff in far west NSW or Queensland are driven to the local hospital in a company owned ambulance whilst being treated by company employed paramedics given they could lawfully be driven there by the shift supervisor in the company ute?

There may be good reasons not to transport patients off site. Taking the ambulance away may require production to stop. And it may annoy the local ambulance/ health service. And it may not be best practice depending on the skills and resources of the onsite team vis-à-vis the jurisdictional ambulance crew. But there is no simple legal rule that says an employer cannot arrange to have their employee taken to hospital by whatever means they wish, and the patient/staff member agrees to.

Conclusion

It may be a surprise that there is no simple answer to the question ‘can private paramedics transport patients on public roads?’ Except in the Non-Emergency Patient Transport and First Aid Services Act 2003 (Vic) the issue of public roads does not get a mention. There is nothing in the Road Transport legislation nor ambulance services legislation that says ‘only jurisdictional ambulance services can transport patients on public roads’. The prohibition (if there is one) has to be implied by the various prohibitions on the provision of unauthorised ambulance services and that begs the question of whether paramedics employed by industry as part of the onsite emergency response are providing a relevant, and otherwise prohibited, ambulance service.

Those provisions are so wide such that even a first aid officer could be in breach – but no-one seriously reads them so literally. The prohibition is really aimed a private companies that advertise a service to the world – contract with us for your ambulance service – rather than companies the employ paramedics and provide an ambulance as part of their on-site emergency response.

For related discussion see

Is the mines rescue brigade providing an ambulance service? – Updated 21/9/12 (July 21, 2012).

Categories: Researchers

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Private paramedics transporting patients on public roads – Part 2

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