Today’s question comes from a member of the NSW RFS and may reflect concerns about the approach of iCare to claims by RFS members (see Gaps in NSW RFS volunteer workers compensation (August 28, 2024).  The question is:

When responding to the station in your private vehicle after being paged to a grass fire and you hit a kangaroo are you covered by the RFS for the damages to your vehicle or do you have to foot the bill for it?

The Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) talks about a ‘relevant journey’ that is (s 9(1))

(a) … a journey between the place of abode or place of employment of the fire fighter, or place from which the fire fighter was called, and a bush fire, and

(b) it is made exclusively and genuinely for the purpose of engaging in fighting a bush fire.

Section 12(2) says:

(2) Compensation is payable under this Part in respect of the destruction of, damage to or loss of– …

(c) any vehicle used for the conveyance of a fire fighter on a relevant journey in relation to a bush fire and owned by or in the possession or custody of the fire fighter,

The issue will therefore be whether travelling to the station, rather than to the scene of the fire, is part of ‘a journey between the … place from which the fire fighter was called, and a bush fire’?  On one argument it is a journey to the station, not the fire. On the other hand, the journey is the complete journey from the ‘place from which the firefighter was called’ to the fire and the fact that the journey is via the fire station and involves getting out of the private vehicle into the fire appliance doesn’t change the fact that it is all one journey.

Section 13(4) says, however, that ‘Compensation is not payable under section 12 if the owner is entitled to adequate reimbursement under any policy of insurance or from any other source’.

Discussion

As we have seen from the earlier post the issue may be decided by someone in the insurance office (if it ever gets there, depending on the value of the claim it may be dealt with ‘in house’), but I would anticipate that the view would be that making the way to the shed to don PPE and respond on the appliance is all part of the journey from the place where the person was called to the fire and was undertaken ‘exclusively and genuinely for the purpose of engaging in fighting a bush fire’.

A correspondent on the Facebook page of this blog posted this which is reported to be from the RFS and is a response to the issue raised in my earlier post.  The RFS announced:

FROM RFS 10.9.2024

RFS iCare Insurance Update

Recently, the RFS was made aware of an issue raised by the VFFA regarding the interpretation of legislation concerning insurance coverage for volunteers attending meetings.

A decision by iCare relating to a specific incident highlighted a perceived gap in the legislation. This interpretation differed from how the legislation had been previously applied, prompting the RFS to seek clarification from iCare.

We are pleased to inform you that late last week iCare confirmed that claim made by the member will be honoured. This outcome follows multiple discussions with iCare, during which the RFS provided additional information and emphasised the importance of key activities undertaken by volunteers that are essential and critical to the operation of our Service.

We want to clarify that, in addition to operational activities, our members are covered for brigade and district meetings, training sessions, open days and community engagement activities.

iCare and the RFS will be reviewing the legislation to ensure that it explicitly covers all RFS activities.

The safety of our members remains our top priority and we will continue to advocate for the best outcomes for everyone involved.

Even if there could be a debate about where a ‘relevant journey’ starts and finishes, one would hope with a similar attitude from the RFS, iCare as the relevant insurer would have no difficulty finding that travelling from home or work to the fire via the fire shed is a ‘relevant journey’ and that compensation for damage to a fire fighter’s vehicle would be covered.

However, s 13(4) is clear that the intention is that the owner will look to their own insurance first.  It follows that if the vehicle is comprehensively insured the driver would be required to claim on their own policy.  iCare may be persuaded to pay the value of any excess on the basis that it is necessary to give ‘adequate’ compensation. 

(On a personal note, as a member of the NSW SES I came off a motorcycle when making my way to the shed as part of a road crash rescue call out. I did receive compensation under this scheme but to be honest I cannot recall if it was for the full amount of the repairs or just my insurance excess).

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

Mark Frost is an ALS paramedic employed by Ambulance Victoria. In August 2021 he was subject to complaints of workplace bullying or harassment. The allegations involved Mr Frost’s conduct toward an Ambulance Community Officer (‘ACO’). ACO’s are ‘non-paramedic casual employees drawn from the local community who are trained in emergency response and register their availability for set periods of time to attend as required’ ([20]).  The allegations were investigated by an external investigator who found two allegations partially substantiated, two fully substantiated and one not substantiated. 

In July 2022 Mr Frost was asked to show cause why AV should not impose disciplinary sanctions in particular record a first and final warning, require him to undergo further education and transfer him to another station, 350 kms away.  One can imagine that a move to a station 350 kms away requires the paramedic to move house, not an easy task when one has established relationships, emotional and financial investment in one’s home and if the paramedic has a partner with a job and local commitments and children at school.   We were not given the details of Mr Frost’s personal life, but he argued that this action was not reasonable nor justified by the inquiries findings.

A dispute was lodged and ended up in the Fair Work Commission as Mr Mark Frost v Ambulance Victoria [2024] FWC 2237.  It was accepted by all parties that the terms of the Ambulance Victoria Enterprise Agreement 2020 meant that the transfer could only occur in ‘instances of serious misconduct that meets the definition of workplace bullying and or harassment’. There was a dispute over whether the conduct that the investigator found established met that definition ([13]).

The Commission rejected the argument. Commissioner Connolly said that serious misconduct is to be judged objectively and does not depend on ‘wilful’ conduct by the worker.  He said (at [121]-[123]):

What is relevant in this matter is that AV had received an independently prepared report that included a substantiated finding Mr Frost had engaged in conduct that amounted to bullying, amongst other things.

On this basis alone, I am satisfied the Respondent was entitled to considered Mr Frost had engaged in serious misconduct and move to consider the appropriate disciplinary sanction for this conduct, including transfer.

To suggest that bullying, objectively viewed, does not amount to serious misconduct is implausible in my view.

Having determined that the threshold had been met, it was open to AV, as part of its disciplinary measures and to remove ‘Mr Frost from the complainants against him … minimising the risk of Mr Frost engaging in the same or similar conduct again and imposing an appropriate disciplinary sanction to allow Mr Frost to return to his substantive duties. At the time, the only available location that met this criteria outside of the … Region was’ 350kms away. 

Given that AV had the authority to transfer Mr Frost an issue arose as to whether he could appeal that decision. Clause 37 of the enterprise agreement says:

Resource Allocation

37.1        Resources will be allocated to meet service demand.  Employees will be required to perform all work they are competent to perform and accept the requirement for flexibility in relation to work arrangements and mobility between work locations to meet the Employer’s operational and service delivery requirements.

37.2        Where an individual employee has a grievance about a transfer in work location is unreasonable having regard to the employee’s personal and family circumstances and the requirement for excessive travel to attend work, that employee has access to the procedure in clause 11.

Mr Forst argued that cl 37.2 allowed him to rely on the dispute resolution procedures set out in cl 11. The Commission determined that the Agreement only allowed an employee to rely on the dispute resolution clauses if he or she was transferred on the basis of resource allocation but not where the transfer was the result of a disciplinary decision ([126]-[132]).  The Commission, therefore, had no jurisdiction to review the decision by AV.

Although the Commission could not review the decision to transfer Mr Frost to a station so far from his home, it did appear, during the proceedings that it was no longer the case that this station was no longer the only appropriate station to meet the needs of separating Mr Frost from the complainants.  At [96] Commissioner Connolly said that AV:

… have provided a list of further alternative transfer locations. Bearing in mind Mr Frost’s submissions, I consider it appropriate the parties consider working together to identify other alternative locations for Mr Frost to work from to allow him to return to full duties as soon as practically possible once his authority to practice has been completed.

Conclusion

In the discussion we are given only limited detail of the allegations (see [25]) and of Mr Frost’s personal circumstances.   What we can take from the case is:

• Substantiated allegations of bullying and harassment are always likely to fall into the category of serious misconduct.
• Where serious misconduct is established, AV has the power, under the enterprise agreement, to transfer an employee to another station as part of its disciplinary processes.
• Whist an employee has a right to engage the dispute resolution procedures set out in the Ambulance Victoria Enterprise Agreement where AV seeks to transfer them to meet resource allocation demands, that right is not available where the decision to transfer is made as part of a disciplinary outcome.

Whether AV and Mr Frost can come to an agreement with respect to a transfer to a station closer to home will be a matter for them. If not Mr Frost will have to decide whether to accept the transfer and move, commute 350kms to work or, presumably, end his career with AV.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

Today’s correspondent is a medical student from WA who poses this hypothetical

“A young female patient (15F) gave a history to me that included reference to sexual interaction with an older male teenager (18F). After telling her story, she expressly asked me not to disclose that fact to my supervisor, an older male practitioner. A fundamental pillar of patient care is confidentiality, the principle being that no information should be shared or disclosed without the patient’s consent. As a student, is my first priority to honour the patient’s wishes and keep her secret, or respect my position as a student under supervision and disclose the full history to my supervisor?”

They say:

Now, my first instinct on hearing this question was to say that the student had a duty to tell the supervisor. When patients provide information to a health service, they do so in anticipation of the information being used to provide them with care. Doctors and other health practitioners provide care; students are only granted access to this information so they can walk in tandem with the supervising practitioner and see how the information was used to inform the care provided. As the student was acting as an agent of the health service when he received the information, it would be expected that now that the information had been collected by the health service, it is appropriate that the treating practitioner of that health service had access to the same information.

However, while my initial answer appears clear in principle, I could not find any reliable legal basis for maintaining that argument. A student is not under any contract of service to the health service which would mandate sharing of information. Practitioners within a health service are not entitled to access information about patients they are not treating, or otherwise without the patient’s consent. The question also has to be asked whether the information is critical to the patient’s care – the student may consider that the information is unlikely to change the practitioner’s treatment, and so honour the patient’s decision to withhold it as being in their best interests. However, the practitioner may feel that the information would significantly alter their treatment, including their decision to take a further history and possibly make a mandatory report to child protection authorities.

At the end of the day, I think I would support the student in giving a detailed report to his supervisor, saying “the patient asked me not to tell you this, but…” however I am not confident on the legal basis of this position.

How would you approach such a question?

Let me start by saying that I hope I’m not being asked to address an assessment question.

The fundamental concern here is that the patient is 15 disclosing a sexual relationship with an 18 year old – ie that she is the victim (regardless of her consent) of a criminal offence (Criminal Code (WA) s 321).  And I think the analysis is right, even though the student is not under a contract with the health service, he or she is told that information presumably as part of the patient’s health care (hence the reference to a ‘history’).    

A doctor (but not a medical student) is required to report any belief held on reasonable grounds that a child (ie a person under the age of 18) has been the subject of sexual abuse (Children and Community Services Act 2004 (WA) ss 3 (definition of ‘child’ and 124B). 

Western Australia does not yet have specific privacy laws but the Australian Privacy Principles still give some guidance. It is not a breach of privacy to disclose private information where that disclosure is ‘required or authorised by or under an Australian law’ (such as the Children and Community Services Act 2004 (WA) (Privacy Principle 6.2(b)). Disclosure is also permitted where the entity making the disclosure ‘reasonably believes that the collection, use or disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of any individual…’ (and one might think an ongoing sexual relationship between an 18yo and a 15yo is such a threat) (Privacy Act 1988 (Cth) s 16A).   As noted, however, those laws do not yet apply to a health service in WA (Legal Aid Western Australia, Privacy and Freedom of Information (30 January 2024)).

On more general principles I agree that a person who gives a ‘history’ in a medical setting knows that the information is being given for the purposes of providing health care. Further if they know they are speaking to a student they would understand that the student has to pass that information on because they are clearly not going to be making the health care decisions for the person. For either the patient, or the community, to expect a student to bear the burden of keeping that information confidential rather than accepting they will share it with a supervisor in order to get guidance and to learn would be to misunderstand what it means to be a student. 

I agree there is no clear legal basis for an answer here. It is about drawing on general principles of both privacy and, given the history disclosed the duty on treating health practitioners to infer that the student would not be in breach of ethical or legal principles if they made a disclosure to their supervisor.  Ideally however the student would first approach the patient to try and gain their consent to the disclosure and, if that was not forthcoming, to advise the patient that they have to disclose the information provided.

Now this question is out of scope for this blog being not ‘emergency’ related per se, but I publish this answer in any event as it will be of interest to other health students including students of paramedicine who will face the same issues.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

Today’s question revisits the thorny myth of liability for the installation of automatic defibrillators.   I have been provided with a document, purportedly from Jehovah’s Witnesses elders that says:

2. Automated External Defibrillators (AEDs) at Kingdom Halls: Bodies of elders have at times inquired about installing AEDs at Kingdom Halls. We view life as a sacred gift from Jehovah. However, due to increasing liability concerns, as well as the training and maintenance needed to legally keep these devices, AEDs should not be installed at Kingdom Halls. If there is a medical emergency, attendants should immediately call emergency services. Prompt arrival of emergency services is crucial form timely aid. While emergency services are in transit, any willing attendees who are trained in cardiopulmonary resuscitation (CPR) can assist if a cardiac event is suspected.

3. If you have an AED in your Kingdom Hall, please remove and dispose of it according to local regulations or the manufacturer’s instructions. You may contact your Local Design/Construction maintenance trainer if additional assistance is needed.

I’m asked:

Is this a reasonable request based on potential liability?

Surely their availability and saving of attendees at their meeting would be more important than potentially being sued?

The simple answer is no, this is not a reasonable request based on potential liability – see

• Liability for failing to use an AED? (February 27, 2024)
• Further fear over installing an AED (September 18, 2023)
• Fear of legal risk for installing AEDs is misplaced (September 17, 2019);
• Registering and maintaining a defibrillator (April 7, 2019)
• Liability for installing, or not, an AED in a retirement community (December 1, 2018)
• Potential liability for defective defibrillator – not as obvious as you might think (November 26, 2018)
• Choosing not to install an AED for spurious reasons (September 10, 2018).
• Legal issues when installing a defibrillator? (August 23, 2016)

There is no potential liability for installing a defibrillator.

There are no training requirements to ‘legally’ keep a defibrillator. They are meant to be used by anyone including the untrained. And if there are ‘willing attendees who are trained in cardiopulmonary resuscitation’ then they are also trained in the use of an AED.

If there are maintenance requirements to legally keep a defibrillator, they are no more onerous than the legal requirements to keep a fridge, or an urn, or a heater or any other electrical appliance. Treat it in accordance with the manufacturer’s instructions.  If it’s plugged into a power point it may need to be ‘tested and tagged’, and don’t put it in a sink of water.

If there is a medical emergency early defibrillation is part of the chain of survival

(image credit: St John Ambulance (Victoria) What is the chain of survival (2 November 2016).

The use of a defibrillator is part of the DRSABCD Action plan ideally implemented before the arrival of the emergency services.

In South Australia it will soon be compulsory to install defibrillators in any ‘designated building’ (Automated External Defibrillators (Public Access) Act 2022 (SA) ss 4 and 7). Whether that would include a facility such as a Kingdom Hall will depend on the details in any regulations that are yet to be passed.

The reaction by the elders is uninformed. They do not explain why there are ‘increasing liability concerns’ but if there are such concerns, they are misplaced.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

Today’s correspondent is

… a senior deputy in an RFS brigade. The area that we respond and to is in the middle of what Police describe as an ice epidemic. Today we had a job (illegal burn) should have been a simple job really attend extinguish depart. Not the case, from the time I stood out of the appliance we were abused and threatened. We informed resident of rules and advised we were extinguishing however he refused us entry which we explained we have right of entry. Long story short he went to pick up a bar off the ground and became very aggressive I In turn removed the crew requested police and staged down the road.

The question I have is NSW Police and NSW ambulance have access to warnings on the location they are responding to and quite often stage until other resources are available to deal with a situation. However, in the RFS we are blind to this information. If the information is available to other emergency services, is it a duty of care that RFS should have access to the same information to protect its members? What’s your thoughts?

The question that I have, and cannot answer, is where do police and ambulance get that information that it is alleged that they have? I infer (but do not know) it is from their past history, that is they have it as their own crews have reported the matter.   That is, it is their own internal information being shared among their own employees, rather than centralised information that they share but not with the RFS.

Given my correspondent’s experience I do not know if there is a system where the RFS can record that information so that if there is another call to that address, then that information can be passed onto responding crews. It might also be prudent, and reasonable to expect that if the RFS was called by police or ambulance eg if police were on scene and it was the police who observed the fire, that they would pass on any necessary warning to the RFS. 

To limit myself to the legal issue the problem is about confidentiality of information not just the information about past incidents at the address but also information that the police may want to keep confidential about investigations etc. 

If I’m correct and there is no central database where reports on emergency calls to addresses are required and which is accessible by all the emergency services, then it is impossible to imagine how the RFS could have the information that my correspondent would like to receive.

If such a database were to exist questions would arise as to:

• Who could enter data onto it?
• What type of data could be recorded?
• What has to be the level of satisfaction that the information recorded is accurate?
• How long would it be there (because people move, and grow up, so an issue 6 months, or 6 years ago may not be an issue now)
• Who could access it?
• How would it be secured?
• What steps would be in place to ensure that it did not in effect discriminate against groups on irrelevant grounds (see Questions of racial discrimination (February 17, 2023))?

Conclusion

The question I was asked was ‘If the information is available to other emergency services …  should [the RFS] have access to the same information to protect its members?’ but that begs the question of whether information, other than a services own internal records, is available to each service.  If there is no central repository of such information (and I don’t think there is but I wait to be corrected if I’m wrong) then there is no information that can be passed to the RFS other than information held by the RFS. 

Creating such a central information portal would, or should, require a great deal of careful consideration.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

Today’s correspondent has a question relating to the issue of fire permits by the NSW Rural Fire Service. They ask:

 If a fire permit officer of the NSW RFS issues a fire permit to a landholder and the permit holder follows the conditions of a fire permit and it escapes their property and causes damage. What is the potential consequences for the RFS fire permit officer if it’s identified that the conditions assigned to the permit are inadequate.

Would the fire permit officer be liable if proven that the conditions were not adequate?

The Rural Fires Act 1997 (NSW) ss 87-89 says:

87 Lighting fires for land clearance or fire breaks in bush fire danger period

(1) A person who lights a fire on land for the purpose of land clearance or for burning any fire break during a bush fire danger period that applies to the land is guilty of an offence unless the person–

(a) is authorised to do so by a fire permit issued by the appropriate authority and the person complies with any conditions set out in the fire permit, and

(b) has given notice in accordance with section 86.

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

(2) …

88 Lighting fires that are dangerous to buildings in fire districts and rural fire districts

(1) A person who lights a fire on land within a fire district or rural fire district in circumstances in which doing so would be likely to be dangerous to any building is guilty of an offence unless the person–

(a) is authorised to do so by a fire permit issued by the appropriate authority and the person complies with any conditions set out in the fire permit, and

(b) has given notice in accordance with section 86.
: Maximum penalty–50 penalty units or imprisonment for 12 months, or both.

(2) …

89 Issue of permits

(1) An appropriate authority may issue to any person a fire permit in writing authorising the person to light a fire on land specified in the permit for the purpose specified in the permit.

(2) An appropriate authority may issue a fire permit for a purpose only if–

(a) a bush fire hazard reduction certificate has been issued in respect of the purpose, or

(b) the person confirms the person has obtained all approvals, consents or other authorities required under the Environmental Planning and Assessment Act 1979 or another law, or

(c) lighting a fire for the purpose does not contravene any other Act or law.

There are further circumstances when a permit is required set out in the Rural Fires Regulations (see RFS Fire Permit Guidelines (July 2024) [2.1]).

A permit remains in force for 21 days (s 90) unless cancelled (s 91) and is subject to conditions including ‘any condition imposed by a bush fire hazard reduction certificate or as a condition of any approval, consent or other authority given by or under any other Act that is required to be obtained in relation to the lighting of a fire’ (s 92).   Bush fire hazard reduction certificates are issued by the local council (ss 100E, 100F and the definition of ‘local authority’).  The issue of a bushfire hazard reduction certificate depends on the landowner having a bushfire risk management plan and that the planned burn is consistent with a relevant bushfire code (s 100F(4)).

What ss 87 and 88 make clear is that the permit is there to allow a fire to be lit in dangerous circumstances. Prima facie the person responsible for any fire is the person who lights it – see Michael Eburn and Geoff Cary ‘You own the fuel, but who owns the fire?’ (2017) 26(12) International Journal of Wildland Fire 999-1008.  The person who is going to set the fire always has the last call on whether the circumstances are appropriate and whether particular safeguards are in place to control the fire (see also Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation And Land Management [2012] WASCA 79 (and see the observations of Pullin J, although in dissent, on responsibility of the person who can always chose not to light the fire).

If we’re talking about potential liability, then we’re assuming the fire has escaped. The issue of the permit does not guarantee that the fire will be controlled and safe. It is a process to ensure steps are taken to bring the risk to the attention of the person who intends to set the fire and to draw to their attention the need to manage that risk.  

There are several things to think about:

• The mere fact that a fire escapes does not prove that there has been negligence – see Proving the ignition source does not prove negligence (December 23, 2020).
• The law doesn’t require a guarantee of safety, it requires everyone take ‘reasonable care’.  What is reasonable depends upon all the circumstances.
• The ability of a permit officer to impose conditions is limited. The RFS Fire Permit Guidelines sets out some standard conditions regarding the monitoring for the fire and other possible conditions but says (at [4.3]) ‘There is no longer the ability to include local or non-standard conditions that may have been previously used by your Brigade or District Office.’  The permit officer can only impose the conditions permitted, or refuse to issue a certificate.
• Everyone has to take reasonable care, and that includes the permit officer that means that the permit officer does have to comply with the Act and the Guidelines.  One can imagine there could be liability if a permit officer issued a permit to an inexperienced landholder and when doing so the permit officer paid no regard to the matters that the Act and Guidelines and did not impose any relevant conditions in circumstances where the inexperienced landholder relied on the permit officer to tell him or her what was required.
• Putting malfeasance and dereliction of duty aside, where a permit officer issues a permit, he or she is relying on a plan and a weather prediction. They cannot know, in advance, whether the plan will work or whether the weather will behave as predicted. 
• A permit officer would enjoy the protection of the Rural Fires Act 1997 (NSW) s 128 providing immunity from liability for acts done ‘in good faith’ that is in an honest endeavour to meet the obligations imposed by the Act and the Rural Fire Service.
• That does not mean there may not be difficult questions if a fire escapes and particularly if it causes death or significant property losses. A permit officer may be questioned about how they satisfied themselves that the landholder had ‘fire suppression equipment able to control the fire’, had ‘appropriate personal protective clothing’ and had ‘containment strategy/s and [understood] when to contact 000 for an emergency’ (RFS Fire Permit Guidelines, p. 24 ‘Annexure 3 Fire Permit Officer Checklist’) but that is not the same as ‘liability’. The ultimate responsibility for those things lies on the landholder and the permit officer can only rely on what they are told.

The use of fire permits is intended to authorise the lighting of fires that pose a danger.  The parliament could simply prohibit those fires, but it is recognised that this is impractical, so a process of approval and oversight is provided. The fact that there is provision for fire permits means it is expected that they will be issued and fires lit.  The fire permit officer is not responsible for the final decision to set the fire.

Conclusion

Assuming we’re not talking about deliberate or wilful misconduct or dereliction of duty so that the permit officer has honestly attempt to apply the RFS Guidelines and the legislation then there can be no personal liability that attaches to that permit officer if the fire escapes.

If anyone did want to allege there was negligence in the decision to issue the permit then the relevant defendant would be the Crown in Right of NSW and both the Crown and any individual officer, would rely on s 128.

A person who is worried about potential liability for issuing permits could simply refuse to issue them but that too would be a dereliction of duty because it is expected that permit officers will issue permits when the circumstances permit.  The better option for someone with those concerns would be to refuse to issue take on the role.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

I have previously reported on the case of Dr Spencer – see Doctor suspended over CPR performance (August 23, 2023).  The unfortunate matter continues with the latest instalment being the decision of the Victorian Civil and Administrative Tribunal (VCAT) in Spencer v Medical Board of Australia (Review and Regulation) [2024] VCAT 833.

To recap the history, Dr Spencer’s wife died in January 2015.  She died as a result of taking cocaine and other drugs.  When Dr Spencer found her he was also affected, having himself consumed cocaine.  He commenced CPR and continued for several hours. Upon exhaustion he stopped, looked for a phone and rang 000.  The death was investigated by police who took no action. The matter was referred to a coroner who formed the view that Dr Spencer’s conduct on the night might amount to manslaughter by criminal negligence and the matter was referred back to the DPP. The DPP have again confirmed that no criminal charges will be pursued.

In the meantime, to quote from my earlier post (references omitted):

• Spencer agrees not to practice from January 2015 until approved by the Board. His registration lapses in September 2015.
• He is granted conditional registration in March 2021 and has complied with the conditions of his registration.
• His registration was suspended in July 2023 after the coroner’s referral to the DPP…
• He applies for a review of, and a stay of the immediate action. The stay is refused on 22 August 2023.

The latest decision was the review of the decision to suspend his registration in July 2023.  I think it is worth noting, as an aside, this is simply a review of the decision to suspend his registration pending a final decision by the Board whether to make formal allegations of professional misconduct.  It has taken over a year for that review and in that time, there has still not been formal proceedings on the substantive issue of whether or not Dr Spencer is guilty of any professional error.  That the Board cannot act in that time, and it takes over a year to get a review of a decision terminating a person’s ability to work, reflects the maxim ‘justice delayed is justice denied’.   I note however VCAT’s advice that given there is no longer a need to see if the DPP will take action, they ‘expect that the Board should be in a position to finalise its investigation sooner than might have been the case’ ([179]).

Following the decision not to proceed with criminal prosecutions. VCAT invited the Medical Board to reconsider its decision. The Board confirmed the decision to take immediate action and suspend Dr Spencer’s registration ([31]).  At [33]:

In its decision, the Board referred to the coroner’s finding as a whole, which went beyond the referral to the DPP, and to particular paragraphs of the coroner’s findings,[8] which it said illustrated the seriousness of Dr Spencer’s alleged conduct, its inconsistency with fitness for registration, and the capacity of the alleged conduct to significantly undermine public confidence if immediate action were not taken.  The Board said that this remained the case, despite the fact that there would now be no criminal charges against Dr Spencer.

The Board also relied on further expert evidence as to the benefit that Mrs Spencer might have had if an ambulance had been called and evidence of less than polite communication between Dr Spencer, the police, AHPRA and VCAT.

Given that decision by the Board, VCAT continued with its hearing to (at [40]) determine:

… whether there are sufficient grounds now for a reasonable belief that it is in the public interest that immediate action be taken, and be taken in the form of suspension.  Does public confidence still require it in circumstances where Dr Spencer will not be charged with a criminal offence?

Dr Spencer denies any wrongdoing. He says that he performed CPR for as long as he could and called for help.  Witnesses had reported hearing ‘screams’ from the premises which Dr Spencer said was his call for help. He did attempt ‘to perform a cricothyroidotomy using a kitchen knife and pen’ ([9]).  He says it was only when, exhausted, that he could no longer continue CPR that he stopped to look for his wife’s bag to find a phone and call 000 ([60]).

The issue for VCAT was whether it was in the public interest that Dr Spencer does not practice pending the interminable wait for the Medical Board to refer as yet unspecified allegations to a committee or VCAT.  VCAT said (at [132]-[133], and [136]):

We have carefully considered all that Dr Spencer has said about the morning his wife died, and his explanations for the long delay in calling an ambulance.

We do so to evaluate whether the public, reading those explanations after reading the coroner’s findings, would be sufficiently reassured that he had acted appropriately and consistently with the obligations of a medical practitioner (and a reasonable person) in the circumstances, as he contends…

Ultimately, Dr Spencer’s various explanations did not reassure us, and, we believe, would not reassure fair-minded members of the public about his actions and decisions, and the delay in calling an ambulance…

They continue (at [139] and [143]):

We consider that, apart from any alleged criminal responsibility referred to in the coroner’s findings, Dr Spencer’s actions (and inactions) on the morning his wife died raise serious concerns about his fitness for registration as a medical practitioner…

We think that members of the public reading the coroner’s findings, the uncontentious facts, and Dr Spencer’s explanations would remain concerned that it took him so long to call an ambulance, and by the circumstances of Ms Spencer’s death, and that there would be an impact on public confidence in the medical profession and its system of regulation if immediate action was not taken.

Why is immediate action required given that Dr Spencer was allowed to register as a medical practitioner in March 2021 and where he met the conditions imposed on his registration?  All that changed in that time was the coroner’s findings and the coroner’s view that an offence may have been committed.  VCAT said (at [150]-[151]):

We consider that the coronial findings contained new and significant information about the circumstances of Ms Spencer’s death, and Dr Spencer’s alleged conduct at the time of her death.  The coroner’s findings also include information relevant to the question of whether Dr Spencer had engaged in conduct inconsistent with being fit to hold registration.

They warranted fresh consideration of whether regulatory action was required, and in our view required consideration of urgent action.  The Board did not delay doing so, contrary to a submission of Dr Spencer.  The Board took immediate action just over one month from the publication of the coroner’s findings.

Discussion

It is not the place of this blog to discuss the details of the Health Practitioner Regulation National Law and immediate suspension. What is of both interest and concern for Australian Emergency Law and perhaps practitioners is the effect this case may have on resuscitation decisions. 

It has been said that no-one has been sued for doing first aid but here is a doctor, regardless of what one thinks of his drug usage and untested allegations of domestic violence, being suspended and held to account over his CPR performance.  He claims he provided effective CPR for as long as he could and that when he reported to Ambulance Victoria that he’d been doing CPR for ½ to 1 hours when it was closer to 3 hours was simply a mistake in trying circumstances.

The Board’s case turns on expert medical reports that calling 000 may have given Ms Spencer a better chance but of course no-one can say that the outcome would have been different if he had stopped to call. 

It’s a fine line.  He says he called for help, the call was heard, but not responded to. He says he made a judgement not to terminate CPR to spend time trying to locate a phone. Others say he should have.  Dr Spencer was not of course anyone but a specialist medical practitioner.    But it would be chilling if people, even if only doctors, are going to questioned in fine detail about how they approached and applied the DRSABCD action plan in particular when acting in extreme circumstances such as when resuscitating a family member away for their professional environment.

We will continue to watch to see what, if any allegations about his conduct on the night in January 2015 are finally put before VCAT and see then what the Tribunal has to say about the obligations on health professionals when it comes to CPR performance.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

Back in June I noted that changes to Queensland emergency services legislation had come into force – see New Queensland emergency services legislation takes effect (June 6, 2024). I said then ‘I will try to write my own review of the legislation, but it may take some time’.  I have written on that legislation in The Volunteer, the official journal of the NSW SESVA (one of the sponsors of this blog).  That Journal is available online so rather than write a separate article here, I refer readers to:

• Michael Eburn, ‘Changes to emergency management organisations in Queensland’ The Volunteer Issue 69, September 2024 pp. 30-33 <https://www.nswsesva.org.au/files/The_Volunteer_September_2024.pdf>.

For related posts, see:

• Changes to Queensland emergency services announced (December 9, 2022); and
• New legislation for Queensland SES (December 6, 2023).

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This story on Facebook has been brought to my attention by a couple of people – see Volunteer Fire Fighters Association VFFA ‘iCare fails RFS Volunteer’s Accident Coverage’ (https://www.facebook.com/share/p/boM5LvipBma6Usg2/?mibextid=oFDknk).  The gist of the story is:

… we have discovered that RFS Volunteers are Not covered by iCare should they be involved in an Injury/Accident while attending any formal RFS Meeting.

iCare, the RFS’s Insurers have refused a Volunteers Injury claim even though the Volunteer was formerly requested to attend “a Meeting” which was held within a Fire Control Centre. So, if you attend an organised Meeting called for by the NSW RFS, it now seems YOU are NOT covered by Workers Compensation for any Injury arising from your attendance before, during and after that Meeting; according to iCare.

The author of the post adds:

In delving deeply though into the BFERS Act (Bushfire, Emergency & Rescue Service Act), we find no specific coverage showing for NSW RFS Volunteers at Motor Vehicle Accidents, Flood Recovery, Search & Rescue Events, Call Outs via RFS Active that are NOT bushfire related, Ambulance Assistance Requests, the list could go on. 

I cannot comment on the specifics as I don’t know what the claim was for nor why it was rejected by iCare.  I can comment on the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).  This Act sets up the compensation scheme for amongst others, volunteer fire fighters in NSW.  Relevantly the Act says (s 7(1)) that it applies to:

…  personal injury received by a fire fighter–

(a) arising out of or in the course of fighting a bush fire, or

(b) arising out of or in the course of a relevant journey by the fire fighter in relation to a bush fire.

Bush fire is defined in s 5 to mean ‘a bush or grass fire or a fire in or at any building or a fire of any kind at which a rural fire brigade or fire fighter operates or is in attendance for the purpose of its control or suppression’.

Section 7(2) says they are also covered for:

… personal injury received by an official fire fighter (or a person of a prescribed class) arising out of or in the course of–

(a) the carrying out of an associated operation or work, or

(b) a relevant journey by the official fire fighter (or the person) in relation to an associated operation or work.

‘[A]ssociated operation or work’ is defined in s 8. That section says:

(1) An associated operation or work is–

(a) a bush fire preventive operation,

(b) preparatory work,

(c) work of a prescribed kind (which may, but need not, be related to bush fire fighting, bush fire preventive operations or preparatory work), or

(d) work which, in the opinion of the Self Insurance Corporation having regard to all the circumstances and the advice of the Minister administering the State Emergency Service Act 1989, should be deemed to be work of a kind to which this paragraph applies.

(2) A bush fire preventive operation is–

(a) the burning, ploughing or clearing of firebreaks, or

(b) any other operation including (but without being limited to) the inspection of fire breaks or other works and the survey of areas for the purpose of detecting fires or ascertaining the need for precautions against outbreak of fire,

carried out by a rural fire brigade for the purpose of preventing the outbreak of bush fires or of restricting the spread of bush fires should they occur.

(3) Preparatory work is–

(a) the training or instruction of persons, by means of demonstrations, exercises, competitions or otherwise, in the fighting of bush fires, or in the carrying out of bush fire preventive operations, or

(b) the examination, preparation, maintenance, adjustment or repair of any vehicle, equipment or thing used or intended to be used by a rural fire brigade for the fighting of bush fires or for the carrying out of bush fire preventive operations,

and includes the giving or receiving of such training or instruction or the carrying out of or assisting to carry out such examination, preparation, maintenance, adjustment or repair.

The Workers Compensation (Bush Fire, Emergency and Rescue Services) Regulation 2023 (NSW) r 9 prescribes (for the purposes of s 8(1)(c)) that associated work includes fundraising work.  An associated operation or work is therefore also directed at fire fighting or training for fire fighting.

The Act does appear quite deficient when one considers the role of the modern Rural Fire Service compared to the earlier Bush Fire Brigades.  The Rural Fire Service today is part of the comprehensive emergency services network providing both urban and bush fire services, and assisting at all manner of emergencies and providing accredited rescue units.  Limiting compensation to bush fire fighting and training fails to recognise the reality of the modern RFS.

Volunteer firefighters can be brought under the scheme in that the definition of a ‘associated work’ includes ‘(d) work which, in the opinion of the Self Insurance Corporation having regard to all the circumstances and the advice of the Minister administering the State Emergency Service Act 1989, should be deemed to be work of a kind to which this paragraph applies’ but that leaves it up the Self Insurance Corporation (in effect iCare) to decide whether they think work like attending a meeting or assisting the ambulance service should be covered.  One would hope that the Corporation, on advice of the Minister administering the State Emergency Service Act (not the Rural Fires Act, but it is the same minister) would accept that any work authorised by and forming part of a member’s duties with the RFS ‘should be deemed to be work of a kind to which this paragraph applies’.  I am not however aware of any public statement where the Self Insurance Corporation has made that determination and they may do that on a case-by-case basis.

Fire fighters who are tasked to assist the ambulance service could argue that they are deemed employees of the Health Administration Corporation (in effect NSW Ambulance) whilst they are engaged in ambulance work (ie ‘work in or in connection with the rendering of first aid to, or the transport of, sick or injured person’) ‘under the authority and supervision of or in co-operation with’ the Ambulance Service (Workplace Injury Management and Workers Compensation Act 1998 (NSW) sch 1, item 16).

Fire fighters could also come under the definition of an emergency worker if they are undertaking tasks at the direction of the SES. An emergency worker includes ‘a person who is a member of an organisation affiliated with the State Emergency Service under the approval of the Commissioner of the Service’ (Workers Compensation (Bush Fire, Emergency and Rescue Services) Regulation 2023 (NSW) r 5(b)).  An emergency worker is also someone who ‘in the opinion of the Self Insurance Corporation having regard to all the circumstances, should be deemed to be an emergency service worker for the purposes of this Part’ (s 23 definition of ‘emergency service worker’).  If there was an ‘approval’ from the Commissioner of the SES that the RFS was ‘affiliated’ for the purpose of performing ‘functions carried out under the State Emergency Service Act 1989, section 8’ (ie flood and storm response) or if, in the particular circumstances, the Self Insurance Corporation accepted that the member should be considered an emergency service worker  then RFS volunteers would be covered under Part 3 Emergency and Rescue Workers Compensation rather than Part 2 Bush Fire Fighter Compensation. 

RFS volunteers who are members of an accredited RFS rescue squad could argue that they are, or should be considered a ‘rescue association worker’ if injured at a rescue rather than a fire fighting operation (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 23 definition of ‘rescue association worker’, item (c)).

Apart from being necessarily complex that would have implications as the compensation paid to paramedics, police and fire fighters is different to that paid to others so if, in particular circumstances an RFS volunteer was considered an ‘emergency worker’ or ‘rescue association worker’ they would get different benefits than if they were, in the circumstances, a fire fighter.

This problem could be solved.  The Rural Fire Service is not a separate legal entity, it is a part of government. Employees are employed under the Government Sector Employment Act 2013 (NSW). Their deemed employer of public servants is the Industrial Relations Secretary.  The Workplace Injury Management and Workers Compensation Act 1998 (NSW) sch 1 provides that various people are ‘deemed’ employees including volunteers with Fire and Rescue NSW (not retained firefighters who are clearly employees) and volunteer or honorary ambulance officers.  That Act could have a provision to the effect that members of the RFS and members of the SES are deemed employees of the Industrial Relations Secretary, and they would therefore be entitled to workers compensation whenever they are ‘at work’ that is performing any of the tasks assigned to the RFS or SES in the same way that an employee of those organisations would be entitled to compensation.

The RFS position

The Rural Fire Service in Service Standard 7.1.3 Health and Injury Management says

2.19. Volunteers are entitled to make a claim for workers compensation if they sustain an injury or illness while performing firefighting duties or associated operations or work connected with a Rural Fire Brigade (known as authorised activities), as specified under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987.

2.20. A definition and examples of authorised activities can be found in the fact sheet Volunteer Workers Compensation for Injury or Illness.

The fact sheet is on the RFS intra-net and I cannot access it so I cannot see if it records any agreement with or determination by the Self Insurance Corporation to recognise other RFS duties as ‘work which… should be deemed to be work of a kind to which … paragraph [8.1] applies’.

This case

In this case however the VFFA assumes that the one person who refused the claim speaks for the entire iCare process.   We don’t know what claim was made nor why it was refused. It may be that the person reviewing the claim was wrong.  There may have been other grounds why the claim was refused. One cannot draw a conclusion, from one claim and without access to the reasons that ‘YOU are NOT covered by Workers Compensation for any Injury arising from your attendance before, during and after that Meeting; according to iCare.’

The applicant can challenge the decision to reject a claim in the Personal Injuries Commission and then there would be evidence of iCare’s attitude to, and interpretation of the Act and there would also be a chance for a binding decision on whether the Self Insurance Corporation should accept that performing authorised RFS duties comes within the definition of ‘an associated operation or work’.

Conclusion

It does seem correct that the insurance under this Act is very limited. It is limited to fire fighting operations or training for fire fighting.  Any extended definition relies on the goodwill of the Self Insurance Corporation, which in turn is interested in, and required to protect, its insurance pool.

The Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) is out-of-date. It was written 2 years before the State Emergency Service Act and the State Emergency and Rescue Management Act and 10 years before the Rural Fires Act. One infers it began life as a compensation scheme for members of the NSW Bush Fire Brigades and has had bits, such as provision for emergency and then rescue workers and then extensions for surf lifesaving and Marine Rescue NSW ‘tacked on’ rather than taking an ‘all hazards, all agencies’ approach consistent with the modern response to emergencies. 

The NSW Workers Compensation Scheme is ridiculously and unnecessarily complex – see RFS Operational officer deemed firefighter v2 (September 25, 2023). Amendments to NSW law starting with the Civil Liability Act 2002 and reforms to workers compensation in 2015 have all been intended to make compensation harder to get and less generous.  The fact that there is a two-tier system – one for police, paramedics and firefighters – and one for everyone else has made the system even more complex and means law reforms that have been intended to benefit everyone may skip the ‘exempt’ emergency workers – see Death benefits are the same for employed and volunteer firefighters in NSW (September 30, 2022). The entire workers compensation scheme needs an overhaul to try to make it sensible or at least understandable.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

Today’s correspondent works:

…  in a control centre in Australia where we handle 000 calls and the dispatch of emergency vehicles. Quite frequently I get asked to access and share recordings of conversations had by our staff to assist in internal case reviews and the like.

My question is- are we in fact allowed to do this, under the Telecommunications Act (or other suitable acts)?

The triple zero call taking process is a two-stage process. Triple zero calls are first taking by Telstra operators who pass the call to the relevant emergency response/dispatch service.  Relevant law will the Telecommunications Act 1997 (Cth) (dealing with the Telstra triple zero call takers) and state law dealing with state agencies.

Telecommunications Act 1997 (Cth) s 278

This section says:

Current emergency call persons

(1)  An emergency call person must not disclose or use any information or document that:

(a)  relates to:

(i)  the contents or substance of a communication that has been carried by a carrier or carriage service provider; or

(ii)  the contents or substance of a communication that is being carried by a carrier or carriage service provider; or

(iii)  the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and

(b)  comes to the person’s knowledge, or into the person’s possession, in connection with the operation of an emergency call service….

Offence

(3)  A person who contravenes this section commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.

Some of those terms are defined in s 7 as follows:

“emergency call person” means:

 (a)  a recognised person who operates an emergency call service; or

(b)  an employee of such a person; or

(c)  an emergency call contractor; or

(d)  an employee of an emergency call contractor.

emergency call service” means a service for:

(a)  receiving and handling calls to an emergency service number; and

(b)  transferring such calls to:

(i)  a police force or service; or

(ii)  a fire service; or

(iii)  an ambulance service; or …

(v)  a service for despatching a force or service referred to in subparagraph (i), (ii), (iii), (iv) or (iva).

 

Section 19(1) says:

A reference in this Act to a recognised person who operates an emergency call service is a reference to a person who:

(a)  operates an emergency call service; and

(b)  is specified, in a written determination made by the ACMA for the purposes of this paragraph, as:

(i)  a national operator of emergency call services; or

(ii)  a regional operator of emergency call services.

Telstra Limited is a national operator of emergency call services (Telecommunications (Emergency Call Persons) Determination 2019 (Cth)).   A company, like Telstra, is a legal entity that can enter contracts, own property and sue and be sued.  When an Act refers to a ‘person’ it includes a company (Acts Interpretation Act 1901 (Cth) s 2C).   Telstra limited is therefore a ‘person who operates an emergency call service’ (s 19(1)) and an ‘emergency call person’ (s 7, definition of ‘emergency call person’). 

As the emergency call person Telstra receives the triple zero calls and passes them onto to the relevant jurisdictional emergency services.  

A Telstra call taker is also an emergency call person but they take the call on behalf of Telstra.  Telstra may be a legal person but it can only act through natural persons, relevantly in this context, employees.  An employed call taker has an obligation not to ‘disclose … any information’ that comes to them via a triple zero call other than to give that information to the response agencies (Telecommunications Act 1997 (Cth) s 286) nor is disclosure prohibited if it is part of the employee’s duties (s 279). 

A Telstra employee giving information to another Telstra employee for the purposes of quality assurance purposes is not going to be a breach. First the information is held by Telstra so Telstra is in effect finding out what it already knows. Second, and assuming there are policies in place to ensure people only access the information on a ‘need to know’ basis a manager or internal auditor accessing the data is doing so as part of their duties.  Provided the information remains ‘in house’ there is no improper disclosure.

The emergency services

After the call has been received by Telstra it is passed to the relevant emergency service for action. There call takers receive the call and they will be subject to similar confidentiality obligations (see Secrecy provisions for Victoria’s Emergency Services Telecommunications Authority (June 20, 2017)).   Victoria is unique in having the centralised telecommunications authority. The other jurisdictions have call centres operated by the police, fire and ambulance services without overarching legislation.

National Privacy principles will however apply to these government agencies and there may be specific duties of confidentiality in their governing legislation.  In any event, however, the conclusion is going to be similar to that discussed with respect to Telstra.  If the request to ‘access and share recordings of conversations’ is ‘in house’ ie the agency that operates the call centre wants to access them for its own quality assurance purposes, then there is no breach as the agency is accessing its own data.  It is like you telling yourself what you already know.

Conclusion

As I say often, context is everything and I don’t have the full context. I don’t know whether my correspondent works for Victoria’s ESTA or a call centre operated by a state based police, fire or ambulance services.  My answer is going to be similar in any event.  The call centre is the ‘person’ receiving the call and it can use the data for its own legitimate purposes which must include quality assurance reviews. It should ensure that only those with a need to know access the information and that they are aware of their ongoing duty to keep any information confidential.

In most cases relevant legislation will be the state privacy laws that apply the national privacy principles. Those principles allow for private information to be used in many circumstances including where a reasonable person might expect that it would be used which, I would suggest, includes internal reviews and quality assurance.

In conclusion, and speaking generally because of a lack of specific context, I would anticipate that there is no issue with agencies ‘recordings of conversations’ with their call centres, or Victoria’s ESTA, for case reviews and quality assurance. Such access should be governed by policy, limited to those with a ‘need to know’ and ensure that all those taking part are aware of the duty to keep the information confidential.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

Evidence of a person’s answer to a question asked by police cannot be used against them if (Evidence Act 1995 (NSW) s 139(1)(c)):

… before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

The question

One hopes that paramedics are not asked questions because they are suspected of committing a criminal offence but s 139 is still relevant to today’s question which comes from a NSW paramedic. They ask:

At times, we are asked to provide police statements. It is my understanding that if someone is asked to provide a police statement, it is within their rights to refuse. Are there any laws that would prevent Ambulance paramedics from refusing to provide a statement if the statement is in relation to an incident which occurred/was witnessed while on duty?

As the Evidence Act 1995 (NSW) s 139 (above) makes clear, a person does not, generally, have to do or say anything to contribute to a police investigation. (Having said that, readers should be aware that there are exceptions to this rule so a driver has to identify themselves, people can be compelled to give DNA samples and there are some circumstances where a person can be compelled to answer questions but police are required to warn people when they are required to comply and those exceptions are not relevant in the context of this question).

There are at least two cases when a paramedic should be hesitant to answer police questions or provide a statement. They are (1) where the paramedic’s statement would incriminate themselves (ie would give evidence that they themselves had committed an offence) and (2) where the statement would infringe the patient’s expectation of confidentiality and privacy.

Privacy principles

The privacy principles, put into NSW law by the Privacy and Personal Information Protection Act 1998 (NSW) and the Health Records and Information Privacy Act 2002 (NSW) impose obligations upon health practitioners to protect and keep confidential personal information provided by a patient.  Information can be released where that is required by law (Health Records and Information Privacy Act 2002 (NSW) s 23; Privacy and Personal Information Protection Act 1998 (NSW) s 25) or where the information is released to law enforcement agencies (such as police) and the disclosure:

… is reasonably necessary for the exercise of law enforcement functions by law enforcement agencies in circumstances where there are reasonable grounds to believe that an offence may have been, or may be, committed… (Health Records and Information Privacy Act 2002 (NSW) sch 1, Health Privacy Principles, item 10(1)(i) and 11(1)(j)).

(It’s also lawful to release private information where it is required to deal with an emergency or to prevent ‘a serious and imminent threat to the life, health or safety of the individual or another person’ (Health Records and Information Privacy Act 2002 (NSW) sch 1, Health Privacy Principles, item 10(1)(b1) and (c) and 11(1)(b1) and (c)). Where those provisions apply, in the context of a paramedic, one would expect police to ask a question and confirm that they need to know the answer now, rather than asking the paramedic to write a statement).

Another reason why a paramedic may not want to give a statement is the common one of not wanting to become involved as a witness.  A paramedic may well form the view that they are there to provide health care, not be a witness for the prosecution.

A paramedic may then have many reasons why they do not want to provide a statement to police, and the general rule is that they are under no compulsion to do so. 

Some other things to think about

When deciding whether to give a statement, or not, paramedics should consider who would benefit from the statement. If they are asked to give a statement that will assist their patient eg a statement that will provide evidence that supports the patient’s claim that they were a victim of crime, then the paramedic should consider their ethical obligation to act in their patient’s best interests.

Equally if the statement from a paramedic will be evidence against their patient consideration needs to be given of balancing the patient’s expectation of privacy and the greater public interest and that, in turn, would require consideration of the offence. A statement from a paramedic that the patient admitted that they self-administered a prohibited drug’ (contrary to the Drug Misuse and Trafficking Act 1985 (NSW) s 12) would be quite different to an admission that the patient had committed a sexual offence against a child or revealed where a missing person may be located.  A paramedic may well refuse to give a statement in the first example given the patient may have made that admission so the paramedic could provide relevant health care and where there is a very limited public interest in the prosecution. In the second and third example, above, the information is not part of the patient’s medical history and there is a much greater public interest in bringing the patient to account.

Finally, a paramedic’s patient care record is available to police using either a subpoena or a search warrant so a prudent paramedic may well take the view that they should not disclose what has been told to them in confidence and leave it to police to determine if they have the grounds to obtain a subpoena or warrant. If the police do have a subpoena or warrant then the agency, and the paramedic, cannot be criticised for handing over the records. 

Conclusion

This was a long question to the answer. The short answer is that there are no ‘laws that would prevent Ambulance paramedics from refusing to provide a statement if the statement is in relation to an incident which occurred/was witnessed while on duty’. 

The longer answer is that a paramedic, when asked to give a statement, should consider both the ethical as well as the legal rules that apply.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

Today’s correspondent ‘… ask[s] about avenues for advocating for law reform’. They:

… have difficulty reconciling EEA criteria in the Public Health Act with the Mental Health Act’s focus on the importance of using the least restrictive means when treating mental health patients.

Anecdotally it is very apparent that EEAs are often used for low-risk patients for the purposes of protecting paramedics in case of patients’ future actions rather than the actual ‘immediate’ risk as defined in the Act. It was certainly acknowledged during my … induction that there is a need for law reform but day to day interpretation and implementation seems to vary significantly.

Given the Public Health Act is 11 years older than the Mental Health Act, I do wonder whether there is merit in review of the Public Health Act.

As individuals are there any actions that can be taken to advocate for law reform? I’ve been considering things like a phone call go the Mental Health Commissioner but I’m not sure who best to speak to.

Your readers may be interested in this research done in 2023 which found that of the sample studied only 22% of people brought in under EEAs were actually admitted to hospitals.

https://onlinelibrary.wiley.com/doi/full/10.1111/1742-6723.14201

Law reform is not easy.  For a government to change legislation they need to persuade the majority of the parliament that there is a problem and that their policy response will fix it.  Queensland, the ACT and the NT have parliaments with only one house, so the government only needs a majority there; but in every other jurisdiction they need to persuade a majority in both houses to pass their legislation.  And there are infinite demands on government with many interest groups identifying issues that, in their mind, are or should be the immediate concern of government.

What follows is that it is the ‘squeaky wheel that gets the oil’.   If you want to persuade the government that there is a need for law reform you need to persuade them there is a problem.  You need to start with your local MP, or a relevant champion or Minister, who has to be persuaded, and who then has to persuade their parliamentary colleagues, and then persuade a majority of MPs that the proposed reform is good policy. And if no-one is complaining then there is not much of a problem that needs their attention.

In my discussion of the Mental Health Act 2007 (NSW) s 20 I have argued that it does not, in my view, allow ambulance officers to treat and detain a competent patient who has refused consent.  I confess to being a lone voice on that interpretation, and no-one is going to change the Act because ‘Michael Eburn says so’.   In my post ‘Accepting that involuntary treatment is an option under s 20 of the Mental Health Act 2007 (NSW)’ (November 25, 2020) I reported that I had asked practitioners with expertise in mental health law of their interpretation of s 20 and their consensus was ‘a court would probably interpret the section as allowing ambulance officers to detain and treat, without consent, patients who are mentally ill or mentally disordered.’

A court may be tempted by the facts. If there was an egregious abuse of s 20 they may be tempted to rule against its use but if a case came up where it was thought everything was done in the reasonable and best interests of the patient then a court may be willing to find that s 20 did authorise that action.

More importantly, where a person is detained under s 20 they may not complain. They may, after treatment be grateful for the actions of ambulance officers, or their detentions may be made lawful by decisions of health care practitioners or the Mental Health Review Tribunal so that even if the initial detention was strictly unlawful it was overtaken by events.  In effect even if the law is ambiguous (or even wrongly applied) but practitioners (in this case paramedic, medical and legal practitioners) have come up with a ‘work around’ that no-one is complaining about, there is really no problem to fix and the matter never gets before a court. And people who are detained under mental health legislation (or in Queensland, public health legislation) but who are subsequently not further detained probably have limited resources to complain and would also find them facing the argument that if the initial detention decision was reasonable the subsequent decision not to continue detention is evidence that the system works, not that it needs reform.

Conclusion

To advocate for a law reform an individual needs to collect evidence to show that there is a problem that is causing widespread harm, confusion or cost (and ideally cost to government) and that law reform is the appropriate policy response.  Often that would be beyond the capacity of an individual but, in the case of mental health law reform, would need ‘buy in’ from interested advocacy and support groups.  The Mental Health Commissioner is no doubt aware of the issues (if any) and would have direct access to government if they thought reform was required.  Raising the issue with them may cause them to inquire to see if there is a problem or they may, through an application under the Right to Information Act 2009 (Qld) be a source of data to support the argument that there is a problem.   But like the MPs they will have more pressing day-to-day concerns than dealing with an issue of law reform if the application of the law is not causing them headaches.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

Today’s question is a question is a general industrial law issue and would be better directed to an industrial organisation but I’ll have a go. The question is:

Traditionally, private paramedics working at events or in sectors such as mining (particularly where they are the solo clinician) don’t get allocated meal break time. The principle has always been that, because we have down time where we don’t have patients, we can take our breaks whenever that occurs. However, we are always available for response and to treat the next case. It’s not like we close the clinic between 1230 – 1300hrs. How does the law reflect this? I think overall we are on a good deal whereby we get more freedom to, perhaps, do things like play on our phones and eat and drink for longer than the 30 minutes per shift. If we had set meal times I can imagine the expectation would be that we must work nonstop for the remainder of our shift. The issue comes on the days where you don’t have time for a break or don’t get a consistent 30 minutes at a reasonable time (not within the first or last hour of the day). Some people find it difficult to switch off. The fact that we can’t sit down knowing we will be undisturbed for 30 continuous minutes can feel like we are still working. There has been research about how the anxiety of not knowing when your next case will come can cause burnout and not having a defined period where we know that we won’t be interrupted can exacerbate that. I’m sure some would argue that unless we are guaranteed not to be given a case or patient to manage for a set time period within the shift then we are actually working without a break.

What does the law say about breaks and does it give any definition or guidance as to what is a break? Is it any period of time that you (for this example) are not treating a patient or doing related tasks, or does it have to be a period where you are guaranteed not to be interrupted?

This is of course not just an issue for private paramedics – see:

• ‘Exclusive: Overworked NSW paramedics skipping rest breaks to save lives’ 9 News (online, 4 April 2019)
• ‘‘Inhumane’: Gold Coast paramedics skipping meal and toilet breaks while working overtime’ Skynews.com.au (12 September 2023)
• Damon Cronshaw, ‘‘Too busy to switch off’: Paramedics don’t have time for meal breaks’ Newcastle Herald (online, 12 August 2024).

As my correspondent says they cannot close the clinic as they don’t know when their services will be required. If you cannot guarantee that you won’t be needed, the employer cannot guarantee a meal break.

The Ambulance and Patient Transport Industry Award 2020 says:

15.1               Unpaid meal breaks

An employee is entitled to an unpaid meal break of not less than 30 minutes during each shift. The meal break will not count as time worked.

15.2               Paid crib time

(a)          By mutual agreement between the employer and the employee, an employee will be allowed a period of 20 minutes crib time during each shift for the purpose of taking a meal, instead of a meal break under clause 15.1.

(b)          Operational employees will be allowed a period of 20 minutes crib time during each shift for the purpose of taking a meal, instead of a meal break under clause 15.1.

(c)           The crib period will be counted as time worked and taken at a time and place directed by the employer.

15.3               Paid rest breaks

Where practical, employees are entitled to two 10 minute rest breaks each day, counted as time worked, as follows:

(a)          the first, between starting work and the usual meal break; and

(b)          the second between the usual meal break and finishing work.

Meal allowances are to be paid as follows:

18.3       Expense-related allowances

(a)          Meal allowances

(i)            A meal allowance of $19.57 per shift is payable to an employee to compensate for the cost of purchasing a meal away from the employee’s branch or usual place of work except where a meal has been arranged by the employer.

(ii)           A meal allowance of $5.17 is payable to an employee who is required to work for more than 5 consecutive hours without receiving a meal break.

(iii)          A spoilt meal allowance of $19.57 is payable to an employee called back to duty before having consumed a meal during a meal break. The employee may be required to present satisfactory evidence of spoilage to the employer.

The Fair Work Ombudsman says (at https://www.fairwork.gov.au/employment-conditions/hours-of-work-breaks-and-rosters/breaks#meal-breaks):

Meal breaks

A meal break is a longer period of uninterrupted rest that allows the employee to eat a meal.

Awards, enterprise agreements and other registered agreements set the rules for paid and unpaid meal breaks, including:

• the length of the breaks
• when they need to be taken
• the rules about payment.

Crib breaks

A crib break is a paid meal break. Some awards and agreements include crib breaks for times when an employee:

• might need to resume work during their meal break
• needs to stay at work – that is, they can’t leave their work area or the workplace.

The award may be varied by an enterprise agreement governing a particular workplace so the first place my correspondent or any employee has to look is the terms of their employment as set out in their contractual documents and any relevant enterprise agreement or award. 

Assuming the award does cover one’s employment then we can see that the Ambulance and Patient Transport Industry Award 2020 provides for both meal and crib breaks.  Operational staff get a crib break rather than a meal break (cl 15.2(b)).  That crib break is paid, rather than an unpaid meal break but anticipates that the paramedic may be called back to duty and may be entitled to an allowance (cl 18.3(iii)) if that happens.

Conclusion

Based on that award we can give a brief answer to the questions asked;

What does the law say about breaks and does it give any definition or guidance as to what is a break?

Yes, the Ambulance and Patient Transport Industry Award 2020 refers to both meal and crib breaks and these are defined by the Fair Work Ombudsman.  A crib break is paid downtime but with the realisation that the employee may be called back to duty. It is not a guarantee that the worker will not be interrupted.

Is it any period of time that you (for this example) are not treating a patient or doing related tasks, or does it have to be a period where you are guaranteed not to be interrupted?

A crib break is a paid meal break.  I would expect in the best of all possible worlds there would be a system where the employer or the employee would say ‘you are/I am now on your/my crib break’. At that point there should be an arrangement to allow the staff member to have their 20 minutes uninterrupted to enjoy their meal subject to recall for urgent duty.  It would be important for employers to have some system to designate that an employee is now on their break to avoid an obligation to pay a late meal allowance.  Fundamentally, however, how crib or meal breaks are managed is a matter for negotiation between the employer and its employees and is subject to the terms of any relevant award and/or enterprise agreement.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

Today’s question relates to ambulance officer as Mental Health Officers under the Mental Health Act 2013 (Tas). My correspondent says that there ‘has been recent discussion between colleagues … regarding the appointment of paramedics as Mental Health Officers under the Mental Health Act 2013 (Tasmania)’.  I have been provided a number of posts, but I won’t quote them as they were from a private group. My summary is that the following issues are raised:

1. Are there any requirements as a registered professional to be a mental health officer?
2. Can ambulance officers who are not MHOs treat mentally ill patients who consent to treatment ie voluntary patients?
3. Can patients consent to sedation and/or mechanical restraint, even if the paramedic isn’t a MHO?
4. Can a non-MHO paramedic use force to sedate and restrain a person involuntarily at the direction of another MHO?

I am also directed to the Ambulance Tasmania CPG which ‘suggest that a mental health patient has to be DFA prior to being sedated or restrained’ (see https://cpg.ambulance.tas.gov.au/tabs/guidelines/adult-patient-guidelines/medical/page/acute-behavioural-disturbance).

The Mental Health Act 2013 (Tas)

The Mental Health Act 2013 (Tas) provides that the Chief Psychiatrist can appoint people, including ambulance officers, as Mental Health Officers (s 139(3(c)).   Mental Health Officers are authorised to exercise various powers, for example a Mental Health Officer (s 17):

… may temporarily detain a person for the purpose of assessing the person if the MHO … reasonably believes that –

(a) the person has a mental illness; and

(b) the person should be assessed against the assessment criteria; and

(c) the person’s safety or the safety of other persons is likely to be at risk if the person is not so detained.

The Mental health Officer may take a person they have detained to an assessment centre and ask the Mental Health Officers there to continue the person’s detention pending their assessment (s 18).   Where a person has the power to temporarily detain a person may exercise the powers set out in Schedule 2, these include the power to use reasonable force, enter premises to locate the patient and may search the patient.

An ambulance officer who is also a Mental Health Officer, when (s 212(1)):

… transporting any patient by ambulance under this Act, may sedate the patient if the approved ambulance officer … reasonably considers it necessary or prudent to do so, having regard to, and in accordance with, any field protocols approved under the Poisons Act 1971 by the Commissioner, within the meaning of the Ambulance Service Act 1982.

If sedation is used, that must be reported to the Chief Psychiatrist (s 212(3)).

Unlawful treatment must not be given. Treatment is unlawful unless there is informed consent, or the treatment is authorised by the Mental Health Act or ‘any other law’ (s 213).

The questions

1. Are there any requirements as a registered professional to be a mental health officer?

Being a mental health officer under the Mental Health Act 2013 (Tas) is quite separate from registration as a paramedic.  The Chief Psychiatrist can appoint any person as an MHO. They don’t have to be a paramedic, or a nurse, or a medical practitioner or any other registered professional. The only qualification is that the person ‘must have skills, qualifications or experience relevant to the responsibilities of MHOs under the relevant statutory provisions’.  It is up to the Chief Psychiatrist to determine what those skills, qualification or experience are but it is not limited to registered health professionals.

The Chief Psychiatrist can, with the consent of the Commissioner of Ambulance Services appointed individual ambulance officers, or a class of ambulance officers as MHOs.    It could be the case that all officers employed at a certain level are automatically MHOs. It could be that if there are ambulance officers who are not paramedics (eg volunteer ambulance officers) they too could be appointed as MHOs.

It follows that this appointment is quite unrelated to a paramedic’s registration. If all employed paramedics are MHOs then they are an MHO.  If paramedics are only appointed if they apply and put in an expression of interest, then they may do so but there is no professional obligation upon them – simply because they are paramedics – to do so. 

If they are appointed as an MHO because they are a paramedic then that will form part of their paramedic practice and to that extent their practice will be bound by the professional standards of paramedicine and subject to review under the Health Practitioner Regulation National Law. A decision not to seek appointment, or to do any further training necessary for appointment, however, raises no more professional issues than a paramedic who elects not to become an ICP, or ECP or an areo-medical rescue paramedic.  If you don’t want to practice in a particular field, the Paramedicine Board is not going to require you to do so.

2. Can ambulance officers who are not MHOs treat mentally ill patients who consent to treatment ie voluntary patients?

Yes. One of the objects of the Tasmania mental health legislation is ‘to promote voluntary over involuntary assessment and treatment and the making of free and informed assessment and treatment choices’ (Mental Health Act 2013 (Tas) s 12(e)).  Schedule 1 sets out the mental health service delivery principles. They include an obligation (s 15):

(a) to respect, observe and promote the inherent rights, liberty, dignity, autonomy and self-respect of persons with mental illness;…

(j)    to promote the ability of persons with mental illness to make their own decisions including decisions about the person’s assessment, treatment and recovery that involve a degree of risk; [and]

(k) to involve persons receiving services, and where appropriate their families, carers, children and support persons, in decision-making; …

Where a patient is competent to give informed consent (ss 7 and 8) then their consent makes any treatment lawful (s 213).  (That is, of course, subject to the requirement that the treatment is indicated for their condition and is within the practitioner’s scope of practice).

The Mental Health Act 2013 is concerned with involuntary detention for assessment and treatment of involuntary and forensic patients.  One only needs to be an MHO for the purposes of exercising powers where the patient cannot give or refuses consent for mental health treatment.   Section 17 allows an MHO to ‘temporarily detain a person for the purpose of assessing the person …’ but s 20 says that MHO

… must release the person from being so detained if –

(a) before, or during, the authorised detaining period –

(i) informed consent is given to assess or treat the person;

That is, it is not possible to ‘detain’ a person who voluntarily consents to care, treatment and transport.  If the person is not being detained there is need for an MHO and an ambulance officer, taxi driver, or good Samaritan can provide care to a person that the person consents to and that could include taking them to a mental health facility for assessment.

3. Can patients consent to sedation and/or mechanical restraint, even if the paramedic isn’t a MHO?

Yes, see the answer to q. 2 above. Imagine a patient who is anxious and distressed and is looking to paramedics for assistance. They may well be aware that they are having symptoms and are concerned for their own welfare. If a paramedic offers sedation that is indicated by the patient’s condition and that the paramedic is authorised to give, then of course the patient can consent to that care.

At this point I can detour to the CPG which says ‘The mental health patient has to be detained for the purposes of assessment prior to administration of sedation or restraint’.  As a direction to paramedics, it says that a mental health patient can only be sedated if they are detained under s 17.  But if they consent to the treatment, they cannot be detained.  The CPG in effect says paramedics cannot treat a person who wants their assistance and where sedation may be beneficial for them even though if they refused consent, they could be.  That is inconsistent with the principles of the Mental Health Act and, I would say, not required by the terms of the Act. A mentally ill person who remains competent can consent to care just as anyone can; and being mentally ill does not mean a person is not competent to consent to treatment – see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018).

4. Can a non-MHO paramedic use force to sedate and restrain a person involuntarily at the direction of another MHO?

Only an MHO or a policy officer may temporarily detain a person for assessment (s 17). The MHO who detains a person ‘must escort the person to an approved assessment centre (or ensure that another MHO or police officer does so)…’ (s 18(1)).   Whilst transporting a person the ‘custody and escort provisions’ set out in Schedule 2, apply (s 17(2)).  Importantly the MHO ‘may enlist the assistance of any person’ (Sch 2, cl 1(a)).  The MHO and their assistant may use reasonable force (cl 1(b)). The MHO may search the person using either a ‘frisk’ search or an ‘ordinary’ search depending on the circumstances (cl 2).

The Schedule says that the MHO does not have ‘to be in close physical proximity to the patient during any assessment’ (cl 1(h)). The assessment is ‘the clinical process involved in diagnosing the condition of a person’s mental health and, where necessary, identifying the most appropriate treatment’ (s 5).  What cl 1(h) means is that once the MHO has delivered the patient to the assessment centre, they do not need to be there whilst the assessment takes place.  For example, an ambulance officer may take the patient to an assessment centre (s 17) and hand over to an MHO at that centre (s 18). That MHO must then continue the patient’s detention (s 18(2)). The ‘controlling authority of the approved assessment centre must – …  have the person examined by a medical practitioner to see if the person needs to be assessed against the assessment criteria or the treatment criteria’.  Neither the ambulance officer, nor the MHO at the facility, need to be in close proximity to the patient whilst the medical practitioner is completing the assessment.  Cl 1(h) does not mean that an MHO can remotely authorise an non-MHO to sedate or restrain the patient in the absence of the MHO.

The clear implication of Schedule 2 is that it is the MHO who is detaining and escorting the patient even if he or she is being assisted. If he or she is there present at the scene and determines that sedation is required (s 212) then he or she can be assisted by a colleague, so for example the MHO might ask their non-MHO paramedic to inject the drug but it is still the MHO exercising the power of sedation.  But in so doing they would have to be present as part of the treating team. It would not be open for an MHO at a remote location to authorise a paramedic who is not an MHO to administer sedation.

Restraint can only be applied at an approved assessment centre (s 57). However, I infer that what is being asked here is not so much restraint in order to allow treatment but the use of ‘reasonable force’ ‘against the patient if he or she resists being temporarily detained or taken under escort’ (Sch 2, cl 1(b)).  The Schedule anticipates that the MHO can get assistance from anyone and that must include an non-MHO paramedic but again only as part of the treating team with the MHO.

It follows that an MHO can use force and sedation to take a person into detention and to transport them safely for assessment. They can be assisted by any person including a non-MHO paramedic.  The MHO can then ask the non-MHO paramedic to assist with sedating or restraining the patient, but they cannot do it remotely. The MHO must be there exercising their control and personally escorting the patient to an approved assessment facility.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

Today’s question comes from a volunteer at St John Ambulance (WA) who tells me their sub-centre

… recently received in the post from the WA Transport Office “return plates” notices as St John Ambulance failed to pay registration fees for all these ambulances.

So in effect we were driving unregistered vehicles.

I find this a catastrophic situation as had any ambulances been in a traffic incident the ramifications would put the ambulance driver in a  very bad predicament.

My question is, 

Where do we stand as volunteers not knowing if registration is paid and where do we stand if an accident did happen?

My understanding is it is the driver who must do the operable vehicle checks and would be liable.

The Road Traffic (Vehicles) Act 2012 (WA) refers to a vehicle being licensed rather than registered but the effect is the same.  Section 4 says:

(1) A vehicle licence is required for a vehicle of a prescribed class.

(2) A responsible person for a vehicle and each person who uses the vehicle on a road commits an offence if, at the time the vehicle is used on the road —

(a) a vehicle licence is required for the vehicle; and

(b) a licence has not been granted in respect of the vehicle or a licence has been granted in respect of the vehicle but is not current.

Penalty: a fine of 10 PU, and in addition, the court is to order the accused to pay a further penalty equal to the charges payable under this Act for the grant of a vehicle licence for the vehicle concerned for a period of 6 months.

(3) A person does not commit an offence under subsection (2) arising out of the use of a vehicle within a period after the expiry of the licence that is —

(a) prescribed by regulations made under section 6(2)(b) as a period within which the licence may be renewed; and

(b) prescribed for the purposes of this subsection.

(4) …

The Department of Transport says that a penalty unit (PU) is $50 so the maximum fine is $500 plus the equivalent of 6 months registration.

The Road Traffic (Administration) Act 2008 (WA) s 6(2) says

For the purposes of a road law a person responsible for a vehicle is —

(a) if the vehicle is licensed — any licence holder who has not given a notice as described in paragraph (b); or

(b) …[deals with notice of transfer] …

(c)         if the vehicle is not licensed but was previously licensed and subsection (3) does not apply — a person responsible under paragraph (a) or (b) before the vehicle last ceased to be licensed; or

(d)         in any other case —

 (i) the person who is entitled to the immediate possession of the vehicle; or

(ii) if there are several persons entitled to its immediate possession, the person whose entitlement is paramount.

In effect the ‘person responsible’ will be St John Ambulance (WA) as the they were the vehicle licensee before the licence lapsed and in any case they have the paramount right to possession that is they have a better right to possession than say a member of the organisation.

The period prescribed for the purposes of The Road Traffic (Vehicles) Act 2012 (WA) s 4(3) is 15 days (Road Traffic (Vehicles) Regulations 2014 (WA) r 16). Interesting the department of Transport says you don’t need to return the licence plates until the licence is more than three months out of date (see https://www.transport.wa.gov.au/licensing/renew-replace-my-vehicle-licence.asp) so if St John were getting directions to return the licence plates that is indeed a significant oversight.

Vehicles must also be covered by a compulsory third-party insurance policy (Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 4).  If there is no valid policy in force, both the owner and the driver could be liable for any personal injuries damages paid to a person injured by the use of that motor vehicle (s 8). 

Discussion

If St John Ambulance (WA) failed to renew the licence on its vehicle, and the CEO has cancelled the licence (Road Traffic (Vehicles) Act 2012 (WA) s 9) then there is a 15 days grace period. After that time both St John and anyone driving the vehicle commits an offence by driving the vehicle on a road.   If the vehicle is involved in a collision and someone is injured, both St John and the driver could be liable to pay the value of any compensation paid to the injured person. 

Driving an unlicenced/uninsured vehicle is a very serious matter. One can imagine most agencies (such as the police and the Insurance Commission of Western Australia) would be most interested in pursuing St John rather than an individual, the theoretical possibility of personal liability remains.

There is a defence of mistake of fact (Criminal Code (WA) s 24).  That says ‘A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.’

One could argue that given a volunteer is turning up for duty with St John Ambulance and is rostered to an ambulance that is displaying WA licence plates might give rise to a honest and reasonable belief that the ambulance is licensed.  On the other hand, simply assuming that a vehicle is registered is not an ‘honest and reasonable, but mistaken, belief’ in the necessary facts particularly if for example the registration papers are kept in the ambulance and can be viewed.  In an earlier (and not so long-ago life) I was driving for Transport Canberra and I recall our instructors suggesting we check the registration of each bus before heading out, which was easy to do using an Access Canberra portal.  A similar service is available via the Western Australia Department of Transport (https://online.transport.wa.gov.au/webExternal/registration/?1). It would, if it came to it, be up to a court to decide whether simply taking out an ambulance, without doing any simple check, was sufficient to give rise to the necessary ‘honest and reasonable’ belief necessary to trigger s 24.

There is also a distinction between absolute and strict liability offences. An absolute liability offence does not allow the defence of mistake. The Criminal Code s 24 says (emphasis added)  ‘The operation of this rule [of mistake] may be excluded by the express or implied provisions of the law relating to the subject.’  In most jurisdictions an offence like driving an unregistered vehicle would be an absolute liability offence.  I have not determined whether there is any WA case law on the subject, but if it is, by implication, an absolute liability offence then the defence of mistake is not available.

Conclusion

Driving an unlicenced/uninsured vehicle is a very serious matter.  Prima facie the driver, as well as the owner, commit an offence when the vehicle is driven on the road and both may be liable if anyone is injured in the use of that motor vehicle.

In the context of a WA volunteer they may be able to rely on the defence of mistake in the Criminal Code but it would be arguable that simply assuming that the vehicle is registered is not sufficient to give rise to the necessary honest and reasonable belief (rather than assumption) and further it may be implied that the defence is not available.

The safer course is to check the registration renewal date and perhaps record that in each sub-centre. That can be done without access to the registration papers if they are held centrally, as the information is freely available via the DoT website.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

Today’s correspondent draws my attention to an ad by a event health service provider asking for health professionals to volunteers as part of their health service team at a significant sporting event.   The ad says:

Not only will you learn about race medicine, gaining valuable hands-on experience in this emerging field, you will also fulfil annual CPD requirements.

My correspondent says this:

… suggests it is a training opportunity but also the business advertises themselves as providing critical care services to patrons at the event.

Does a volunteer shift meet AHPRA CPD requirements for nursing, medicine or paramedicine? Obviously multiple health services (registered charities and for profits) rely on unpaid volunteers to conduct their services.

In my interpretation these health services are a businesses using volunteers instead of employees to provide a paid service, and therefore the employees would be expected to deploy their existing knowledge, rather than obtain training or experience on the day.

Where for-profit health services are using health professional volunteers to provide their paid services, are they creating an employment relationship and therefore their staff should be remunerated under the Fair Work Act?

Employment

I can deal with the last question first, and that is no asking people to volunteer even health professionals and even where the organisation is making a profit, does not create an employment relation.  Organisations, including for profit organisations, can use volunteers. Employment depends on the terms of the agreement and volunteers clearly are not employees (see Are Tasmanian retained firefighter employees? (July 25, 2024) and FRNSW bandmembers cannot seek remedy for unfair dismissal (May 20, 2024)).

CPD

I’ll focus on paramedics. The Paramedicine Board’s CPD standard does not define what constitutes CPD leaving it to professionals to determine whether their CPD needs are and what might help them to gain new relevant knowledge, fill identified gaps in their knowledge or otherwise inform their practice.

The publication CPD activities that meet the standard help professionals decide what will be accepted as CPD.   CPD may include

• ‘Practice observation’, that is:

You spend time observing a professional colleague (may be from a different profession) and record your reflection on how you built on your knowledge and improved your patient outcomes. If you spend time discussing your observations with a colleague, then this would meet the interactive requirement.

• ‘Work-based learning’, that is:

‘You attend a professional development workshop (content that meets the objectives set out in the CPD registration standard) that your employer has organised and record how what you learnt built on your knowledge and/or competence.’

Acting as an event helath service volunteer would not meet that definition of work-based learning. It might meet the definition of ‘practice observation’ if they identified in their CPD plan what it was they wanted to learn, they were ‘shadowing’ another professional to watch them work and perhaps assist and provide care under supervision, and kept a record of the work, debriefed with their mentor after the event and reflected on what they had learned.

What does not count as CPD is ‘Voluntary work’ that is

You are volunteering because you see it as a good thing to do but it’s not clear what you learnt or how it has contributed to your professional learning and development.

If a professional is volunteering to join the medical team without formal learning goals and a plan to meet those goals then he or she is expected to have the competence to perform that task.  Good care requires a practitioner to ‘ensure that, when moving into a new area of practice, you have sufficient training and/or qualifications to achieve competency in that new area’ (Paramedicine Board, Shared Code of Conduct, [1.2(b)]).  Just joining the team in the belief that at the end of the experience you will have gained the training and experience is not good care nor is it CPD. CPD requires the practitioner ot plan their training needs to meet their goals and then there needs to be training, not just ‘having a go’.  If a person wanted to count joining this medical team as CPD they would have to identify what it was they wanted to learn, discuss with the organisers how they might receive that training eg through pre-event seminars and working with a nominated mentor.  Simply showing up, having a go and saying ‘wow that was a great experience, I learned so much’ is not the equivalent of reflective CPD.

Conclusion

I very much doubt that volunteering as part of a medical team to get ‘hands on experience’ without more, in particular detailed analysis of what the professional wants to learn, how the organisers will facilitate that learning along with reflective action after the event to consolidate their learning, would or could count as CPD for any registered health professional in Australia.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

In Health Care Complaints Commission v Davies [2024] NSWCATOD 109 (26 July 2024) another NSW Paramedic’s registration was cancelled for sexually inappropriate conduct.   The gist of the allegation is that the defendant was on extended duty with St John Ambulance when he inappropriately touched and suggested sexual activity with a junior (17 year old) colleague. This was followed up with further unwelcome physical contact and sending y sending sexually explicit videos and photos in October and November 2020.

After these events the following occurred:

• On 4 December 2020, after an investigation. St John Ambulance suspended Mr Davis and then on 16 December terminated his employment ([9]).
• In March 2021 conditions were imposed on Mr Davies registration, first to the effect that he was not to practice as a paramedic, but they were then amended so that he was not practice in a clinical role ([2]).
• In November 2021 Mr Davies was convicted in the Local Court (ie by a Magistrate) of the offence of ‘sexually touch another person without consent’ contrary to the Crimes Act 1900 (NSW), s 61KC(a). in June 2022 the District Court upheld an appeal from the Magistrate’s decision and the conviction was set aside ([3]). The reasons for the decisions in both of these courts have not been published (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)) so we cannot know the basis either for his conviction or the subsequent decision to reverse that conviction.
• Mr Davies failed to notify the Paramedicine Board, when seeking to renew his registration that he had been suspended by St John Ambulance. He also failed to notify the Board, within 7 days, that he had been charged with the criminal offence related to his conduct ([9]).

The Health Care Complaints Commission alleged that Mr Davies behaviour to the victim, as well as his failure to notify the Board of his suspension and being charged, constituted professional misconduct ([10]) and they sought orders cancelling his registration ([47]).

As I say we cannot know why the District Court upheld the appeal from the Magistrate’s court. Before the NSW Civil and Administrative Tribunal (NCAT) Mr Davies admitted all the allegations and conceded his conduct did amount to professional misconduct. The only issue for NCAT was the penalty to be applied.

Mr Davies attempted to downplay his conduct arguing it occurred over a reliatiely short period of time and was at the low end of the offending scale. ‘While a departure from the standard of conduct reasonably expected by the community of health practitioners, it was not an egregious departure from that standard’ ([59]). He also argued that he had demonstrated remorse ([52]), had taken steps to address his behaviour ([85]) and the conduct in question did not directly relate to his skill and capacity as a paramedic ([60]).

The Tribunal considered Mr Davies submissions but determined cancelling his registration for 2 years was the appropriate outcome.  They said (at [71]) that the victim:

… made it abundantly clear that Mr Davies’ conduct was unwelcome. It understates its seriousness to characterise Mr Davies’ conduct from that point on as that of “a pest”. Mr Davies’ conduct was demonstrably unwelcome…

They continued (at [74])

It is no small matter for a health practitioner to fail to comply with their reporting obligations under by the National Law. To achieve a key objective of that scheme, the protection of the health and safety of the public, the national registration and accreditation scheme established by the National Law relies upon scrupulous adherence to those reporting obligations by health practitioners.

They accepted however that when he was suspended by St John Ambulance he had asked whether he was required to report that to either the Paramedicine Board and/or NSW Ambulance and was (wrongly) advised that he did not.  He did in fact self-report the convictions on 12 November 2021 and the Tribunal accepted (at [74]) that ‘his failure to comply with those [reporting] … is of a less serious nature’.  The reasons for the Tribunal’s decision are set out at [84]-[87]. They said:

In exercising the discretion to cancel Mr Davies’ registration, we have taken into account that, as a consequence of conditions imposed on his registration, Mr Davies has been prevented from working as a paramedic for several years. In those circumstances, arguably, a reprimand may be sufficiently protective of the public by denouncing Mr Davies’ misconduct and to underscore to him, the profession and the public of the standards expected of paramedics.

However, on the available material we could not be reasonably satisfied that there is no real and material risk that Mr Davies’ misconduct might be repeated. First, we do not agree, as contended by the Commission, that his evidence given in these proceedings demonstrates that Mr Davies lacks any insight into the extent to which his conduct was inappropriate and its impact on Person A. Nonetheless, we find his insight to be limited. Second, Mr Davies’ claim of having gained insight and being genuinely remorseful for his actions is not well supported by other evidence. There is scant evidence about the steps taken by Mr Davies to prevent a repeat of the impugned conduct. The only evidence of rehabilitation were answers given to questions asked by the Tribunal, in which Mr Davies said that he had been seeing a psychologist monthly for about 12 to 18 months from March 2021 and that counselling had assisted him to “unpack his false perceptions” of the events of 17 October 2020. Without a report from that psychologist or some other expert evidence, Mr Davies’ self-assessment that he has been assisted by that counselling can be given limited weight.

\We have decided not to exercise the power to impose a non-review period as urged by the Commission. If Mr Davies is able to obtain evidence of rehabilitation, he ought not be prevented from seeking review of the cancellation order. Our decision should not be taken to indicate that, in our opinion, Mr Davies might be able to obtain that evidence. As stated, on the available material we are not satisfied that there is no real and material risk of the misconduct being repeated, largely because of Mr Davies’ demonstrated lack of insight and a tendency to minimise his culpability for his egregious conduct towards Person A. Given the paucity of evidence of rehabilitation it is simply not possible to say when, if ever, Mr Davies will be able to establish that there is no real and material risk that the misconduct might be repeated.

Although we have decided to not impose a non-review period, it is to state the obvious that, to persuade a review body at some time in the future to exercise the power to make a reinstatement order, Mr Davies must prove to its satisfaction that he has developed the necessary insight and to have rehabilitated himself so that it can be confident that there is no real or material risk that the misconduct will be repeated. That is a substantial evidentiary hurdle for him to surmount and, because this jurisdiction is protective, it is appropriate that it be so.

Conclusion

The case is again a warning to paramedics:

1. Conduct not directly related to one’s practice given that in this case there was no suggestion that he was not a good and competent paramedic, and the conduct was not directed to a patient, can still be considered, In any event this conduct occured whilst working for an ambulance service and involved conduct directed to a colleague. He was only in close proximity to that colleague because of his standing as a more senior and experienced mentor so it would be wrong to say this conduct was not related to his standing, if not his practice, as a paramedic.
2. It is vital that paramedics comply with their obligations to report convictions and make appropriate disclosure when seeking to renew their registration.
3. If anyone wants to make an argument, they need evidence. IN this case arguments about remorse and insight obtained by working with a mental health professional required some evidence – a report if not oral testimony – from that professional to support those claims.

And remember ([75]):

The jurisdiction exercised [by NCAT under the Health Practitioner Regulation National Law] is protective not punitive. The criminal justice system provides the forum for the latter when appropriate. As Basten JA explained in Prakash v Health Care Complaints Commission [2006] NSWCA 153, at [101] “[t]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order”.

In this case the Tribunal, for the reasons quoted above, felt that protection of the community required a further 2 years suspension but that Mr Davies could seek to review that decision if and when he had evidence that could satisfy a review body that he had taken effective steps to ensure that this conduct would not be repeated.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

In response to my post Are Tasmanian retained firefighter employees? (July 25, 2024) I received some interesting comments. The gist of those comments are that retained firefighters are not paid an equivalent amount to employees, but ‘superannuation and tax is deducted from our remuneration!’  This persuaded me to look a little further into the matter.  What I see as a critical issue is whether being paid less than employees means you are something other than an employee, or you are an employee that is just being underpaid?

The High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 said that when considering a person’s status – in that case whether they are an employee or an independent contractor – and the terms of their engagement are set out in writing then the task of the court is to interpet and give effect to the written agreement.  That was adopted in Mifsud v Fire and Rescue NSW Band Incorporated [2024] FWC 853 where the Commission looked at the terms of the Band’s constitution and the band protocol.

With respect to the Tasmanian retained firefighters I’m told ‘however there is no formal application process, and these positions are generally awarded within the volunteer brigade management’.  I am not told whether there is any written ‘duty statement’ or the like that explains on what basis a retainer is paid and what is expected of the firefighters and the TFS as part of that arrangement.  Understanding that document, and how the rate of retainer is calculated, would be essential in determining whether the firefighters are volunteers or underpaid casual employees.

Volunteering Australia defines a volunteering as ‘time willingly given for the common good and without financial gain’ (https://www.volunteeringaustralia.org/resources/definition-of-volunteering/#/).  A volunteer could be reimbursed for their expenses but that is not a financial ‘gain’.  Equally they may get an honorarium in appreciation of work done but if that is not their motivation and is not a payment ‘of right’ then the volunteer is not looking for financial ‘gain’ even if they do get a bonus.

Taxation

The Australian Taxation Office (‘the ATO’) accepts that volunteers can receive money payments that may, or may not, count as assessable income.  The ATO says:

Volunteers can be paid in cash, given non-cash benefits or given a combination of both cash and non-cash benefits…

A payment to a volunteer that is not assessable income will have many of the following characteristics:

The payment is to meet incurred or anticipated expenses.

• The payment has no connection to the volunteer’s income-producing activities or services.
• The payment is not received as remuneration or as a consequence of employment.
• The payment is not relied upon or expected by the volunteer for day-to-day living.
• The payment is not legally required or expected.
• There is no obligation on the part of your organisation to make the payment.
• The payment is a token amount compared to the services provided or expenses incurred by the volunteer. Whether the payment is token depends on the full facts surrounding the payment and volunteer’s circumstances.

… These payments are given various descriptions, including:

• honorariums
• reimbursements
• allowances.

Sometimes they are given no name at all.

With respect to those types of payments, the ATO says:

Honorarium

An honorarium is either:

• an honorary reward for voluntary services, or
• a fee for professional services voluntarily performed.

Reimbursement

A payment is a reimbursement for tax purposes if it is a precise compensation, in part or full, for an expense already incurred, even if the expense has not yet been paid.

In general, your not-for-profit organisation will reimburse your volunteers when you consider they have incurred expenditure on behalf of the organisation. The volunteer may be reimbursed for all or part of the expense.

A payment is more likely to be a reimbursement where you require your volunteer:

• to provide a receipt or otherwise substantiate expenses
• refund unspent amounts.

Allowances

Whether an allowance is assessable income of the volunteer depends on the facts surrounding the payment and the relationship between the volunteer and your not-for-profit organisation.

If a volunteer receives an allowance with no regard to actual expenses and there is no requirement to repay unspent monies, the allowance may be treated as assessable income.

I’m told the Tasmania Fire Service (TFS) does deduct tax from the payments made to retained firefighters which implies that they accept the payments are taxable income.

Superannuation

With respect to superannuation, the ATO says it is only employers who are required to make superannuation contributions on behalf of employees. The ATO says:

Generally, all employees are eligible for super guarantee. It doesn’t matter if the employee is:

• full time, part time or casual
• receiving a super pension or annuity while working (this includes employees on transition to retirement)
• a temporary resident, such as a backpacker
• a company director
• a family member working in your business.

If TFS is deducting superannuation that would imply that the retained firefighters are employees or independent contractors but I doubt that retained firefighters have set themselves up as ‘Bill Smith’s firefighting services’ with an ABN and they then contract to provide firefighting services to the TFS.

But they’re not called employees?

To return to the High Court’s decision in  Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd whether a relationship is an employment relationship is a question of law.  Even if one is interpreting an agreement to understand what is expected of each party, whether that constitutes employment is a legal question and is not answered simply by how the parties describe the relationship.  If that were not the case all employers could underpay their employees by for example describing them as independent contractors or volunteers and the payment as an allowance rather than a wage.  Kiefel CJ, Keane and Edelman JJ said (at [63]-[64]):

The parties’ description of their relationship

63 To say that the legal character of a relationship between persons is to be determined by the rights and obligations which are established by the parties’ written contract is distinctly not to say that the “label” which the parties may have chosen to describe their relationship is determinative of, or even relevant to, that characterisation.

64 Subject to statute, under the common law the parties are free to agree upon the rights and obligations by which they are to be bound. But the determination of the character of the relationship constituted by those rights and obligations is a matter for the court.

In other words, the TFS may not describe the firefighters as employees, and it may be the case that they ‘Certainly aren’t paid like an employee’ but that doesn’t mean they are not an employee. 

In my earlier post I quoted advice from the ATO on how to decide whether someone is or not an employee.  In Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd, Gageler and Gleeson JJ said (at [113]):

Where a continual relationship under which work is done by an individual in exchange for remuneration in fact exists, the characterisation of that relationship as one of employment or service, on the one hand, or as one of hirer and independent contractor, on the other hand, has long been understood to turn on one or other or both of two main overlapping considerations. The first is the extent of the control that the putative employer can be seen to have over how, where and when the putative employee does the work. The second is the extent to which the putative employee can be seen to work in his or her own business as distinct from the business of the putative employer. Factors relevant to that second consideration have been said to include, but not to be limited to, “the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee”. A third consideration sometimes identified is perhaps little more than a variation of the second consideration: it is the extent to which the work done by the putative employee can be seen to be integrated into the business of the putative employer.

Presumably TFS firefighters can only do the work for which they are retained when directed to do so by the TFS. They must attend TFS callouts and TFS training.  As noted above, I doubt retained firefighters are operating as their own business to provide services to the TFS.  My guess is that they are wearing uniforms provided by TFS, using TFS appliances and when they turn out they are clearly turning out as TFS not as a contractor to the TFS.   

I don’t know whether they need to apply for leave if they are going to be unavailable or whether, like other volunteers, they can choose not to respond to any particular call or not to go to training on a particular night simply because they think they have something else they’d rather do.   If there is an expectation that they are available eg on a roster and they need to apply for leave or make other arrangements if they are not going to be available, then it looks more like employment.

A comparison with NSW

It is interesting to note that prior to 26 October 2018, the Fire Brigades Act 1989 (NSW) (as it then was ) referred to volunteer fire brigades (s 9). The Act also provided that the Industrial Relations Secretary (‘the Secretary’) was the deemed employer of both permanent and volunteer firefighters (s 70). The Secretary could determine ‘the payments to be made to members of volunteer fire brigades’ (s 71) and could ‘…enter into an agreement with any association or organisation representing a group or class of members of permanent or volunteer fire brigades with respect to industrial matters’.  Cleary retained firefighters were not volunteers even though they were described as ‘retained volunteers’.

On 26 October 2018 the name of the Act was changed to Fire and Rescue NSW Act 1989 (NSW) and the language in ss 9, 70, 71 and 72 changed to refer to Retained Fire Brigades.  Retained firefighters in NSW are clearly employees and their employment conditions are regulated by the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2023.

NSW recognised the fiction of describing retained firefighters as volunteers in 2018. Whether the situation in Tasmania in 2024 as the same as it was in NSW in 2018, I cannot say but it does still beg the question of whether Tasmanian retained firefighters are really employees. 

Conclusion

I still cannot say whether Tasmanian retained firefighters are actually employees. As the High Court has said, answering that question ‘requires consideration of the totality of the relationship’ (Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1, [162] (Gordon J)) between the TFS and its retained firefighters. The determination of whether that relationship is really one of employment or not is a matter, ultimately, for the courts ([64] (Kiefel CJ, Keane and Edelman JJ)).

As I have said before I am not an industrial lawyer, this is not the place for legal advice and I do not have access to all the information about how retained firefighters are engaged, paid and what is expected of them.  It may be that TFS, the UFU, the Minister responsible for the State Service Act 2000 (Tas) and the Fair Work Commission are all satisfied that the relationship between the TFS and its retained volunteers is not a relationship of employment, and the payments made are legitimate honorariums and/or reimbursement.  If that is not the case however, it would be fascinating if a retained firefighter, perhaps supported by a union, wanted to challenge the view that retained firefighters are volunteers.  If it was found that they are in fact employees that would no doubt have significant implications for the State of Tasmania and the TFS given what it would have to pay, and no doubt back-pay, its retained firefighters.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

Today’s question again takes us to the Mental Health Act 2007 (NSW) s 20.  A reminder that this section says:

(1) An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.

(2) An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.

The question is:

Olanzapine has recently been introduced for the use in patients who are very anxious and agitated, who are voluntary to seek treatment and volunteer to be given Olanzapine. We are allowed to give 1 dose to be able to assess whether the patient’s behaviour is from an organic cause or from a mental health cause. If it is deemed it is from a mental health cause, we are no longer able to provide Olanzapine as the service is stating that we have to work under the Mental Health protocol and further sedation requires a Section 20 to be enacted.

If our patient continues to be voluntary and willing to attend hospital for their mental health concerns, is there a way that oral sedation can be provided without applying a section 20 as the patient does not require the Section 20? Is there anything in the Mental Health Act that prevents us from providing sedation to a voluntary patient?

Olanzapine is:

… used to treat symptoms of schizophrenia and related psychoses. Olanzapine AN alone, or in combination with lithium or valproate, is used for the short-term treatment of acute manic episodes associated with Bipolar I Disorder.

Olanzapine AN is also a mood stabiliser that prevents further occurrences of the disabling high and low (depressed) extremes of mood associated with Bipolar I Disorder.

I fail to see how so many people read so many words into s 20 that just aren’t there. Section 20 says that an ambulance officer may take a person to a mental health facility if they would benefit from treatment there.  The local ED may be 5 minutes away, the mental health facility 30 minutes away, so the ambulance officer can elect to go to the further destination. They can do that even if the person appears to be otherwise well that is they have not illness or injury that requires emergency treatment.  Once the ambulance officers have delivered the patient to a mental health facility, the staff of that facility can elect to detain the person based on the ambulance officers observations pending a more complete examination (s 18).

Section 20 says nothing about treatment that can be given.  Treatment can be given that the patient consents to or where the patient cannot consent, that is reasonable and in the patient’s best interests. 

Section 81 deals with the power to transport people to and from a mental health facility.  Section 81(3) says:

A person may be sedated, by a person authorised by law to administer the sedative, for the purpose of being taken to or from a mental health facility or other health facility under this Act if it is necessary to do so to enable the person to be taken safely to or from the facility.

That does mean they could be sedated if they are being treated as an involuntary patient but it does not mean they can only be sedated if they are being treated as an involuntary patient. A patient can be sedated if sedation is indicated by their condition, and they consent to that treatment.  Just because a person has a mental illness it does not mean that they cannot give or refuse consent to treatment. Further the Act intends that people who are mentally ill will be involved in their care and medical decision making to the greatest extent possible.

The question

If our patient continues to be voluntary and willing to attend hospital for their mental health concerns, is there a way that oral sedation can be provided without applying a section 20 as the patient does not require the Section 20? Is there anything in the Mental Health Act that prevents us from providing sedation to a voluntary patient?

Again misunderstands s 20.  Section 20 doesn’t get ‘enacted’ or triggered. Section 20 is triggered when the ambulance officers decide to take someone to a mental health facility. 

Conclusion

If the patient is competent ‘and willing to attend hospital for their mental health concerns’ section 20 has no work to do.  Paramedics can provide care that is indicated by the patient’s condition and, with respect to the use of drugs, as permitted by their employer’s practice documents.

If the guidelines say that it is not permissible to give more than one dose then that is what they say.  But the reference to s 20 and the idea that somehow s 20 has to be ‘enacted’ is to simply misread s 20 and put lots of words into the section that simply are not there.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.\

Today’s question comes from

…a registered paramedic with AV … and also a volunteer firefighter with CFA …

Over the past few months I have encountered four high risk MVA’s in my role as a fire fighter where patients have been acutely unwell and not managed appropriately with AV personal on scene ignoring my suggestions for management or intervention which in turn results in direct harm to the patients. 

I have obviously completed all the internal complaint processes for the same and asked management for clarification surrounding my responsibilities when off duty for av, in an external role in CFA and witnessing ongoing mismanagement or alternatively no management of patients.

Whilst I have received an answer in writing of sorts I believe it still may leave me ‘wide open’ legally given that if I am unable to be placed on ‘recall’ for a case when attending as a CFA volunteer and I have then been in turn directed to ‘do nothing’ with regard to patient care or intervention on scene regardless of how poorly the patient is managed.

I would appreciate your thoughts or advice on this matter …

My correspondent is not left ‘‘wide open’ legally’.  At the motor accident where an Ambulance Victoria crew are on scene that it is that crew that are providing services to the patient on behalf of Ambulance Victoria.  My correspondent is under not duty to rescue.

In Stuart v Kirkland-Veenstra [2009] HCA 15, Gummow, Hayne and Heydon JJ said (at [112]):

There can be no duty to act in a particular way unless there is authority to do so. Power is therefore a necessary condition of liability but it is not a sufficient condition. Statutory power to act in a particular way, coupled with the fact that, if action is not taken, it is reasonably foreseeable that harm will ensue, is not sufficient to establish a duty to take that action.

An off-duty AV paramedic has no authority (subject to the terms of their employment) to take over case management from the on-duty AV paramedics, particularly if they cannot be ‘recalled to duty’ to exercise powers that they may have a senior employee.  In the circumstances described my correspondent is not in any position to exercise any control of the risk to the patient (if there is a risk from the other paramedics).

Crennan and Kiefel JJ said (at [127]):

The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm… The law draws a distinction between the creation of, or the material increase of, a risk of harm to another person and the failure to prevent something one has not brought about.

Again, in the circumstances described, my correspondent has not caused any harm to the patient. If the on-duty paramedics are providing less than ideal care, that does not impose a duty on my correspondent to do something about it.

The situation may be different if my correspondent is on scene and wants to provide care that the CFA doesn’t want them to provide (see NSW Paramedic and fire fighter – when does one role start and finish? (July 8, 2015); and Registered paramedic or firefighter? (July 10, 2018)) but that is not the situation being discussed.

Paramedics have an obligation to report colleagues to the Paramedicine Board where they observe a paramedic place ‘the public at risk of harm by practising the profession in a way that constitutes a significant departure from accepted professional standards’ (Health Practitioner Regulation National Law cl 140(d) and 141).  The obligation to report arises only where the ‘Registered health practitioner … forms a reasonable belief that’ this has occurred ‘in the course of practising the first health practitioner’s profession’ (cl 141(1)).  Arguably observing them whilst on duty with the CFA is not observing the conduct or forming the belief when ‘practising’ their profession so there may not be an obligation to make a notification but a voluntary notification could be made (cl 144) as should, a notification be made to AV.

Conclusion

The situation described does not expose my correspondent to any legal risk or obligation. That does not deny that there is a moral obligation to point out to AV colleagues if they have missed something or are providing inadequate care and, if necessary to report that to AV or the Paramedicine Board.

But my correspondent is not responsible for all the decisions made by others and one can imagine that they, like others, would not welcome an off duty paramedic telling them how to do their job.  If they give advice and that is ignored, there is nothing more they can or are required to do.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.