Michael Eburn: Australian Emergency Law | Bushfire & Natural Hazards CRC

Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD, Australian Lawyer. Email: meburn@australianemergencylaw.com

URL: https://australianemergencylaw.com

Updated: 15 hours 11 min ago

Private paramedics transporting patients on public roads – Part 1

4 November, 2022 - 06:00

A correspondent has sent me details of a question asked on private paramedic page and I note I was also tagged into the conversation on that page. A paramedic:

… was chatting with a ‘new to private sector’ paramedic’ who in his handover from outgoing medic was told that we can’t transport at all on public roads. This isn’t the first time I’ve heard this.

Can anyone show me where in writing (other than handover notes) this comes from?

I’ve scoured the transport act and the ambulance act and have been unable to find anything pertaining to this activity. Is this just an old wives’ tale that’s being regurgitated sans evidence, potentially dangerously and to the detriment of our patients?

The commentator is right, there is nothing in either ambulance services or road transport legislation that says, specifically, that only a jurisdictional ambulance service can transport patients on a public street. Critically private ambulance companies that provide non-emergency patient transport services transport patients on public streets all the time. What I infer we are talking about are companies that provide event health services or on-site work health services. With respect to work health services I will assume that the relevant providers are employed by a company that contracts to provide on-site services at say, a mine, rather than paramedics directly employed by the mine site. The power of employees of a mine to transport will be the discussion of a second post on this subject.

Private paramedic services

First, in WA and the Northern Territory, there is no ambulance service legislation, so there is nothing to stop private paramedics transporting a patient to hospital if they want to.

In other states there is nothing specific on the subject, but what there are prohibitions on providing ambulance services. Private ambulance services must be licensed or otherwise approved by the relevant Ambulance Commissioner, department of health or Minister – see:

Emergencies Act 2004 (ACT) s 63 – A person must not provide ambulance services without approval of the Minister. Ambulance services are ‘the provision of medical treatment and pre-hospital patient care, and includes the transport of a patient by ambulance or medical rescue aircraft’.
Health Services Act 1997 (NSW) s 67E – A person must not, for fee or reward, provide or take part in the provision of transport for sick or injured persons or conduct operations similar to NSW Ambulance without approval from the Secretary of the Department of Health;
Ambulance Service Act 1991 (Qld) s 43 – A person must not ‘directly or indirectly imply that the person provides or participates in providing ambulance transport without the approval of the Minister’.
Health Care Act 2008 (SA) ss 57 and 58 – ‘A person must not provide emergency ambulance services’ except with the approval of the Minister. Further a person must not provide non-emergency ambulance services without a licence. A non-emergency ambulance service is the ‘service of transporting by the use of an ambulance a person to a hospital or other place to receive medical treatment or from a hospital or other place at which the person has received medical treatment’ but in circumstances where it is not an emergency ambulance service. An ‘emergency ambulance service’ is a service that

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

(b) is set up to provide medical attention to save or maintain a person’s life or alleviate suffering while transporting the person to a hospital’ (s 3).

Ambulance Services Act 1986 (Vic) s 39 – this section does not prohibit private ambulance services, rather it prohibits any suggestion that the service is affiliated with Ambulance Victoria and the use of the word ‘ambulance’ on the vehicle (see Victorian liberal party’s use of an old ambulance in election campaign (November 3, 2022)). Victoria does provide for licensing of non-emergency patient transport and event health services (see Non-Emergency Patient Transport and First Aid Services Act 2003 (Vic)). A person must not provide a non-emergency patient service without the relevant licence (s 5). A non-emergency patient transport service is (s 3) a ‘service that offers or provides, in exchange for payment, for— (a) the transport of persons on public roads to or from medical services— (i) using a stretcher carrying vehicle; or (ii) where the persons being transported are provided with specialist clinical care or monitoring while being so transported …’.

Ambulance Service Act 1982 (Tas) ss 37 and 37A – A person must not provide a service similar to the service provided by Ambulance Tasmania without the consent of the Ambulance Commissioner and must not provide a non-emergency patient transport service unless they hold a relevant NEPT licence.

In short private ambulance services that provide ambulance services at public events or contract to hazardous work places cannot operate without a licence or other authority and it may be that authority that limits their ability to transport on public streets. For example, pursuant to the Emergencies (Service Provider) Approval 2022 (No 2) (ACT)), JW Motorsport Services is authorised to provide ambulance services at events in the ACT. It is a condition of their approval that they must ‘not transport any patient outside the event precinct’. They cannot transport patients to hospital – not because of any general prohibition but because it is a condition of their approval to operate.

Sudden emergency

Assume a private ambulance is being driven on a public road and the crew come across an accident. Two paramedics, with a well-equipped ambulance and a patient in critical need. Even stopping to render care could be equated with providing ambulance services but no-one wants to prohibit them from rendering assistance and in fact it would be expected of them. What if they thought the best option was to pick the patient up and transport them?

Provided they don’t charge the patient a fee then they are not acting for fee or reward (NSW and Victoria). The ACT has a specific exemption – the prohibition on providing an ambulance service (which includes transport by ambulance) does not apply (s 63(1)(c)) to:

a person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently—

(i) injured or at risk of being injured; or

(ii) is in another way in need of emergency assistance;…

Equally in South Australia the prohibition on providing emergency ambulance services does not apply (s 57(2)(b)) if a licenced NEPT provider has:

… reason to believe that failure to provide such a service will put at risk the health or safety of a particular person, or of a section of the public more generally, and the person providing the service has taken such action as is reasonable in the circumstances to contact SAAS to seek an authorisation

Even without legislation the doctrine of necessity (see The doctrine of necessity – Explained (January 31, 2017)) will help. Stephen’s Digest of the Criminal Law (1st ed, 1887) says:

An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained.

In R v Davidson [1969] VR 667 Menhennit J said ‘The principle of necessity as stated by Stephen contains within it the two elements of necessity and proportion’. The accused has to believe, upon reasonable grounds, that it is necessary to take the action and that the harm done is not disproportionate to the harm to be avoided.

Even if there is a law against private provider’s transporting on a public street that will be forgiven if the patient is at urgent risk of death or permanent injury and the decision to transport rather than wait for a jurisdictional ambulance is a reasonable, professional response in all the circumstances.

Discussion

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

It has been argued that the prohibition on providing ambulance services is a prohibition on providing transport on public streets but as the provisions discussed above show, that is not the case other than in Victoria. It is only the Non-Emergency Patient Transport and First Aid Services Act 2003 (Vic)) that references transport on a public street as a part of the definition of what is prohibited.

In Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548 Hely J said

If there is an on-site medical centre or sick bay, the ambulance may be used to transport the injured person to that location. … But that does not mean that the provision of an ambulance on site is outside the definition of “ambulance services”, nor does it mean that if such an ambulance is used for transport of a sick or injured person, whether to another location on site or to a location off-site, the provision of that transport is otherwise than for fee or reward.

That is even providing transport within the defined site was providing patient transport for fee or reward and was prohibited by the Act as it then was and as it now is in the Health Services Act.

Conclusion

It may be a surprise that there is no simple answer to the question ‘can private paramedics transport patients on public roads?’ Except in the Non-Emergency Patient Transport and First Aid Services Act 2003 (Vic) the issue of public roads does not get a mention. There is nothing in the Road Transport legislation nor ambulance services legislation that says ‘only jurisdictional ambulance services can transport patients on public roads’. The prohibition (if there is one) has to be implied by the various prohibitions on the provision of unauthorised ambulance services and the terms of any licence or approval that the private service has to operate (and see again, as an example the Emergencies (Service Provider) Approval 2022 (No 2) (ACT)).

If there’s a life-threatening emergency and the local private paramedics are on scene, and it is reasonable to transport the patient rather than wait for a jurisdictional ambulance service, then I cannot see how any of the stated prohibitions would be a bar to transporting the patient to the nearest hospital provided that response was reasonable in all the circumstances and provided the patient was not sent a bill for the service.

For related posts see:

What’s an ambulance service? (May 30, 2017);
Private emergency service in WA (December 11, 2018);
Unregulated event first aid in NSW (July 20, 2019);
Unauthorised ambulance services in the ACT (February 7, 2020);
Victoria introduces Bill to provide for licensing of first aid service providers (March 21, 2021)
When is an event first aid/health/medical service an ambulance service in SA? (April 17, 2021); and
Operating an ambulance service in NSW (June 8, 2022).

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

Categories: Researchers

Victorian liberal party’s use of an old ambulance in election campaign

3 November, 2022 - 11:38

In the rush to grab headlines and the electorate’s imagination, politicians love to engage in stunts that give rise to photo opportunities. It is reported (Joseph Huitson, ‘I will not be lectured’: Opposition Leader Matthew Guy hits back after Coalition’s ‘Ditch Danmobile’ questioned by unions’ Skynews.com.au, 2 November 2022) that in the current Victorian state election

Victorian Opposition Leader Matthew Guy has been grilled over his party’s use of a vehicle from the 1970s, which resembles an ambulance, on the first official day of the state election campaign.

The Liberals unveiled the “Ditch Danmobile” on Wednesday – a refurbished wagon featuring graphics and a number of slogans aimed at Labor’s record on health…

However, the Secretary of the Victorian Ambulance Union Danny Hill took to social media to question whether it’s allowed given the word “ambulance” features on it.

The two photos, below, are taken from the skynews.com.au story:

Is this a breach of the Ambulance Services Act 1986 (Vic) s 39?

In my opinion, yes it is. Section 39 says:

(1) A person must not—

(a) use the words “ambulance service” or any name, title or description to imply an association with an ambulance service, unless such an association exists, without the written authority of the Secretary; or

(b) represent that the person is associated with an ambulance service unless such an association exists; or

(c) use the word “ambulance” (other than on a registration label) on any vehicle that is not owned or operated by an ambulance service without the written authority of the Secretary; or

(d) impersonate an operational staff member; or

(e) use any insignia described or set out in the regulations in any manner contrary to the manner set out in the regulations without the written authority of the Secretary.

Penalty: 20 penalty units.

(2) This section does not apply to the use of the words “ambulance” or “ambulance service” by—

(a) the St. John Ambulance Association; and

(b) the St. John Ambulance Brigade.

(3) This section does not apply to the use of the words “animal ambulance” on a vehicle owned or operated by a genuine animal welfare organization for the transport of sick or injured animals.

For the purposes of the Act, ‘ambulance service’ means “means an ambulance service created under section 23 or listed in Schedule 1” of the Act – in short it means ‘Ambulance Victoria’ (see s 3). The vehicle pictured does not use the words ‘ambulance service’ nor do I see anything just as styling or logos that would suggest that there is ‘an association with’ Ambulance Victoria. This means that, in my view, the use of this vehicle is not prohibited by s 39(1)(a) or (b).

We cannot see Mr Guy but I’m sure no-one would suggest he’s impersonating or pretending to be an ambulance officer so there is no breach of s 39(1)(d).

There are not ‘insignia described or set out in the regulations’ so there can be no breach of s 39(1)(e).

That leaves s 39(1)(c) and that’s straightforward – the section says:

(1) A person must not— …

(c) use the word “ambulance” (other than on a registration label) on any vehicle that is not owned or operated by an ambulance service without the written authority of the Secretary

As the photos above show, the vehicle clearly has the word ‘ambulance’ on the front, and on the back. Without the consent of the secretary of the department of health, keeping the word ‘ambulance’ on what was clearly a former ambulance is prima facie a breach of the Act.

Of course I don’t speculate on who has breached the Act, I don’t know who owns the vehicle, in what names its’ registered and how much Mr Guy had to do with the selection of the vehicle. The fact that he may be transported in it does not necessarily mean he’s guilty of the offence. To determine who was guilty of the offence one would need to know who is the registered owner and their employment relationship with Mr Guy and/or the liberal party. We cannot speculate on who is guilty, but keeping the word ‘ambulance’ on the vehicle is prohibited by s 39(1)(c).

Categories: Researchers

Discrimination in recruitment

2 November, 2022 - 06:00

Today’s correspondent

… wanted to ask a question to address a grievance I’ve frequently heard from male graduates looking for employment from a particular jurisdictional ambulance service. This particular service posts photos of their intakes on social media, with some cohorts being predominantly or entirely female. Now I’m aware that these days paramedic graduates are predominantly female, and that these cohorts don’t represent the overall intake of graduates over a given period. But, if hypothetically, a service was hiring females disproportionate to their applicants (or vice versa) – would this constitute discrimination? Even if not due to overt discrimination but the consequence of standardised assessment criteria that might select genders differently.

And does this apply more generally to other protected groups that aren’t as visible such as disability, religion, and sexuality?

To unlawfully discriminate against a person on the grounds of gender is to treat someone less favourably because of their gender (Sex Discrimination Act 1984 (Cth) s 5(1); and see anti-discrimination legislation in each state and territory). No Act requires an employer to employ equal numbers of men and women or employ people across the gender range in the same proportion as the number of applicants’. If they did most businesses would have failed the anti-discrimination tests long ago.

Standardised assessment criteria that might select genders differently can be examples of indirect discrimination (s 5(2)) – and see, for example Curt Varone’s American Fire Law Blog:

Madison Physical Abilities Test Upheld as Non-Discriminatory Against Women (July 21, 2022) and
New York Fire Department Sued for Gender Discrimination in Hiring (January 13, 2021).
Chicago Fire Ordered to Hire 111 Blacks and Pay $30 million (May 14, 2011).

Any sort of test that may discriminate between the genders has to be ‘reasonable’ (s 7B). Discrimination may be permitted if it constitutes ‘special measures for the purpose of achieving substantive equality between: (a) men and women…’ (s 7D). See Lawful discrimination in ACT Fire and Rescue (December 4, 2017).

Conclusion

If a service was hiring females disproportionate to their applicants (or vice versa) – would this constitute discrimination? Answer: No.

Even if not due to overt discrimination but the consequence of standardised assessment criteria that might select genders differently? Answer: possibly.

And does this apply more generally to other protected groups that aren’t as visible such as disability, religion, and sexuality? Answer: Yes.

Categories: Researchers

Collecting old police uniform

31 October, 2022 - 06:00

Today’s correspondent tells me that:

Many years ago I brought the old Khaki NT Police shirt (in a much smaller females size so no chance of me ever being able to wear it, no any desire to do so).

I brought it as I thought it was a cool piece of NT history, with the intention to get it framed and hang it on my wall and didn’t think anything of it legally speaking, until I got home and realised it might be illegal to even possess it.

The item is still in its original packaging, I think it does have the NT Police patch on it. Currently I’ve got it kept in a box almost hidden away for fear of it being illegal.

I tried asking for advice anomalously on reddit, and have been given very conflicting answers. Some stating its 10 years jail for possessing it. I understand wearing it is very illegal, it’d the reason when I got it I made sure it was way too small to fit me in any shape or form (6ft male who is slightly overweight, even if I lost all the weight there is no way I’d fit a females medium, which I believe is its size, potentially a small).

Is it legal to own and put this shirt in a frame to display in my room? Or should I go with my gut and cut the thing to shreds then burn it to avoid going to jail over a shirt? I believe I got it around 2013 or 2014, after the NT Police moved to the state wide blue uniforms.

I currently live in Queensland if that plays any role, also thank you for your time. A fellow redditor was the one that linked to your site.

The Police Administration Act 1978 (NT) s 149(1) says:

A person who ceases to be a member of the Police Force shall not refuse to deliver up to the Commissioner, or to such person, and at such time and place, as the Commissioner directs, all property which has been supplied to him for the execution of his duty, or which is in his custody by virtue of his having been a member.

Maximum penalty: 8 penalty units or imprisonment for 3 months or both.

A penalty unit is currently $162 so 8 penalty units is $1296.

That section only applies to a former member of the police force. I assume that my correspondent is not a former NT police officer, and even if he was, he was not ‘supplied’ the shirt in that context so that section cannot apply.

Section 156 says

Any person shall not without lawful excuse, personate a member of the Police Force.

Maximum penalty: 4 penalty units [$648] or imprisonment for 3 months or both.

Owning the shirt whether it’s in a box or a frame is not ‘personating’ a police officer that is my correspondent is not using the shirt to pretend that he is an NT police officer, so that section cannot apply.

The Summary Offences Act 1923 (NT) s 61 says:

(2) A person who:

(a) has in [their] … custody any personal property;…

… which … is reasonably suspected of having been stolen or otherwise unlawfully obtained, is guilty of an offence.

Penalty: $2,000 or imprisonment for 12 months.

Here the test is not actually whether the goods are stolen but whether it is reasonable to suspect that they have been stolen – putting an onus on the defendant to prove that they are not stolen. The NT Law Handbook says:

To establish their innocence, a person charged under section 61 must provide the court with a satisfactory explanation as to how they came into possession of the suspected property see Mununggurritj v Rue [2007] NTSC 2 at [17] and also Eupene v Hales [2000] NTCA 9.

A similar offence exists in Queensland – ‘A person must not unlawfully possess a thing that is reasonably suspected of having been stolen or unlawfully obtained’. Maximum penalty is 20 penalty units (that is 20 x $143.75 = $2875) or 1 year’s imprisonment (Summary Offences Act 2005 (Qld) s 16).

This seems the most likely offence. One might infer that the shirt was issued to a police officer who failed to return it as they were required to do. They have then appropriated it, ie treated it as if they were the owner, if they then sold it. As a collector it is clearly a shirt that belongs to the Northern Territory so one could reasonably suspect that it has been ‘stolen or otherwise unlawfully obtained’.

This is not a place for legal advice so I cannot advise anyone of what to do. Nor can I comment on the likely attitude of NT police given that it’s no longer the current uniform and uniforms are collected and traded around the world. Having said that, prima facie it could be an offence against the Summary Offences Act to retain possession of it.

Categories: Researchers

Gaps in Queensland fire legislation exposed in failed prosecution – Part 2

28 October, 2022 - 13:09

I received the following information from Mr Cording, the volunteer who was injured by a property owner and where the property owner has avoided all legal repercussions for his action (see Gaps in Queensland fire legislation exposed in failed prosecution (October 23, 2022)). Mr Cording has kindly given me ‘permission to use this material … to write a follow-up article’. This is that follow up article.

Mr Cording says:

I appreciate that you just had the ABC News report to work with, but I just wanted to clarify some of the details you commented on.

The details of the incident are that I observed a fire burning on Mr Barrett’s property during a total fire ban. I asked Mr Barrett to extinguish the fire, but he refused to do so. I reported the illegal fire to Triple Zero, who subsequently responded my brigade to attend. I returned to Mr Barrett’s property in the RFS appliance and met my First Officer and another crew member at the scene. Mr Barrett was refusing us access to his property and had blocked his driveway. QPS attendance was requested but we were advised that it would be significantly delayed. My First Officer and I attempted to enter the property to extinguish the fire. Mr Barrett lunged at me, pushing me off an embankment and onto the road. I sustained two fractured hips and multiple fractures to the pelvis.

Mr Barrett was initially charged with serious assault. The charge was withdrawn after the court accepted the defendant’s argument that rural fire brigade members are not public officers. This is due to the definition of a public officer including members of an organisation ‘established under an act’. Unlike Queensland Fire and Rescue Service or Queensland SES, which are explicitly established under the Fire and Emergency Services Act, Rural Fire Brigades are referred to as a group of people who have sought to be registered as a brigade.

The Criminal Code 1899 (Qld) s 340 is headed ‘serious assaults’. Section 340(2AA) says:

A person who—

(a) unlawfully assaults, or resists or wilfully obstructs, a public officer while the officer is performing a function of the officer’s office…

commits a crime.

The section goes onto say (at s 340(3)):

“public officer” includes—

a member, officer or employee of a service established for a public purpose under an Act

The Act gives the example of ‘Queensland Ambulance Service established under the Ambulance Service Act 1991’.

It is an unhelpful definition. It says that the term ‘public officer’ includes the people listed in paragraphs (a) to (d). The fact that the definition says ‘includes’ not ‘means’ would imply that there are people who are not listed but who are also public officers. The definition does not attempt to exhaust all the possibilities of who is a public officer, but there is no guidance to determine who else is a public officer.

If we limit our consideration to s 340(3)(a) then we can see the point. The Fire and Emergency Services Act 1990 (Qld) does not ‘establish’ a rural fire service or rural fire brigades. Section 79 says ‘Any group of persons may apply to the commissioner for registration as a rural fire brigade’. We can compare that to s 8 which says ‘The Queensland Fire and Emergency Service (“QFES”) is established’. Given that Queensland Ambulance is listed as an example we can also look at the Ambulance Service Act 1991 (Qld) s 3A which says ‘The Queensland Ambulance Service is established’. There is no equivalent provision to establish either a Queensland Rural Fire Service or individual brigades.

On the other hand, the group of people who apply for registration are not a rural fire brigade unless their application is accepted so there could be an argument that the brigade is formed, as a brigade, when the Commissioner accepts the application for registration and issues a ‘registration number’ to the Brigade (s 79(2)). The process of registration and the definition of the brigades’ powers and functions – its ‘public purpose’ – are all set out in the Act. I do think, therefore, that there is an argument that members of the rural fire brigades are public officers, but I can understand why the police, or the Director of Public Prosecutions may have determined that, because it was not clear, it was not appropriate to bring that prosecution. It is certainly better for legislation to be clear rather than leave it to arguments and the interpretation of (ultimately) judges of the Supreme Court.

One of the reasons that Mr Barrett was not charged with common assault was that using reasonable force to remove a trespasser on your property is an accepted defence. The concern was that if it was shown that I had no authority to access the property and therefore trespassing, Mr Barrett would have had a valid defence and I could have been subsequently charged with trespassing.

The Criminal Code s 277(1) says

It is lawful for a person who is in peaceable possession of any land … to use such force as is reasonably necessary in order to prevent any person from wrongfully entering upon such land … or in order to remove therefrom a person who wrongfully remains therein, provided that he or she does not do grievous bodily harm to such person.

Section 1 defines ‘grievous bodily harm’ as:

(a) the loss of a distinct part or an organ of the body; or

(b) serious disfigurement; or

(c) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;

whether or not treatment is or could have been available.

I would have thought that ‘two fractured hips and multiple fractures to the pelvis’ constituted grievous bodily harm because, if untreated, those injuries ‘would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health’.

If that is correct, then even if Mr Cording was guilty of trespass (Summary Offences Act 2005 (Qld) s 11) Mr Barrett may not have been able to successfully rely on the defence set out in s 277. Further, even if police thought that Mr Cording may have been guilty of trespass it does not follow that he would have been prosecuted (Law Enforcement (Powers and Responsibilities) Act 2000 (Qld) s 634).

We can see already that the law is not self-executing. It does not automatically apply but has to be interpreted and judgements made. Police or the DPP made certain decisions about the prosecution of Mr Barrett. The problem with that process is that it does not establish any legal principle. There is no ruling that a member of a rural fire service is not a public officer or that Mr Cording was guilty of trespass, or that Mr Barrett used reasonable force. These matters were resolved in the offices of the prosecuting authorities so there is no ‘precedent’. It is however cause for concern that the law is not sufficiently clear, and that any prosecution would have depended on legal argument that may have necessitated appeals and put everyone, including the defendant, to significant cost. A defendant has to have the benefit of the doubt so whilst it is confronting, and whilst there may have been arguments about the definition of a public officer and/or the applicability of s 277, one can see why a prosecutor may have – rightly – elected not to proceed.

That then brings us to the offence he was charged with, obstructing an ‘authorised person’. Mr Cording continues:

Mr Barrett was subsequently charged with obstruction of persons performing functions.

The Magistrate consider two aspects of the charge in her decision.

Firstly, the Magistrate considered the requirement to warn an offender that they are being obstructive to be a necessary element of the offence. This is in line with similar obstruction offences involving police and gas industry workers. The Magistrate cited several cases where it was established that the warning is an essential check and balance on the authority to violate someone’s personal rights. There was no evidence that such a warning was given – which isn’t surprising as it is not included in any of our training. This was the primary reason for her to dismiss the charge.

It is indeed necessary to give a warning. The Fire and Emergency Services Act 1990 (Qld) s 150C(2) says:

If a person has obstructed an authorised person and the authorised person decides to proceed with the performance of the function, the authorised person must warn the person that—

(a) it is an offence to obstruct the authorised person unless the person has a reasonable excuse; and

(b) the authorised person considers the person’s conduct to be an obstruction.

In the absence of that warning the person could not be guilty of the offence under s 150C(1).

The second aspect was whether I was an ‘authorized person’ performing an action under the Act. The Magistrate was very clear that a person could not receive an authority under the law simply by volunteering. The only ways that I could be considered an ‘authorized person’ is if I was an Authorized Fire Officer (which I’m not) or was acting on the specific direction of an Authorized Fire Officer (or someone with similar powers like a First Officer in charge of an incident in their brigade’s area). QFES’s legal representative didn’t or couldn’t provide any evidence to prove this. There was no evidence that a specific direction was given by the First Officer. There was no evidence that the First Officer had been properly appointed by QFES under the Act. There wasn’t even any evidence that the Brigade had been properly registered by QFES.

Basically there was no evidence to establish a chain of authority from the Commissioner to me. The lack of a specific direction by the First Officer was highlighted by the Magistrate as a critical element.

When I read the ABC article that was the basis of my first post, I assumed that the first officer was not there. Mr Cording says they were. The first officer has the powers of an authorised fire officer (s 53) but only if they are in their area of responsibility as defined by the Commissioner and notified to the brigade (ss 82(2) and 83(1)). Whilst I can understand that a prosecutor may not realise that this would be an issue, if put to their proof they would indeed need to prove that the brigade was registered (s 79) that the person at the scene was indeed the first officer (s 81) and that the Brigade was operating within its defined area of responsibility (s 82(2)). All of those are necessary pre-conditions for the exercise of the powers of the first officer under s 83.

One other aspect that was raised by the defendant but not considered by the Magistrate was the question of what constituted a ‘dangerous situation’. Authorised Fire Officers (and First Officers) can only use their powers in dangerous situations under Section 53 of the Act. The Act doesn’t define what constitutes a dangerous situation, but it does say that an authorised fire officer can take any reasonable measures to protect persons, property or the environment from danger or potential danger caused by fire. The defendant argued that as there was no life or property at risk, this was not a dangerous situation.

Given this was not considered by the Magistrate we don’t have any legal precedent. Section 53(1) says

(1) An authorised fire officer may take any reasonable measure—

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

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

On a day of total fire ban I would suggest that whether the fire at that time posed a danger is not the relevant test. The test is the need to protect persons, property or the environment from ‘potential’ danger. A fire brigade can’t be expected to wait until a prohibited fire is out of control before taking action.

I cannot see how that argument would have worked, but given I’m surprised that other arguments were accepted at least by the prosecution, I don’t suppose my ‘surprise’ counts as much.

With regards to my comments that “the case showed RFS volunteers did not hold the same legal protections as paid firefighters or police officers when on duty” the context is that all paid firefighters are Authorised Fire Officers and therefore the chain of authority is easily established. For a volunteer to be protected under the Act, they must be acting on the specific direction of their First Officer in their brigade’s area or an Authorised Fire Office.

It is not axiomatic that all paid firefighters are authorised fire officers. The Act does not say that. The Act says (s 52) that ‘The commissioner may authorise a fire officer or fire officers belonging to a class of fire officer …’. If all ‘fire officers’ were authorised fire officers that section would not be necessary. It may be the case that the Commissioner has authorised all fire officers but that would need to be proved in the same way the first officer’s appointment may need to be proved. The mere fact that a person is a fire officer (ie ‘a person employed in the service who has the functions of fire prevention and fire control, and includes a person employed under this Act who is undergoing training as a fire officer’) does not mean they are an authorised fire officer.

As for “It’s just been shown we have no authority to do anything. We can’t assume we have any authority.”, this was in the context of ordinary volunteers. The best example is the authority to draw water from any source – without a specific direction from a First Officer or Authorised Fire Officer, this would technically be stealing. Similar issues surround entering into council land or clearing fire breaks. To see why this is such an issue, understand that only one First Officer is in charge at a moderately sized bushfire. and can be responsible for 50 or more firefighters. The requirement to provide specific directions to each and every firefighter would be impractical in practice.

I don’t agree that a person has to be acting under a specific direction of a first officer. If a first officer is the incident controller, he or she may establish the incident action plan and direct other firefighters to do various things. I would suggest that would be sufficient direction without having to get into the specifics of how they must perform their function. For example, “I want you to put in a fire break here” but that doesn’t require directions about clearing vegetation, access to the site etc; but again that is something that would need to be tested.

Discussion

There are a number of lessons here. The first, as I’ve noted, is that the law is not self-executing. It takes decisions and discretionary judgments by police, prosecutors and magistrates. It may be that if the prosecutors had decided to proceed with charges of serious assault it may have been determined that Mr Cording was a public officer. If they had proceeded with a charge of common assault, it may have been determined that the defence in s 277 could not have been applied. We don’t know. Not every guilty person gets charged, not every guilty person gets convicted and that is true for many reasons not just a defect in the law. We simply don’t know whether the law is insufficient other than if the police or DPP felt sufficiently uncertain then that is evidence that the law in inadequate.

The discussion does suggest that an amendment to the term ‘public officer’ or an amendment of the Fire and Emergency Services Act to say that brigades are established by the Commissioner, under the Act, would be useful. In my opinion the model that says fire brigades are formed when a group of community minded citizens come together to form a brigade is old fashioned and out of touch with the demands of modern firefighting and particularly in a world of increasing fire risk and increased demands on fire services to respond to all emergencies. It’s a model that’s been abandoned in all states other than Queensland and Victoria (see Emergencies Act 2004 (ACT) s 54 ‘The chief officer (rural fire service) may establish rural fire brigades for the rural fire service’; Rural Fires Act 1997 (NSW) s 15 ‘A local authority may form one or more rural fire brigades for any rural fire district constituted for its area or part of its area’ (and for all practicable purposes, the ‘local authority’ is the Commissioner); Bushfires Management Act 2016 (NT) s 54 ‘The Minister may, by Gazette notice, establish a volunteer bushfire brigade, with the name specified in the notice, for an area within a fire protection zone’; Fire and Emergency Services Act 2005 (SA) s 68 ‘The Chief Officer may, by notice in the Gazette— (a) establish an SACFS brigade’; Fire Service Act 1979 (Tas) s 26 ‘The Commission may establish brigades’; Bush Fires Act 1954 (WA) s 36 ‘A local government may … (d) establish and maintain bush fire brigades as a part of its organisation for the prevention, control, and extinguishment of bush fires’).

The next lesson is, as noted in my first post, that there is no clarity as to who is an ‘authorised person’ within the Fire and Emergency Services Act. I stand by my original conclusion that the omission of a definition of ‘authorised person’ is a significant defect in that Act.

Finally remember that a magistrate’s decision does not constitute a binding precedent – see Accessing a judge or magistrate’s reasons for decision (November 18, 2016). In the absence of published reasons (and the reasons in this case do not appear on either AustLII or the official list of published Queensland Magistrate Court’s decisionsthe case cannot be relied on in future – but that will not diminish the concern of volunteers or the need to clarify the standing of brigades and volunteers.

The status of Queensland Rural Fire Brigades has been a matter of regular comment on this blog – see Rural Fire Brigades as part of Queensland Fire and Emergency Services (not Queensland Fire and Emergency Service) (August 6, 2018). This case does appear to highlight, better than any abstract argument, that the status of the brigades is unclear. I note that The Malone Review into Rural Fire Services in Queensland (2013, p. 19) recommended:

That an operational organisation be established comprising of three autonomous units – a. urban fire service; b. rural fire service; and c. the state emergency service. Each of the three units will be led by a Deputy Chief Officer, each reporting to a single Chief Officer.

In Western Australia the Report of the Special Inquiry in the January 2016 Waroona Fire (Euan Ferguson, 2016, recommendation 15) recommended

The State Government to create a Rural Fire Service to enhance the capability for rural fire management and bushfire risk management at a State, regional and local level. The proposed Rural Fire Service will:

be established as a separate entity from the Department of Fire and Emergency Services or, alternatively, be established as a sub-department of the Department of Fire and Emergency Services;…

A similar response in Queensland may go a long way to confirming the powers of firefighters and resolving some of the issues that are raised, but not resolved, by this recent failed prosecution.

Categories: Researchers

Animal Ambulance and Victorian road rules

23 October, 2022 - 22:11

Today’s correspondent from Victoria asks for ‘… a review on “Animal Ambulances”. They ask:

Do we move over and give way if there using red emergency lights?

There is an animal ambulance using red emergency lights in Bendigo. I’m all okay with moving over and giving way… just would like your opinion on this issue

This question requires us to again visit the Road Safety Road Rules 2017 (Vic). Readers of this blog will be familiar with rules 78, 79 and 306. They say

REG 78 Keeping clear of police vehicles, emergency vehicles, enforcement vehicles and escort vehicles

(1) A driver must not move into the path of an approaching police vehicle, emergency vehicle, enforcement vehicle or escort vehicle that is displaying a flashing blue, red or magenta light (whether or not it is also displaying other lights) or sounding an alarm….

REG 79 Giving way to police vehicles, emergency vehicles, enforcement vehicles and escort vehicles

(1) A driver must give way to a police vehicle, emergency vehicle, enforcement vehicle or escort vehicle that is displaying a flashing blue, red or magenta light (whether or not it is also displaying other lights) or sounding an alarm.

REG 306 Exemption for drivers of emergency vehicles

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

(a) in the circumstances—

(i) the driver is taking reasonable care; and

(ii) it is reasonable that the provision should not apply; and

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

A vehicle used to convey sick or injured animals is not a police vehicle, an enforcement vehicle nor an escort vehicle. Nor is it an emergency vehicle even though it may be described as an ambulance. An ambulance is, relevantly, a vehicle operated by or on behalf of Ambulance Victoria or an interstate ambulance service (Road Safety Road Rules 2017 (Vic) Dictionary).

As it is not an emergency vehicle, other drivers do not have to make way for them or give way to them and the driver has no exemption from the Road Rules.

Further an animal ambulance is not an exempt vehicle (Road Safety (Vehicles) Regulations 2021 (Vic) Schedule 1 Vehicle Standards, cl 5 definition of ‘exempt vehicle’). I am also of the view that it is not a special use vehicle (cl 114(1) definition of ‘special use vehicle’). If it could be argued that it is a special use vehicle (eg ‘a vehicle built or fitted for use in hazardous situations on a road’) then the vehicle may be fitted with flashing yellow lights (cl 114(3)). If it is neither an exempt vehicle nor a special use vehicle, then the vehicle must not be fitted with a flashing light, of any colour, ‘without the written approval of the Secretary’ (cl 114(4)).

Conclusion

You do not have to move over or give way to an animal ambulance displaying a flashing red light, but there is no harm in doing so and we’d all probably want to if they are carrying a sick or injured animal to veterinary care.

Categories: Researchers

Gaps in Queensland fire legislation exposed in failed prosecution

23 October, 2022 - 20:27

I have had a couple of people send me links to this article and ask for comments – Dominic Cansdale ‘Property owner found not guilty of obstructing volunteer firefighter, as RFS legal status questioned’ ABC Gold Coast 22 October 2022.

The gist of the story is:

Ashley James Barrett, 51, appeared in Southport Magistrates Court on Friday, charged with the obstruction of persons performing functions under the Fire and Emergency Services Act.

It was alleged that while conducting a prohibited burn-off at his Gold Coast hinterland property during a total fire ban on December 7, 2020, Mr Barrett prevented a RFS volunteer from entering the property to extinguish the small blaze….

Magistrate Jane Bentley said no evidence was presented to the court that Mr Cording, as the second officer of the volunteer brigade, was authorised under the Fire and Emergency Services Act to enter the property without Mr Barrett’s consent.

His defence solicitor Denis Hawes said unlike their counterparts in the Queensland Fire and Emergency Services, RFS volunteers were not employed under the act and did not carry the same legal status, meaning Mr Cording had no authority to enter Mr Barrett’s property.

Under the act, the QFES commissioner must notify a RFS Brigade about what area they are responsible for and under what circumstances volunteers can prevent and fight fires.

But Ms Bentley said no evidence had been presented to the court that such notification had been provided by the commissioner to Mr Cording, or his brigade’s first officer.

Fire and Emergency Services Act 1990 (Qld) s 150C

The Fire and Emergency Services Act 1990 (Qld) s 150C says:

Obstruction of persons performing functions

150C OBSTRUCTION OF PERSONS PERFORMING FUNCTIONS

(1) A person must not obstruct another person (an “authorised person”) in the performance of a function under this Act unless the person has a reasonable excuse.

Penalty—

Maximum penalty—100 penalty units or 6 months imprisonment.

A penalty unit is $143.75 (Penalties and Sentences Regulation 2015 (Qld) r 3; effective 1 July 2022). The maximum penalty is therefore $14,375.00 or 6-months imprisonment

Authorised person

The immediate problem is that the term ‘authorised person’ is not defined. The Act provides for authorised fire officers (s 52) and authorised rescue officers (s 148). One might infer that the term ‘authorised person’ means either an authorised rescue officer or an authorised fire officer, but the Act does not actually say that.

Another interpretation would be that anyone who has a ‘function’ under the Act is an authorised person. That would be consistent with s 54 that refers to a person authorised to dispose of property that has been retained for safe keeping and s 152C that refers to a person authorised to inspect the records of local governments and building certifiers. If they are ‘authorised persons’ for the sake of s 150C then obstructing them is also an offence.

There is a note to s 150C of the Fire and Emergency Services Act that says “The content of this section was previously included in section 147(a) and the Disaster Management Act 2003, section 115″. The Disaster Management Act 2003 (Qld) s 115 still provides that it is an offence to obstruct an “authorised person” but, unlike the Fire and Emergency Services Act, the Disaster Management Act defines who is an ‘authorised person’ for the purposes of that Act (s 113).

Section 147(a) said, before it was repealed and replaced with s 150C:

A person commits an offence against this Act if the person does or, as the case may be, fails to do any of the following acts—

(a) abuses or threatens or wilfully obstructs a person in the exercise of a power or the discharge of a function under this Act…

That section intended to cover anyone who had a power or function under the Act, not just fire and rescue officers so it would be consistent with that history to read the current s 150C as applying broadly- to anyone with a function or power under the Act.

It does appear that then the Act was amended with the passage of the Public Safety Business Agency Act 2014 (Qld) (see Passage of the Public Safety Business Agency Bill 2014 (Qld) (May 8, 2014)) s 115 of the Disaster Management Act was copied into the Fire and Emergency Services Act but no-one thought to add a definition of ‘authorised person’.

Authorised fire officer

Let us, for the sake of the argument, assume that the term ‘authorised person’ includes an authorised fire officer. Section 52 says:

(1) The commissioner may authorise a fire officer or fire officers belonging to a class of fire officer specified by the commissioner to exercise—

(a) all the powers conferred by this Act on an authorised fire officer; or

(b) any power or class of power conferred by this Act on an authorised fire officer.

(2) A reference in this Act to an authorised fire officer is a reference to—

(a) the commissioner; and

(b) a fire officer authorised by the commissioner pursuant to this section.

A fire officer is ‘a person employed in the service who has the functions of fire prevention and fire control, and includes a person employed under this Act who is undergoing training as a fire officer’ (Schedule 6, definition of ‘fire officer’). It follows that a volunteer cannot be authorised under s 52.

Section 83 says:

(1) Where, pursuant to notification given under section 82(2), a rural fire brigade is in charge of operations for controlling and extinguishing a fire, the first officer of the brigade has, for that purpose—

(a) the powers of an authorised fire officer, subject to any limitation imposed by the commissioner; …

(4) In this section—

“first officer” includes, where the first officer of a rural fire brigade is unavailable to act, the next senior officer of the brigade who is available.

Section 82(2) says:

The commissioner must notify a rural fire brigade of the area for which and the circumstances in which the brigade is in charge of fire fighting and fire prevention.

The powers of an authorised fire officer are set out in s 53.

An authorised fire officer may take any reasonable measure—

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

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

Specifically, they have the traditional powers to close roads, enter premises, shore up buildings etc (s 53(2)).

The burden of proof

In Woolmington v DPP [1935] AC 462 Viscount Sankey said:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner … the prosecution has not made out the case and the prisoner is entitled to an acquittal.

One of the essential elements of the offence under s 150C is that the person who was obstructed was an ‘authorised person’. If the prosecution could not, or did not, prove that the person was an ‘authorised person’ then the accused is entitled to that acquittal.

Application – the first argument

The first officer of a rural fire brigade is not an employee so cannot be an authorised fire officer under s 52. A first officer of a rural fire brigade, operating within their area of operations as notified under s 82, may exercise the powers of an authorised officer. It could be argued that by the combination of ss 82 and 83, the first officer is an authorised fire officer. If that is correct (and let us assume, for the sake of the argument it is) then the first officer or if ‘the first officer of a rural fire brigade is unavailable to act, the next senior officer of the brigade who is available’ is an authorised fire officer. If an ‘authorised person’ includes an authorised fire officer then they are also an ‘authorised person’.

Application – the second argument

The alternative argument is that an ‘authorised person’ is not the same as an authorised fire officer or authorised rescue officer. Given the terms of s 150C(1), an authorised person may be any person with a prescribed function, or power, under the Act. A first officer has powers under the Act, but only where ‘pursuant to notification given under section 82(2), [their] rural fire brigade is in charge of operations for controlling and extinguishing a fire’ (s 83). In those circumstances, if he or she is trying to exercise those powers, and is obstructed, that may be sufficient. But even if that is true then the prosecution would still have to lead evidence that the first officer was operating within the Brigade’s area of operations (s 82).

So why was Mr Barrett acquitted?

According to the news story, the case was dismissed because the Prosecution failed to lead evidence that the Commissioner had given a direction under s 82. To prove its case, the Crown needed to have the notice under s 82(2) identifying the brigade’s area of operations. There would then need to be legal argument that the effect of ss 82 and 83 was to not only give the first officer the powers of an authorised officer (s 53) but that it meant that the first officer was an authorised fire officer, or that ‘authorised person’ means any person with a power under the Act and the first officer was such a person.

In either case, because Mr Cording was the brigade second officer, the Crown would then need to prove that the first officer was ‘unavailable to act’ and that Mr Cording was ‘the next senior officer of the brigade who [was] available’.

Discussion

That is a very complex set of arguments, and it is in fact not surprising that this case had the result it did. As the lawyer for the defendant is reported to have said “… authorised fire officers had “substantial powers to interfere with a person’s privacy and property”’ so it needs to be clear who is an authorised under the Act.

It would certainly be better if the Act defined the term ‘authorised person’ and provided that the first officer of a rural fire brigade is an authorised person. Alternatively if ‘authorised person’ is understood to mean either an authorised fire officer or an authorised rescue officer then s 150C should say that, and s 52 should be amended to allow the Commissioner to appoint both employed and volunteer fire fighters as an authorised fire officer. The Commissioner should then appoint at least all rural fire brigade first officers, as a class, as authorised fire officers. It may be better to appoint all officers of rural brigades (s 81) as ‘authorised fire officer’ but that may be a matter for discussion between the Commissioner and the Brigades.

What the case did not show

In the article Mr Cording is quoted as saying

…the case showed RFS volunteers did not hold the same legal protections as paid firefighters or police officers when on duty….

“It’s just been shown we have no authority to do anything. We can’t assume we have any authority.

It did not show that. If the problem was that the prosecution failed to lead evidence that a notice was issued under s 82 then what the case confirmed is that the prosecution have to prove all the elements of their case.

However what this analysis has shown is that even if there was proof that the brigade ‘pursuant to notification given under section 82(2) … [was] in charge of operations for controlling and extinguishing a fire’ there could still have been legal argument as to whether this meant the first officer was an ‘authorised person’ – he or she may be able to exercise the powers of an authorised fire officer but is an authorised fire officer an authorised person? And is being able to exercise the powers of an officer holder the same as being that office holder? Is anyone with powers or functions under the Act an ‘authorised person’?

Recommendations

The Fire and Emergency Services Act 1990 (Qld) should be amended to either:

include a definition of ‘authorised person’ or
amend s 150C to refer to ‘an authorised fire officer or an authorised rescue officer’.

Further,

the definition ‘fire officer’ should be amended to say that a fire officer can be either an employee or a volunteer, or
s 52 should be amended to say the Commissioner can appoint either an employee or a volunteer as an authorised fire officer or
s 83(1) should be amended to say

Where, pursuant to notification given under section 82(2), a rural fire brigade is in charge of operations for controlling and extinguishing a fire, the first officer of the brigade has is, for that purpose—

(a) the powers of an authorised fire officer, subject to any limitation imposed by the commissioner; …

Categories: Researchers

Carrying meals in an ambulance

17 October, 2022 - 17:07

Today’s correspondent asked for “information regarding any regulations/protocols/policies regarding the carrying or consumption of personal food in an ambulance (workplace) during shift?” I asked for more context and they replied

The context surrounding my Question is that, as an organisation/PCBU is to provide a safe eating space for workers, and we are to be allocated a 1 x 30min break in a 10hr shift, or 2 x 30min break in a 12hr shift.

Are there any provisions in place that stipulate that food can or cannot be carried within an ambulance that transports persons with infectious diseases, significant trauma and other health conditions which may contaminate an officers food ?.

In addition to this, as some ambulances have only one (1) refrigerator within the ambulance, which is to be used for patient water, medicines, and possibly amputated parts. Is there a requirement that the organisation to provide a safer means of transporting a workers meal/food if the worker does not return to their home station or a station throughout their shift until the completion of their shift, which is basically every shift.

Paying particular attention to Worksafe QLD Code of Practice – Managing the work environment and facilities code of practice 2021 (3.5 – Dining facilities), the opening sentence states that: Workers must be provided with access to hygienic facilities for eating and for preparing AND storing food.

That context effectively answered the question.

The legislature is never going to get into specifics and write laws ‘regarding the carrying or consumption of personal food in an ambulance (workplace) during shift’. I cannot access internal documents or policies but that is where the answer (if any) will lie and it will be there for the reasons stated by my correspondent.

In the absence of a subject specific law, normal industrial and work health and safety laws will give the answer. The Work Health and Safety Regulation 2011 (Qld) r 41(1) says:

A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, the provision of adequate facilities for workers, including toilets, drinking water, washing facilities and eating facilities.

The terms of employment will say what meal breaks are required but the nature of a 24 hour 7 day a week emergency service is that of course those meal breaks at the prescribed times cannot be guaranteed.

That begs the question of what is ‘adequate’. I would imagine an ambulance service would say that there are stations that probably have refrigerators, hot plates, microwave ovens etc and that is ‘adequate’. Paramedics, like my correspondent may say they are not adequate given the nature of the work and the time away from station.

When deciding what is adequate, r 41(3) says:

For this section, a person conducting a business or undertaking must have regard to all relevant matters including—

(a) the nature of the work being carried out at the workplace; and

(b) the nature of the hazards at the workplace; and

(d) the number and composition of the workers at the workplace.

The nature of the work and the nature of the hazards are both relevant to the question of what can be provided in an ambulance and whether carrying food in an ambulance carries an unacceptable risk.

Paramedics of course know what their job is, what the demands of their job are and can and should make allowance to ensure that they have food with them and to also consider whether they can or should carry food that requires refrigeration if they know they do not have access to the fridge. It is their duty to take reasonable care of their own safety (Work Health and Safety Act 2011 (Qld) s 28(a)).

Equally the PCBU knows of the demands on their staff and has to ‘so far as is reasonably practicable’ provide facilities including ‘eating facilities’. The law won’t get any more specific than that. Within that context and taking into account the terms of employment the PCBU needs to determine what it can provide. IF there is no agreement on what is ‘reasonable’ and ‘reasonably practicable’ then it is an industrial matter to be taken up using the consultation processes in industrial and work health and safety law. This will not be a situation where one can look up a law book and find that there is a rule that ‘any ambulance must be fitted with a staff fridge’ or the like. Modern work health and safety law leaves it up to the PCBU, in consultation with workers, to come up with a solution based on the situation in their unique workplace.

Conclusion

There is no law specifically on ‘carrying or consumption of personal food in an ambulance’. There are general legal principles in particular in the work health and safety legislation that say there must be reasonable access to facilities. What is ‘reasonable’ depends on all the circumstances and is a matter for the PCBU to determine in consultation with workers. If a paramedic thinks that what they are being provided is not ‘reasonable’ they should take this up with their health and safety representative, WHS committee or their industrial union.

Categories: Researchers

Holding ambulance services, and their managers to account

12 October, 2022 - 14:39

Today’s correspondent says:

As I renew my paramedic registration I am reflecting on the multiple regulations, policies, moral and ethical considerations that I must adhere to as an individual. In light of deaths and harm occurring to individuals across Australian health systems, secondary to ambulance and emergency department delays, by what process are those individuals responsible for these system/structures (managers, executives, medical directors, boards, and govt ministers) held accountable? (NSW parliamentary enquiry, the sad case of Amrita Lanka, QLD – Courier Mail 18/9/22 “20 Queenslanders die”)

Policies of an ambulance service for example, could lead to greater harm, for a longer period, to more people than any individual healthcare professional could. How is this regulated and who is accountable? Could a medical director, or director, be held accountable through individual registration, for their decisions, lack of strategic planning that may have led to some factors contributing to these failures? Policies such as ‘all pediatric patients must be transported to hospital’ contributes to unnecessary health systems workload, which in turn generates delays in ambulance response and ability to manage multiple patients with limited resources.

I acknowledge the extremely complex, multifactorial causes of such failures, however concerns over system design and strategy have been raised for decades. I also acknowledge there are many individuals throughout the system doing their very best to ensure optimal care is provided. However, It seems individual health professionals are becoming increasingly regulated and accountable, however they are working in a seemingly unaccountable system that is failing its patients.

These are interesting questions, but I won’t attempt to answer each one. Rather I will discuss the principles, as I understand them, more generally.

Regulating ambulance services

First it is interesting to note, as my correspondent does, that individuals are required to be registered and to comply with codes of conduct, registration standards etc, yet ambulance services are not. As my friend and fellow paramedic commentator, Ray Bange (who writes as ‘the Paramedic Observer’) has noted on many occasions, ambulance services are not subject to the same level of oversight as practitioners. In his Submission to Department of Health and Human Services Victoria Review of the Ambulance Services Act 1986 (January 2017) he said:

While paramedics need appropriate regulation, so too should service providers be subject to an appropriate independent oversight regime as an integral element in delivering uniformly high quality care and accountability in the public interest.

… the author believes that all paramedic service providers in Australia should be subject to minimum standards of performance and operate under an independent accreditation and quality assurance regime…

(see also Ray Bange, Submission to the Rural Health Services Inquiry: Meeting the healthcare needs of rural Tasmanians (March 2021). In another submission (Submission for Senate Inquiry into the high rates of mental health conditions experienced by first responders, emergency service workers and volunteers (June 2018)) he said:

Because paramedic services fulfil a key function in public health and safety and the health services are funded through the taxpayer, their accountability needs to be commensurate with that role. That mandates an appropriate level of independent oversight that is not provided by the RoGS [Report on Government Services] or limited transparency through an annual report or the lens of a health department.

It is interesting to repeat the observation that when it comes to health practitioners who are not registered under the health practitioner regulation national law, there is a Code of Conduct in place in NSW, Queensland, SA and Victoria. In NSW the newly revised code also applies to the practice that employs those practitioners (see Revised Code of Conduct for non-registered health practitioners in NSW (September 23, 2022)). There is no equivalent of the AHPRA Code of Conduct that applies to ambulance or paramedic services in the same way the Code applies to individual practitioners.

Regulating individuals

With that background, the question that I understand I’m being asked is how individuals within those services are, in the absence of external quality control, held to account. The answer is that they may be held to account by professional paramedic standards, but it’s unlikely.

Practising the profession.

The first part of the discussion will deal with managers and executives who are paramedics; and medical directors who are registered medical practitioners. Those that are not cannot be held to account under the provisions of the Health Practitioner Regulation National Law and will be discussed later, below.

The first condition for the operation of the professional standards that come with registration is that a paramedic must be practising their profession. The AHPRA Code of Conduct (29 June 2022), adopted by the Paramedicine Board, defines practice as:

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

There is no definition of practice in the Medical Board’s Good medical practice: a code of conduct for doctors in Australia (1 October 2020) but an approach similar to that quoted above is likely to apply. For the sake of this discussion, I will assume the definition set out in the shared code of conduct quoted above, will also apply to doctors such as an ambulance service medical director.

The critical part of the definition is that it is not related to direct patient care. As it says ‘using professional knowledge … [whilst] working in management, administration … or policy development roles and any other roles that have an impact on safe, effective delivery of health services in the health profession’ is professional practice as a paramedic or doctor.

That means that those practitioners must have regard to the various professional standards that focus on delivering patient centred care. A key issue in management and policy development should be Principle 6 that is ‘Practitioners have a responsibility to contribute to the effectiveness and efficiency of the healthcare system and use resources wisely.’ Those charged with developing ambulance policy must ‘understand that your use of resources can affect the access other patients have to healthcare resources’ ([6.1]).

That does not mean, however, that every policy that has an adverse effect is a bad policy. In most, if not all, policy choices there are costs and benefits; pros and cons; winners and losers. A policy that ‘all pediatric patients must be transported to hospital’ may contribute to unnecessary health systems workload but it may also decrease the risk of missed diagnosis or rapid decline in child health with adverse consequences.

Health policy decision making is necessarily complex and it’s not as simple as asking ‘what would be best in the best of all possible worlds?’ Managers, executives, medical directors, boards, and government ministers must make decisions that are necessarily always a compromise. Resources are limited, demands on those resources are not. Where the service is a government service they are established by government and subject to government policy directives. Those charged with managing the service must do so within that context. Individual paramedics faced with the consequence of policy choices and their impact on particular patients will have a different perspective to those charged with managing the service as a whole – whether that is the Ambulance Service or the entire health service or the range of government services.

When seeking judicial review of a decision by a government appointed decision maker, the test is to ask whether the decision was so ‘so unreasonable that no reasonable person acting reasonably could have made it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223). That may not be the relevant test in professional discipline but it is, perhaps, a good guide.

The test, I would suggest, to hold an individual registered health professional ‘accountable through individual registration, for their decisions [or] lack of strategic planning’ would be to ask whether their decisions were ‘Wednesbury unreasonable’ and whether that paramedic or doctor proved by their actions, or inaction, that they were not a fit and proper person to be a paramedic, or doctor. There may be obvious examples where that is the case – a person that develops a policy where they have a clear conflict of interest so that they are trying to advance their own private interests; a person that makes decisions based on bribes or ‘kick backs’ etc. A paramedic or doctor who engaged in corrupt, malicious or criminal conduct in their managerial role may well compromise their registration.

That’s not impossible but one can see the difficulty given the factors that the decision maker must consider and because decisions are not usually made by individuals. Where there are multiple minds brought to bear on a problem it would be hard to say the policy outcome was ‘so unreasonable that no reasonable person acting reasonably could have made it’ if multiple people agreed that it was indeed a reasonable outcome.

People other than registered health professionals

Other people are involved in the management of ambulance services. Where there is a Board one would hope it had a cross section of expertise including legal and accounting experts as well as health professionals. Where it is a government service the Chief Officer should, ideally, ensure that he or she has access to advice, but they are all subject to direction and control from their Minister who in turn should adopt policies approved by Cabinet which effect all of government.

Where a government establishes a service, like an ambulance service, it appoints people to the chief role and then expects them to manage the service. As noted by the Bange the services are not independently regulated or subject to independent quality assurance. That means accountability is mostly political. If we do not like the way state governments are running hospital and health systems, we get to vote for someone else.

Civil litigation

Another route to hold agencies (rather than individuals) accountable may be through civil litigation but again that is unlikely to succeed. If someone wanted to sue the ambulance service, or the Minister, for adverse consequences that resulted from the implementation of a policy choice they would find it a very difficult legal road. Legislation, for example the Civil Liability Act 2002 (NSW) is enacted to limit government liability.

First, that in deciding whether a public authority (such as a jurisdictional ambulance service) has been negligent, the service is limited by the financial and other resources available to it and the allocation of those resources cannot be challenged (s 42). This means you cannot sue a government service for not having equipment or resources that would have lead to a different outcome nor how they allocate the resources they have. The service has to share the budget between recruiting, capital expenditure, training, maintenance, on-road staff etc. They could have more paramedics if they had less of something else but that sort of decision-making is ‘non-justiciable’. You cannot sue because you think the Ambulance Service, or the government, should have had different priorities or had more resources.

Second if one were to argue that a statute imposed a duty on a service then a plaintiff can only successfully sue if the actions of the service are ‘so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions’ (s 43 and adopting words from Wednesbury’s case, above). To put that into context, the Health Services Act 1997 (NSW) s 67B(1)(a) says that the Health Secretary is to provide ambulance services and:

… (c) in connection with ambulance services referred to in paragraph (a), to protect persons from injury or death, whether or not those persons are sick or injured,

(d) to adopt and implement all necessary measures (including systems of planning, management and quality control) as will best ensure the efficient and economic operation and use of resources in the provision of ambulance services,…

The family of a person who dies waiting for an ambulance may want to argue that the Health Secretary has failed to do what s 67B(1)(c) requires as they did not ‘protect’ their loved one from death. And they may argue that a different policy approach would have been better so that the health secretary did not ‘ best ensure the efficient and economic operation and use of resources’.

The effect of s 43 is that sort of litigation could only succeed if the plaintiff could show the decisions of the health secretary were ‘so unreasonable’ that no-one in that position would consider the choices they made ‘to be a reasonable exercise of its functions’. Given the health secretary would no doubt be able to point to the advice received and the processes in place to make decisions that test is almost insurmountable. And I say ‘almost’ because there is perhaps some factual situation that is not far-fetched and fanciful that might exist where that could be proved, but I cannot think of it – but never say never.

Again, the way agencies like government ambulance services are held accountable for these sort of policy decisions is via the ballot box.

Private services

Private ambulance services are not in quite the same position. Where a private entity contracts to provide ambulance services (either to individuals, to the private sector or to government) they can determine their level of service in their contract negotiations and they have to deliver the service they promise to deliver. Unlike a government service, a private service is not required to provide a particular service so if it fails to deliver what it promised, it can be liable as a breach of contract.

As a non-government entity, they do not get the benefit of sections like ss 42 and 43 of the Civil Liability Act 2002 (NSW) discussed above, but even so they will not be liable for the adverse outcome of ‘reasonable’ policy decisions.

The other relevance of private ambulance services is that they can hold government agencies ‘to account’ via competition. If people are sufficiently unhappy with jurisdictional ambulance services it will continue to open the door to private ambulance services. In an article I wrote with Ruth Townsend ‘Paramedicine in 10 years: What will it look like?’ (2019) 46 Response 18-20 we argued that registration could lead to the growth of private ambulance services and this would be hard for governments to resist given their commitment to competitive neutrality that is (NSW Policy Statement on the Application of Competitive Neutrality (2002), p. 23) ‘Government businesses should not enjoy any net competitive advantage simply as a result of their public sector ownership’.

If private services can provide high quality services, they should be able to enter the market and compete with public services. There may not be sufficient interest in private emergency ambulance services but if demand arises because of perceived failures by the public services, that pressure may be hard to resist and that would be another way of holding ‘managers, executives, medical directors, boards, and govt ministers’ to account for their management decisions.

Conclusion

The question I was asked began:

The answer is that individuals are largely not responsible for the system/structures, teams are. Individuals could, in rare circumstances, ‘be held accountable through individual registration, for their decisions [or] lack of strategic planning’ but these would be very rare and most likely in cases of criminal or corrupt conduct.

The way ‘managers, executives, medical directors, boards, and govt ministers’, particularly where there are state operated ambulance services (everyone but the NT and WA) will be held accountable for the performance of the ambulance service will be via the ballot box and the Parliament.

Categories: Researchers

Doctor reports suspicions about patient’s date of death

10 October, 2022 - 06:00

Today’s correspondent, although from NSW, wonders about some issues raised in a news story from Western Australia – ‘Perth doctor claims man placed in body bag and taken to morgue while still alive’ 9News (Online), 6 October 2022. The gist of the story is that a registered nurse determined a patient had died and the patient’s body was transferred to the morgue. A doctor was later called upon to sign a death certificate.

When the body bag was unzipped, the doctor was stunned by what he saw. Reid’s eyes were open and there was fresh blood from a cut to an arm.

The other arm was over his right shoulder.

“I believe the frank blood from a new skin tear, arm position and eye signs were inconsistent with a person who was post-mortem on arrival at the morgue,” the doctor told the coroner last week.

The doctor claimed he was asked to date the death certificate to accord with the nurses determination that the patient was dead but he refused to do that. The issues were then referred to the Coroner and ‘the Corruption and Crime Commission … because any direction to backdate a death certificate could be deemed serious misconduct by a public officer.’

My correspondent says:

In NSW, both paramedics employed by NSW ambulance and certain registered nurses can ‘confirm life extinct.’ I am unsure whether the spokesperson for the AMA WA is unaware/incorrect or it is different in WA.

I am surprised that the doctor is taking ‘eyes open’ (I’ve seen plenty of deceased in this manner) a ‘fresh cut’ and ‘arm position’ as evidence another health professional has made an error. Does the reporting err on the side of doctors are right because they are doctors?

One other point. The MCCD [Medical Certificate of Cause of Death] is also something that to my understanding is “backdated”. It can be issued within 48 hours of death after a Verification of Death (VOD) is completed by a paramedic/authorised RN, where the doctor may not view the patient at all but go on known patient history and the VOD.

There is a difference between determining that a person has died – that life is extinct, and determining the cause of death.

I have written about Queensland Paramedics – Recognition of Life Extinct (ROLE) (August 22, 2014). We don’t need to go into details of the role of an RN or paramedic in WA to resolve the issues here. We can assume for the sake of the argument that an RN should be competent to tell whether a patient is, or is not, dead and that the RN certifying life extinct was consistent with the hospital policy and the RN’s scope of practice. That is not, however the issue.

Does the reporting err on the side of doctors are right because they are doctors?

I’m not a journalist and this is not a journalism blog so take what follows with a grain of cynical salt – but if the reporting errs on the side of the doctor (in this case) is right it’s because it’s not much of a story otherwise. Conflict is the story – so I’m sure they would err on the side of the nurse is right if a nurse went public with a story of a doctor’s error.

But, having said that, I don’t think the article does assume the doctor is correct. The article reports what happened – the doctor opened the body bag, the doctor was concerned about what he saw, the doctor reported the matter as he should. Reporting that this is what happened is surely good journalism particularly where it happened in a public hospital and there must be significant public interest in the conduct of the hospital. But even the heading – the place for sub-editorial click bait – doesn’t say ‘person put in morgue alive’ – it says that a doctor claims this is what happened.

As for the statement:

My correspondent acknowledged that ‘… the facts are relatively unknown (other than reporting by a media organisation)’and it is important to bear that in mind. The journalist has to summarise the story and we don’t know exactly what the doctor saw or did to form his opinion. But even if the evidence is incomplete or insufficient to establish an error that does not mean a doctor should not make a report to allow an agency – like the coroner – to look into it. A person does not need to be satisfied beyond reasonable doubt before raising concerns.

The MCCD

A Medical Certificate of Cause of Death is a certificate required under relevant registration legislation. In Western Australia the Births, Deaths and Marriages Registration Act 1998 (WA) s 44 says:

Doctor to provide certificate of cause of death unless the death is reportable to a coroner

In the case of a person’s death other than a still-birth or a neonatal death, the doctor who —

(a) was responsible for the person’s medical care immediately before the death; or

(b) examined the person’s deceased body,

must, within 48 hours after the person’s death —

(d) give the certificate to the person who is responsible under section 42 for notifying the Registrar of the death.

The doctor does not have to give a certificate if he or she has a reasonable excuse for not doing so (s 44(4)(b)) or if the doctor is required to report the death to the coroner (s 44(5)).

The Coroners Act 1996 (WA) s 17(3) says that a doctor must report the death to a coroner if:

(a) the death is or may be a reportable death; or

(b) the doctor is unable to determine the cause of death; or

In the circumstances one can see why a doctor would not sign a certificate. If, on the examination of the body, the doctor forms the view that the person may not have been dead when placed in a body bag and then in the morgue, that doctor could not certify the cause of death – was it the patient’s underlying disease; hypothermia; asphyxiation? The doctor would also rightly conclude that ‘the death has occurred under any suspicious circumstances’. An autopsy is required to determine the cause of death and to answer the doctor’s concerns, but the doctor could not, in those circumstances, sign a MCCD.

Back-dating the form

No-one should ever back date a form – but that can mean different things. I am unable to find a copy of the WA MCCD online but I assume it has a place for a doctor to sign and date it. That date should always be the date on which the form is signed. I would also assume that the form has a place to record the date of the person’s death.

An information sheet published by Avant, a medical indemnity insurer (Death certificates – Western Australia (2015)) says:

At times, you may be required to sign a death certificate for a patient you don’t know or have not seen for a while. There is no legal requirement for you to have had recent contact with the patient, but you do need to have enough information based on the history (e.g. review of the medical records or discussion with the treating doctor) or an examination to provide a cause of death.

It also says:

In Western Australia, there is no requirement to sight the body for the MCCD.

It is not ‘backdating’ the form to put that date of death as an earlier date than the date the form was signed. That is the record of what happened –on a given date the doctor is certifying that he or she is satisfied that the patient died on an earlier date.

But you can see in this case why the doctor would not do that. He examined the patient on a given day and was sure he was dead then, but the doctor was not sure the patient was dead on the day he was taken to the morgue. Writing the date of death as the earlier date would have been quite wrong and would have been ‘backdating’. It would be the doctor saying he was satisfied that the patient was dead on that earlier date when in fact he was only satisfied that the patient was dead on the date of the examination. Given the doctor was not satisfied that it was correct, pressuring the doctor to certify the patient was dead on that earlier date would also be quite wrong and possibly corrupt if the motivation was to protect the hospital or staff from adverse consequences.

Conclusion

The law in WA appears consistent with my correspondent’s comment that:

The MCCD [Medical Certificate of Cause of Death] … can be issued within 48 hours of death after a Verification of Death (VOD) is completed by a paramedic/authorised RN, where the doctor may not view the patient at all but go on known patient history and the VOD.

However, that cannot be right if the doctor does not think the history given, or the verification of death was correct. In that case he or she could not issue the MCCD but must report the matter to the coroner, as happened here. The best they can say is ‘the patient was dead when I examined them, but I cannot be sure when they died’ in which case the only date they can put is the date of their examination.

To ‘backdate’ a form is to sign it and date it as if it was signed on an earlier date. To date it with the date it was signed, but on the form to say the date of death was an earlier day, is not to back date the form. In this case however for the doctor to say the death occurred on the earlier day would be to ‘backdate’ his opinion; the doctor knew the patient was dead on the day he examined the body, but could not certify that the person was dead on an earlier date as clearly, he was not satisfied that was the case. There could be no justification for writing the earlier date as the date of death in those circumstances.

Is the doctor correct? Legally he was clearly correct to do what he did.

Is he correct about the date of death? We cannot say, that will be up to the coroner to determine.

Categories: Researchers

The role of the Paramedicine Board in paramedic de-registration

7 October, 2022 - 15:56

Today’s correspondent has an interesting question on the role of Tribunals in professional discipline. They say:

… three recent events have left me quizzical, regarding deregistration of paramedics. I was of the understanding that the Paramedic Registration Board (under AHPRA) was solely responsible for this important function, but it has been reported in three recent cases that this function was a result of a hearing at the Civil and Administration Tribunal in the relevant State. The three cases are McAlpine in NSW (your blog August 22 2022), Galloway QLD (your blog May 25 2022) and the recent case of Robert Wayne Bevan (reported by the ABC September 27th 2022). Or is the involvement of the various State Tribunals a result of appeals by the paramedics concerned, and such detail left out by reporters??

The Health Practitioner Regulation National Law is set out in a schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) and then adopted, with modification and local definitions, in each state and territory. In answering this question I’ll refer to the national law as it appears in the Schedule.

The law provides for a ‘responsible Tribunal’ that is

a tribunal or court that—

(a) is declared, by the Act applying this Law in a participating jurisdiction, to be the responsible tribunal for that jurisdiction for the purposes of this Law as applied in that jurisdiction, …

That is, it is up to each jurisdiction to nominate a Tribunal or court that is to exercise the functions of a Tribunal for the purposes of the National Law. In most jurisdictions, and certainly NSW, Queensland and South Australia, that is the state’s Civil and Administrative Tribunal (NCAT, QCAT and SACAT respectively).

The Board

Where a complaint is made to the Paramedicine Board the Board must make an initial determination. The Board may take immediate action to suspend a practitioner’s registration or impose conditions on their registration if, in the opinion of the Board, ‘it is necessary to take immediate action to protect public health or safety’ (s 156).

The Board may conduct an investigation into a complaint (s 160) and/or it may require a practitioner to undergo a health or performance assessment (ss 169 and 170).

Dependent on the Board’s assessment of the practitioner’s conduct, the Board may (s 178):

Caution the practitioner;
Accept an undertaking from the practitioner;
Impose conditions on the practitioner’s registration; or
Refer the matter to another entity – eg the police or the Health Ombudsman (in Queensland) or the Health Care Complaints Commission (in NSW).

A Performance and Professional Standards Panel

Where the Board is of the view that the practitioners’ conduct may amount to unsatisfactory professional conduct, they may refer the practitioner to a Performance and Professional Standards Panel. The panel must have at least three members, at least of two of whom must be registered in the same health profession – ie in our context, at least wo must be paramedics; and at least one must be a community representative (s 182). ‘A panel is required to observe the principles of natural justice but is not bound by the rules of evidence’ (s 185). A practitioner may be assisted by a legal practitioner but may only be represented by a legal practitioner with the permission of the panel (s 186). The panel may decide (s 191):

(a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or

(b) one or more of the following—

(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;

(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;

(iii) the practitioner has an impairment;

(iv) the matter must be referred to the responsible tribunal;

(v) the matter must be referred to another entity, including, for example, a health complaints entity, for investigation or other action.

The panel may impose conditions on the practitioner’s registration and may caution or reprimand the practitioner (s 191). A health panel (ie a panel inquiry into the practitioner’s health) but not a ‘performance and professional standards panel’ may suspend the practitioner’s registration.

A panel hearing is not a public hearing (s 189).

A Tribunal

A panel must stop hearing a matter and refer it back to the Board for referral to a Tribunal if the practitioner requests the panel to take that action or the panel ‘believes the evidence demonstrates the practitioner may have behaved in a way that constitutes professional misconduct’ or that the practitioner’s registration was improperly obtained (s 190).

Equally a national board must refer a matter to a Tribunal if the Board forms the view that the practitioner may be guilty of ‘professional misconduct’ or obtained their registration improperly (s 193).

A Tribunal may (s 196(1)) determine that the practitioner’s conduct amounts to:

unsatisfactory professional performance;
unprofessional conduct; or
professional misconduct;

The Tribunal may also determine that the practitioner has an impairment or that their registration was improperly obtained. The Tribunal may (s 196(2)):

(a) caution or reprimand the practitioner;

(b) impose a condition on the practitioner’s registration…

(c) require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;

(d) suspend the practitioner’s registration for a specified period;

(e) cancel the practitioner’s registration.

The Tribunal also sits as the appeal body from various decisions of the Board (s 199).

State Differences

There are state differences in the exact process to be applied, particularly in the co-regulatory jurisdictions. A co-regulatory jurisdiction is (AHPRA, Glossary, definition of a co-regulatory jurisdiction):

A jurisdiction which is not participating in the health, performance and conduct process provided by the National Law, but is involved in other parts of the National Scheme. New South Wales is a co-regulatory jurisdiction, so the health professionals councils work with the Health Care Complaints Commission to assess and manage concerns about practitioners’ conduct, health and performance.

The NSW Paramedicine Council says:

… New South Wales operates a state specific complaints management process in which the regulatory bodies will be the Paramedicine Council of New South Wales and the Health Care Complaints Commission (HCCC),

Queensland is also a co-regulatory jurisdiction (Kim Forrester ‘A new beginning for health complaints in Queensland: the Health Ombudsman Act 2013 (QLD)’ (2013) 21(2) J Law Med 273-7).

The difference in process does not however change that fact that where a practitioner’s conduct warrants, or may warrant, the ultimate sanction of de-registration, it is the relevant Tribunal, and only the relevant Tribunal, that can make that order.

Conclusion

The result is that is not the Paramedicine Board that is responsible for the decision to de-register a paramedic (or other health professional). The Board is more akin to the police and the DPP (though in some states that is passed onto another agency such as the Health Ombudsman or the Health Care Complaints Commission). Where the conduct is sufficiently serious as to potentially warrant de-registration it is referred to Tribunal.

These Tribunals, although they do not have the status of courts, bring a high degree of formality and procedure to bear to ensure that the allegations are proved to the satisfaction of an independent arbiter, and that the practitioner can be represented by a legal practitioner.

Categories: Researchers

Death benefits are different for employed and volunteer firefighters in NSW

30 September, 2022 - 17:36

Today’s question is about volunteer compensation and the NSW RFS. I have removed most of the text of the question to identify only the key issues and the questions to be answered.

The issue is a NSW RFS volunteer with a terminal cancer. iCare – the relevant insurer has accepted liability that is they accept that the cancer is a result of the volunteer’s long service with the RFS. But, says my correspondent:

I understand that as a volunteer, the death benefit is much less (some $200,000) than firefighters with the same medical condition, who were employees of the RFS.

My questions are:

is this correct?

and why the difference?

Compensation for volunteers in NSW is governed by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW). This Act applies, with some modifications, the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) to volunteers as if they were employees.

Compensation includes payment for loss of earnings and medical expenses. I’m told that ‘medical expenses etc are being covered’ so our discussion is limited to the issue of lump sum compensation.

Presumptive cancer legislation

Compensation is payable where a firefighter has received an ‘injury’ (s 10). The term ‘injury’ includes a disease (s 24).

There has been legislation introduced across Australia to presume that the presence of some cancers is the effect of the exposure of firefighters to carcinogens during the course of their firefighting work. For volunteers with the NSW RFS that legislation is found in the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 10A. For other firefighters (such as those employed by Fire and Rescue NSW) the relevant legislation is Workers Compensation Act 1987 (NSW) s 19A.

I won’t go through the legislation but will assume, given we are told that liability has been accepted, that the firefighter, the subject of this question, has one of the cancers that are presumed to be the result of firefighting. That is the firefighter as contracted a disease (cancer) arising from their duties as a firefighter and the liability to pay compensation has been accepted.

Changes to workers compensation in 2015

There were changes made to restrict workers compensation in 2015. Certain workers were excluded from those changes. The Workers Compensation Act 1987 (NSW) Sch 6, Part 19I, cl 3 says:

The amendments made by the 2015 amending Act do not apply for the purposes of … the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 and a reference in either of those Acts to a provision of the Workers Compensation Acts is a reference to the provision without regard to any amendment made by the 2015 amending Act.

The Workers Compensation Act 1987 (NSW) Sch 6, Part 19I, cl 14 says (emphasis added):

(1) The amendments made by the 2015 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.

(2) This clause does not apply to an amendment made by the 2015 amending Act to section 25 or 26 of the 1987 Act (or to clause 5 of this Part in its application to such an amendment).

Lump sum death benefits

Where a volunteer firefighter dies as a result of their injury (remembering that the definition of injury includes a disease) they are entitled to ‘compensation payments prescribed by paragraphs (a) and (b) of section 25 (1) of the Principal Act’ (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 10). The ‘Principal Act’ is the Workers Compensation Act 1987 (NSW) (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 3).

The consequence is that the family of both a volunteer, and a paid firefighter are to be paid a lump sum death benefit based on s 25 of the 1987 Act. But, a volunteer gets the benefit of the Act as if the 2015 amendments had not been made. A paid firefighter (or paramedic, or police officer) gets the benefit of s 25 as amended by the 2015 Act.

Before the 2015 amendments, s 25(1) said:

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

(a) the amount of $425,000 (the “lump sum death benefit“), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker’s legal personal representative, and

(b) in addition, an amount of $66.60 per week in respect of–

(i) each dependent child of the worker under the age of 16 years, and

(ii) each dependent child of the worker being a student over the age of 16 years but under the age of 21 years.

The effect of the Workers Compensation Amendment Act 2015 (NSW) Sch 1, cl 1, was to ‘Omit ”$425,000” from section 25 (1) (a). Insert instead “$750,000”.

That means that the base ‘lump sum death benefit’ for volunteers is $425,000. For employed firefighters it is $750,000 – indeed a difference of $325,000.

Workers Compensation Benefits Guide

The lump sum death benefit has been increased over time (Workers Compensation Act 1987 (NSW) ss 79-82), so the value of the death benefits is not, today $425,000 and $750,000 respectively. To confirm this we can look at the Workers Compensation Benefits Guide (October 2022) published by the State Insurance Regulatory Authority. (And I know I’m writing this in September so the reference to ‘October 2022’ is when the guide takes effect rather than when it was published).

That publication says that

the lump sum death benefit from 1 October 2022 until 31 March 2021 will be $871,200 (p. 66, [4.2.1]);
but for workers that were not affected by the 2015 amendments (ie volunteer firefighters) the lump sum death benefit will be $613,800 (p. 69, [4.2.2]) – a difference of $257,400!

Why the difference?

In the second reading speech to Parliament, the then Minister for Finance, Services and Property (and now the Premier) Dominic Perrottet said:

Schedule 1 to the bill provides for a large increase in the amount paid to dependants of a worker who has died—from $524,000 to $750,000. This is the most generous lump sum support package in Australia for families of workers who have died at work. This will apply to any fatality that occurs from today onwards.

(The reference to $524,000 was the indexed death benefit that applied on the date of this speech – 5 August 2015 (see Workers Compensation Benefits Guide, p. 68, [4.2.2])).

The Minister gave no explanation as to why the change did not extend to claims under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW). He did say:

Workers who were excluded from the operation of the Workers Compensation Legislation Amendment Act 2012, such as police officers, paramedics, firefighters and some others, will not be affected by the changes in the bill.

The Bill, as originally introduced, did not have cl 14(2), quoted above. The Bill, as originally introduced, would have treated paid and volunteer firefighters alike. As the Bill moved through parliament, the Legislative Council inserted cl 14(2) into the Bill. Presumably the members of the Council noted that if exempting firefighters, paramedics and police from the 2015 amendments was meant to be advantageous, not giving them the benefit of the higher lump sum death benefit was not to their advantage. Perhaps they just missed that it also disadvantaged volunteers?

Conclusion

My correspondent asked:

I understand that as a volunteer, the death benefit is much less (some $200,000) than firefighters with the same medical condition, who were employees of the RFS.

My questions are:

is this correct?

and why the difference?

My answers are:

Yes, this is correct, and
I have no idea why, and cannot justify the difference. It may be that the Parliament simply missed seeing the impact. The workers compensation scheme is ridiculously complex with amendments made but not applied to everyone, so the risk of egregious anomalies was always present. This appears to be one of them.

References to earlier posts

I do note that I have been asked similar questions before and have not been able to identify the issue in part because the questions were not quite so specific so I wasn’t sure where to look. And prima facie, the benefits are the same. Both the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) and the Workers Compensation Act 1987 (NSW) say death benefits are payable under s 25 so prima facie the benefits are the same. But the devil is indeed in the detail! What follows is that my conclusion, at least in the first part of my post Compensation for the death of NSW volunteer firefighters (February 8, 2020) is wrong.

And for a discussion on ‘Workers who were excluded from the operation of the Workers Compensation Legislation Amendment Act 2012’ see:

Fire fighters and paramedics exempted from workers compensation changes (June 22, 2012). In that post I said there would need to be litigation to determine who fell within the definition of paramedic or firefighter, and indeed there was – see

Who is a firefighter in NSW? (November 30, 2012);
NSW workers compensation and when is an employee a firefighter? or a paramedic? (July 30, 2015) and
NSW workers compensation and when is a volunteer a paramedic? (July 31, 2015) (noting that these posts are all written before paramedic registration).

Categories: Researchers

Law to create new criminal offences against police, law enforcement, emergency services and health workers introduced to NSW Parliament

29 September, 2022 - 12:26

The Crimes Legislation Amendment (Assaults on Frontline Emergency and Health Workers) Bill 2022 has been introduced to, and passed, the lower house in the NSW Parliament. According to The Hon Stephanie (Steph) Cook, NSW Minister for Emergency Services and Resilience, the Bill, if passed will ‘provide greater protection for emergency workers, including all volunteers.’ It will create ‘new criminal offences for assaulting frontline emergency workers, bringing them into line with acts of violence against NSW Police officers’.

What the Bill will do, if passed, is

Amend the Crimes Act 1900 (NSW) s 58 so that the offence of assaulting, resisting or wilfully obstructing any ‘constable, or other peace officer, custom-house officer, prison officer, sheriff’s officer, or bailiff’ acting in the execution of their duty is removed from that section.
Add a new Division 8A headed ‘Assaults etc against law enforcement officers and frontline emergency and health workers’.
Division 8A will have specific offences against police officers (s 60A(1AA)) and other law enforcement officers (ss 60A(1A), (2A), (3A); 60AB, 60AC).
The Division will also contain offences for a person who ‘hinders or obstructs, or incites another person to hinder or obstruct’ or ‘assaults, throws a missile at, stalks, harasses or intimidates’, a frontline emergency worker (s 60AD).
There will be equivalent offences against a frontline health worker (s 60AE).

For the purposes of the Bill, a frontline emergency worker is defined as:

(a) a member of an emergency services organisation, within the meaning of the State Emergency and Rescue Management Act 1989 other than the Ambulance Service of NSW and the NSW Police Force, who provides emergency or rescue services, or

(b) a person employed within either of the following while the person is undertaking firefighting activities—

(i) the National Parks and Wildlife Service,

(ii) the NSW Forestry Corporation.

Members of the police force don’t need to be included in this definition as they are covered by the offences against police. Ambulance officers don’t need to be included here as they are covered by the offences against frontline health workers. Frontline health workers are

(a) a person employed or otherwise engaged to provide medical or other health treatment to patients—

(i) in a hospital, or

(ii) in a health institution under the control of a local health district or statutory health corporation under the Health Services Act 1997, or

(b) a member of the Ambulance Service of NSW,

(c) a person employed or otherwise engaged by the St John Ambulance Australia (NSW) who, in that capacity, provides medical care, or

(d) a member of Hatzolah who, in that capacity, provides medical care, or

(e) a person who is employed or otherwise engaged to provide community first responder services,

(f) a person employed or otherwise engaged to provide community health services,

(g) pharmacy staff [including a pharmacist and a pharmacy assistant]

(h) a person employed or otherwise engaged to provide security services—

(i) in a hospital, or

(ii) in a health institution under the control of a local health district or statutory health corporation under the Health Services Act 1997.

The maximum penalties will be; for the offence of

hinder, obstruct, or incite another person to hinder or obstruct, a frontline emergency worker or frontline health worker – Imprisonment for 12 months or a fine of 20 penalty units or both(s 60AD(1); 60AE(1));
assault, throw a missile at, stalk, harass or intimidate a frontline emergency worker or frontline health worker without causing actual bodily harm – Imprisonment for 5 years (s 60AD(2); 60AE(2));
during a public disorder event, assault, throw a missile at, stalk, harass or intimidate a frontline emergency worker or frontline health worker – Imprisonment for 7 years (s 60AD(3); 60AE(3));
assault of a frontline emergency worker or frontline health worker causing actual bodily harm – Imprisonment for 7 years (s 60AD(4); 60AE(4));
during a public disorder event, assault of a frontline emergency worker or frontline health worker causing actual bodily harm – Imprisonment for 9 years (s 60AD(5); 60AE(5));
wounding a frontline emergency worker or frontline health worker or recklessly causing grievous bodily harm – Imprisonment for 12 years (s 60AD(6); 60AE(6));
during a public disorder event, wounding a frontline emergency worker or frontline health worker or recklessly causing grievous bodily harm – Imprisonment for 14 years (s 60AD(7); 60AE(7)).

The offences are also made out if the worker is not actually on duty but the offender is motivated by the fact that the person is a frontline emergency worker or frontline health worker or ‘as a consequence of, or in retaliation for, actions undertaken by the frontline emergency worker [or frontline health worker] in the course of the worker’s duty’ (s 60AD(8); 60AE(8)).

Notwithstanding the high penalties provided for in the Act, these offences can be tried summarily (ie before a Magistrate, not a judge and jury) (Schedule 2, amendments to the Criminal Procedure Act 1986 (NSW)). Where a case is heard by a Magistrate, the maximum possible penalty is 2 years imprisonment (Criminal Procedure Act 1986 (NSW) ss 267 and 268).

The Bill will also repeal the following sections:

Fire and Rescue NSW Act 1989 s 35‘Obstruction of fire fighters or other personnel’;
Health Services Act 1997 s 67J ‘Obstruction of and violence against ambulance officers’;
Rural Fires Act 1997 s 42 ‘Obstruction etc of Commissioner and other members of Service’; and
State Emergency Service Act 1989 s 24 ‘Offence to obstruct Commissioner or emergency officer’.

The conduct currently prohibited by those sections will be covered by the new offences so it is unnecessary to leave them in those Acts.

Will the Bill pass?

There have been earlier Bills – the Crimes Amendment (Assault of Emergency Service Workers) Bill 2019 and the Crimes Amendment (Assault of Emergency Services Workers—3 Strikes Sentencing) Bill 2020 – these were all private members’ Bills and went no-where. This Bill is a government Bill under the management of the Attorney-General. Further it introduces reforms recommended by the Sentencing Council so it is supported by an inquiry process (see NSW Parliamentary Debates, Legislative Assembly, 10 August 2022, p. 9 (Mark Speakman, Attorney General). With that background it is more likely to make it way through the Parliament. It has already passed the Legislative Assembly and been introduced to the Legislative Council. Presumably the government will try to get it through before the State election due in 2023.

Will it protect frontline workers?

That is a more controversial question. Adding new offences and higher penalties can have little protective effect – they are the ambulance at the bottom of the cliff rather than the fence at the top – the penalties are only applicable after the offence has been committed that is after the person has been hindered, obstructed, assaulted or wounded. In that sense the criminal law is always retrospective and not protective. As Mahoney J said in Kable v DPP (1995) 36 NSWLR 374

One of the essential purposes of the criminal law, if not its fundamental purpose, is to protect men and women against violence. There is, it has been suggested, a gap in the protection which traditionally the criminal law affords. The gap lies in the prevention of violence, as distinct from the punishment of violence after it has been committed.

A principle of sentencing is the concept of general deterrence, that is the idea that the penalty will send a message to others to think twice about their actions. The effect is somewhat limited as people don’t really determine whether or not they’ll commit a crime on a cost/benefit analysis, particularly those that may be drug affected, mentally disturbed or lashing out in a fight or flight reaction to something that is happening beyond their control and to them or their loved ones. But the penalties do communicate a message albeit indirectly and one few people hear (as most people won’t know what the maximum penalty of any offence they may commit is). But, as Mr Speakman said:

This bill recognises the vital role these workers have in our community. It makes clear that assaulting them is not only reprehensible but also will attract serious criminal punishment. Acts of violence on emergency services workers and frontline workers in the course of their duties are unacceptable. Those who perpetuate disgraceful acts of violence on these dedicated individuals should face stringent consequences

Another problem with creating offences where the sentence depends on the category of the victim is that those not included will wonder why their life or safety is not considered equally valuable. In this case a clear omission is workers from interstate who may be in NSW and they are not included in the relevant definitions. But others may also be excluded eg those providing community support but not health care – think the Salvation Army and the like.

Conclusion

It is likely that this Bill will pass through parliament and become law. Only sometime after then will we be able to see whether it has any effect on protecting emergency and health workers.

Categories: Researchers

Another development rejected due to flood risk

28 September, 2022 - 12:59

In Is this a trend? (September 18, 2022) I asked if there was a trend in councils and courts taking a harder line when it comes to development in flood prone lands.

In Zaki Property Pty Ltd v Wollongong City Council [2022] NSWLEC 1526 the Land and Environment Court again upheld a decision to refuse development consent on flood prone land. In this case the proposal was to build a childcare centre and a medical centre on flood prone land.

Flood modelling indicated (at [44]) that in the event of a 1:100 year flood event areas of the land would be exposed to risk ranging from H2 “unsafe for small vehicles” to H5 “unsafe for vehicles and people. All buildings vulnerable to structural damage. Some less robust building types vulnerable to failure”. A Probable Maximum Flood ‘would bring H5 hazard flooding to a fair portion of the site’.

The development proposal depended on a ‘shelter in place’ strategy in the event of a flood. This was described at [62]-[63]:

Property owners are responsible for provision of an on-site flood alarm system which includes sound and visible alarm features. Along with the alarm, this event triggers the closing of the carpark (palisade style gates for both cars and pedestrians (proposed Condition 23b) at Hopetoun Street and roller door shutters at entry to elevated child care centre carpark. There are requirements for the maintenance of the system and annual testing. Property owners are also responsible for “visible legible flood warning signage” at car park entry and within the carpark. The carpark would be closed during non-working hours. The signage would include the following instructions:

When the flood alarm sounds or flashes:

If the child care centre is open, take the stairs up to Level 1 and shelter in the car park

If the child care centre is closed, take the footpath to the medical centre and shelter on the upper floor.

Centre Director is appointed “chief flood warden”, with nominated staff also having varying supportive responsibility. Responsibilities include:

System for monitoring for severe weather warnings.

On the triggering of the flood risk alarm, ensuring children remain on Level 1 or above.

System for advising parents and carers on general and specific flooding risk (eg “Kinderloop” communication tool), and providing updates. When the alarm has triggered, responsible for advising and ensuring no one leaves the premises. The message to parents and carers advises that local streets may be flooding and unsafe for travel and there will be no extra fees for care until the emergency has passed

Back-up systems for technology failures (including back up electricity generation).

Review of CCFERP [Child Care Flood Emergency Response Plan] after 5 years and after flooding events.

Apart from asking a child care centre director, who we hope is an educator and manager to take on these roles, the plan seems to me – as a parent – flawed. That was also the view of the judge.

The Council argued (at [72]) that the CCFERP was:

… an example of a plan of management being unacceptable because it relies on measures about which there is doubtful confidence – because they require people to act in a manner that may be unlikely in the circumstances; and fundamentally, the plan requires absolute compliance to achieve an acceptable outcome.

One can imagine that parents with children in a flood affected childcare centre may take risks to get to their children, or to get their children out. Nowhere was it discussed that the children won’t have read the plan and may not behave in complete conformity with the directions of the child care workers when being asked to shelter in a car park.

The developer argued ([74]-[75]):

“The FERP requires the occupants to do what they would do anyway in the event of a major flood. The 1% AEP and the PMF are extreme events. A person would not normally seek to go outside or drive on roads in such events. They would usually stay where they are until the weather event passes. This is particularly the case when the person has been made aware of the flood risks and have been told not to attend or leave the centre. It would be unlikely and unreasonable for a person to seek to leave or attend the site in these circumstances.”…

“The centre and parking has been designed to be above the PMF level. An alarm system has been installed and the roller door to the childcare centre ramp and the gate to the site will close upon the trigger of the alarm. If a person decided to act in contravention of the FERP then they could not physically leave the centre or enter the site.”

Commissioner Walsh said (at [81]-[82]):

I agree with Council and Mr Bewsher [an expert witness called by the Council] that it is in regard to the actions of this group that the CCFERP has limits to its capacity. I thought Mr Bewsher’s comments on the topic generally rang true of themselves (Transcript 1/6/22 p 45 L 35 et seq):

“… However, in these types of events, people do irrational things, and proposals for messaging don’t always work. The people that get the messages, the parents and the carers, you know, grandma does it one day, and uncle Fred does it another day, and to expect that all these people will know what to do in an event, those things can be managed to some extent, but they can’t be totally eliminated, and that’s why, as I’ve said in the joint report, that’s why the SES wrote the letter they did in opposition to this application, and relying on shelter in place.

The other issue with the flooding relates as well to the procedure related to the boom gates and closure. You can imagine a situation where the water is rising rapidly and people are leaving in a hurry and the boom gate goes down, so there will be people in cars, supposedly queued at the boom gate, you know what it’s like in a little traffic jam like that, you’ve got to manage turnaround and go back, but first of all realise that the boom gate isn’t going to come up. They have to realise the water levels are rising. They have to think, we should go back to the car space and go back up to the place of refuge. I mean, that’s a bit of a dangerous situation, but that’s the situation I’d be concerned about with cars being mobilised and moved, and people trying to get out of the vehicle. It is a risk which is managed, to some extent, by the two FERPS, but it’s not a risk that can be fully mitigated or eliminated. There are residual risks with this sort of an application.”

There seems to me to be a number of settings where third parties either dropping off or picking up children in care might act in unexpected ways, beyond the capacities for FERPs to address, which bring about flooding related risks. There may well be others but some of these settings include:

1). Flood event coincides with a situation where the individual responsible for drop off is under particular pressures and has no readily apparent option other than to drop off the child (eg those under pressures at work which make dropping of the child an acute need). They may believe, against FERP ambitions, that there’s a chance to drop off the child before the flood is problematic.

2). Flood event coincides with a situation where the individual responsible for pick up is under particular pressures which have a relationship to picking up the child at a certain time (eg due to other care responsibilities). They may seek to turn up at the centre, again against FERP ambitions.

3). The parent or other individual responsible for drop off/pick up otherwise ignores the directions on flood risk and non-attendance, for example due to anxiety in relation to children in care during the flood risk event.

4). Flood event coinciding with a situation where an individual generally responsible for day to day drop off and pick-up of children is not available and, no doubt against the FERP principles, the person doing duties for that day is not aware of the flood event protocols.

The Commissioner concluded ([91]-[93]):

I am aware that the proposal is satisfactory in regard to many provisions. I am satisfied that it would both provide adequate arrangements in regard to requirements of the children in care and also deals reasonably with concerns relating to compatibility with its context. It is zoned to suit. I also accept that the risk of flood events occurring at the site are quite low. The statistical intervals for flood events reflect this, and it is reasonable to think that events in the middle of the day will bring lower actual safety risks than events in the sweep of children drop-off and pick up times.

However, the proposal would bring a sensitive use into the floodplain in a medium hazard area. The proposal to manage this configuration, through in particular the CCFERP, requires a large group of parents and lay carers to act in a certain way when the relevant flood events do occur. This starts with the 20% AEP event. Irrational behaviour by some lay carers and parents in and around the circumstances when the barrier comes down should be seen as a likely event, with potential for significant adverse consequences. For me, the descriptive material at [81] provides a lucid predictive picture. It is reasonable to expect that the consequences of such behaviour would sometimes attach to higher order flooding risks and public safety concerns.

… On balance, it would be unreasonably incautious to find other than that this proposal poses unacceptable increases to flood-related risks. These include risks to public safety for this relatively vulnerable use. The proposed development will also increase the impacts of flooding outside the site, in some albeit small areas beyond permissible limits. I am not persuaded that the otherwise benefits of the proposal, outweigh these negative aspects.

Discussion

That a proposal to build a childcare centre on flood prone land, and to expect child care workers to shelter in place with a young, vulnerable populations sounds so extreme as to wonder how anyone seriously proposed it, or how a court took 94 paragraphs to reject it. If I was a parent of young children, and was given those instructions about what to do in the event of a flood, my first response would be to look for a childcare centre that was built above the maximum probability flood level.

Categories: Researchers

Off duty Tasmanian police officer injured performing CPR – is he eligible for workers compensation?

25 September, 2022 - 16:50

This is a question to be finalised in due course. The first step in that process is the decision in State of Tasmania (Department of Police, Fire & Emergency Management v V [2022] TASCAT 19.

The facts

On 24 January 2020, Senior Constable V (whose name was redacted by the Tribunal) was on a camping holiday with his family when he was approached by another camper and asked ‘if anyone knew first aid as a male had collapsed and had hit his head in a camper bus a few camping spots over’. V went to assist. He saw

… approximately eight people outside of a red camper bus and I was advised that the collapsed male was inside the bus.

The people outside the camper bus were stressed and panicking. I said words to the effect of “It’s alright, I’m a Police Officer.” I showed them my badge and said “Don’t get too close.”

He arranged for someone to call an ambulance and entered the caravan saw a person performing CPR. He suggested they move the patient outside of the van to give more room. In the course of manoeuvring the patient:

I felt a sharp pain down the length of my shoulder.

Notwithstanding that my shoulder was in pain, I continued CPR on the male for another 10 minutes before someone was available to take over.

After that Senior Constable V performed what might be considered policing duties. He took the names and address of witnesses, took possession of the deceased’s personal effects and waited until on duty police arrived and conducted a handover to them.

Senior Constable V returned to work on 4 February and reported the incident and injury. His supervising sergeant:

… made some enquiries on his behalf as to whether his shoulder injury from 24 January 2020 would be classed as a work-related injury. She later advised the worker that the injury he had sustained was not considered to be a work-related injury.

The worker said in his statement that he accepted the advice he was given and did not make a workers compensation claim. He has continued to suffer shoulder discomfort.

After significant correspondence between the Police Service, the Police Association and the relevant Workers Compensation insurer, a claim was lodged in October 2021.

The Act provides that once a claim is made there is an obligation to commence compensation payments within 14 days of the claim (Workers Rehabilitation and Compensation Act 1988 (Tas) s 81). Where an insurer/employer thinks that they are not liable to pay compensation, they must refer the matter to the Tasmanian Civil and Administrative Tribunal (TASCAT). The Tribunal is to determine whether the insurer has a ‘reasonably arguable’ case and to make orders about whether compensation has to be paid pending a final determination of the worker’s eligibility for compensation (s 81A).

This case was the tribunals determination under s 81A.

The dispute

The grounds of dispute are obvious . The obligation to pay compensation only arises if the worker suffers an injury or acquires a disease in the course of their employment (Workers Rehabilitation and Compensation Act 1988 (Tas) s 25(1)). The insurer says that Senior Constable V was on leave, he was not at work. The ‘employer’s case is that the worker has not been accepted at any time since he intervened and rendered assistance … as having ‘returned to duty’ or been ‘recalled to duty’ ([24]).

The employee’s position was (at [28]):

… he had effectively placed himself back on duty, and everything he was doing at and around the time he was injured was work that was part of, or incidental to, his role as a police officer.

Senior Constable V’s position was summarised in an email from the Police Association. They noted that he identified himself as a police officer. They referred to the Police Manual (at [19]) and argued that his action in providing CPR was consistent with the role of a police officer to ‘protect life’, that it was consistent with the ‘moral duty’ of a police officer ‘to provide support pending the arrival of medical assistance’. They further argued:

… it is not inconceivable to expect that if a member was recognised as a police officer and failed to provide assistance, that Tasmania Police would respond to a complaint (externally or internally generated) and consider matters arising under the PSA 2003 Code of Conduct…

As for being formally recalled to duty. V’s argument was

The Police Manual at 1.1.4 states as an order the following: “Unless it is not practicable to do so, members shall not work overtime unless authorised by their supervisor.” As [the worker] was responding to an emergency and performing CPR, it was not practicable for him to seek authority.

The insurer also claimed that it was not liable as the worker failed to give notice of the injury and to make a claim for compensation within time limits set by the Act.

The decision

With respect to defence that the notice and claim were out of time, that was rejected. Senior Member Jack said ‘on the evidence presently before the Tribunal, there appears to be very little doubt that the worker’s failure to do so was occasioned by one or more ‘reasonable causes’ under s38 that would excuse that failure …’. We need not concern ourself with those issues as they are administrative in nature and not of direct relevance to ‘emergency law’.

With respect to the argument that Senior Constable V was not ‘at work’ and so this was not a work-related injury, Senior Member Jack said:

Each party has put forward an argument that appears, on its face, to have some merit. There are a number of issues raised … that would likely require the Tribunal to hear evidence, make findings of fact, and receive more comprehensive submissions as to legal principles. …

The employer is only required to show that the worker’s claim may be rejected at a final hearing. On the face of the employer’s argument, it has some merit. It does not need to be a strong argument. I accept that it shows there is a reasonable chance the worker might not succeed in a final hearing.

The result was that the Tribunal accepted the employer (or more accurately the employer’s insurer) had a reasonably arguable case that Senior Constable V would not be entitled to workers compensation as this was not a work-related injury. The Tribunal made orders that the insurer was not required to pay weekly compensation or pay for medical or other services pending a final determination of the question on liability ([39]; Workers Rehabilitation and Compensation Act 1988 (Tas) s 81A(3)(c) and (d)).

We will keep a ‘watching brief’ on this matter to report the outcome should it proceed to a final hearing.

Categories: Researchers

Revised Code of Conduct for non-registered health practitioners in NSW

23 September, 2022 - 17:45

The Public Health Regulation 2022 (NSW) commenced on 1 September 2022. An important part of this regulation is the Codes of conduct for non-registered health practitioners and relevant health organisations (r 116 and Schedules 3 and 4).

The Public Health Act 2010 (NSW) and its regulation adopt definitions from the Health Care Complaints Act 1993 (NSW). Under that Act, a ‘health practitioner’ is defined as ‘a natural person who provides a health service, whether or not the person is registered under the Health Practitioner Regulation National Law’ By definition a non-registered health practitioner is a person who provides a health service but they are not registered under the National law.

The term ‘health service’ includes ‘medical, hospital, nursing and midwifery services’ and ‘ambulance services’. What is an ambulance service is not defined in this legislation, but it is defined in the Health Services Act 1997 (NSW). In that Act ‘ambulance services’ means ‘means services relating to the work of rendering first aid to, and the transport of, sick and injured persons’.

Although the definition is not specifically ‘picked up’ by the Public Health Act or Regulation a court would be likely to look to it when deciding whether a person or organisation is bound by the relevant Code. The implication is that people who provide ‘services relating to the work of rendering first aid to, and the transport of, sick and injured persons’ eg patient transport officers, event health services providers etc are all ‘non-registered health practitioners’ and therefore bound by the Code of Conduct.

The Code of Conduct for Non-Registered Health Practitioners set out in Schedule 3 is not however onerous and does not require anything other than what one would expect from such a service. It provides that a ‘health practitioner must provide health services in a safe and ethical way’. To do that:

(a) a health practitioner must maintain the necessary competence in the practitioner’s field of practice,

(b) a health practitioner must practise in accordance with accepted professional standards,

(c) a health practitioner must not provide health care of a type that is outside the practitioner’s experience or training,

(d) a health practitioner must not provide services that the practitioner is not qualified to provide,

(e) a health practitioner must not use the possession of particular qualifications to mislead or deceive a client as to the practitioner’s competence in the practitioner’s field of practice or ability to provide treatment,

(f) a health practitioner must prescribe only treatments or appliances that serve the needs of the client,

(g) a health practitioner must recognise the limitations of the treatment the practitioner can provide and refer a client to other competent health practitioners in appropriate circumstances,

(h) a health practitioner must recommend to a client that additional opinions and services be sought, if appropriate,

(i) a health practitioner must assist a client to find other appropriate health care professionals, if required and practicable,

(j) a health practitioner must encourage a client to inform the client’s treating medical practitioner, if any, of the treatments the client is receiving,

(k) a health practitioner must have a sound understanding of adverse interactions between the therapies and treatments the practitioner provides or prescribes and other medications or treatments, whether prescribed or not, that the practitioner is aware a client is taking or receiving,

(l) a health practitioner must ensure appropriate first aid is available to deal with misadventure during a client consultation,

(m) a health practitioner must obtain appropriate emergency assistance, for example, from the Ambulance Service, if there is a serious misadventure during a client consultation.

The Code has further provisions dealing with health practitioners:

Diagnosed with an infectious medical condition;
Not to make claims to cure certain serious illnesses;
To adopt standard precautions for infection control;
And appropriate conduct in relation to treatment advice;
Not to practise under influence of alcohol or drugs;
Not to practise with certain physical or mental conditions;
Not to financially exploit clients;
To have clinical basis for treatments;
Not to misinform clients;
Not to engage in sexual or close relationship with clients;
To keep appropriate records;
To keep appropriate insurance; and
To ensure confidentiality and privacy of client health information.

The code of conduct for health organisations, set out in Schedule 4, contains similar obligations. Further it compels the organisation to take ‘take reasonable steps’ to ensure that employees, and any person who ‘provides health services under another arrangement with a relevant health organisation’ eg a volunteer or sub-contractor, complies with their obligations under Schedule 3.

The final clause of both Codes, observed more in the breach than the honouring, is the obligation to display the Code of Conduct and ‘a document in the approved form that contains information about how clients may make a complaint to the Health Care Complaints Commission’. How many times are these displayed in first aid posts, on-site health centres and non-emergency patient transport ambulances?

You can see more about the Codes here – https://www.health.nsw.gov.au/phact/Pages/code-of-conduct.aspx

The Code was approved by the Council of Australian Governments in 2015 and is meant to service as a national code. Notwithstanding the national ambitions it has not yet been adopted in all jurisdictions. It applies in

New South Wales (Public Health Regulation 2022);
Victoria (Health Complaints Act 2016);
Queensland (Health Ombudsman Regulation 2014); and
South Australia (Health and Community Services Complaints Regulations 2019).

You can read the Final Report: A National Code of Conduct for health care workers (COAG, 17 April 2015) or the COAG Communique.

Categories: Researchers

‘Reasonable notice’, the Work Health and Safety Act 2011 (NSW) and the NSW RFS

21 September, 2022 - 07:00

Today’s correspondent has question about the Work Health and Safety Act 2011 (NSW) s 68- Powers and functions of health and safety representatives. In particular, section 68(2) which say:

In exercising a power or performing a function, the health and safety representative may—

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

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

(ii) at any time, without notice, in the event of an incident, or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard …

My correspondent says:

I believe that reasonable notice would be an individual time period and would depend on the circumstances. What is reasonable to one person would not be reasonable to another.

A matter arose where a health and safety representative [HSR] required to attend a work location was refused by the RFS manager who is paid to take after hours calls and correspondence.

In the case of RFS being an emergency organisation what is reasonable notice for a HSR to exercise their powers under section 68 2 a of the WHS Act?

And would a determination need the IRC consultation and determination?

When the law uses the term ‘reasonable’ it creates what we lawyers call an ‘objective’ test. This is different to a subjective test. A subjective test is about a particular person. If the test was subjective then it would be up to the HSR or the manager to decide what was reasonable. When it’s an objective then the question of what is reasonable is to be determined by reference to the hypothetical ‘reasonable person’ taking into account all the circumstances. So my correspondent is correct to say ‘reasonable notice would be an individual time period and would depend on the circumstances’ but it’s not a question of what is reasonable to any particular person particularly any particular manager or HSR.

What is ‘reasonable notice’ would depend on issues such as the power the HSR is intending to exercise (see s 68(1)), the urgency of any concern, the size of the workplace, the location of the workplace, time commitments of managers, whether any particular person needs to be there etc.

There is nothing in the Act that would allow one to define ‘reasonable period’ by reference to the fact that the RFS is an emergency organisation. That might be relevant given an emergency service may operate 24 hours a day, 7 days a week so it may be reasonable say to attend a volunteer fire brigade out of business hours as that is when the members are going to be at training etc. That however goes to the question of whether it’s reasonable to be there at that time, not the question of how much notice the HSR has to give that they intend to attend the meeting or brigade shed to perform their functions.

If a manager and an HSR cannot agree on what is ‘reasonable notice’ in any particular circumstance, then the matter should be escalated via the WHS consultation processes eg to a more senior manager, to the WHS committee etc to allow the organisation to come to an agreement both in the specific case and generally.

Where an HSR feels that he or she is being frustrated in their ability to perform their function they could also take the matter up with the WHS regulator, in NSW that is SafeWork NSW.

For a legally binding determination, yes a ruling from the Industrial Relations Commission or an Industrial Magistrate would be required.

Categories: Researchers

Changes to the Road Rules 2014 (NSW) announced, but not yet made.

18 September, 2022 - 14:08

Back on 18 August I was asked for an opinion on proposed changes to the Road Rules 2014 (NSW). That there would be changes was announced with much fanfare by the Minister for Metropolitan Roads, the Minister for Regional Transport and Roads and the Commissioners of both the Rural Fire Service and the State Emergency Service – see NSW RFS Road rule change gives emergency services the all clear; see also NSW Government OAD rule change gives emergency services the all clear

My correspondent asked ‘… what is your opinion of the changes to road rule 317 in relation to volunteers conducting U turns in designated U turn bays on motorways?’

I said that I can have no opinion until I see the changes. I can infer the proposals all relate to the outcome from R v Wells (see Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017) and all the other posts cited there). I suspect that my opinion will be that the proposed rule changes stem from a misunderstanding of what was decided in Wells and what the implications of that decision are, or should be (see RFS response to volunteer’s conviction for fatal traffic accident (October 13, 2016). But I may be wrong and I cannot comment on the changes until we know what they are, and herein lies my point in making this post.

The announcement of the changes was made on 18 August. We were told ‘The Road Rule change will be gazetted and take effect in the coming weeks’. It’s now 4½ weeks since the announcement was made. For those anxious to see the changes, or more dangerously for those who think there have been changes, I draw to your attention to that fact that the proposed changes are still not publicly available and there has been no change to the law. Rule 317 is about ‘Information on or with traffic control devices’ has never been amended (see the legislative notes). Today it is the same as when the rules were first made in 2014.

We wait – with bated breath – to see if there will actually be any change, what the change will say and what effect it will have.

Categories: Researchers

Is this a trend?

18 September, 2022 - 12:00

I’ve recently reported on cases where councils have rejected development proposals on the basis of flood risk and the matter has been appealed, in the case of Queensland to the Planning and Environment Court and in NSW to the Land and Environment court – see Queensland development refused due to flood risk (September 7, 2022) and Building risk (June 4, 2022) respectively.

Another case has now come across my desk – Lensing v Snowy Valley Council [2022] NSWLEC 1486 (13 September 2022). In this case the applicant wanted to build a two story home on flood prone land. Commissioner Bish said (at [55] and [58]-[59]):

… I find that the applicant has not provided sufficient information to assess the potential and likely flood impact to the site, areas surrounding the site and to future residents, from all potential flood events, and in particular the 1% AEP event. The applicant has not demonstrated to the satisfaction of the Court the likely impacts to the site and proposed development due to flooding, the conditions under which this impact may occur and the appropriate mitigation to reduce risk to life and property…

There is no evidence that describes how deep or significant the impact to the site is from a PMF [probable maximum flood] event, only that shelter in place is not possible for residents due to the flooding level being above the FPL [flood planning level] (and habitable floor level). The PMF is an event that could have catastrophic consequences to residents of the site, yet little information is provided on whether residents would be safe in such an event. I accept that the applicant is not required to model flood events other than the 1% AEP [annual exceedance probability], consistent with the SVDCP [Snowy Valley Development Control Plan 2019], however the FDM [NSW Floodplain Development Manual, 2005] explicitly seeks a floodplain risk management plan to consider flood events up to a PMF event. I consider that this is appropriate for a residential development on the site to inform both the decision maker and residents on the potential risk to life.

Whilst I recognise that the SVDCP (and TLEP [Tumut Local Environmental Plan 2012]) focus on assessing the 1% AEP events for planning purposes, the approach taken by the applicant fails to acknowledge that other flood events can and will impact the site. A more robust assessment with respect to flooding is appropriate for this site, as it is located on a high hazard floodplain, affected by flood events other than the 1% AEP and this information would inform appropriate dwelling design and evacuation planning.

With respect to the potential risk to life, Commissioner Bish said (at [65]-[67]):

The amended application relies too heavily on the SES to provide appropriate and timely response, which the SES themselves recognise may not be feasible when needed. The site is not prioritised for evacuation by the SES Local Plan, therefore residents may not get the help needed in a timely manner. Residents will likely have to rely on their own resources and that of the local community, such as occurred in recent flooding in northern NSW (and considered in the Inquiry).

Shelter in place is an option for residents in a 1% AEP event (and below) due to the habitable floor being above the FPL. However, the length of time that residents would need to stay in place is not clear from the evidence before the Court. There is insufficient detail in the application to provide certainty as to whether residents will have the resources to shelter in place, with regards to food, water and communication.

I find that the applicants’ evacuation approach is not well articulated, short on detail, relies too heavily on ‘education’ of the residents and is likely to be unimplementable in an emergency, such as during the night, due to the short period for response required and poor visibility to the river gauge. Without the SES warning being communicated in a timely manner, future residents of the site will have to rely on visualising the nominated river gauge level being exceeded, which is not within sight of the proposed dwelling, and then be alerted to act and respond accordingly, possibly within 1-2 hours.

At [83] Commissioner Bish concluded “the application has not demonstrated that the site is suitable for the proposed development, due to an unacceptable risk to life; and there is a likely adverse social impact to the locality during evacuation of the site”. The development application was refused.

Discussion

The outcome is interesting enough in its own right, particularly the Commissioner’s rejection of developers being able to rely on the SES to rescue people from the impact of the developer’s poor design.

The question that comes to my mind, and suggested by the title of this post is – is this a trend? I have been writing this blog for many years and to see three cases where issues of flood risk and what can be expected of residents in a short period of time strikes me as a new development. I haven’t done the research to confirm whether this is in fact a new development – perhaps there have been cases like this before and I just haven’t been attuned to them to identify them as worth reporting, but perhaps not.

If this is a new trend it raises questions of whether:

Environmental planning policies have begun to take a more hard line approach to flood planning and flood risk (but see, Allowing housing in flood and fire prone areas (April 7, 2022)?
Councils are more willing to refuse development applications and more willing to ‘stand their ground’ rather than compromise with developers?
The Courts are more willing to refuse development applications and are not exerting pressure on parties to settle?

These may be interesting questions if there are any law or planning students, or early career researchers looking for a possible research project?

Categories: Researchers

Launch of a new journal – ‘Paramedicine’

15 September, 2022 - 17:00

The Australasian College of Paramedicine has announced the official launch of Paramedicine, the College’s international peer-reviewed journal. The College says:

Paramedicine, formally the Australasian Journal of Paramedicine, is a bi-monthly, open-access, peer-reviewed journal that provides an international forum for the dissemination and discussion of paramedicine research.

The journal’s purpose is to advance and transform the discipline of paramedicine through high-quality evidence, and to inspire robust discussion, enable research translation, encourage innovative thinking and inform leadership. Paramedicine publishes research from any country engaged in any area of paramedicine, including but not limited to clinical care, models of practice, operations, patient safety and clinical quality, leadership, education, aeromedical and retrieval practice, tactical paramedicine, and community paramedicine. 

Information on the journal and how to make submissions can be found here – https://au.sagepub.com/en-gb/oce/paramedicine/journal203779. You can also follow the journal on the Paramedicine Facebook page.

I’m also pleased to announce that I join the journal as a member of the panel of Associate Editors – various experts who will support the Editor-in-Chief and Deputy Editors in implementing the journal’s vision and mission and provide specialist advice specific to our various areas of discipline and research expertise.

It is a defining element of a profession that it the profession is supported by its own specialist body of knowledge in turn supported by research. Developing a research base unique to paramedicine will help define what sets paramedicine apart from the other health professions and will contribute to the growth of paramedicine as a true profession.

I look forward to working with the College, the Editor-in-Chief and Deputy Editors, researchers and authors and paramedics to contribute to the growth of paramedicine as a profession.

Categories: Researchers

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Collecting old police uniform

Gaps in Queensland fire legislation exposed in failed prosecution – Part 2

Animal Ambulance and Victorian road rules

Gaps in Queensland fire legislation exposed in failed prosecution

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Holding ambulance services, and their managers to account

Doctor reports suspicions about patient’s date of death

The role of the Paramedicine Board in paramedic de-registration

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Revised Code of Conduct for non-registered health practitioners in NSW

‘Reasonable notice’, the Work Health and Safety Act 2011 (NSW) and the NSW RFS

Changes to the Road Rules 2014 (NSW) announced, but not yet made.

Is this a trend?

Launch of a new journal – ‘Paramedicine’

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