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: 13 hours 4 min ago

BlueCard declaration for Queensland volunteer firefighters

15 July, 2022 - 07:00

Today’s correspondent asks a question about ‘blue cards’ for Queensland volunteer firefighters – see:

Working with children check for QRFS and SES (July 20, 2019);
Membership of Queensland Rural Fire Brigades (February 17, 2020); and
Confusion over Queensland blue card – applicants and disqualified persons (May 14, 2020).

My correspondent says:

Bluecard services who are managing the Mandated new and renewal Volunteer Firefighter blue card applications (online) appear to be instructing volunteer firefighters to check yes to the question “Are you working, or proposing to work or volunteer with children?”

Considering that primary producer brigades are exempt, (more likely to be working alongside children of neighbouring properties and thus a higher risk) and that many non exempt volunteer firefighters would not be able to truthfully answer “Yes”, is this legal/ ethical for a department to instruct people to answer a question untruthfully on such an application / renewal?

The need for a BlueCard was identified by Queensland Fire and Emergency Services on the basis that ‘The usual functions of rural fire brigade volunteer therefore includes providing a health service and/or support service to children’ (see https://emergencylaw.files.wordpress.com/2019/07/rfs_blue_cards.pdf; slide 3). That may or may not be an interpretation that a court would make but it is the QFES interpretation (see Working with children check for QRFS and SES (July 20, 2019)).

The reason a RFS volunteer needs a BlueCard is because he or she may, in the course of their duties, have to assist a young person affected by fire and perhaps render first aid to them. If a member of the RFS is applying for a BlueCard it must be because they are ‘Are proposing to … volunteer with children?’ They may not know when and it may never happen, but it is because they may render first aid and other support services to children that they require the card. If they are going to be firefighters they don’t get to refuse to provide those services to children so the purpose of the card is because they intend, if the need arises, to perform their volunteer work with children.

The question would be relevant to people who were volunteering where their key role is child related, but it is not limited to only those circumstances.

Conclusion

I cannot see that the answer ‘yes’ to the question ‘Are you working, or proposing to work or volunteer with children?’ is untruthful. Rural fire service volunteers may be called upon to provide their services to children, so they propose to volunteer with children. A better answer may be ‘Yes, but only if and when the need arises’ but given that answer is not an option the answer ‘yes’ is correct.

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

Exemption from fatigue related provisions of the Heavy Vehicle National Law for NSW emergency services

13 July, 2022 - 07:00

Today’s correspondent asks for my:

… view on the requirements of the Heavy Vehicle National Law (NSW) as applied to emergency services.

An emergency service operates a Heavy Rigid Truck with a GVM of 26.5T, making it a fatigue-regulated heavy vehicle within section 7 of the Act. The service operating the vehicle has provided advice to staff and volunteers that they are not required to maintain a logbook in accordance with the HVNL by virtue of a number of exemptions. They have provided a letter on a service letterhead addressed to whom it may concern stating they are exempt and reproducing the exemptions they believe apply but the letter is undated and unsigned.

Anecdotally, other ESO’s operating similar trucks have advised that whilst they share the view an exemption applies, that they have been challenged by RMS Heavy Vehicle Inspectors who claim the exemption only applies when responding to or returning from an emergency and instructed the ESO’s to carry and use logbooks for all non-emergency related transport. Their drivers do so not due to any policy but to avoid confrontation with RMS.

Q1. Are Emergency Services exempt from the requirements to comply with record keeping obligations of chapter 6 of the HVNL?

Q2. Are there any conditions on that exemption that restrict its applicability to attending emergencies?

Q3. Is the letter provided by the ESO sufficient for a member to rely upon as “Mistake of fact” if prosecuted in the event the advice is incorrect?

The Heavy Vehicle National Law (NSW) s265, states:

265 Exemptions for emergency services [NSW]

(1) A person who is an officer, member or member of staff of an emergency service is exempt from the provisions of this Chapter, but only in relation to the driving of a fatigue-regulated heavy vehicle in the course of undertaking work for an emergency service.

(2) An emergency service is any of the following—

(a) the NSW State Emergency Service established under the State Emergency Service Act 1989 of New South Wales;

(b) Fire and Rescue NSW and any permanent fire brigade or retained fire brigade within the meaning of the Fire and Rescue NSW Act 1989 of New South Wales;

(d) the Ambulance Service of NSW within the meaning of the Health Services Act 1997 of New South Wales;

(e) the NSW Police Force established by the Police Act 1990 of New South Wales;

(f) New South Wales Volunteer Rescue Association Inc;

(g) a government agency of another jurisdiction, or a body authorised under the law of another jurisdiction, that has corresponding functions to the bodies referred to in any of the above paragraphs.

(3) The exemption provided by this section is in addition to, and does not limit the effect of, the exemption provided by section 265A.

Section 265A says:

265A Exemptions in Relation to Emergencies [NSW]

(1) A person who is attending an emergency and who is undertaking activities with respect to the control of the emergency in the course of his or her employment or usual business activities is exempt from compliance with this Part in relation to the driving of a fatigue-regulated heavy vehicle to and from the emergency so long as subsection (2) is complied with.

(2) Any record that would be required to be made under this Chapter if the exemption under subsection (1) were not available–

(a) must be made as soon as practicable after the journey from the emergency is completed; and

(b) must include a record of the following–

(i) the time, date, location and nature of the emergency;

(ii) if the person was asked by another person to attend the emergency, the name and contact details of that other person.

(3) In this section,

“emergency” means an event (or an anticipated event) that–

(a) endangers, or may endanger, life, property or the environment; or

(b) has disrupted, or may disrupt, communications, energy, water supply or sewerage services; or

(i) the Commonwealth or a State or Territory; or

(ii) a Commonwealth, State or Territory authority responsible for managing responses to emergencies or disasters.

The term ‘work’ is defined in s 221. It means

(a) drive a fatigue-regulated heavy vehicle; or

(b) instruct another person to drive, or supervise another person driving, a fatigue-regulated heavy vehicle; or

(i) load things onto, or unload things from, the heavy vehicle; and

(ii) inspect, service or repair the heavy vehicle; and

(iii) inspect or attend to a load on the heavy vehicle; and

(iv) if the heavy vehicle is a bus, attend to passengers on the bus; and

(v) clean or refuel the heavy vehicle; and

(vi) perform marketing tasks in relation to the use of the vehicle; and

(vii) help another person to perform, or supervise another person performing, a task mentioned in any of subparagraphs (i) to (vi); and

(viii) record information or complete a document, as required under this Law, a corresponding fatigue law or otherwise, in relation to the use of the vehicle; or

(d) occupy the driver’s seat of a fatigue-regulated heavy vehicle while its engine is running.

There is nothing in the definition of ‘work’ and therefore ‘work for an emergency service’ that would limit the exemption to driving to, from or as part of the response to an emergency.

My correspondent then makes my task easier by giving the answer. They say:

My personal view is that the exemption [in s 265] applies based on the following.

The exemption applies to the whole of Chapter 6 Vehicle Operations-Driver Fatigue, including work and rest time, record keeping and work diaries
Undertaking work for an emergency service is not limited it to the response to or return from an emergency response,
Section 265 as applied in NSW is inserted only within NSW. The national model legislation version of 265 is replicated in the NSW version at 265A.
Section 265A restricts the definition to attending to and undertaking activities with respect to control of an emergency but differs in the definition of whom it applies to by referencing a person as opposed to an officer, member or member of staff, implying it could apply to a contractor operating under direction of an emergency service.
Section 265 subsection (3) specifically recognises that the emergency service exemption is in addition to (implying the greater exemption scope is specifically for officers, members and members of staff) and does not limit the effect of 265A (implying 265A is not restricted to officer, member or member of staff).
The legislation places considerable focus on the definition of work and uses particularly precise language when defining specific activities within work to avoid ambiguity.
If it were intended for section 265 to be constrained to the response to or return from an emergency, NSW legislators would have not included the NSW specific 265 and used the model law replicated at 265A instead.

I have not confirmed that ‘Section 265 as applied in NSW is inserted only within NSW. The national model legislation version of 265 is replicated in the NSW version at 265A’ but assuming that is indeed the case then I agree with my correspondent’s analysis.

Conclusion

An exemption under s 265A extends beyond members of the emergency services and can include contractors but it only applies during the response to the emergency. The exemption under r 256 applies to members of the emergency services when operating a ‘fatigue related heavy vehicle’ as part of their work for the emergency services. There is nothing in s 265 or 221 that would limit that exemption to circumstances where the driver is driving to, from or as part of the response to an emergency.

Categories: Researchers

NSW SES incorporating or rejecting spontaneous volunteers

10 July, 2022 - 15:16

Today’s question touches on a matter that is increasingly important in emergency management – the role of the community and spontaneous volunteers. My correspondent

… was part of a discussion with a NSW SES member who had been active in responding to flooding in North East NSW in early 2022. They shared that members of the affected communities and surrounding areas had spontaneously and independently formed a “tinny army” [or should that be navy?] using their own boats to assist others affected by the floodwaters.

The member I was speaking with indicated that the “tinny army” had offered to help NSW SES and asked for NSW SES to support them in terms of directing their efforts (controlling and coordinating them) but that NSW SES had chosen not to do so for fear of being held responsible. Responsible for the actions of the members of the “tinny army” as well as responsible to the members in terms of potential health and safety/insurance risks, etc.

• Is that a legitimate concern?

• Is there any risk that an organisation takes on by utilising spontaneous volunteers?

• How, if at all, does that risk differ from a “normal” member (a member who is trained by the Service and regularly attends events even outside of operational period)?

• Is that risk any different between a person being under the immediate command of a “normal” member of a service as opposed to that person operating under additional tiers of command/control by other spontaneous volunteers (ie NSW SES working with a “tinny army” leader who has formed their own operational management team, managing their own tasking, etc. rather than NSW SES managing them directly)?

• Are there any risks posed by NSW SES refusing to use/support organisations like this if the lack of support/equipment which NSW SES has causes an incident? (For example, if NSW SES knew that a tinny army crew was operating in an area, that the crew didn’t have PFDs which could have been supplied by NSW SES, and there is an accident where a member of the tinny army crew drowns because they didn’t have a PFD.)

With all the services recognising the value of spontaneous volunteers (and the ongoing challenges in retaining volunteers outside of operational periods), it seems that, if there are these risks/limitations to leveraging other organisations – both pre-existing and those which form in response to an event – it is a major weakness to this strategy.

I must tread carefully here. The story I’m told is classic hearsay. My correspondent had a conversation with a friend who said that they had heard the SES refused to support the community navy out of ‘fear of being held responsible’. Telling the story like that you can see how the message may be distorted. What was the SES actually asked to do? What was the actual response? What was the actual motivation? None of that can be inferred from the story. It’s important to set that out so there is no suggestion that in addressing some of the issues raised that I’m confirming that the way the story was reported is correct. But with that disclaimer we can address some issues.

It appears to me that an emergency service, like the SES, has three options when faced with active, spontaneous volunteers. They may:

Attempt to exclude them from the danger zone. This may be reasonable if there are grounds to think they are going to be more of a hinderance or a help or
Incorporate the community army/navy into the response which requires pre-planning on how to do that and depending on the circumstances thinking about what they can be tasked to do considering the emergency, their prior experience etc
Put your head in the sand and pretend that they are not there and have nothing to do with the response even though it’s known that they are there and are responding.

Let’s consider each one.

Option 1.

This is not realistic nor appropriate in most cases.

In all emergencies, the first responders are always local. The emergency services may be in command of their response, and in control of the other agencies that agree to come under their control, but citizens and their ad hoc armies and navies can, and will do what they see as necessary. Even with statutory powers to order evacuations and direct people it does not follow that everyone will do as directed. And emergency service resources cannot be diverted to ensuring compliance.

Neighbours helping each other clean up after a flood or storm is both inevitable and to be commended. Sometimes spontaneous volunteers will pose a hazard to themselves and the emergency services and other times they will identify and respond to a need faster and more effectively than any government agency will do.

A policy that all local residents are to be evacuated, and people who can help will be refused and excluded will not match reality. There is an ‘attraction of a policy framework that is uncomplicated and presents just a few clear options, but to adopt such an approach is to oversimplify. (2009 Victorian Bushfires Royal Commission, Final Report, Vol 2, Chapter 1, p. 3). It would be attractive to believe that if ordered out of the disaster zone, everyone will go but that is unlikely.

The Special Inquiry into the West Australian Perth Hills Bushfire (Mick Keelty, ‘A Shared Responsibility: The Report of the Perth Hills Bushfire February 2011 Review’ p 42) said:

The Special Inquiry does not dispute the priority given to protecting life, however, it is concerned that the process of widespread evacuation may be at odds with the focus … empowering individuals and communities to exercise choice and take responsibility, as set out in the National Strategy for Disaster Resilience. The Strategy has an explicit focus on building disaster resilient communities …

… a disaster resilient community as one where people have taken steps to anticipate disasters and to protect themselves … the widespread use of evacuation as a strategy to protect life has the potential to disempower communities, rather than building resilience….

A blanket policy requiring all potential volunteers to leave an area would be unworkable and inconsistent with the National Strategy on Disaster Resilience. It would also deprive communities, and response organisations, of valuable resources, knowledge and skills. An agency that tried to adopt that policy would be ‘responsible’ in that it would be required to account for why that decision was made and answer to those criticisms if lives are lost that could have been saved.

Directing everyone, including spontaneous volunteers, to leave an emergency zone may be appropriate in some circumstances of immediate danger but will be neither appropriate nor possible in most cases.

Option 2.

The second option is to incorporate the community into the response. As my correspondent notes all services recognise both the value of spontaneous volunteers but also their inevitability. In NSW the functions of the SES include (State Emergency Service Act 1989 (NSW) s 8(1)):

(aa) to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis,

(a) to act as the combat agency for dealing with floods (including the establishment of flood warning systems) and to co-ordinate the evacuation and welfare of affected communities,

Those functions have to be performed in the real world that is where SES resources are limited and where we want and encourage resilient communities. If the SES refused to work with the community navy, then they are not thinking about their functions (eg can we work with these people to help protect them) nor acting as the ‘combat’ agency (ie the agency that is ‘primarily responsible for controlling the response to a particular emergency’ (State Emergency and Rescue Management Act 1989 (NSW) s 3). If the SES refuse “to support them in terms of directing their efforts (controlling and coordinating them)” then they are deliberately not controlling the response.

Will the SES be ‘responsible’? Again it will always be ‘responsible’ or accountable for the decisions made by its officers and members. It may have some responsibility to the spontaneous volunteers.

Given s 8(1)(aa) the SES may want to inspect the boats to make sure they are in sound condition and ensure that there are enough flotation devices for everyone on the boat. They will need to consider who is tasked with what. All of that is consistent with the function of ‘protect[ing] persons from dangers to their safety and health … arising from floods’. Given that spontaneous volunteers will be there whether the SES likes it or not, take that sort of approach goes some way to providing protection for those people who will be volunteering.

Will the SES be legally liable if something goes wrong? As always that would depend on the specific facts of any incident and what went wrong and what was the involvement of the SES and whether the conduct was reasonable in all the circumstances.

Option 3

The third option has to be the biggest legal risk as it is not ‘reasonable’ – it is not based on reasons. Reasons (or risk management) requires someone to take time and to ask the question – what might happen? How bad might it be? How likely is that? Taking into account all the circumstances can we reasonably mitigate that risk – but reasonable mitigation does not mean ‘exclude them’ any more than refusing to send the SES to floods or the fire brigades to fires is a reasonable way to manage risk to SES and firefighting volunteers. And it certainly doesn’t mean ‘ignore them’.

Legal protection

Would there be any liability for the action of spontaneous volunteers? If the community’s spontaneous volunteers are incorporated into the response, then those casual volunteers, ie those people ‘who, with the consent of the member or officer, assists a member of the State Emergency Service or an emergency officer in the exercise of the Service’s functions’, are protected from liability to the same extent as an SES member (State Emergency Service Act 1989 (NSW) s 25). Any damage that they cause would be deemed to be damage caused by flood, just as any damage caused by an SES member would be deemed to be damage caused by flood (SES Act s 25A). There is no more risk of liability for those volunteers than there is a risk for liability for the SES volunteers.

In terms of liability to the volunteers, spontaneous volunteers who place themselves under the direction and control of the combat agency, in this case the SES are likely to be people who ‘in the opinion of the Self Insurance Corporation having regard to all the circumstances, should be deemed to be an emergency service worker for the purposes of this Part’. They are then they are covered by the provisions of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW). That can also be true where they are acting on their own initiative.

The questions

Let us then turn to the questions which start with the assumption that the SES feared being:

Responsible for the actions of the members of the “tinny army” as well as responsible to the members in terms of potential health and safety/insurance risks, etc.

• Is that a legitimate concern?

Yes and no. The SES (or any combat agency) is responsible for how it meets its obligations. If it fails to use local resources when they are available to help, then they are responsible for that decision as they would have some responsibility for the welfare of spontaneous volunteers if they are incorporated into the response. If they don’t have a plan and arrangements for how they are going to deal with community responders, given that they are at every event, then they will be responsible for that, too. A fear of ‘well all be sued’ is not however a legitimate concern.

• Is there any risk that an organisation takes on by utilising spontaneous volunteers?

There are some risks but there are also risks in not making use of them when they are going to respond anyway, and where they may provide valuable contributions to the response and recovery.

• How, if at all, does that risk differ from a “normal” member (a member who is trained by the Service and regularly attends events even outside of operational period)?

If what we’re talking about is legal risk, it really doesn’t differ. With members who are trained etc the agency can be confident on their state of knowledge and what they are at least certified to do (which may not equate to competent to do). With spontaneous volunteers that maybe unknown but like any risk that is a risk that can be managed. Ask people to produce their licence (noting that not everyone who operates a ‘tinny’ will have, nor need a licence (Marine Safety Regulation 2016 (NSW) r 102)); consider what it is they are planning to do and what the agency can do to help etc. In some circumstances the only reasonable response may be to direct people out of the danger area – you don’t want spontaneous volunteers entering a burning building after the fire brigades have arrived – but in other cases there are appropriate and ‘reasonable’ steps that can be taken to identify and if necessary, ameliorate any risk.

Risks need to be ‘reasonably’ controlled (Wyong Shire v Shirt (1980) 146 CLR 40; Civil Liability Act 2002 (NSW) s 5B; Work Health and Safety Act 2011 (NSW) s 18). Checking everyone has a licence and enough personal flotation devices may be reasonable. It may be better if everyone had flood boat training, but you have to consider that people will respond whether you approve them or not so at least checking gives some risk management; and there also has to be consideration of the ‘social utility’ of the exercise ie providing immediate rescue.

And all the provisions that apply to members of the SES (ss 25, 25A and the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW)) apply to these volunteers too. The statutory protection is the same and if there is any liability it will fall to the State of NSW and in the scheme of things would be a very low financial risk (compared to the cost of the floods).

Everything depends on its own facts so what you have here is the SES in control but a local group with its own leader in command. Again, it would really depend on who they were. If it was the local water-ski club and the ‘commander’ was the commodore of the club, it’s hardly an issue to task them to undertake tasks with their boats.

Absolutely, there are risks in incorporating them into the response, there are (I suggest greater) risks in ignoring them.

Conclusion

The SES and any agency is responsible for its decision making. If it decides to incorporate spontaneous volunteers it is responsible for that decision and how that is managed to minimise risk so far as is reasonably practicable. If it decides to exclude people from the danger zone and response, then it is also responsible for that decision and the consequences that may flow. In different circumstances, either response could be justified.

What I cannot see is that a decision to simply ignore them and pretend they are not there is ever reasonable. If the people, in this case the community navy, are in the danger zone (in this case in flood waters) then they must be people directly affected by the acts and omissions of the SES such that the SES has to have them in mind and consider their role in the flood response (Donoghue v Stevenson [1932] AC 562). Simply refusing to deal with them won’t excuse the SES from responsibility if they are harmed, or cause harm but denies the SES any input into the risk management process.

Categories: Researchers

Health Practitioner protected titles

8 July, 2022 - 07:00

Today’s correspondent refers me to an ad for employment as a ‘Paramedical Aide’. My correspondent says:

I thought you might find this advertisement useful in a blog if you are looking to discuss yet another controversial title discussion. The latest I have seen is “Paramedical Aide”, obviously very dangerously close to leading you to believe a person employed under that title has some type of paramedical qualification. However, AHPRA disagrees with me.

Apparently I can call myself “Doctor-Aide” or “Medical Practitioner-Aide” “Pharmacist-Aide” or “Paramedical Aide” and these are not misleading or regulated titles and the Board’s are powerless to act.

My correspondent did make a complaint to the Australian Health Practitioner Regulation Agency (AHPRA). They said:

Thank you for raising concerns with us regarding the use of protected titles in advertising.

The Council of Australian Governments (COAG) decided in 2008 to establish a single National Registration and Accreditation Scheme (National Scheme) for registered health practitioners.

In December 2018, paramedicine became the newest profession to join the National Scheme, making the title ‘paramedic’ protected nationally.

The use of the term “Paramedical Aide” is not considered to be using a protected title and as such no further regulatory action will be taken.

The ad came from South Australia, so I’ll quote the Health Practitioner Regulation National Law (SA).

Health Practitioner Regulation National Law (SA) s 113

Section 113 says:

A person must not knowingly or recklessly—

(a) take or use a title in the Table to this section, in a way that could be reasonably expected to induce a belief the person is registered under this Law in the health profession listed beside the title in the Table, unless the person is registered in the profession; or

(b) take or use a prescribed title for a health profession, in a way that could be reasonably expected to induce a belief the person is registered under this Law in the profession, unless the person is registered in the profession.

The table lists the relevant protected titles; for example ’medical practitioner’, ‘midwife’, ‘midwife practitioner’; ‘nurse’, ‘registered nurse’, ‘nurse practitioner’, ‘enrolled nurse’, ‘paramedic’, ‘pharmacist’ and ‘pharmaceutical chemist’. Clearly ‘Doctor-Aide’, ‘Medical Practitioner-Aide’, ‘Pharmacist-Aide’ or ‘Paramedical Aide’ as well as ‘Assistant in Nursing’ and ‘Physician assistant’ are not protected titles. If they are not protected titles, there is no breach of s 113 .

To make that clear with an example. If I was to add to the list of ‘My Qualifications ‘Bachelor of Paramedicine’ I would be lying, but I would not be in breach of s 113. Depending on my intention I may be guilty of some other offences, but it would not be a breach of s 113. If, on the other hand, I described myself as ‘Michael Eburn, Australian Lawyer and Paramedic’ that would be a breach of s 113. Section 113 prohibits the use of protected titles, not conduct that causes a person to believe that another person ‘has some type of paramedical qualification’. And AHPRA cannot extend the list of protected titles. The titles that are protected are listed in the Act. Titles that are not listed in the Act, for example ‘Doctor’ (see Can a person other than a doctor use the title ‘Medical Officer’? (November 25, 2017) and Is ‘Doctor’ a protected title? (February 14, 2018)) and ‘Paramedical Aide’ are not protected titles.

Health Practitioner Regulation National Law (SA) s 116

Section 116 says

A person who is not a registered health practitioner must not knowingly or recklessly—

(a) …

(b) take or use a title, name, initial, symbol, word or description that, having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate—

(i) the person is a health practitioner; or

(ii) the person is authorised or qualified to practise in a health profession; or

(d) claim to be qualified to practise as a health practitioner.

This would be relevant if the title eg ‘paramedic aide’, although not a listed protected title, implied that the person was a registered health professional (r 116(b)(i)). But calling oneself a ‘paramedic aide’ is surely not suggesting that the person is a registered paramedic? Even if the title suggests someone has a ‘type of paramedical qualification’ that is not the same as suggesting they are registered. Again I can give an example. If I were to claim that I had a Bachelor of Paramedicine degree (which I do not) that would not be a claim that I am a health practitioner anymore than the claim that I have a Bachelor of Laws (which I do) means I claim to be a legal practitioner (see ‘Today, I am a lawyer, but not a barrister or solicitor’).

Further, if the title ‘Paramedical aide’ implies someone ‘has some type of paramedical qualification’ that does not imply that they are ‘qualified to practise in a health profession’. A person may have, or claim to have, a Diploma in Paralegal Studies – a type of legal qualification – but that is not the same as claiming they are qualified to practice as a lawyer. Equally a person who holds, or claims to hold, a Bachelor of Health Science (Physician Assistant) – a type of medical qualification – is not claiming to be qualified to practice as a physician (medical practitioner). Even if the term ‘paramedical aide’ does imply ‘some type of paramedical qualification’ it is not the same as implying a qualification to practice as a paramedic.

If the person is providing health care, as a paramedical aide presumably is, then there may be a suggestion that, in context and taking into account the way they work and they way they are ‘held out’ to potential patients that the use of the term ‘paramedical aide’ ‘could be reasonably understood to indicate’ that they are ‘health practitioner’ (paramedic) or ‘qualified to practise in a health profession’ (paramedicine), but personally, I cannot see it. It seems to me that the title ‘paramedic aide’ in no way suggests that the person is a registered paramedic. Describing oneself as an ‘aide’ to a professional surely implies you are there to assist or aid the registered health professional, not that you are, or are qualified to be, a registered health professional. The ultimate conclusion to what might be ‘reasonably understood’, however, depends on all the facts and the conduct of the people involved, but prima facie, I cannot see any offence in creating a position called ‘paramedical aide’ any more than in creating a job entitled ‘assistant in nursing’.

Conclusion

Use of the title ‘paramedical aide’ is clearly not a breach of the Health Practitioner Regulation National Law (SA) r 113. It could be a breach of r 116 if in all the circumstances the use of the title implied that the person was a registered paramedic or qualified to be registered as paramedic. Whilst that would depend on context – when and how the title is used – I cannot see how creating a job with the title ‘paramedical aid’ (or for that matter Doctor-Aide, Medical Practitioner-Aide, Physician assistant, Pharmacist-Aide or Assistant-in-Nursing) would imply that the person was registered, or qualified to be registered, as a medical practitioner, pharmacist or nurse, respectively. The various titles imply that the person is there to aid a health practitioner, not that they are a health practitioner.

Categories: Researchers

Queensland volunteer fire wardens

6 July, 2022 - 19:46

Today’s correspondent follows on from my article

… on fire wardens and liability https://australianemergencylaw.com/2019/03/22/no-legal-protection-for-fire-wardens-because-it-is-not-needed/

I hoped this might answer my question but it did not, presumably because of the bracketed caveat (not in Queensland) relating to good Samaritan actions.

Here’s the situation I’m wondering about. I live in a ‘Retirement Village’ in Brisbane. As a retirement village, the place operates under different legislation to other developments.

The ‘village, is, in fact, a block of 52 units occupied by some 60 people and extending over four stories. The lowest of which is probably some 15 or so feet above street level. It is only two years old and complies with all the relevant fire safety regulations.

There is a main fire panel that indicates which unit triggered the alarm so that we can go to that unit and see if it’s a real issue of simply burnt toast or whatever

The occupants are all over 70 and range from very fit to pretty infirm.

The problem is that one or other resident manages to set the fire evacuation system off regularly (some six times in about eight weeks recently), This results in everybody having to evacuate the building and in the fire brigade being called out each time to check everything and turn the alarm off.

We did have residents who volunteered as fire wardens who were authorised to turn the alarm off and reset the system which avoided the brigade being called.

That stopped however once it appeared that such volunteer fire wardens could be held personally liable if, as a result of their actions, there was injury or worse to any resident. This is said to apply even if the warden has acted in accordance with procedures and in good faith.

I, and others, would be willing to be volunteer wardens and turn off/reset the alarm once it is established that it really is a false alarm. But not if there is a chance of being held liable if something goes wrong.

Since your earlier blog post suggested that Queensland is different could you clarify the situation here, especially with reference to retirement villages.

The reason Queensland was excepted from that earlier post is that Queensland does not have good Samaritan legislation like the other states. In Queensland the protection is limited to members of prescribed organisations – see Good Samaritan legislation – a comparison (February 22, 2017). In the post that my correspondent referred to I argued that fire wardens are not good Samaritans within the meaning of the legislation across the states. Given that, the absence of Queensland legislation does not change the answer.

But here we’re talking about volunteers, not people paid to be fire wardens. Even so, I fail to see how “volunteer fire wardens could be held personally liable if, as a result of their actions, there was injury or worse to any resident. This is said to apply even if the warden has acted in accordance with procedures …”. The question is always ‘was the person’s conduct ‘reasonable’ in the circumstances?’ If they have followed procedures and the procedures themselves are reasonable, where is the negligence? A poor outcome does not prove negligence.

Further I assume a ‘retirement village’ is operated by an entity. That entity has duties to its residents – those duties will arise under common law as the occupier, under contract law (depending on the terms of the contract between the operator and the residents), under Work Health and Safety Laws and under any relevant residential aged care legislation. As part of their obligation, they would need to have emergency procedures. If the fire wardens are trained and trusted by the operator, then the operator will be liable for any failure in the emergency procedures.

In Queensland (Civil Liability Act 2003 (Qld) s 39), as in other states,

A volunteer does not incur any personal civil liability in relation to any act or omission done or made by the volunteer in good faith when doing community work—

(a) organised by a community organisation; or

(b) as an office holder of a community organisation.

Community work (s 38) is:

… work that is not for private financial gain and that is done for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose, and includes making donations of food if the donations are not for private financial gain and are done for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose.

Depending on the operator of the retirement village (ie is it a ‘for profit’ or ‘not for profit’ organisation) the work may be ‘community work’ so a volunteer fire warden would be protected.

Even if the organisation is a for profit organisation, it will still be liable for any negligence by a volunteer. The volunteer is part of the organisation’s emergency response team, and the organisation has a duty to ensure that team responds in a reasonable manner.

This begs the question of ‘to whom did it appear that ‘volunteer fire wardens could be held personally liable if, as a result of their actions, there was injury or worse to any resident’?’ I would ask them on what basis they formed that belief. Personally I cannot see it if they attempt to genuinely apply their training for the benefit of the community.

Categories: Researchers

International Paramedics Day

6 July, 2022 - 17:32

Australian Emergency Law welcomes International Paramedics Day and thanks all my paramedic readers and subscribers for their service and professionalism.

Categories: Researchers

Road Rules exemptions and drivers in training

4 July, 2022 - 07:00

Today’s question relates to:

… the use of an exemption under ARR 306 for driver training purposes.

Hypothetical situation: A new staff member is undertaking driver training within an emergency service organisation. The participant has successfully completed “in service” pre-requirements & assessments of road law and routine driving behaviours and skills, they are then ready to start the in-service emergency driver training block.

If an “internally approved” driving educator, that has not been formally dispatched to a “real” case; asks the participant to drive under emergency conditions (using lights and siren) for the purpose of training and an exemption was required during that drive, for example, exceeding the speed limit or safely negotiating an intersection through a red traffic light, would that be considered in the circumstances to be reasonable and therefore allowing an exemption to be requested.

Is training a reasonable purpose for a “rule” not to apply to the driver under ARR306?

There is a need under WHS to train persons in the equipment and complexities of emergency driving and waiting for the new participant to attend a “real” case is not always possible with an in service driving instructor being in the vehicle. Being able to drive using emergency conditions whilst in the training situation would have many safety benefits, such as being able to scale up the complexities of the emergency drives, being able to timely debrief the driver and expose the driver to a range of situations rather than hoping a roundabout or traffic light controlled intersection pops up on a given “real” emergency drive.

I would be very interested in your interpretation.

First it depends what jurisdiction you are in. Remember that at least in NSW a vehicle is only an emergency vehicle when being driven by an emergency worker in the course of his or her duties in responding to an emergency (see Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017)). Training is not an emergency so the NSW version of the rule could not apply.

In other jurisdictions we can try to understand legislation by looking at other provisions. There is a rule in statutory interpretation that every section, in fact every word, is there for a reason. If an interpretation means that a particular section, or word, serves no purpose then that is an argument against that interpretation. The Road Safety Road Rules 2017 (Vic) r 305A is a unique Victorian provision. It provides that there is an exemption for drivers of vehicles being used for police driver training. If rule 305 ‘Exemption for drivers of police vehicles’ applied to drivers under training, there would be no need for r 305A, that is r 305A would have no work to do so the better interpretation is that r 305 does not apply to drivers in training. There is no equivalent provision for the driver of emergency vehicles during training so if police drivers in training need r 305A, and there is no provision for emergency workers, then emergency workers in training do not get an exemption. If the government wanted to give that exemption there would be an equivalent to r 305A for emergency workers. Given that the rules are meant to be national (notwithstanding inter-state differences) the need for s 305A in Victoria would equally imply that in other jurisdictions, rules 305 and 306 do not apply to drivers in training.

Conclusion

Rule 306 cannot apply to NSW or other jurisdictions that define ‘emergency vehicle’ by reference to a response to an actual emergency.

In other jurisdictions one can argue that the rules do not apply to drivers in training. If they did, there would be nothing for r 305A of the Road Safety Road Rules 2017 (Vic) to do. Having said that, if the use of the vehicle was endorsed by the service there could be an argument that the criteria for r 306 have been met and then it would be up to a court to determine the scope, and limits of the rules. In the absence of a definitive court ruling, I would conclude that the exemptions do not apply to drivers in training, other than police trainees in Victoria (or any other state with an equivalent provision).

Categories: Researchers

Who owns the award?

1 July, 2022 - 07:00

This question relates to:

A NSW RFS volunteer [who] had his name presented to the Government for a Bushfire Citation and the National Emergency Medal. Both awards were awarded.

The volunteer, has not received the awards as the RFS refuses to give them to him.

My question is, ‘Who owns the award’?

Let me, as a first point, say that in answering the question that I do not endorse the claim ‘the RFS refuses’ to give the awards. I don’t know what’s happening and whether it’s a refusal, an administrative oversight, waiting for an appropriate time or event etc. But we can accept that the volunteer has not received the medal.

It is hard to find the criteria for the award of the NSW Premier’s Bushfire Citation. I am unable to find an official site but a social media site says:

To be awarded the NSW Premier’s Bushfire Emergency Citation, the following criteria must be met:

1. The recipient was a member of a combat agency, emergency services organisation or supporting agency called upon by the lead combat agency to perform duties as part of an operational response to the bushfires.

2. The recipient has performed operational response duties within the event period.
Operational response duties include activities performed as part of the operational response to the event, including the process of combating the emergency and of providing immediate relief for persons effected by the emergency. The activities undertaken, either on a voluntary or paid basis, must include at least one or more of the following:
• front-line operational response
• incident management
• incident support
There is no minimum duty, or consecutive days of duty, expressed for this bushfire event award criteria.

Clearly the award is given to the named recipient.

The official website for Australian Honours says that the criteria for the National Emergency Medal ‘is awarded to persons who rendered sustained or significant service during nationally-significant emergencies in Australia’ including the 2019-2020 bushfires.

Once the award is issued it must be issued to the named recipient. It may be given to the RFS to pass on the award, but the RFS must hold that as a bailee. A bailee is a person who receives goods – ie possession – for a particular purpose but without receiving ownership. When you deliver your car to a mechanic, they are a bailee, they have possession for a limited purpose but do not thereby own the vehicle. In context, if the RFS is given the award for the purpose of delivering the award to the member then the RFS is a bailee not an owner.

I’m not sure who the owner is – it could be the issuing authority until it is passed to the recipient, or it could be the recipient. Generally to transfer ownership the owner has to deliver the item to a person with the intention of transferring the ownership – there needs to be actual delivery. The issuing handing the award to the RFS may be sufficient given their intention and the terms of bailment to transfer ownership, or it may not. I would need more information on the whole process. But, as I say, the owner has to be either the issuing authority (the Department of Premier and Cabinet in the case of the bushfire citation; the Governor-General in the case of the National Emergency Medal) or the intended recipient. It cannot be the RFS.

Categories: Researchers

‘Culturally safe and respectful’ practice or giving in to bigotry

29 June, 2022 - 07:00

Today’s correspondent has:

… a question about an issue that has been discussed recently on Twitter in response to a transgender paramedic employed in the UK; https://twitter.com/SECAmbulance/status/1533780743821742080

While many of the responses are horribly transphobic, I was surprised by the number of times it was asserted that patients have a “right” to choose if they are treated by a male or female paramedic. I have read similar discussions that have centred in hospitals where patients requested doctors or nurses that are a particular gender or ethnicity, but not in the out of hospital environment. My question: does a patient have a “right” to insist on receiving treatment from a particular paramedic for a particular reason (such as gender or ethnicity) and is that request supported by any legislation in Australia?

The short answer is ‘no, a patient does not have a “right” to insist on receiving treatment from a particular paramedic for a particular reason (such as gender or ethnicity)…’ but we can look at that with some more subtlety.

First one might think that the anti-discrimination legislation has something to say here but it’s not really relevant. I’ll focus on the Commonwealth Act (the Sex Discrimination Act 1984 (Cth). In reality it will be state/territory legislation that is more likely to be relevant but I’ll sue the Commonwealth Act as I don’t know my correspondent’s jurisdiction and the principles will all be sufficiently similar.

The gist of anti-discrimination legislation is that a relevant body (and certainly a jurisdictional ambulance services will be a relevant body) cannot discriminate in employment nor in deciding what services to offer, on the basis of ‘sex’ (Sex Discrimination Act 1984 (Cth) ss 14 ‘Discrimination in Employment’ and 22 ‘Goods, services and facilities’.) I have put ‘sex’ in inverted commas as it is not just sex discrimination that is prohibited (ie discrimination on the grounds of whether a person is male or female). Also prohibited is discrimination on the grounds of sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding and family responsibilities (ss 5A to 7A).

What that means is that where an ambulance service employs a paramedic who is male, female, transgender, intersex – any of the LGBQTI+ letters – they cannot treat them differently in their workplace because of that identity. Equally they cannot refuse to provide treatment and care to any patient regardless of their ‘sex’ (again using inverted commas to cover all the grounds listed in the Act).

The patient is however, not bound by the Act. They are not providing goods or services or employment etc. That does not mean they can insist on any particular paramedic, but they can refuse treatment – and a refusal of treatment can be for any reason at all. If a patient does not want to be treated by a man, or woman, including a trans man or woman, they can (if competent) refuse treatment. That does not mean they can demand treatment (see Patient’s demands do not create a duty to treat (April 11, 2020)) but they can refuse.

But even that is not the end of it – see Treating those that don’t want to be treated (June 3, 2013) and Ambulance transport against patient’s will (August 16, 2017). A professional paramedic has certain obligations to their patient. These include

Principle 1 – Practitioners should practise safely, effectively and in partnership with patients and colleagues, using patient-centred approaches, and informed by the best available evidence to achieve the best possible patient outcomes.

Principle 3 – Respectful, culturally safe practice requires practitioners to have knowledge of how their own culture, values, attitudes, assumptions and beliefs influence their interactions with people and families, the community and colleagues…

Details for principle 3 include:

(a) understand that only the patient and/or their family can determine whether or not care is culturally safe and respectful

(b) respect diverse cultures, beliefs, gender identities, sexualities and experiences of people, including among your team members

It follows that if a patient does not want to be treated by a man or woman (or a transgender person, or a homosexual practitioner etc) it may be appropriate to try and find out why and try to respect those wishes if it can be done. Whether it can be done depends on the nature of the patient’s condition and the resources available. Most people would probably not think it objectionable if, for example, a woman who needs to be transported from a crime scene to a sexual assault clinic because she had just been raped by a man, asked to be treated by female paramedics. And the coordinator may be able to allocate an ambulance crewed by women to the task. But if there is no female crew the patient could not insist that the service recall some women to duty to met that demand.

Where a patient refuses treatment because of the paramedic’s sexual identity that is more objectionable, but if we are going to recognise and ‘respect diverse cultures [and] beliefs’ that has to include one’s that are a surprise or offensive to our own. It follows that if a man wants to be treated by a male, or a woman by a woman, then where it is possible to accommodate that without undue cost, inconvenience or risk, then it is appropriate to make those arrangements. It may beg the question of whether ‘transphobia’ or ‘misogyny’ are relevant cultural beliefs or attitudes but that is not a debate I’m going to try and enter and there is significant research by other academics in these areas.

Conclusion

A patient cannot insist on particular treatment nor can they insist on being treated by a particular paramedic or a paramedic of a particular sex (or race, or age etc). They can refuse treatment if they don’t want to be treated by the particular paramedic on scene. But a paramedic practising within the concepts of the Paramedicine Board’s Code of Conduct has to consider the request and, particularly if refusal would have serious consequences and if their request can be accommodated, consider finding ways to meet their request; even where it seems silly or offensive. Patient centred care means only the patient ‘can determine whether or not care is culturally safe and respectful’.

Categories: Researchers

Paramedic moving into a new area of practice

26 June, 2022 - 13:30

Today’s correspondent says:

In your post “What it means to be a professional paramedic” on 15 May 2021, you stated that “……..paramedics may practice in a number of ways, many of which we’re just waiting for entrepreneurial paramedics to invent.”

In the knowledge that I am a registered paramedic capable of cannulation and setting up drips and infusions, I have been asked if I I be interested in doing work for a non-paramedic employer (an allied health professional registered by AHPRA) to perform these particular skills on cancer patients undergoing alternative IV therapies in Australia, under the umbrella of this registered health professional and innovative cancer specialists from Japan and Germany.

As a registered paramedic in Australia, what might you see as any possible legal or registration complications if I was to work for a non-paramedic employer? Would I be considered that entrepreneurial paramedic you refer to were I to practice in that manner, or as my own entity, providing traditional paramedic skills to patients that are requesting such care, be it from within Australia or overseas?

\What would I need as a paramedic employee, or as a solo operator, to satisfy AHPRA and to protect myself (as far as possible) from any legal complications?

I cannot give legal advice on how to set up a business so I cannot answer the last question – ‘What would I need as a paramedic employee, or as a solo operator, to satisfy AHPRA and to protect myself (as far as possible) from any legal complications?’, but I can comment on the general principles.

As I have noted before, the Health Practitioner Regulation National Law does not define scope of practice, rather it works via title protection. If you are a registered paramedic, and you have the capacity to cannulate, and set up drips and infusions you are free to do that as an employee or as a private contractor.

The critical issue is complying with the Paramedic Code of Conduct. That says a paramedic has to deliver evidence based, patient centred care. In answer this I refer to the Advance Copy of Code of Conduct that is available on the Paramedicine Board website and which takes effect on 29 June 2022. (This post is written on 26 June, so the new code comes into effect next week). Importantly a paramedic must:

1.1(e) recognise and work within the limits of your skills and competence, and refer a patient to another practitioner when this is in the best interests of the patient;
1.2(a). ensure you maintain adequate knowledge and skills to provide safe and effective care;
1.2(b). ensure that, when moving into a new area of practice, you have sufficient training and/or qualifications to achieve competency in that new area;
1.2(d). consider the balance of potential benefit and harm in all clinical management decisions;
1.2(f). provide treatment options that are based on the best available information and are not influenced by financial gain or incentives;
1.2(g). practise within an evidence-based and patient-centred framework;
1.2(n). reflect on your practice and your decisions and actions in providing good and culturally safe care; and
1.3(d). investigate and treat patients based on clinical need and the effectiveness of the proposed investigations or treatment, and not provide unnecessary services or encourage the indiscriminate or unnecessary use of health services.

The proposal to practice with ‘an allied health professional … [providing care to] cancer patients undergoing alternative IV therapies in Australia, under the umbrella of this registered health professional and innovative cancer specialists from Japan and Germany’ raises a number of ‘red flags’. Are the alternative therapies supported by science and evidence? Is the paramedic familiar with the evidence in support of the treatments? Does the paramedic understand the limitations and contra-indications so patients can be property informed? Are the therapies legal in Australia?

Conclusion

In short paramedics can move into new areas away from traditional ambulance services. When considering new practice opportunities, a paramedic needs to be satisfied that the proposed work is within the limits of his or her ‘skills and competence’, that they have looked into the proposed treatments and have obtained adequate knowledge, skills training and/or qualifications to obtain competency and to provide safe and effective care. They need to understand the ‘balance of potential benefit and harm’ in the treatments so they can ensure that ‘treatment options … are based on the best available information’ and they can advise patient’s accordingly, or decline to provide care that is not in the patient’s best interests, They need to be satisfied that any treatment is ‘evidence-based and patient-centred‘. The paramedic must ‘reflect on [his or her] … practice’ and be satisfied that treatment is ‘based on clinical need and the effectiveness of the proposed … treatment’.

Categories: Researchers

Insurance for WA SES units

24 June, 2022 - 13:15

Today’s question comes from Western Australia and relates to incorporated SES units. The request is for

… any guidance or advice for units as an Incorporated Association and whether we should hold public liability insurance? It’s a question we have discussed but we really weren’t sure of the benefits.

Most activities/risks we undertake that are likely to require cover, we would be doing under the functions of the SES as outlined in the FES Act and would rely upon the DFES cover.

The WA SES

I have previously written about the strange nature of the WA SES – see The Commissioner and WA SES units (August 8, 2020). In that post I conclude there is no such thing as the West Australian SES, rather the Commissioner has certain functions (Fire and Emergency Services Act 1988 (WA) (the FES Act) s 18). To meet those functions the commissioner can approve (s 18C) and supply SES (s 18B(1)(a)) units. In effect each unit has a relationship with the Commissioner – there are 66 State Emergency Service units – rather than a single State Emergency Service.

Liability

As for potential liability, s 37(1) of the FES Act says:

… a person does not incur civil liability for anything that the person has done, in good faith, in the performance or purported performance of a function under the emergency services Acts.

Section 37(1a)(c) says:

Not only is the person not liable, the ‘Crown, a local government and any other person’ is ‘also relieved of any civil liability that any of them might otherwise have had’; that is there is no vicarious liability. A person who suffers any loss or damage caused by a person protected by s 37 must look to their insurer for any restitution (s 37(5)). That deals with liability for volunteers.

… a person is taken to be performing a function under an emergency services Act if the person is — …

(i) a member of the SES Unit; or

(ii) acting under the direction of a member of the SES Unit or a member of staff;

With respect to liability to volunteers, the FES Act says that the Commissioner must ‘effect and keep current insurance providing compensation for injury caused to present and former volunteers for which it is the responsible agency while engaged in volunteer activities’ and maintain insurance for ‘loss of or damage to vehicles, appliances, equipment and apparatus of volunteer units’ and ‘for loss or damage caused to privately owned vehicles, appliances, equipment, apparatus and items of personal property in consequence of being used for or in connection with volunteer activities’ (s 36ZQ). The term ‘volunteer’ covers both a registered member of an SES unit as well as ‘a person who is not a registered volunteer, but who engages in volunteer activities under the direction of a registered volunteer or a member of operational staff’. Volunteer activities are ‘activities carried out by the volunteer unit of which the registered volunteer is an officer or member for the purposes for which that unit was formed’ (s 36ZM).

The Volunteers and Food and Other Donors (Protection from Liability) Act 2002 (WA) provides legal protection for volunteers but does not include volunteers in the emergency services (s 4(1)) on the basis that their liability and protection is provided for in the FES Act.

SES Units

The Commissioner may ‘approve as an SES Unit any group of persons, however constituted and whether incorporated or not, that the FES Commissioner considers to be appropriate for approval as an SES Unit’ (s 18C(1)).

Where an SES unit is incorporated under the Associations Incorporation Act 2015 (WA) then it exists as a separate legal entity that can sue and be sued (s 13(1)(d)), own property (s 14(1)(a)), enter contracts (ss 14(1)(g) and 15) etc. It has perpetual succession (s 13(1)(a)) which means that even as the members come and go, the legal entity continues.

Insurance

In terms of insurance the question becomes what risks does the incorporated SES unit own? The problem is complicated – as my correspondent says ‘Most activities/risks we undertake that are likely to require cover, we would be doing under the functions of the SES as outlined in the FES Act and would rely upon the DFES cover’. Another way to look at that complication is that there are two legal entities involved – the SES unit and the State of Western Australia so in different circumstances deciding who is ultimately responsible for any loss or damage may be complicated.

The functions of an SES unit under Part 3A (s 18E(1)) are:

(a) to take all practicable measures —

(i) for protecting and saving life and property endangered by natural disasters; and

(ii) for rendering safe the site of natural disasters;

and

(b) to carry out search and rescue operations; and

(c) to promote the safety of life and property from natural disasters, accidents and other events that may require search and rescue operations to be carried out; and

(d) to carry out assistance operations.

As part of its functions, an SES unit may (s 18E(2)):

(a) …

(b) carry out training activities and exercises; and

(d) carry out fundraising and promotional activities; and

(e) organise and participate in competitions; and

(f) carry out any activities that are reasonably incidental to the performance of its functions (such as travelling, providing communications systems and providing meals);…

A person doing any of those things is ‘taking part in the performance by an SES Unit of its functions under Part 3A’ so that neither the member, the SES unit nor the Crown is liable for any damage done or harm caused in the ‘good faith’ performance of those duties. A volunteer injured during those activities is undertaking a volunteer activity so is ‘covered’ by the insurance that the Commissioner is required to maintain.

It is hard to imagine what’s left; but of course, each unit would need to answer that in their own context. Some things I can think of are:

Occupiers’ liability. If the SES unit owns its own building, insurance would be useful to deal with liability should a visitor to the premises get injured due to inadequate maintenance of or hidden dangers in the building but that would normally be included in relevant building insurance.
Insurance for unrelated events – if a unit is doing things tangentially related to SES functions there may be a debate about whether that is covered by the Commissioner’s insurance – see for example Can NSW SES provide event first aid services? (November 13, 2016). There could always be arguments about whether any particular conduct is ‘fund raising’ or ‘promotional’ but it might be controversial. The advantage of having your own insurance is there is someone else to have the fight. As noted given there are two legal entities – the unit and the State of Western Australia. If an issue arises between any plaintiff, the state and the unit as to who the correct defendant is, then the insurers can argue the point – one of them will end up paying so let them sort it out.
Other activities? The other risks are matters for each unit to consider.

Is it worth it? It’s a classic cost/benefit analysis. The risks are low – I’m not aware of any WA SES unit ever being sued, nor any member of the WA (or any) SES. Both the SES volunteers and the incorporated units enjoy the benefit of both s 37 and the Commissioner’s insurance. So one has to ask what would further insurance add, and balance that against the cost?

Conclusion

Ultimately this is not a question I can answer as it depends on an assessment by each unit as to what they do, what their risks are, what insurance products are available and at what price.. The best person to answer that is probably a local insurance broker who can consider the circumstances of each unit, identify the risks and advise on what insurance products are on offer. Only with that advice could any unit decide if insurance is worth the premium.

Categories: Researchers

Another COVID vaccine mandate challenge fails

22 June, 2022 - 20:39

Munn v Health Secretary [2022] NSWIRComm 1044 (20 June 2022) was another attempt by a number of NSW Health employees, including a NSW ambulance paramedic, to overturn the obligation on health workers to be vaccinated against COVID-19. In this case they alleged that their employer, the Health Secretary, could not impose vaccination requirements as she had not consulted with employees as required by the Work Health and Safety Act 2011 (NSW). The Industrial Relations Commission disagreed.

Section 49 of the Work Health and Safety Act says that a Person Conducting a Business or Undertaking must consult with employees

(a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking:

(b) when making decisions about ways to eliminate or minimise those risks; [and]

The public health orders were made (at [51]) to reduce:

(i) the risk of infection, severe disease and death in the workers, and

(ii) the risk of transmission of infection from workers to patients and other workers.

Commissioner O’Sullivan agreed (at [52]) that, given the stated purposes of the health orders, they would attract the need for consultation if the mandates were implemented by the PCBU. In this case the PCBU was ‘the Crown in right of NSW’ ([56]). For the purposes of the WHS Act, however, the Minister acting in that capacity is not considered an ‘officer’ of the PCBU. It follows ([58 and WHS Act s 247(2)] that ‘the conduct of the Health Minister in making the Health Orders is not conduct of the Crown and is not subject to the duty to consult under sub-section 47(1) of the WHS Act.’ In short the Minister when exercising powers under the Public Health Act was not acting as or representing the employer of the various health staff. At [59]-[60] Commissioner O’Sullivan said:

The Health Minister made the Health Orders which applied as of law upon the respondent. There were consequences for failure to comply with the Health Orders. The respondent, in complying with the Health Orders had a positive obligation place [sic] on it to take all reasonable steps to ensure that health care workers comply with the Vaccination Requirements …

In the circumstances I find that the implementation of the Vaccination Requirements by the respondent did not fall within any of the circumstances listed in section 49 of the WHS Act and therefore the duty under sub-section 47(1) of the WHS Act to consult was not engaged …

Discussion

In an earlier post, Requiring COVID vaccines for emergency workers (April 1, 2022), I said ‘Where there is a valid public health order, an employer has no choice to comply and if that order requires that a certain class of workers are vaccinated then the employer cannot continue their employment if they refuse to get the vaccination.’ This case reinforces that position.

As Commissioner O’Sullivan said “the Health Orders … applied as of law upon the respondent”. Where there is a change in the law an employer is required to comply and as in these circumstances required to ensure that the employees comply. For example, when ambulance services were established paramedics were not registered. From 1 December 2018 paramedics needed to be registered. People who were previously employed as paramedics can no longer be employed as paramedics if they don’t meet registration standards even though those requirements were not part of the terms and conditions of employment when they started; notwithstanding that their employer may not have consulted with them about the changes etc. The law is now if you are going to use the title ‘paramedic’ you have to be registered. Employers cannot ignore that no matter how much someone may object that it is a change to their employment that they did not consent to etc.

These orders are similar. The law has changed changing the work environment. Now (or whilst the orders are in place) if you want to work in health you need to have a vaccination. That is the law (until a competent court rules otherwise). An employer must comply; an employee must comply. If you chose to reject the vaccine and lose your job then like the applicant in Giggs v St John Ambulance Western Australia Ltd [2022] FWC 1362 you can exercise your ‘free will and chose not to receive the … vaccination … in the full knowledge that [you] would consequently be dismissed.’

Categories: Researchers

Thank you, welcome back and now is the time to ask your question …

20 June, 2022 - 15:06

Categories: Researchers

WA paramedic’s dismissal for refusing influenza vaccination confirmed

10 June, 2022 - 07:00

In Krystle Giggs v St John Ambulance Western Australia Ltd [2022] FWC 1362 (2 June 2022)) the Fair Work Commission rejected Ms Giggs’ claim for unfair dismissal.

On 20 March 2020, the Visitors to Residential Aged Care Facilities Directions (the Directions) were issued by an emergency officer authorised by the Chief Health Officer under the Public Health Act 2016 (WA). Under those directions ‘entry to residential aged care facilities was restricted and in addition a person who was able to enter could then only enter the residential aged care facility if they had an up-to-date vaccine against influenza’ ([19]). Paramedics who were not vaccinated but who were responding to priority 1 or 2 emergencies would be allowed to enter residential aged care facilities, but they would not be permitted in less urgent cases. In order to ensure paramedics could attend to all manner of cases ‘SJA developed a policy designed to ensure it and its staff would comply with the Directions.’

Ms Giggs was advised on 26 April 2020, after a period off work, that she would be required to obtain the flu vaccination. She objected. What followed was letters, meetings and processes to consider her objections. On 9 August 2020, Ms Giggs formally applied for an exemption. The application was refused.

There were then ongoing processes where Ms Giggs was asked to show cause why her employment should not be terminated. Ultimately (at [83]-[84]):

SJA decided that given the Directions remained in effect for the foreseeable future and the applicant was still refusing the respondent’s direction to be vaccinated it was appropriate for her to be terminated on the grounds that the applicant could not fulfil the inherent requirements of her on-road role because she could not lawfully attend all the places a patient may be, and further that she had not obeyed SJA’s direction that she comply with SJA’s mandatorily influenza vaccination policy.

The decision was made to terminate the applicant’s employment. She was notified of this by letter dated 22 June 2021.

(That date was more than one year after she was first told of the requirement to have the vaccine and nearly one year before the case was determined in the Fair Work Commission.). Ms Giggs launched an application alleging unfair dismissal contrary to the Fair Work Act 2009 (Cth).

The Commission found that Ms Giggs ‘did not comply with the Mandatorily Influenza Vaccine Policy and did not obey her employer’s direction to do so.’ It then had to ‘consider whether the respondent’s direction to the applicant to comply with the policy was a lawful and reasonable direction’ ([103]-[104]). At [107] Commissioner Williams said:

There is no suggestion that the respondent’s direction to comply with the policy was unlawful. Considering all of the circumstances detailed above including the issuing of the Direction under the Public Health Act, the application of the Directions to work the ambulance paramedics commonly undertook and the manner in which ambulance paramedics work within the respondent’s operations I have no doubt that the respondent’s direction to the applicant was also reasonable.

Then the Commission had to decide whether the decision to terminate her employment was a reasonable response. It was held that it was. Ms Giggs had been given notice of the reason for her dismissal, had been given opportunities to respond and to show cause why she should not be dismissed, she was permitted to have support persons present when she wanted, and the respondent ambulance service had followed appropriate procedures. Further (at [119]-[120]):

The applicant was stood down on pay for a considerable number of months at considerable cost to the respondent. During all of this period she was non-compliant both with the Directions and the policy. At any time during these months the applicant could have reconsidered her choice and agreed to be vaccinated and so could have remain employed.

The respondent certainly did not rush to dismiss the applicant.

Commissioner Williams concluded (at [121]-[123]):

The applicant exercised her free will and chose not to receive the influenza vaccination. She did so in the full knowledge that she would consequently be dismissed.

The dismissal of the applicant was neither harsh, nor unjust nor was it unreasonable.

Mrs Giggs was not unfairly dismissed.

Discussion

In an earlier post (Requiring COVID vaccines for emergency workers (April 1, 2022) I said:

Where there is a valid public health order, an employer has no choice to comply and if that order requires that a certain class of workers are vaccinated then the employer cannot continue their employment if they refuse to get the vaccination.

This decision confirms that principle and the line of reasoning in the cases discussed in that earlier post. In another post (Challenging COVID restrictions – part 2 (April 23, 2020)) I wrote:

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

This case was not an application to set aside the relevant orders but a similar point can be made. Ms Giggs wanted to give evidence both before the Commission and the St John Ambulance exemptions panel, constituted by the St John Ambulance Medical Director, Dr Bailey and the Head of People Services, Ms Jackson.about the vaccine.

Dr Bailey’s evidence was that her … application was based on her personal wish not to be vaccinated against influenza because of her assessment of the science relating to efficacy and risks. ([67]).

Ms Jackson’s evidence ([68]) was:

… [Ms Giggs] was declining the influenza vaccine because she was not convinced of the vaccine’s efficacy in light of its risks to her personal safety. The applicant had said in her exemption application that she was open to being vaccinated, had been in the past, but did not want to have this particular
vaccine …

Before the Commission (at [85]):

The Applicant’s evidence explained at length her views regarding the Directions and sought to impugn the Directions based on her understanding of the law, viruses, vaccines and vaccinations, worker’s rights, risk assessment, ethical considerations and related matters.

Just as a person’s belief that the Minister, or authorised officer should not hold a necessary belief is no ground to set aside a public health order, so too the applicant’s personal view of the directions is not relevant. As the Commission said (at [87]) ‘What is relevant is that the Directions were the law at the time of the Applicants dismissal’. The applicant’s own assessment of the effectiveness of the vaccine, the law or other matters was irrelevant. She could not enter an aged care residential facility without the vaccination. It was that order that St John Ambulance had to comply with. Even if St John management thought the order went too far that would be beside the point. The order was made and ‘in the absence of a court ruling that the Directions were invalid’ both St John and ‘the Commission, in determining this application’ ([88]) had to apply that law and comply with that Direction.

This was not the forum to challenge the direction itself. St John had to comply. If she wanted to challenge the direction she need to seek orders against the Chief Health Officer as others have tried – see Challenging COVID restrictions – part 2 (April 23, 2020) and see also Talissa Siganto, ‘Queensland’s frontline workers begin series of legal challenges to COVID-19 vaccine mandate’ ABC News (Online) 30 May 2022.

I understand the matter of Kassam v Hazzard (discussed in that earlier post) is listed before the High Court of Australia on 12 August 2022. This is an application for Special Leave to Appeal. This is where the applicant has to convince one (or sometimes two) judges that the case raises matters of sufficient legal importance that it should go to a hearing before the bench of five or seven judges. It is possible that both the application for leave and the appeal itself are heard at the same time but it is unusual. It follows that on the 12th either leave will be granted and there will be a full hearing at some future date; or leave will be refused and that will be the end of the matter.

Categories: Researchers

Operating an ambulance service in NSW

8 June, 2022 - 07:00

In recent times I’ve been asked to comment on whether a service being provided outside the traditional state operated emergency services is legal – see

Non-government road rescue – Victoria (May 2, 2022); and
Citizen’s hazard response service (May 13, 2022).

In a comment made on FaceBook a correspondent said:

I’m just getting a bit tired of people using this platform to try and oust people/services/practices. It’s not it’s intent…..or never used to be anyway.

My response was

I share your concern given that I’ve been asked to comment on services and no doubt their members are surprised to see their service discussed in this forum. I’m not sure how best to address that as people don’t have another ready forum to ask their questions. Given (so far) I have concluded that everyone’s acting ‘above board’ I hope that actually makes it easier for these services; but I agree it’s not nor has it been my intention to provide a forum for people to “to try and oust people/services/practices”.

Having said all that I’ve now been asked about another organisation in NSW that I won’t name. Their FaceBook page has pictures of vehicles with the word ‘ambulance’ on them, red/blue flashing lights and the emergency triple zero logo. They offer, for a fee, to respond a first responder to a scene to “assist whilst waiting for an ambulance.” I’m asked:

Would [they]… be in violation of Health Services Act by conducting fee or reward in NSW or any other legislation by operating similar to NSW Ambulance by advertising this post alone.

I like your thoughts of these points above as it raised questions about if it’s an Ambulance Service or First Aid Service in NSW.

Let me again stress it’s not my role to give legal advice and certainly not to someone who did not ask and I infer it’s not anyone from this particular organisation asking the question.

Health Services Act 1997 (NSW) s 67E

Trying to remain generic – the Health Services Act 1997 (NSW) s 67E(1) says:

A person must not–

(a) directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, or

(b) conduct for fee or reward any operations similar to the operations carried on by the Health Secretary under this Chapter,

without the consent of the Health Secretary and except in accordance with such conditions (if any) as the Health Secretary may from time to time impose.

Responding to an emergency at the request of a person may be conducting ‘for fee or reward any operations similar to the operations carried on by the Health Secretary under this Chapter’. But there is a defence if the agency has the consent of the health secretary. I have no idea whether the agency in question has that consent. Further, context is everything so if one wanted to actually judge whether they are in breach one would need to actually look at their work practices, something I cannot, nor am I prepared to, do.

First aid v ambulance service

The Health Services Act defines ambulance services as ‘services relating to the work of rendering first aid to, and the transport of, sick and injured persons.’

There is no definition of ‘first aid’. In the ACT it is an offence to provide an emergency ambulance service without permission, but that prohibition does not apply to ‘an entity in relation to the provision of first aid’ (Emergencies Act 2004 (ACT) s 63. What distinguishes an ambulance service from ‘the provision of first aid’ is not explained. In an earlier post Unauthorised ambulance services in the ACT (February 7, 2020), I concluded “…the critical issue is patient transport- if you transport the patient you are providing an ambulance service …” and if you don’t provide any transport then it’s ‘first aid’.

One could make a similar argument in NSW that is if an ambulance service provides ‘first aid to, and the transport of, sick and injured persons’ (emphasis added) then a service that provides first aid, but does not transport the sick and injured is not providing ambulance services. That does not mean they don’t fall foul of s 67E. Section 67E(1)(a) refers to transport but that is not the only way to breach the section. Section 67E(1)(b) is more expansive. Just because an organisation is providing only first aid (ie no transport) it does not mean they are not in breach of s 67E as the Ambulance Service of NSW will, for a fee, provide event first aid that may not include transport. For related discussions see any of the posts that appear here: https://australianemergencylaw.com/?s=67E and, in particular:

Use of the word ‘ambulance’ (February 13, 2020);
Unregulated event first aid in NSW (July 20, 2019);
What’s an ambulance? (May 28, 2017); and
Operating as a private paramedic (March 22, 2016).

The Triple Zero logo

The Commonwealth government manages the triple zero call system – see https://www.triplezero.gov.au/triple-zero/home. They say (at https://www.triplezero.gov.au/triple-zero/awareness-campaign) ‘You can apply to use the Triple Zero logo and information by emailing Fire and Rescue New South Wales on TripleZero@fire.nsw.gov.au with ‘Triple Zero logo’ as the subject line’. The company the subject of my correspondent’s concern may have the necessary permission.

Red/blue lights

It is often discussed here that a person, or a company, cannot simply put red/blue lights on their car. But they can if they have the relevant permission. Equally they may be proclaimed as emergency workers which then gives their vehicles status as ‘emergency vehicles’ with all the rights and responsibilities that carries (Road Transport (Vehicle Registration) Regulation 2017 (NSW) Sch 2, cl 114(4)(q); Road Rules 2017 (NSW) definition of “emergency worker” and definition of “emergency vehicle”). I have no idea whether the organisation the subject of my correspondent’s concerns has the relevant permissions.

Conclusion

The conclusion then is that s 67E says what it says. I cannot say whether any particular organisation is or is not acting in breach of that section as I do not know what authorities they have or the exact scope of their practice.

There is no clear, or even necessary, distinction between an ambulance service and a first aid service. Arguably an entity that provides out of hospital health care but does not provide any patient transport, is not providing an ambulance service but the implications of the distinction are not clear.

Categories: Researchers

No safe crewing award for NSW Ambulance

6 June, 2022 - 07:00

Paramedics employed by NSW Ambulance are represented by two trade unions – the Health Services Union (the HSU) and the Australian Paramedics Association (the APA).

In an Application for NSW Ambulance Safe Paramedic Crewing Award [2022] NSWIRComm 1037 (27 May 2022) the HSU, supported by the APA, asked the Industrial Relations Commission to make an award that would have ensured “that paramedics are assigned to a dual crew and that any NSW Ambulance vehicle that is capable of patient transport is staffed by a dual crew when dispatched to incidents” ([2]). At [25] the Commission said:

The HSU’s case for the making of the Proposed Award rest on two broad premises. These are that single paramedic responses, first, expose paramedics to significant additional workplace health and safety risks, and second, result in patients receiving a sub-optimal level of care and treatment.

The Commission (made up of Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster) declined to make the award as sought, or any relevant award. They determined that NSW Ambulance genuinely wanted to avoid single response paramedics ([56]) except those in designated single response roles, that is (at [11]) Extended Care Paramedics, members of the Special Operations Team, Paramedic Specialist Motorcycle Responders, members of the Immediate Care Unit, Duty Operations Managers, Paramedic Educators and Clinical Training Officers. The Ambulance Service, in conjunction with the unions had implemented a Work Instruction to minimise single crewing (see [58]). Even so “Despite the steps taken by NSW Ambulance, there was generally no controversy that it is not possible for NSW Ambulance to guarantee against a paramedic being “single” at work” ([67]). Given that reality, the Commission said (at [71], emphasis added):

In circumstances where paramedics will from time to time be on duty “single”, the question which next arises is whether NSW Ambulance should be prohibited from dispatching them to respond single to an incident. For this would be the effect of the Proposed Award.

Paramedic safety

As for paramedic safety it was agreed that paramedics were safer when responding in pairs but the risk was not reduced to zero. The Ambulance Service (at [76]):

… contended that a number of the risks identified by the HSU’s and the APA’s witnesses were present whether or not a paramedic was responding single or as a member of a dual crew. This included travelling under lights and sirens, particularly when the second paramedic is attending to a patient in the rear of the ambulance, and the risk of occupational violence. NSW Ambulance contended that the presence of a second person “has some potential to reduce risk of harm associated with patient and bystander violence, [but] this is not guaranteed and cannot be relied on as a safe system of work”.

Further, the Service confirmed that paramedics, whether working as a single responder or as part of a dual crew, always had the option to ‘stand off’ and wait for police or further ambulance back up if they felt a situation was unsafe ([77]-[78]).

The Commission (at [82]) was “satisfied that a single responder may be exposed, to an extent, to greater workplace health and safety risks than when they attend an incident as a member of a dual crew.”

Patient safety

… the HSU contended that a single responder will not be able to deliver the same level of patient care as that which could be provided by a dual crew. This will extend to not being able to apply in full the relevant procedures or protocols, or to utilise all of the equipment that might otherwise be available to be used in aid of the patient. Further, the single responder will not have the advantage of checking clinical decisions, medications and the like with another paramedic ([85]).

The Ambulance Service recognised that it may be better to have two paramedics treat a patient but that was not always possible eg where the number of patient’s exceeded the number of paramedics on scene. Paramedics are trained, it was argued, to apply principles of care and to adjust that care depending on the circumstances. The “key premise underpinning NSW Ambulance’s opposition to the Proposed Award” was that

… from the perspective of patient care, there will be instances where time is of the essence and where the prompt attendance of a single responder will deliver a greater clinical benefit to the patient than waiting for a dual crew to arrive. That is, whatever compromises might be made from a clinical perspective are outweighed by the benefits of a timelier response.

It may be better to have two paramedics, but one is better than none.

One witness was cross-examined about his experience in a country town. He described situations where he had been called when off duty to respond as all the on-duty and on-call officers were already engaged. The witness was asked (at [97]):

… to assume that one of the things that award, if it were made by the Commission would do, would be to prevent an officer being put in an ambulance single, to respond to an incident. Now if an incident occurred in Gilgandra when the on-duty or on-call crew were otherwise occupied and an emergency arose, would you be content with an award that would require you to remain in the station or at home single and the patient would have to wait for a backup crew to come from some further distance?

The paramedics answer was “No I wouldn’t be comfortable.”

At [100]-[101] The Commission said:

We do not accept that there is only “scant evidence” of the benefits of single paramedic responses or that the Commission “is in no position to find” that the benefits asserted by NSW Ambulance outweigh the risks of single paramedic responses. We are also not persuaded that that evidence ought to be dismissed as being opinions amounting to conjecture…

It is relevant to observe that the evidence of a number of the witnesses called by the HSU and the APA is corroborative of NSW Ambulance’s contentions as to the potential benefits of single paramedic responses. That is, while the incidents that they describe would have been challenging, if not harrowing, their intervention in some of the cases – albeit as a single responder – led to a better patient outcome than if NSW Ambulance had delayed dispatching them to the incident until a dual crew could respond.

Conclusion

The Commission concluded (at [105]) that:

We are persuaded to accept the position put by NSW Ambulance, that in certain instances the benefits to the patient of the timely attendance of a single responder outweigh any additional risks to the paramedic, and justify any compromises to the treatment protocols that might otherwise be applied by a dual crew.

Given that conclusion it would be inappropriate to make an award that prohibited the dispatch of single officers in any circumstances. The Commission could have left the matter there and simply dismissed the application, but it did not. Rather it did make orders to amend the relevant employment award to require the Ambulance Service to apply the current work instruction to work toward minimising incidents of single crew response ([118]). The order of the Commission ([122]) was:

The [Ambulance] Service will apply rostering practices intended to avoid single paramedic responses to the extent practicable. To that end it will apply the Work Instruction titled Clinical Operations – Dual Paramedic Crewing dated 12 June 2020, or as amended or replaced by the Service from time to time following consultation.

Conflict of interest disclosures

For the sake of complete transparency, I disclose:

One of the unions, the APA, is a sponsor of this blog; and
One of the witnesses for the Ambulance Service was the Director Medical Services at NSW Ambulance, Dr Jason Bendall. Dr Bendall and I co-authored the paper ‘The provision of Ambulance Services in Australia: a legal argument for the national registration of paramedics’ (2010) 8(4) Australasian Journal of Paramedicine Article 4 (previously (2010) 8(4) Australian Journal of Emergency Primary Health Care, Article 990414). I consider Dr Bendall a personal friend.

Neither of these connections influenced my report on this decision.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Associationand 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

Building risk

4 June, 2022 - 10:00

In the April 2022 issue of the Australian Journal of Emergency Management my friend and colleague Professor Steve Dovers says:

Bluntly, the job of emergency management and disaster policy is to prepare for, and then cope with, problems caused by vulnerabilities created by other policy sectors. Houses in risky locations, people in vulnerable situations and assets at risk from natural hazards are often in such circumstances because of decisions or non-decisions made in land-use planning, development approval, transport, infrastructure, housing, public health, communications and elsewhere. Those policy sectors may overlook or pay scant attention to DRR when decisions are made. Indeed, it might not be part of their mandate.

An example of that can be seen in the decision by Commissioner Dickson of the Land and Environment Court in OM Vinayak Pty Ltd v Central Coast Council [2022] NSWLEC 1269 (27 May 2022).

The issue

OM Vinayak Pty Ltd proposed a development on flood prone land within the Central Coast local government area. The application was for ‘development consent for demolition of existing structures, construction of a dual occupancy … and subdivision’ ([1]). Council refused the application and the applicants appealed to the Land and Environment Court (‘the LEC’). In the LEC council maintained its position that the application should be refused. Council’s position was (at [6]):

1. The proposed development fails to minimise the flood risk to life and is not compatible with the flood hazard of the land.

2. The proposed development is not in the public interest for two reasons: firstly, it will establish a precedent for increased density within the Tuggerah Lakes Floodplain; secondly, the development will increase risk to life, damage to property and reliance on emergency services during a flood event.

Without tracing all the various environment plans and standards, it can be summarised that experts for the developer, and experts for the Council, took opposing views (at [48]-[49]) on whether the development was a reasonable response to the flood hazard on the site.

… Mr Dewar [for the Council] concludes that the proposed development is incompatible with the flood risk of the site, will increase the flood risk to life and should be refused on these grounds.

In the alternative, Mr Wyllie [for the Applicant] argues that the Flood Response Plan, and the ability for residents to shelter in place, is an appropriate response to the flood hazard of the site. Further, he says the evacuation route is safe for a minor flood (up to 0.8m in Tuggerah Lakes) and that when the SES issues the evacuation order it is safe for residents of the subject property to leave. However, he accepts that ‘evacuation during major flood events would be unadvisable and occupants shall remain in buildings (Shelter in Place).’

The Flood Response Plan (at [4]) proposed that residents:

+ Evacuate in response to minor excavation warnings issued by the State Emergency Services (SES) via Bondi Road and Wilfred Barrett Drive.

+ The Flood Response Plan notes that residents will have approximately 12 hours to evacuate after a minor flood warning.

+ That if a decision is made to shelter in place, residents have 12 hours to prepare and that adequate food, bottled water, medication etc will be required for a period of approximately 12 hours.

+ Confirms that the subject dwelling will remain flood free and safe to shelter in place in both the 1%AEP storm event and the Probable Maximum Flood (PMF).

+ That once Bondi Road is inundated residents should not attempt to leave, except when the SES or emergency services advise it is safe to do so.

Mr Simington, solicitor for the Council argued ([55]-[56]):

… that the Flood Response Plan is inadequate in that it:

+ does not provide occupants any indication of how long they will be isolated in the dwelling during a flood event if they choose to shelter in place.

+ Encourages residents to believe they will be able to rely on emergency services to rescue them if they have an emergency during the 1%AEP event.

+ Does not provide any guarantee that occupants will not attempt to evacuate after it is safe to do so out of anxiety or distress, recognising that at the peak of the flood the experts agree that part of the evacuation route (the section of Minni Road with a depth of 0.7m) is classified as H3 by the NSW Flood Plain Management Manual.

On the preceding basis, Mr Simington argues that the Court would prefer the evidence of Mr Dewar and his conclusion that firstly shelter in place is an inappropriate strategy for managing the flood risk at the site and that secondly the proposed development is not compatible with the flood affectation of the site as it proposed to increase the density of development. Mr Simington submits that in the Respondent’s assessment of the development application should be refused on these grounds.

The lawyer for the applicant argued that the development should be approved as it was not expressly prohibited by local planning documents, that the building would be built to withstand the pressures of flood waters and:

The Applicant has prepared a Flood Response Plan and proposes conditions to ensure that future occupants are aware of the existence of the plan and its contents.

The decision

Commissioner Dickson said (at [65] emphasis added):

… I am satisfied the proposed development is acceptable for the following reasons:

+ The Applicant has established, and the experts agree on, the flood hazard applicable to the subject site. I accept and prefer the evidence of Mr Wylie that the proposed development is compatible with the flood hazard on the basis that: firstly, the floor level of the dwelling is higher than the FPL; secondly, that the building is designed to withstand the characteristics of the flood (which is at low velocity) and finally; that the entire dwelling is a reliable area of refuge for residents. I note that in a 1%AEP flood event the depth of flooding expected is 0.3m which is classified by the Floodplain Manual as H1: Low Hazard. Further, in the annexed conditions the development will require certification from a structural engineer that the dwelling is structurally designed to withstand flood waters to the depth of the PMF and velocity of 05.m/s.

+ There is no contention, or evidence in the proceedings, that the proposed development will affect flood behaviour or result in increased flood expectation of adjoining properties.

+ The Flood Response Plan is responsive to the specific site and the flood characteristics of the subject site in the North Entrance Peninsula. If strictly complied with there is agreement in my view between the experts that there would be no risk to life from the proposed development as the finished floor level of the building is firstly above the flood level of the PMF and secondly the building is designed to withstand flood waters.

+ There is no planning provision contained in DCP 2013 which provides guidance to an Applicant that shelter in place is a planning approach not supported by the Council. The period of isolation is expected to be approximately 12 hours. In my view the risk to life from occupants leaving during that time is minimal. Occupants who are located within a dwelling that is dry from ground level, with their possession safe, and in a structurally sound building able to resist flood flow forces and low inundation are in my assessment unlikely to seek to leave. Further, as a result of the conditions of consent they will have awareness of the Flood Response Plan.

I am satisfied on the evidence that the development application incorporates appropriate measures to manage risk to life and property from flood. I accept there is a residual risk of occupants failing to comply with the Flood Response Plan. However, I am satisfied this risk is minimal, is mitigated by the following conditions of consent and is a risk that needs to be considered in the context of the long warning time (48 hours) of the specific flood events in this locality.

And at [67]:

… I am satisfied that occupants will have between 24 – 48 hours warning time to ensure they either evacuate or have sufficient food and medication to withstand the period of isolation. I find the risk is satisfactorily mitigated by the Flood Response Plan, which provides sufficient detail of occupants of when flooding will occur…

The court upheld the appeal with the effect that the development was approved.

Discussion

That is a clear example of one sector imposing a risk that others must manage. Absolutely the development depends on the SES both giving flood warnings and being able to assist with evacuations.

Further relying on a plan that encourages people to shelter in place, to ensure that they had adequate food and medication and to not change their mind and evacuate late would seem to depend too much on people who will not be trained and having to make decisions in extreme circumstances. I cannot cite research from the Bushfire and Natural Hazards CRC on what makes effective warnings and how people behave, but with respect to Commissioner Dickson her finding that the ‘risk of occupants failing to comply with the Flood Response Plan’ was minimal sounds unduly optimistic and not based on evidence.

The problem was that the various development plans did not prohibit the development. They tried to balance the housing needs of the community against risks. The plans aimed to ‘to allow development on land that is compatible with the land’s flood hazard’ provide they ‘enable the safe occupation and efficient evacuation of people in the event of a flood’. There was nothing in the development plans that said ‘that ‘shelter in place’ is unacceptable’ ([58]). It is not surprising that a court of law focussed on the letter of the law and the planning instruments. The court’s job was not to favour risk mitigation, but to apply the balance set out in the planning documents. The National Strategy for Disaster Resilience or the arguments of Dovers, Crosweller, Glasson et al (Australian Journal of Emergency Management, April 2022) are not relevant to the court’s decision.

Conclusion

I make no comment on the Commissioner’s decision. It was her job to apply the law and the principles developed by the LEC and I do not suggest that she did anything but her job. But I do think the case is a great exemplar of Dovers’ point – ‘the job of emergency management and disaster policy is to prepare for, and then cope with, problems caused by vulnerabilities created by other policy sectors.’

Categories: Researchers

Listening to the patient’s family

2 June, 2022 - 10:00

Today’s correspondent asks if I:

… have any articles related to this latest education package from NSWA:

It involves whether or not it is justifiable for paramedics to take the word of bystanders/family to withhold treatment or transport of a patient without capacity, without any paperwork to prove guardianship status, health status or palliative care status. Essentially, we were told that as long as we document who told us the information, that’s sufficient (the rationale being that “it’s on them if they lie to us”).

I was uncomfortable about this for many reasons. Don’t we have a duty of care to ensure we see a written DNR or guardianship paperwork or medical/palliative information – if what we’re being asked to do (or not do) could have serious or life-threatening consequences?

My notes on the case study presented to us and my objections to it are below:

During the session covering the S9 Palliative Care protocol, I raised some concerns about a particular case study. From memory, the case study involved a 60 YOF at home with advanced dementia, family on scene, S/S consistent with a severe febrile/respiratory illness, with no paperwork and no access to GP. Family refusing transport to hospital.

This was presented to us as one with “no wrong answer” with respect to whether to treat under S9 or allow a P2 or transport to hospital. It was my view that the case study only had one appropriate option – to transport to hospital – on the basis that due to no paperwork/no GP access, a paramedic could not be sure a) that the S/S were solely due to the palliative diagnosis, b) who the person responsible/guardian actually was and c) what her actual wishes were (if she made any prior to losing capacity).

With literally nothing to corroborate the story from the family, the educator was telling us to trust the family in this case study because (words to the effect of) “if a person claims to be the guardian and they lie to you, it’s their fault, not yours”.

1. Case study was not clear that S/S related to life limiting diagnosis – “Protocol S9 provides treatment options and advice for all patients diagnosed with a life-limiting illness… whose presenting condition is related to their existing life-limiting diagnosis” (S9, para. 1).

2. Case study had family as person responsible refusing treatment and no paperwork “Where a patient is unable to communicate their wishes to paramedics, the person responsible (refer protocol A3) becomes the nominated decision maker” (S9, para. 4), “It is important to review the terms under which guardians are appointed before making a decision and seek legal advice if you are unsure.” (Protocol A3 ref. Further guidance – refer to Consent to Medical and Healthcare Treatment Manual, p.29, accessed online 22/5/22).

3. The S/S were serious and there was no paperwork- “In circumstances where the refusal of treatment may lead to death, or a serious deterioration of the patient’s health, the refusal should be in writing and signed by the patient.” (Protocol A3 ref. Further guidance – refer to Consent to Medical and Healthcare Treatment Manual, p.28, accessed online 22/5/22).

This is indeed a complex situation and it’s true there is no correct answer. Each case will depend on its facts, context, and paramedic’s judgment. For a related discussion see Do paramedics need to see the advance health directive in WA? (July 8, 2019).

The primary concern has to be the patient’s best interests, not the question of who is responsible or at ‘fault’.

The law

The law is not as clear as one would like. A paramedic has a duty of care to their patient. The duty is a duty to take reasonable care, not to guarantee safety. What is ‘reasonable’ depends on all the circumstances. In Burnie Port Authority v General Jones [1994] HCA 13, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said:

Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasised in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur

Where a patient cannot communicate, then it is reasonable for a paramedic to take action that “a reasonable person would in all the circumstance take, acting in the best interests of the assisted person”. The treatment cannot ‘justified when it is contrary to the known wishes of the assisted person…’ (In Re F [1990] 2 AC 1).

There is no duty on a medical, or paramedical practitioner to provide treatment that is futile (Paramedics withholding futile treatment (June 14, 2019)).

The Guardianship Act 1987 (NSW) refers to those who can give consent for medical treatment. This includes the ‘person responsible’ (s 33A). To obtain consent from the person responsible, the practitioner seeking that consent must (s 40):

… specify:

(a) the grounds on which it is alleged that the patient is a patient to whom this Part applies,

(b) the particular condition of the patient that requires treatment,

(d) the general nature and effect of each of those courses of treatment,

(e) the nature and degree of the significant risks (if any) associated with each of those courses of treatment, and

(f) the reasons for which it is proposed that any particular course of treatment should be carried out.

Discussion

Clearly a paramedic cannot really go through that process so the idea of obtaining consent from a person responsible is not really relevant in the paramedic context. What is relevant is that the advice from the patient’s family can help a paramedic decide whether or not any treatment is futile, in the patient’s best interests or consistent with their prior wishes.

Any paramedic considering withholding treatment on any of those bases (futility, not in the patient’s best interests or contrary to their prior wishes) has to have a degree of satisfaction commensurate with the risk to the patient. If the risk of allowing the incompetent patient to stay at home on an undertaking from their family that they’ll take the patient to their GP in the morning is low, then the degree of confidence required may be low.

But if the issue is really life and death then the degree of satisfaction would need to be much higher and the care that a paramedic must take to satisfy themself that any of the criteria have been met must be higher. But it’s not impossible. If all the evidence is consistent that the patient is terminally ill, that the treatment is unlikely to give a meaningful extension and/or there is evidence that the persons at the scene really are family who appear to have the patient’s best interests at heart then one might have the requisite satisfaction that a decision to withhold treatment will be in the patient’s best interests and/or consistent with their wishes.

In asking the question, my correspondent felt that, in the circumstances described, “a paramedic could not be sure a) that the S/S were solely due to the palliative diagnosis, b) who the person responsible/guardian actually was and c) what her actual wishes were (if she made any prior to losing capacity).” If a paramedic did have those doubts then a decision to treat and transport would be reasonable.

Another paramedic may, in all the circumstances of an actual case, looking at the patient, the surroundings, the family etc be satisfied that transport to hospital would not be in that patient’s best interests. In that case leaving the patient would be reasonable.

It is not a statement of law, but I don’t think it’s a bad rule of thumb to consider that one acts ‘reasonably’ if one has ‘reasons’ for one’s actions. If, in either case, the paramedic can point to the factors that made them act – either by transporting or not – then their action was at least based on reasons. A court ultimately does not have to accept the process of reasoning, but at least it is a start.

Conclusion

I would agree with the assessment that the presentation as described is ‘one with “no wrong answer”.’ This type of training is meant to identify the sort of issues one would want to consider but there will never be enough in a story to be able to say what the ‘right’ answer is. The best I can do is restate the law:

Treatment may be provided to a patient that cannot consent provided:
1. The treatment is in the best interests of the patient; and
2. It is not contrary to their prior, known wishes.
There is no duty to provide futile treatment.

Assessing the patient’s signs and symptoms and listening to their family will help a patient determine whether treatment is in the patient’s best interests and/or consistent with their prior wishes and values.

Categories: Researchers

Slowing down for tow trucks in Victoria

31 May, 2022 - 07:00

A correspondent tells me that:

Recently, Victorian road legislation was updated to include “incident response vehicles” in the definition of vehicles one must reduce speed when passing. There’s some confusion amongst the tow truck industry, where drivers are thinking this now covers them at incidents on roads. Whilst I agree it should for their safety, I believe this not to be the case.

My understanding is at point.

“(7) For the purposes of this rule—

incident response service vehicle means a vehicle that is operated for the purposes of responding to incidents by or on behalf of the Head, Transport for Victoria in relation to a freeway or arterial road for which the Head, Transport for Victoria is the responsible road authority;

AKA VICROADS Response vehicles.

Nowhere does it say “tollway” City-link or East-link response vehicles, and the reference of “freeway or arterial road” is too narrow a reference to include tow trucks, which operate everywhere.

I’m asked “Can you please clarify?”

This is a blog on emergency law, not road law so I’m going to have make some assumptions here rather than chase every rabbit down its burrow (so to speak).

Victoria

The relevant provision is in the Road Safety Road Rules 2017 (Vic). They say at r 79A(1) (emphasis added):

A driver approaching a stationary or slow-moving police vehicle, emergency vehicle, enforcement vehicle, escort vehicle or incident response service vehicle that is displaying a flashing blue, red, magenta or yellow light (whether or not it is also displaying other lights) or sounding an alarm must drive at a speed at which the driver can, if necessary, stop safely before passing the vehicle.

There are other provisions about approaching relevant workers from those vehicles, not exceeding 40km/h or otherwise causing danger. As my correspondent has noted, r 79A(7) says:

“incident response service vehicle” means a vehicle that is operated for the purposes of responding to incidents by or on behalf of the Head, Transport for Victoria in relation to a freeway or arterial road for which the Head, Transport for Victoria is the responsible road authority;

That does not describe the type or purpose of the vehicle in question. So it could be a tow truck, a van used to set out warning signs, a motorcycle etc. Any type of vehicle. The critical thing is that its responding to incidents ‘by or on behalf of the Head, Transport for Victoria’ on a ‘freeway or arterial road for which the Head, Transport for Victoria is the responsible road authority’.

So are the tow truck drivers covered? Only if they are responding ‘on behalf of the of the Head, Transport for Victoria’. Now here I cannot delve into the details too much. I assume if I break down on a road and call a tow truck they are not ‘responding ‘on behalf of the of the Head, Transport for Victoria’. But it may be the case that VicRoads monitor their freeways and have contracts in place so that if there is an accident or break down they can call a contracted tow truck operator to go and clear the road. If that’s the case they probably are responding ‘on behalf of the of the Head, Transport for Victoria’ so then they are covered (see also What is a vehicle that is ‘operated by or on behalf of and under the control’ of Ambulance Victoria? (July 21, 2017)).

As for ‘“tollway” City-link or East-link response’ the question is who is the relevant ‘road authority’. The answer to that would depend on the legislation and the contractual arrangements in place. I’m tempted to say that is out of scope, or outside my remit, but given the subject matter of this post I’ll say that exploring those issues is ‘outside my lane’.

New South Wales

Another aid to statutory interpretation is to look at similar legislation in other jurisdictions. If we look at the equivalent rule in NSW (Road Rules 2014 (NSW) r 78-1(6)) refers to an ‘emergency response vehicle’ which includes a vehicle being used by, amongst others, Transport for NSW or the Transport Management Centre as well as ‘a tow truck’ and ‘a motor breakdown service vehicle’. That shows that if the legislature meant a ‘tow truck’ there is a clear way to do that. NSW have done that; Victoria has not, so one can infer Victoria did not mean a tow truck. If they meant that, they could have said that.

Conclusion

The Victorian rule imposes the obligation to slow down when passing a vehicle that is ‘responding to incidents by or on behalf of the Head, Transport for Victoria’. It is not the type of vehicle that is critical but its use. That is of course difficult for Victorian drivers as they cannot know which vehicles the rule applies to. It will be easy to tell if it’s only vehicles marked up as VicRoads vehicles, but not so easy if private contractors are used by Transport for Victoria. Again, I don’t know the procedures adopted by Transport for Victoria so cannot be conclusive about that.

What we can say with certainty is that in most cases the rule does not apply to private tow truck operators or RACV breakdown vehicles.

Categories: Researchers

Queensland Ambulance disciplinary proceedings described as ‘unfortunate’

29 May, 2022 - 18:11

In Fawcett v State of Queensland (Queensland Ambulance Service) [2022] QIRC 171 (20 May 2022) the applicant asked the Queensland Industrial Relations Commission to order Queensland Ambulance (QAS) not to proceed with disciplinary proceedings whilst an appeal on a related matter was before the Commission.

The facts

Mr Fawcett was (or is) an Advanced Care Paramedic employed by QAS. He was directed to obtain a COVID-19 vaccination. He sought an exemption from that requirement but the application for an exemption was refused. On 23 March 2022 he received a letter that confirmed he was required to obtain the vaccination within 7 days (ie by 30 March or 1 April). That letter also said (at [3]) ‘that he may lodge an appeal of the decision in the Industrial Registry within 21 days of receiving the decision …’ (ie by 13 April). Mr Fawcett lodged an appeal on 8 April – ie more than 7 days after being given the direction but within the 21 days allowed for the appeal. On the same day that he lodged the appeal, Mr Fawcett received notice from QAS that they were commencing disciplinary proceedings on the basis that he had not provided evidence that he had received the required vaccination.

The QIRC wrote to the parties asking whether an order should be made imposing a ‘stay’ on the direction to obtain a vaccination pending the outcome of the appeal. QAS responded opposing the idea of a stay but did not tell the QIRC that they were taking action against Mr Fawcett. The Commission was not told of those proceedings until the matter was mentioned on 26 April (see [6]-[12]).

Both Mr Fawcett and the Commission noted the apparent discrepancies in the time frames ie he had 21 days to appeal the decision rejecting his application for an exemption but had to get the COVID vaccination within 7 days ([46]). The matter for the Commission was described at [49]):

The QAS’s requirement that Mr Fawcett show cause as to why a disciplinary finding should not be made against him in circumstances where the particulars of the allegation relied on by the QAS include the decision which is the subject of this appeal before the Commission. It is that decision [ie the decision to require him to show cause] that Mr Fawcett contends is not fair and reasonable and should be set aside.

The Commission was concerned that if QAS did not suspend the disciplinary proceedings it would disadvantage Mr Fawcett and embarrass the Commission. It would be pointless if the Commission allowed Mr Fawcett’s appeal against the refusal to grant an exemption, but he had already been dismissed for failing to comply with an order to get the vaccination. In those circumstances he may have an action for unfair dismissal but all of that could be avoided by simply waiting for the Commission’s decision on Mr Fawcett’s appeal. Ultimately however, on what many might describe as a ‘technicality’ the Commission did not order a stay of proceedings.

Commissioner Hartigan said there were two components to the QAS decisions. The first was the decision to not allow Mr Fawcett an exemption. That decision was made on 23 March, and he had 21 days to appeal that. The second was that on 23 March he was also given a direction that required him to obtain a vaccination. He was required to do that by 30 March. He did not, nor had he lodged his appeal. He lodged his appeal on 8 April. That means that on 8 April he was at least prima facie in breach of the direction to get the vaccine. The Tribunal said (at [52]) “If a stay was to have been granted, then it should have been issued prior to the expiration of the seven days which have now passed.”

Even though Commissioner Hartigan did not issue a stay she had some strong words for QAS. At [53]-[55] she said (emphasis added):

However, my conclusion that there is no practical utility in granting a stay at this time, should not be construed in such a way so as to conclude that the concerns articulated in these reasons should not be given any weight or proper consideration. I am concerned that the submissions made by the QAS fail to have regard to the potential substantive and procedural fairness issues that might arise in circumstances where the QAS relies on a decision, which is the subject to an appeal before the Commission, to particularise an allegation with respect to a show cause process.

Progressing in such a manner has the potential to result in outcomes which might be considered, at the very least, unfortunate. To have the two matters proceed in parallel may result in their being outcomes that are inconsistent with each other. For example, if the Commission were to, on the appeal, set the decision aside, that may potentially render any disciplinary finding and/or proposed disciplinary action as unfair and/or unreasonable.

Such an outcome is avoidable, however, by the QAS simply pausing the show cause process whilst awaiting the outcome of the public service appeal.

The ball is now in the court of the QAS.

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 Associationand 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

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