In Paramedicine Board of Australia v Reis [2022] QCAT 120 (11 April 2022) the Queensland Civil and Administrative Tribunal had to consider the sanction to be imposed on a paramedic.

The paramedic transported a patient on 21 February 2019. On 2 March 2019 he accessed the QAS computer system to retrieve her personal details even though he “…had no clinical authorised or proper reason to access private records … entered in the restricted computer system” ([16]). This conduct was the basis of a criminal charge of ‘using a restricted computer without consent in breach of section 408E of the Criminal Code (Qld)’ ([3]). He entered a plea of guilty and ‘was sentenced to be of good behaviour for a period of 12 months, subject to a $750 recognisance. No conviction was recorded ([19]).

Having obtained the former patient’s personal details, the paramedic then contacted her to initiate intimate communication. What followed ([21]) was “at least 200 text messages, including of a personal and/or sexual nature with her, between the 2nd of March 2019 and on or about the 14th of March 2019.”

The patient made a complaint on 14 March 2019.  The respondent was suspended from his employment on 29 March. His employment was terminated on 16 April.  On 5 June he gave an undertaking to AHPRA not to practice as a paramedic and on 29 October 2019 he surrendered his registration. The respondent had been working for QAS since January 2003. The Tribunal said (at [7]) “Prior to the conduct, the subject of this referral, he had no disciplinary or criminal history.  …  It is not disputed that prior to the relevant conduct, he had been a competent paramedic of good character.”

The respondent admitted his conduct and agreed that he had breached the Paramedicine Board’s Code of Conduct both by accessing the computer record for personal reasons and by initiating and maintaining the sexual communication (see [17] and [21]-[22]). He also admitted that his conduct amounted to both ‘professional misconduct’ and ‘unprofessional conduct’ as defined by the Health Practitioner Regulation National Law (Qld) (see [24]-[27]).

The Tribunal said (at [28]-[29]):

The conduct the subject of the criminal proceedings … involved a serious breach of the respondent’s employer’s trust; and a serious invasion of the privacy of the patient, and a breach of her trust.  He allowed his own personal interests to overcome his duty to his employer and his patient not to access that private information for his own use.  It is conduct that is apt to undermine public confidence in his profession, which has such a vital role to play in our health system.  Not surprisingly, the Code requires paramedics to act lawfully and in a manner designed to protect the confidentiality of patients. Conduct statement 8 requires paramedics specifically to ensure records are held securely, and not subject to unauthorised access.

The admitted conduct in Ground 1 is clearly professional misconduct as defined in section 5(a) of the National Law.  As against that, the actions of the respondent in accessing the QAS computer and database unlawfully does not constitute a particularly serious example of the offence.  This was clearly the impression that the presiding Magistrate formed when he sentenced the respondent …

As for the failure to maintain a professional relationship, the Tribunal said ([32]-[36]):

The conduct in ground 2 is also very serious.  He admits to unlawfully accessing the computer on the 2nd of March 2019 to obtain Ms MB’s confidential patient records for a private purpose.  He then failed to maintain appropriate professional boundaries over approximately a 12-day period, by firstly contacting the patient via Messenger application, and then, once he had her telephone number, exchanging over 200 text messages with her including many of an overtly personal and/or sexual nature.

It is obvious that his conduct was deliberate and that he had a sexual interest in Ms MB.  A fair reading of those messages, which extend over almost 100 pages of the hearing brief, does not suggest any suggestion that Ms MB, when she had realised who was contacting her, was not a willing participant in all the exchanges.  It was completely inappropriate for the respondent to contact her in the first place using the personal information unlawfully obtained by him; however, it was she who offered to give him her telephone number in a text on the 2nd of March 2019 once he identified who he was.

It can be accepted that the authorities, for example, Health Ombudsman v Masamba [2019] QCAT 227, to which the Board has referred, are to the effect that any contact (especially of a sexual nature) irrespective of consent, by a practitioner with a patient or an ex-patient outside the strict clinical setting, is almost always regarded as serious and constituting professional misconduct. It should be stressed however, that each case should be considered on its own merits and obviously there is a spectrum within the rubric of “boundary violations” from the very serious to conduct at the lower level of seriousness. The respondent in the case of Masamba was a registered mental health nurse and the patient met him in a clinical setting.  His boundary violations involved making unwanted sexual advances via text.

I agree with the respondent that although Ms MB was his patient, in the sense that he was one of the paramedics who transported her from the medical centre to the Toowoomba Base Hospital on the 21st of February 2019, thereafter he had no personal contact with her other than through the Messenger application and then by text.  There is no evidence at all that Ms MB was vulnerable.  In fact, the evidence, such as it is, is to the contrary.

The way in which the respondent sought to end the contact is concerning and compounds the seriousness of his conduct, ultimately the patient felt able and empowered enough to make an almost immediate complaint to QAS on the 14th of March 2019.  This is not to understate the seriousness of the respondent’s overall conduct – merely to make the point that although his conduct both in grounds 1 and 2 was substantially below the appropriate standard it falls at the lower end of seriousness of professional misconduct.

The Tribunal considered:

• That this conduct was ‘at the lower end of seriousness’;
• His remorse (‘demonstrated by his cooperation with the criminal proceedings – the Magistrate noted that it was a very early plea of guilty, and his own admission and cooperation with investigators, regulators and in these proceedings… He has on multiple occasions expressed his remorse and shame, which I accept is genuine’ [48]-[49]).
• His attempts to deal with his behaviour (‘He has since completed professional boundary courses and has engaged with a psychologist with a focus on developing more effective decision-making strategies and professional boundaries’ ([49]); and
• The impact it had on the paramedic (‘He suffered depression and anxiety for a period of years, his family was adversely affected, and he felt deep shame for his conduct.  He has not worked as a paramedic since the 29th of March 2019 – just over three years’ ([50]).

The tribunal determined that a reprimand was the appropriate sanction, noting (at [63]):

… a reprimand is not a trivial offence.  Relevantly to the need to deter others who might be minded to behave in a similar way, and to ensure the maintenance of public confidence in paramedicine health care providers, a reprimand is a serious form of censure and condemnation.

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.

In Health Ombudsman v Galloway [2022] QCAT 121 (11 April 2022) the Queensland Civil and Administrative Tribunal reiterated (at [23]) that “The fact that the respondent’s conduct occurred outside of his professional role as a paramedic is not impediment to a finding by the Tribunal of unprofessional conduct or professional misconduct.”

The definitions of “unprofessional conduct” and “professional misconduct” in section 5 of the National Law make it clear that such conduct may be constituted by conduct outside the practice of the health profession. Health practitioners enjoy the benefits of registration and the obligations of such registration require them to conduct themselves with propriety, not only in the conduct of their profession, but also in their personal life. (Health Ombudsman v Flute [2021] QCAT 189 (Judge Allen QC), quoted at [25]).

In this case was that the paramedic had entered pleas of guilty to charges of:

(a)        Permitting premises to be used for the commission of a crime (possess dangerous drug cannabis);

(b)       Two offences of indecent treatment of a child under 16 (exposing a child to an indecent act); and

(c)        Attempted indecent treatment of a child under 16 (procuring a child to perform an indecent act).

The conduct occurred in his home and involved two young women who had come to act as babysitters. The offender was sentenced to 12 months’ imprisonment with the option of supervised parole after 3 months full time custody and a requirement to be of good behaviour for 2 years.

The respondent had been employed by QAS since graduating in 2015. The offences occurred in January 2020.  He had been suspended since 16 January 2020 and resigned in June 2020. On 18 January Health Ombudsman took immediate action (Health Practitioner Regulation National Law (Qld) s 156) and suspended the respondent’s registration as a paramedic.  After the criminal proceedings had been completed the matter was referred to QCAT for a final determination with respect to his registration.

As noted above, the fact that this conduct occurred in circumstances unrelated to his practice as a paramedic, it was still open to find that he had engaged in professional misconduct and was not a fit and proper person to remain a paramedic. The presiding judicial member said (at [31]-[35]):

Paramedics are required to treat and care for people of all ages, people inherently vulnerable by virtue of their circumstances.  There is a significant level of trust placed in the profession to act in a patient’s best interest, and not to exploit that vulnerability.

The respondent’s conduct here is entirely inconsistent with those qualities and ethical standards.  It was anathema to a caring profession, and undoubtedly to his professional peers.  It was inconsistent with proper practice.

The drug-related conviction too was quite inconsistent with the expectations of the public, and other members of the profession -that paramedics will avoid inappropriate dealing with drugs, not only in a professional context, but also illicit drugs and associated criminal offending in their personal lifestyle.

The respondent’s conduct had the real potential to adversely affect the good standing and reputation of the profession in the eyes of the public, and the public’s trust in the profession.  His behaviour cannot be divorced from the professional context.

The Tribunal finds that the conduct of the respondent as proved constitutes professional misconduct under the limbs (a) and (c) of the National Law definitions.

The Tribunal took into account the respondent’s apparent remorse including his cooperation with the police investigation and the disciplinary proceedings and his early plea of guilty (see [40]). On the other hand (at [41]) “there is no evidence before the Tribunal demonstrating his reflection on, or insight into, the significance of his criminal conduct in the context of his professional role.”

When considering the sanction to be imposed the Tribunal said (at [57]-[58]):

I am satisfied here that the serious nature of the criminal conduct, the absence of any current evidence relating to his attitude to his profession, that the respondent is currently unfit to practice, and that cancellation is the appropriate order…

The protective purposes of the Tribunal’s orders, particularly in maintaining public confidence and trust in the profession, and in upholding professional standards requires a period of preclusion from practice.

After considering other cases relating to sexual misconduct by health practitioners (ranging from possessing child pornography ([55]) to ‘serious sexual offences by a doctor against his daughter’ ([52)) the tribunal ordered that the paramedics registration was cancelled (not merely suspended) and ‘the respondent is disqualified from reapplying for registration for a period of two years’.  That does not mean he will automatically be re-registered after two years. He will have to apply for registration and demonstrate, no doubt by reference to his behaviour in the next two years, that he is then a fit and proper person to be registered as a paramedic and no longer poses an unacceptable risk to patients or the profession.

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.

Today’s correspondent, from Victoria has a question about.

… exemptions for passengers of Emergency Vehicles when the driver is exempt under s305/s306 of the Road Safety Road Rules 2017 (Vic)?

Specifically, after watching an episode of Highway Patrol, during a pursuit, the front passenger in a police vehicle (in which the driver is operating under the exemptions from s305), removes their seatbelt before the vehicle is stationary to get ready to apprehend the driver of the vehicle in the pursuit. A passenger removing their seatbelt seems to relate to s265 (Wearing of seatbelts by passengers 16 years old, or older) which provides no exemption in this case and seems to not be covered by the exemption s267B (Exemption from wearing seatbelt—passenger in police vehicle etc) as the officer was in the front row of seats in a vehicle with 2 rows of seats.

Are there any other exemptions for passengers of Emergency Vehicles or are people just turning a blind eye to this?

That is a very interesting question because, as my correspondent notes, the exemptions in rr 305 and 306 apply to the driver.  They say (emphasis added)

            305 Exemption for drivers of police vehicle

(1) A provision of these Rules does not apply to the driver of a police vehicle…

And

            306 Exemption for drivers of emergency vehicles

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

Rule 265 says, relevantly

(1)        A passenger who is 16 years old or older and is in or on a motor vehicle that is moving, or that is stationary but not parked, must—

(a)        occupy a seating position that is fitted with an approved seatbelt; and

(b)       wear the seatbelt;…

But not (r 265(2)) “if the passenger is exempt from wearing a seatbelt under rule 267, 267A, 267B or 267C.’

Rule 267 relates to person who have a certificate of exemption. Rule 267A relates to situations where the seat is not fitted with seat belts (eg vintage cars).

Rule 267C has several exemptions. Relevant to emergency vehicles is r 267C(2) which says

A person is exempt from wearing a seatbelt if the person is providing or receiving medical treatment of an urgent and necessary nature while in or on a vehicle.

Rule 267B does provide exemptions for those in police and emergency vehicles. The rule says (in full):

267B Exemption from wearing seatbelt—passenger in police vehicle etc.

(1)        The passenger of a police vehicle, police custody officer vehicle, corrections vehicle, secure services vehicle, or sheriff’s vehicle is exempt from wearing a seatbelt if—

(a)        in the case of a vehicle that has 2 or more rows of seats—

(i)         the passenger is not in the front row of seats; or

(ii)        the passenger is in the front row of seats because there is not a seating position available for the passenger in another row of seats; or

(b)       the vehicle has a caged or other secured area designed for the carriage of passengers and the passenger occupies a seating position in that area.

(2)        The passenger of an emergency vehicle or enforcement vehicle that has 2 or more rows of seats is exempt from wearing a seatbelt if—

(a)        the person is not in the front row of seats; or

(b)       there is not a seating position available for the person in another row of seats.

Essentially passengers in the back seats of police and emergency vehicles (if there are back seats) do not have to wear seat belts nor do front seat passengers if there are no back seats or the back seats are occupied.  As my correspondent notes, that doesn’t apply to the situation described ‘as the officer was in the front row of seats in a vehicle with 2 rows of seats’.

In those circumstances, an officer who received an infringement notice may raise a ‘necessity’ defence.

An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained. (Stephen’s Digest of the Criminal Law (1st ed, 1887) discussed in the post The doctrine of necessity – Explained (January 31, 2017).

It is a crime with a maximum penalty of a fine of 10 penalty units not to wear a seat belt (r 265). Balance that against the need to remove the seat belt for example in order to more promptly secure an arrest or more importantly, to be able to defend oneself eg by drawing a weapon and seeking cover.  If the decision to remove the seat belt was no more than ‘reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided’ then there would be a common law defence.

Conclusion

The long answer is passengers in the back seats of police and emergency vehicles (if there are back seats) do not have to wear seat belts nor do front seat passengers if there are no back seats or the back seats are occupied. The short answer is that a passenger in the front seat of an emergency vehicle must wear a seatbelt whilst the vehicle is not parked. 

Having said that it would probably be useful if rr 305 and 306 referred to the driver ‘and any passengers’ as that would cover a myriad of circumstances provided that whatever breach there was, was reasonable in the circumstances and the driver was taking reasonable care – so if a driver knew the passengers were not wearing seatbelts, for whatever reason, he or she would need to consider that and adjust their driving accordingly.

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.

Today’s correspondent is “… a third year paramedicine student at … [a named university]”. They ask:

 Do you know if one can legally work on a site under their student registration and work up to the skill level of that year in the degree if competent? I’ve heard a lot of mixed answers.

I was thinking of doing a cert 4 in health care before I graduate just to cover my bases but as a third-year paramedical student do I need to do this in order to be a medic on a mine site?

A person conducting a business or undertaking (a PCBU) needs to ensure that there are in place adequate provisions for first aid (see for example Work Health and Safety Regulations 2011 (NSW) rr 42 and 42; Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW) Sch 7)).

The Model Code of Practice for First Aid in the Workplace (2019) stresses that it is up to the PCBU, in consultation with workers, to determine what the first aid requirements for their particular workplace are.  The Code of Practice says (at [3.5]):

As a PCBU you must ensure an adequate number of workers are trained to administer first aid at the workplace or workers have access to an adequate number of other people who have been trained to administer first aid. First aid in the workplace can be provided in two ways:

1.         training one or more of your own workers to administer first aid, or

2.         arranging for a person who does not work for you to administer first aid to your workers provided they have been trained to do so…

As a minimum first aiders should hold nationally recognised Statement/s of Attainment issued by a Registered Training Organisation (RTO) for the nationally endorsed first aid unit of competency Provide First Aid or a course providing equivalent skills. A higher level or additional training may be required to ensure your first aiders have appropriate skills for the risks you have identified in your workplace.

(And when it comes to being a first aider, remember that terms like ‘medic’, ‘first responder’, ‘advanced responder’ etc are not legally defined – what the mine needs is someone to do first aid, regardless of what they are called).

What training the first aider requires is not mandated (even the requirement of a first aid certificate is a recommendation – they ‘should’, not ‘must’ hold that qualification). If a mine site wants to employ a third year paramedic then the PCBU would need to consider what skill set that involves.  Does the student paramedic have the equivalent or higher skills than Provide First Aid?

So the answer to the question “can you legally work on a site as a first aider as a third year paramedic student?” has to “yes; it’s not illegal to do that”.  It may not be ‘illegal’ but it may not be wise.

If we assume the relevant decision makers in the PCBU are the mine managers, they need an assessment of the first aid needs and then either employ someone to provide first aid or engage someone. If they are going to employ someone, they will want someone with a qualification or train them to that qualification.  A third-year paramedic may or may not have equivalent skills but how would the PCBU know?  If you have the qualification, then you have it.  What is the skill level or scope of practice of a third-year student? There really is no scope of practice; student paramedics necessarily practice under supervision. And what you have done in your three years may be different to another student so there is no indication of what it is you may or may not know.  The PCBU cannot say ‘we assessed your qualification’ because you don’t have a qualification.

A much better bet would be to do a qualification – whether a First Aid Certificate, a Certificate IV or something else. If the learning in the degree equates to learning for that qualification, then apply for recognition of prior learning. The Registered Training Organisation that issues the qualification is in a position to assess, and certify, equivalence, whereas a PCBU operating a mine is not.

To put that another way, student registration does not carry any right to practice so you cannot practice anywhere ‘under student registration’ (and a word of warning, if you do, it may cause the Paramedicine Board to query whether you are a fit and proper person to be a paramedic if you don’t understand your own limitations).

Calling yourself a student paramedic may not be the same as calling yourself a paramedic but as with so many things, context is important (see The use of protected titles by students and others (January 30, 2018) and NSW students and retired officers referred to as ‘paramedic’ (August 14, 2019)).  A student paramedic on clinical placement, working with a paramedic whilst wearing a uniform that says ‘student paramedic’ is probably making it clear to anyone they interact with ‘I’m not a paramedic, I’m a student’. But a student paramedic who applies for a job on the basis of their progression, so far, through the degree may mislead any potential employer as to their capacity – given they are indeed applying for a job and claiming to be able to ‘work on a site under their student registration’.

Conclusion

If you want to get a job as a first aider at a mines site then I suggest you would want, and a PCBU would require, a qualification.  A third-year student may be competent in somethings but is not qualified to do anything.

Whilst a PCBU could employ a third-year paramedic to provide first aid if satisfied that the student had the necessary skill set, a student paramedic my put their future registration at risk if they held themselves out as being qualified or even competent to practice given that no university, nor the Paramedicine Board, nor any jurisdictional ambulance service would give them an authority for independent practice.

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.

Today’s correspondent tells me that:

Fire and Rescue NSW is exploring a Dual Employment Policy (not yet available) allowing permanent (career) firefighters to work as retained (on-call) firefighters in their days off at their local retained station. To be able to work under the two different Awards, it is expected that they would essentially need to have two different employee numbers. One challenge with this is the question of where these people would fit into the existing hierarchy, as retained brigades already have their own Captains and Deputy Captains, but the Fire and Rescue NSW Act 1989 definitions deem that if a permanent firefighter is present, that person is the Officer in Charge and outranks all retained firefighters (regardless of the permanent firefighter’s rank or experience).

My question is – is it possible to ‘pause’ a person’s position, and effectively wear two different hats within the same organisation? Or, even when working under a different Award in a retained firefighter position, would the Act still regard you as a permanent firefighter and therefore in charge?

The Fire and Rescue NSW Act 1989 (NSW) provides for permanent and retained fire brigades (s 8).  A permanent fire brigade is ‘… established and maintained by the Commissioner, the services of whose members are wholly at the disposal of the Commissioner’. A retained fire brigade is ‘an association of persons for which an approval as a retained fire brigade is in force under section 9, but does not include a rural fire brigade’ (s 3).

The ’officer in charge’ means:

… the Commissioner or, if the Commissioner is absent–

(a) the person for the time being in charge of any members of a permanent fire brigade present at that place, or

(b) if no members of a permanent fire brigade are present, the person for the time being in charge of any members of a retained fire brigade present at that place.

That definition answers the question. My correspondent says ‘if a permanent firefighter is present, that person is the Officer in Charge and outranks all retained firefighters’ but that is not what the definition says. It says the officer in charge is ‘the person for the time being in charge of any members of a permanent fire brigade’.  An off duty permanent fire fighter, or a fire fighter who at the relevant moment is part of a retained fire brigade is not then ‘in charge’ of the members of the permanent fire brigade and is not the ‘officer in charge’.

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.

Today’s correspondent is:

… involved with the development and delivery of the first aid training for the brigade.

I am interested in upskilling our own instructors so they have a higher level of training than what they are delivering (HLTAID014 Provide Advanced First Aid and HLTAID015 Provide Advanced Resuscitation).  I believe that a Cert IV in Healthcare (focusing on emergency care) would be an appropriate level for the instructors to have.

My question is would these firefighters who hold this higher level of qualification be required to perform higher levels of care when out on the trucks.  Would these firefighters have a risk of liability if they were only providing a more basic level of care in line with what Fire and Rescue is expected and equipped to attend?  For example if they had training in pain management but did not have the equipment on the trucks (such as the green whistle) would they be liable for not providing an appropriate level of care.

I know paramedics are registered with APHRA and have personal liability insurance but would someone with a Cert IV in Healthcare need anything similar.

My goal is to improve our training by having higher levels of training and knowledge for the instructors, not change what we are currently being asked to attend or change what equipment is on the trucks or asking the instructors to take on a greater responsibility medically whilst out on the trucks.

I have looked at the syllabus for HLT41120 – Certificate IV in Health Care (Release 1). It appears to me that a person who has completed this certificate, with units like ‘Confirm physical health status’ and ‘Assess and deliver basic clinical care’ may be able to undertake a more wholistic approach to patient care than someone with a first aid certificate. They may take blood pressures, measure oxygen saturation and consider a more detailed history. Perhaps they will use a stethoscope to auscultate the patient’s lungs. But if it were life and death it is not obvious what extra skills they will have.  That’s important because it might mean they know more, but not that they can do more.

But one can only do what one can do, and use what one has. Taking methoxyflurane (‘the green whistle’) for example, that is a scheduled drug so can only be carried and used with an appropriate drug authority. If the fire brigade don’t have that authority then the firefighters cannot be expected to use it, even if they know how. Remember that in the other case scenarios where these issues are discussed (such as Paramedic as ambulance volunteer ) it is assumed that the relevant equipment is available.  If it’s not, then it’s a completely different situation.

The standard of care expected of a firefighter/first aider would that of an ‘ordinary skilled’ firefighter/first aider but they have to apply all their knowledge to the benefit of the patient, not try to pretend that they don’t know what they learned outside a first aid course. Fundamentally any firefighter/first aider should use their best endeavours to benefit their patient. Failure to do so could be negligent if they chose to not do something they know needs to be done, know they can do it but say ‘but our fire brigade only expects us to have a first aid certificate and I learned this skill in another course’. 

It’s still the case that if you’re worried about a finding of negligence or the ever-dreaded criticism of the coroner, not performing a lifesaving task you’re familiar with and letting the patient die is more likely to be negligent and critiqued, than trying your best to save the patient’s life. But you cannot be under a duty to do what you cannot do, eg use equipment or drugs that you do not have and in the case of drugs, cannot legally possess, supply or administer. And being worried about training someone because it will make them better at their job seems perverse.

For a related discussion, see NSW Paramedic and fire fighter – when does one role start and finish? (July 8, 2015).

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

Today’s correspondent noted that a candidate for a NSW seat in the forthcoming federal election:

… is using an add on prime TV with NSWRFS volunteers in uniform giving the impression that people need to support him and to vote for him at the federal election. The add appears as though the NSWRFS is providing advice for people to vote for the National Party.

My question is should the NSWRFS be sowing political support in an election??.

It’s almost too late to answer this given the election is next weekend but here we go.

Given the Federal election has been announced, the federal government is in caretaker mode and caretaker conventions apply – see Department of Prime Minister and Cabinet, Guidance on Caretaker Conventions (2021). These guidance notes are primarily directed to the public service, rather than the candidates, but in section 7 they do talk about ‘Avoiding APS Involvement in Election Activities’.  There is nothing specific about the use of photos or endorsements by government volunteers, but the guidance does stress that “The APS Values set out in the Public Service Act 1999 include the value of being ‘Impartial’, that is, “The APS is apolitical..”

The Rural Fire Service is not, however part of the Australian Public Service, it is a state agency. The state government caretaker conventions – NSW Premier and Cabinet ‘Caretaker’ Conventions And Other Pre-Election Practices 2019 General State Election – state:

Agencies should ensure that their websites and any social media pages do not contain material that could be seen to compromise the neutrality of the public service or would involve agency resources being used for electioneering or partisan political purposes. Agencies may need to review their websites and social media pages at the beginning of the caretaker period.

The difficulty in applying either of these conventions is that a) they are not specific about recruiting people like RFS volunteers and b) it is the federal government, not the state government, that is in caretaker mode so neither set of conventions is clearly applicable.

The Government Sector Employment Act 2013 (NSW) s 7 says that a core value of the NSW government sector is to ‘Provide apolitical and non-partisan advice.’ The NSW Public Service Commission’s Behaving Ethically: A Guide for NSW Government Sector Employees (2014), in the discussion on caretaker conventions says “… Departments and agencies generally should not be requested to provide policy advice during the caretaker period” but that is not relevant to the issue under discussion.

Circular PSCC 2013-03 Contesting Electionssays ‘Public sector employees are not permitted to engage in party political activities whilst on duty’. Further:

“Employees must make sure that any participation in party political activities does not conflict with their primary duty as a public employee to serve the government of the day in a politically neutral manner.”…

Public sector employees are not permitted to engage in activities of a party political nature whilst on duty. Any candidate or person intending to stand should also ensure that, when making any political comments whilst not on duty, they are not identified in any way as acting or speaking in their capacity as a public sector employee.

The NSW Public Service Commission Personnel Handbook (v 13.3, 2013), [8.10] says:

Employees must make sure that any participation in party political activities does not conflict with their primary duty as a public employee to serve the government of the day in a politically neutral manner.

This is important because of the need to maintain Ministerial and public confidence in the impartiality of the actions taken and advice given by public employees…

The RFS is part of the government service, and the volunteers are also part of the government service even if they are not employees. The RFS has similar expectations of its volunteers as its employees. The RFS Code of Conduct and Ethics (2022) says:

Outside of a member’s NSW RFS duties he or she has the right to participate in political and community activities and to pursue personal interests, provided that:

› any participation does not conflict with their duty as an member to serve the community’s interest and the government of the day in a politically neutral manner…

The RFS Social Media Policy says (at [3.1])

Members must be mindful of the information they post on public forums because it may impact on the reputation of the NSW RFS. Members must not post information on social media, which could:.. be interpreted to be of a … political nature.’ 

The RFS Media Policy (at [3.3]) says ‘Any member dealing with the media is to ensure to the best of their ability that any information: … is not of a political nature”.

Discussion

I haven’t seen the ad in question, so I don’t know if the ad is using file footage or has volunteers, in uniform, intentionally endorsing the candidate but in either case the government service should be apolitical. Even if the rules with respect to the specific conduct – eg endorsing a candidate – have to be inferred, the clear expectation is that the government service, in this case the RFS, should not be seen to be endorsing one candidate over another in an election. RFS volunteers who can be identified as RFS volunteers (eg they are in their uniform) should take care not to suggest that the RFS has a preferred candidate.

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.

Today’s correspondent writes because:

Recently in metropolitan Perth WA , an individual has presented himself as a ‘Hazard Response’ service. He has the business names of ‘Dixon’s Hazard Response’, ‘Community Watch‘ and ‘Dixon’s Lift and Shift’.  His Facebook page says:

“Every wonder what my service list is. This is the list approved by the police and local councils.

SERVICE 1

– Transporting dog, cat and other animal to a vet and check for chip on site.

This service is where I transport an animal to a vet. Not everyone can do it and city assist are not 24/7 but this service is usually only done when I find an animal. As lots of people can usually deal with it themselves.

SERVICE 2

– Attend uncontrolled livestock (E.G., horses, sheep and pets walking on the road) and provide emergency traffic control.

This has been done when we have seen a dog or sheep walking on the road. We use our amber lights and control the traffic. The same way I would if I were at work (doing traffic control). I do this until city assist or police can help.

SERVICE 3

– litter and Illegal dumping complaints,

we make sure they are safe and won’t harm road users or wildlife and then report to the local rangers. I report all illegal dumping to the local rangers via snap, send, solve.

SERVICE 4

– Animal Searches and rescues (SARs)

If you are missing your pet, I can go out and help look for it.  I am a volunteer for the RSPCA.

SERVICE 5

– Removing and transporting deceased animals from the road.

If I see a large wild animal dead in the middle of the road (Kangaroos, foxes etc) I’ll remove it to the side of the road out of way for road users. If I see a pet looking animal (Cat, Dog etc) I’ll check for a chip and transport to a local vet.

SERVICE 6

– Hazard or Debris Removals

Removing Hazards from WA roads. These hazards can include but not limited to Traffic control signs and cones, Tree branches, Chairs, Big Rocks (the rocks can be the size of a person head or bigger, if my car hit that, it would put a big dint in it), card bored boxes, tyres, car bumpers, Cushions, trolleys and much more.

Hazards listed are some of the actually hazards I’ve removed.

SERVICE 7

– Cutting down trees that have fallen on the road and are a risk to road users

Cutting down trees, Size dependent. For example (actually event) responded to a call about a that had fallen on the road blocking the north traffic on a single lane road. I set up emergency road closure by using my Ute to block the lane (with amber lights on) and set up cones so it was clear what was being done. I than set up a hazard traffic control sign 45 meters up the road as per the main roads traffic control rule book and went to work cutting this tree down. It was a small tree.

SERVICE 8

– Emergency Traffic management until we can be relieved (e.g. Broken Down cars, Car Crashes, Hazards)

If I see a broken-down car or car crash that is blocking a lane, I can close that lane and move traffic or do what is needed to prevent further emergency.

SERVICE 9

respond and report abandoned Vehicles

This is where I respond to abandoned Vehicle (more than 48hours) or I respond to vehicles marked hazardously. I report all vehicles to either the police or council depending on the situation.

I questioned him on what insurance he has either personal indemnity and/or public liability.  The reply was that the police told him he doesn’t need it.

He also wears a body camera, has [yellow or amber] warning lighting on his vehicle claiming he has a permit and a uniform that resembles a public officer.

My questions or concern is that given the person has no insurance:

(1) Would his actions classed as

a) a ‘Good Samaritan’

b) Impersonation of a Public Officer as defined by the Crimes Act Criminal Code Compilation Act and Criminal Investigation Act [(WA)];

c) Impersonation of a General Inspector as defined by the Animal Welfare Act

d) acting as a authorised person under the Dog Act 1976 and Dog Act Regulations

e) acting as an authorised person under livestock Provisions XX of the Local Government Act

f) closing roads without the authority of MRWA and acting without delegated authority.

(2) If not, what are the legal implications of his actions either Criminal or civil?

(3) Is the use of a body camera during his ‘incident response’ lawful under the circumstances?

To the best of my knowledge, no local government authority had approved … delegated authority from the CEO, the appointment as a Animal Welfare Inspector by the Department of Primary Industries and Regional Development, as an appointed Wildlife Officer of the Department of Biodiversity, Conservation and Attractions – Parks and Wildlife Service however he by his admission and by his actions that he wilfully conducting himself within that capacity. 

My concern is that he is interfering with the functions of the relevant statuary authorities and authorised volunteer organisations and will cause an incident that may result in injury or death in the future.

I think it is interesting that peope believe that the police can approve anything; if police say ‘it’s ok’ then it is. I imagine what happened is that he went to police and asked about providing those services and the police said something like ‘we cannot see any offence’ but that is not the same as an approval. If the conduct is contrary to law a ‘police approval’ won’t change that.  And never take legal advice from police. Whether police say you need insurance or not is irrelevant.  Get sued and say ‘the police said I didn’t need insurance’ and you’ll still be liable.  I therefore ignore any claim that the police have approved or said anything.

Further, whether he does, or does not have insurance will not determine the legality of his actions. The questions and concerns expressed by my correspondent should arise regardless of whether or not there is insurance.

Resilient communities

The modern trend in risk management is to encourage resilient communities. The National Strategy for Disaster Resilience (COAG, 2011) says:

Disaster resilience is based on individuals taking their share of responsibility for preventing, preparing for, responding to and recovering from disasters. They can do this by drawing on guidance, resources and policies of government and other sources such as community organisations.

The disaster resilience of people and households is significantly increased by active planning and preparation for protecting life and property, based on an awareness of the threats relevant to their locality. It is also increased by knowing and being involved in local community disaster or emergency management arrangements, and for many being involved as a volunteer.

It is a truism in emergency management that ‘first responders are always local’.  The first responders at a car accident are the other drivers, at a building collapse it’s the neighbours, at a cardiac arrest its the bystander who can start CPR. The emergency services are (nearly) always second on scene.

In that sense this person is being an active citizen. Agencies like the SES are built on that idea. Members of the community volunteer to provide services to their community. Sure they are trained and uniformed but the fundamental principle is that members of a community form together to help their community. This person’s actions are not significantly different save that he is acting on his own.

The Questions

Let me then turn to the questions asked

(1) Would his actions classed as 

(a) ‘Good Samaritan’

It’s been said before that there is no legislation actually called the ‘Good Samaritan’ Act but that title is familiar shorthand for legislation in every jurisdiction. In Western Australia the relevant provisions are in the Civil Liability Act 2002 (WA) and the Volunteers and Food and Other Donors (Protection from Liability) Act 2002 (WA). The Civil Liability Act s 5AB says that a good Samaritan is ‘a natural person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance’. Emergency assistance means

(a)        emergency medical assistance; or

(b)        any other form of assistance to a person whose life or safety is endangered in a situation of emergency;

None of the services described on the website would fit that definition. Dealing with hazards, rescuing animals etc is not providing assistance ‘to a person’.  Even if debris on the road may be a hazard to road users generally, this is still not assistance to ‘a person’. 

If he stopped to assist at a road accident or medical emergency then that would fit the definition.  He’s acting without ‘expectation of payment or other consideration’ so I can see no reason why that provision would not apply.

The Volunteers and Food and Other Donors (Protection from Liability) Act 2002 provides that a person who does voluntary work for a community organisation is not personally liable for any fault, but he community organisation is (ss 6 and 7). It does not appear that this person is working for a community organisation. As he says ‘Dixon’s Hazard Response is just made up of me’

The answer to the first question is that most of the services listed would not be ‘good Samaritan’ assistance but if he stopped to provide direct assistance to an identifiable person whose life or safety was endangered, it could be.

(b) Impersonation of a Public Officer as defined by the Crimes Act Criminal Code Compilation Act;

The Criminal Code (WA) (set out in Appendix B to the Criminal Code Act Compilation Act 1913 (WA)), s 87 says:

(1)        For the purposes of this section a person impersonates a public officer if the person —

(a)        wears what is or purports to be the uniform of a public officer; or

(b)        represents himself or herself by word or conduct to be a public officer,

when the person is not such a public officer.

The term public officer includes (s 1) ‘a police officer’, a person exercising authority under a written law’, ‘a public service officer or employee within the meaning of the Public Sector Management Act 1994’, ‘a member, officer or employee of any authority, board, corporation, commission, local government, council of a local government, council or committee or similar body established under a written law’ and ‘any other person holding office under, or employed by, the State of Western Australia, whether for remuneration or not’.

It does not appear from the web site that he is claiming to be any of those officers. The closest is the claim that his list of approved services is ‘approved by the police and local councils’. That would not suggest that he is making any claim to be a police officer or a council employee. As far as I can see he is not wearing a uniform that has state badges or looks like a state agency uniform.  That does not mean in any particular case, depending on what is said and done that he may, in a particular case, impersonate a public officer but I cannot see, based on the websites, that there is any attempt to claim to be a public officer.

© Impersonation of a General Inspector as defined by the Animal Welfare Act

There is no specific impersonation offence under the Animal Welfare Act 2002 (WA).  General inspectors have certain powers eg an inspector may ‘provide to an animal … any food, water, shelter, care or treatment the inspector considers necessary to ensure the welfare, safety and health of the animal.’  That is clearly not an exclusive power. Anyone can provide food, water and shelter to an animal that is necessary for the animal’s well-being. The difference is that an inspector can impound an animal. Dixon’s Hazard Response could not enter someone’s property to take care of their neglected animal but he does not claim he will. He says he will help find lost or stray animals and take care of them as anyone could and should.

(d) acting as a authorised person under the Dog Act 1976 and Dog Act Regulations

Again, I cannot see, from the website, that he is purporting to act as an authorised person as defined by the Dog Act 1976 (WA). If he finds a stray animal, he’ll take it to a vet (Service 1) and if he’s asked he’ll help an owner locate their pet (Service 4).  I don’t think anyone needs any legal authority to do those things that are basic community cooperation.

(e) acting as an authorised person under livestock Provisions XX of the Local Government Act

I cannot find provisions labelled ‘XX’ or ‘livestock provisions’ in the Local Government Act 1995 (WA) but I suspect my answer would be above. Warning others of the dangers of livestock on the road until council or police can attend (Service 2) is not ‘acting as an authorised person’.

(f) closing roads without the authority of MRWA and acting without delegated authority.

That’s a more interesting question but as I’ve noted before, there’s a difference between closing roads and warning people of hazards on the road, even if that means the road is impassable (see Self help road closures (October 14, 2018)).  It may be an offence to close a road but at an accident anyone can direct traffic. If I pull up at a car accident I can certainly direct traffic around the accident. Other driver’s may not be obliged to obey me, but they probably would. But one doesn’t need any particular authority to say ‘mate don’t drive down there, it’s blocked’ or to park in front of a hazard and turn on the hazard lights or remove a hazard from the road. Again, isn’t that just community spirit?

(2) If not, what are the legal implications of his actions either Criminal or civil?

I cannot see, from the website that he’s committing any offences (though that would depend on his particular conduct in any particular case).  But the description of what he’s doing do not suggest to me anything for which legal authority is required or anything that is prohibited by the criminal law.

If he negligently causes loss or damage then he could be liable to compensate anyone who suffers that loss or damage.

(3) Is the use of a body camera during his ‘incident response’ lawful under the circumstances?

Generally filming in public is not unlawful (see https://australianemergencylaw.com/?s=surveillance; and see, in particular, Bystanders photographing an emergency (February 2, 2016)). The Surveillance Devices Act 1998 (WA) s 6 says that a person must not use an ‘optical surveillance device’ to:

(a) to record visually or observe a private activity to which that person is not a party; or

(b) to record visually a private activity to which that person is a party.

It seems to me that every interaction he’s recording he is a party to so s 6 is not infringed.

If someone wants to get out and film what they are doing, they are allowed to do so.

Flashing lights

The only legal issue (putting aside what might happen at specific incidents) that I can see is the fitting of flashing yellow lights to the car. The Road Traffic (Vehicle Standards) Rules 2002 (WA) r 112(3) says that ‘vehicle must not display — (a) a light that flashes’. Regulation 112(4) says ‘a special use vehicle may be fitted with one or more  flashing  yellow lights…’. A ‘special use’ vehicle is (112(1)) ‘a vehicle built or fitted for use in hazardous situations on a road’.

Dixon’s Hazard Response website suggests that he has an ordinary car, so it is not ‘built’ for use in hazardous situations, nor, apart from the lights does it appear to be ‘fitted’ for use in hazardous situations. The operator may argue that the lights are indeed fitted for and only used in hazardous situations on the road and the vehicle is therefore a ‘special use’ vehicle. The problem with that argument is that it’s circular reasoning – only a special use vehicle can have flashing lights and we know this is a special use vehicle because it has flashing amber lights – but it has to be a special use vehicle before it can be fitted with flashing yellow lights.  Clearly r 112(3) does not expect that anyone can fit a flashing yellow light and therefore make their vehicle a special use vehicle. The reference to ‘built or fitted’ would imply to me that there has to be some other alterations to the standard vehicle, other than fitting an amber light bar, to make it a ‘special use vehicle’.

Fire and Emergency Services Act 1998 (WA)

Section 38B(2) says:

Unless authorised under an emergency services Act or in writing by the FES Commissioner, a person must not —

(a) use any name, title, description or symbol that expresses or implies an association with the Department; or

(b) otherwise represent that the person is associated with the Department.

Some might argue that the name Dixson’s Hazard Response implies an association with the Department. That would be clearer if it was Dixson’s Emergency Response.

Section 38C creates an offence to ‘falsely represent, by words or conduct’ that a person is a member of one of the emergency services including a volunteer fire brigade or the SES.  Again I cannot see from the website that he’s doing that but again, in particular circumstances (rather than generally) his conduct may give rise to a ‘representation’ that he is a member of the emergency services. That would depend on particular circumstances but it is not apparent from the website.

Conclusion

I can understand my correspondent’s concerns that the operator of Dixon’s Hazard Response is may ‘cause an incident that may result in injury or death’ or interfere with the operation of the statutory emergency services.  Despite that concern, and based on what’s reported on the website, apart from the possibility that the fitting of yellow light bar to the car may be illegal, I cannot see that providing any of the services listed is unlawful or requires particular authority.

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.

Today’s question follows my post: Is that a job for a nurse or paramedic? (April 4, 2022). My correspondent says

I must admit that I (and many others) were disappointed that the Paramedicine Board did not (and still does not) delineate between the different clinical levels of paramedics, but in looking at your comments generally across your blog it seems that this instead [leaves it] up to the individual paramedic to set and also for the employer of paramedics to accept (or not) depending on the nature of the work that they are employing employees to do.

Naturally therefore, paramedics that feel competent and confident enough to hold themselves out as paramedics would no doubt advertise/sell themselves to be so. What therefore is stopping someone with a paramedic degree saying they are an instant ICP simply because they successfully completed a paramedic degree and received theory and instruction and practice in ICP skills, when in fact they clearly don’t have the years of experience required to consolidate and cement those to competently perform ICP skills and processes to the expected community standards in Australia (especially in solo operator roles)?…

Can an employer that decides to employ paramedics assume the applicant is competent in the skills and processes that they are purporting to hold before they are employed just because they say so in their CV based simply on a degree and registration, noting that the degree may have been years ago and that they may have worked as a private self-declared ICP ever since under an unknowing employer doing only standby roles at sporting venues or the like, which is clearly not the repeated high acuity experience ICP’s require in the community to be competent and experienced?

Is it unreasonable to expect that an applicant proves competence to their new employer in the multiple aspects of prehospital care before working for that employer as a paramedic, or are they required to prove competence to the new employer after employment by way of their internal training, assessment and CPG’s? Or are they not required to at all and their own self-directed CPD is all they need?

Essentially, I am concerned at the vague/general bar that the Paramedicine Board seems to have set in relation to paramedic skill sets, clinical interventions, and CPD. Yes that may instead be up to the employer to decide/watch, but isn’t the HCCC or coroners court or review by the paramedicine board a late mitt to catch claims of “I’m an ICP” when a private employer in particular may not understand or fully appreciate the difference between clinical levels of paramedics, because the employee held themselves out to be a ICP (quite convincingly too I have seen on paper), and when the para-medicine board didn’t see it as important enough to delineate between paramedic levels therefore allowing the perception to an unknowing employer that clinical difference isn’t that important? As we know, the stakes are higher and riskier the more advanced the skills and processes are.

And generally, if the para-medicine board doesn’t state it specifically, in your view what may be expected as a reasonable pattern of training or timeframe for any employer (apart from CPD) to require their paramedics to display skills/process competency/recency for different paramedic levels based on what might be deemed reasonable within law and community/industry expectation, if this is required at all?

That’s a long set of questions. I’m going to try and answer them in a ‘rolled up’ answer rather than distil each question and give a separate answer.

Health Practitioner Regulation National Law

The starting point is the Health Practitioner Regulation National Law. (Although it’s meant to be a national law it is in fact a cooperative scheme where each jurisdiction has had to pass an Act to adopt the national scheme. As is always the case when that happens, there are slight differences between the jurisdictions, so to answer this question (given my correspondent is from NSW) I’ll use the Health Practitioner Regulation National Law (NSW) as my source, but the answer is the same nationwide, that is the differences between the states won’t affect this answer, but I have to quote someone’s Act).

A person must not use the title ‘paramedic’ unless they are indeed a registered paramedic (s 113). For each profession a national board is established, that board is to ‘register suitably qualified and competent persons in the health profession’ and ‘decide the requirements for registration or endorsement of registration in the health profession, including the arrangements for supervised practice in the profession’ (s 35).  The boards must develop registration standards (s 38) and may ‘develop and approve codes and guidelines’ (s 39).

The Act provides for registration in recognised specialities and divisions within the professions (ss 51-61; 115; 117-119). To establish a recognised speciality the National Board must obtain the approval of the Ministerial Council (s 13; formerly the Council of Australian Governments (COAG) Health Council, but now known as the Health Minister’s Meeting). There are no specialities within the profession of paramedicine.

The Paramedicine Board

The Paramedicine Board (the Board) has been established to manage the registration of paramedics. The Board has published necessary registration standards and codes, including the Code of Conduct for Paramedics (15 June 2018), soon to be replaced by the Code of Conduct for Paramedics (29 June 2022).

To qualify for registration, a candidate has to complete an approved program of study and meet the registration standards for Continuing professional development, Criminal history, English language skills, Professional indemnity insurance arrangements and Recency of practice.

There is a Supervised Practice Framework (1 February 2022) that relates to each of the registered health professions. It is up to the National Boards to determine when supervised practice is required. It may be required as a registration requirement (eg a person may be given limited or provisional registration pending completion of required hours of supervised practice) or to meet eligibility requirements for registration. The Paramedicine Board does not require supervised practice for graduates who have completed an approved program of study or an accepted qualification within the last two years. In their list of FAQ: Students and graduates the Paramedicine Board poses the following question, and gives the following answer:

Are new graduates required to have a certain amount of supervision in their first year of registered practice?

There is no formal requirement but it’s a good idea as receiving supervision is an important development tool.

If you do not have an approved or accepted qualification or it was completed more than two years old a period of supervised practice is required prior to registration (see https://www.paramedicineboard.gov.au/Registration/Documents-required.aspx).

In finalising my answers I’m going to assume we’re talking about graduates who have completed an approved qualification in the last two years and other registered paramedics.

What is an ICP?

Neither the Paramedicine Board nor the National Law define what, or who, is an ICP. Paramedics Australasia (that merged with the Australia and New Zealand College of Paramedicine to form the Australasian College of Paramedicine) published Paramedicine Role Descriptors (v 211212).The document is still available online but does not appear to be on the ACP website so I would infer that the online version is of historical interest only.  In any event, the Role descriptors never had the force of law.  

To paraphrase what I wrote in my book Emergency Law (4th ed, Federation Press, 2010 (so before paramedic registration), p. 39):

Humpty Dumpty said “When I use a word … it means just what I choose it to mean – neither more nor less” and in the absence of professional registration, the term “[intensive care] paramedic” means whatever the person using it wants it to mean.

An employer may choose to employ recent registrants – paramedics. The employer may require them to undergo some supervision and some further training to obtain competence in some skills, techniques or procedures that are relevant to that employer’s work environment. The employer (and employees) may agree that a person with those qualifications is for the purposes of that work place an ‘intensive care’ paramedic. A different employer may do something similar but have different required skills and competencies.  Paramedics working for each employer may have different skill sets but both are called ‘Intensive Care paramedics’.  For the purposes of the law, they are ‘paramedics’. In law, you are either a paramedic (ie registered with the Paramedicine Board) or you are not.

What then is to stop a paramedic calling him or herself an Intensive Care Paramedic? Fundamentally nothing, but an employer or contractor may want to ask ‘what do you mean by that?’  More importantly an employer or contractor would want to identify what skills and training a person has rather than what label they choose to adopt.

The problem is that different employers and contractors will have different levels of sophistication and understanding of paramedicine. A jurisdictional ambulance service will have no difficulty recruiting paramedics, understanding where they sit if they are new graduates, impose their own requirements for limited and supervised practice as a term of the new paramedic’s employment and will have a clear definition of what they mean by ‘ICP’ and which of their employees can use the title.

Other employers will have less skill in that regard. A factory that wants to employ a paramedic as an onsite health practitioner may have much more difficulty understanding claims to competency and title. Different employers will have to have their own ways of recruiting and assessing a potential employee’s skills and suitability.

Fundamentally what is “stopping someone with a paramedic degree saying they are an instant ICP” is that paramedics are now trusted and expected to be professionals. They are trusted to make their own judgements on many matters. The Code of Conduct says

Practitioners have a duty to make the care of patients or clients their first concern and to practise safely and effectively. They must be ethical and trustworthy. Patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. …

Practitioners have a responsibility to recognise and work within the limits of their competence and scope of practice…

Providing good care includes: … recognising the limits to a practitioner’s own skills and competence and referring a patient or client to another practitioner when this is in the best interests of the patients or clients…

Maintaining a high level of professional competence and conduct is essential for good care. Good practice involves:

a)         recognising and working within the limits of a practitioner’s competence and scope of practice, which may change over time

b)         ensuring that practitioners maintain adequate knowledge and skills to provide safe and effective care

c)         when moving into a new area of practice, ensuring that a practitioner has undertaken sufficient training and/or qualifications to achieve competency in that area

The Code of Practice that will come into force in June 2022 has similar requirements.

As a professional a paramedic applying for a job, particularly if it is with an employer that does not have experience in employing paramedics, must consider the skills required for the job and whether they have or can obtain those skills. Failure to do so puts their registration at risk.  

The definition of unsatisfactory professional conduct makes reference to conduct ‘below the standard reasonably expected of a practitioner of an equivalent level of training or experience’(s 139B).  Where a practitioner claims to have particular skill or expertise he or she can expect to be judged against the reasonable practitioner with that skill or expertise even if, in fact, the paramedic does not have that skill. As the High Court said in Rogers v Whitaker (1992) 175 CLR 479, [6] (emphasis added)  “The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill …”. If, for example, if a person holds themself out as a paramedic when they are not, they will be expected to demonstrate the skill of a paramedic even though they don’t actually have the relevant ‘level of training or experience’. 

A person will be held to the level of skill that they claim to have. In the absence of a definition of ICP, if a paramedic claims to have skill and expertise in say ‘Intra-osseous access’ (something that the Paramedics Australasia Role Descriptor says is a skill for ICPs) then he or she will be expected to demonstrate that skill.  If they fail to perform that skill reasonably they may be liable in negligence regardless of any title used.

It’s true that “[the Health Care Complaints Commission] the HCCC or coroners court or review by the paramedicine board [is] a late mitt [sic] to catch claims of “I’m an ICP”…” but that’s a legitimate and general criticism of all law. It is nearly always reactive. The criminal law only punishes after the crime has been committed; negligence law is only relevant after there has been negligence, loss and damage.

There are different ways to regulate behaviour. Paramedics (and other health professionals) could be strictly regulated with rules on each level and title etc. What changed in 2018 was that paramedics had earned their place amongst the other health professionals.  They were to be regulated by trust in their own behaviour, their own professional standards.  There may be rogues and fools but it is up to the profession to weed them out.  Trust means that paramedics can and must make their own decisions about what they are competent to do and take responsibility for that decision if it turns out they are wrong. Trust means that indeed it may be the paramedic who is better placed than the employer (given the growing range of employers) to determine what skills they have, what training they need and what they can or cannot do.

Conclusion

Registration as a paramedic is all or nothing. A person is a paramedic, or they are not. There are no paramedic specialities as there are medical specialities.  There is no legal definition of Intensive Care Paramedic, Flight Paramedic, Extended Care Paramedic etc. These are terms that different employers, and in some cases different paramedics can use.  Jurisdictional ambulance services probably have very clear definitions of what skills an employee must demonstrate, and what training they must do before they can wear the title and attract the higher pay.

Private employers and contractors (and here I’m not thinking of private ambulance services, but say industries that employ onsite paramedics) have to trust the paramedics and expect the paramedics to practice only within their skills and competence, regardless of the titles they may claim. But the regulation of paramedicine is based on trust – it is the reward that paramedics earned by many years of being ‘the most trusted profession’.

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.

Fellow commentator on all things Paramedic – The Paramedic Observer – reports on the introduction of the Tasmanian Health Legislation (Miscellaneous Amendments) Bill 2022. He says:

An important legislative development in Tasmania with the Tasmanian Health Minister Hon Jeremy Rockliff MP Second Reading Speech on the Health Legislation (Miscellaneous Amendments) Bill 2022. https://bit.ly/3MXqa2o

Second Reading Speech (Draft) https://bit.ly/3Fr8JVd

Fact Sheet for Bill 19: https://bit.ly/3sEOXRd

Text of Amendment Bill: https://bit.ly/38bsVhB

While the Fact Sheet says the amendments are technical in nature they are very significant in a fundamental respect by removing the definition of paramedic from the Ambulance Service Act and inserting a new definition for the term “paramedic” in the Acts Interpretation Act 1931.

The new definition for “paramedic” in the Acts Interpretation Act will give the term universal application throughout Tasmanian legislation and remove the need to define the term separately in any other Tasmanian legislation (unless specifically needed).

The significance of these changes is that the definition of paramedic is the same as that in the National Law – and is no longer linked to an historical title or employment with an ambulance service.

The amendments follow a call for such changes in recent submissions and a similar move in Victoria which the Observer reported last month. https://bit.ly/3LZdEzq

The Observer extends thanks to those within the Tasmanian health system who have helped to introduce this change that brings the recognition of paramedicine into line with the contemporary legal registration framework for health practitioners.

Tasmania introduced a definition of ‘paramedic’ before registration in order to protect the use of that title. I have previously written on the definition which, until the passage of this Bill, remains as part of the Ambulance Services Act 1982 (Tas) s 3B – see New law for ambulance services in Tasmania – Update (September 7, 2013). If this Bill passes s 3B will be repealed and the term ‘paramedic’ will, for all Tasmanian law including the Ambulance Services Act, mean:

… a person registered under the Health Practitioner Regulation National Law (Tasmania) in the paramedicine profession;

I agree with the Paramedic Observer – this is a significant change to recognise paramedics are registered health professionals and to remove the link ‘to an historical title or employment with an ambulance service.’

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.

Today’s question comes from

…a registered paramedic on a mine site. due to an administration error our authority to administer scheduled medications has lapsed but our poisons permit is current. ie we can order drugs but currently can’t administer anything other than appendix C of the Poisons and Therapeutic Goods Regulation 2008. My question is in relation to liability. Where does liability sit for an adverse patient outcome when unable to perform my job with the tools I am trained to use at the level I am trained to use them?

The reference to ‘appendix C of the Poisons and Therapeutic Goods Regulation 2008’ tells me that my correspondent is in NSW.  Appendix C lists ‘Persons authorised to possess and use substances’.  There is no specific authority granted to paramedics (though there is authority for ‘ambulance officers’ employed by NSW Ambulance). My correspondent works on a mine site. Paragraph 11 of Appendix C says:

A person who is trained and authorised to administer first aid at a mine … is authorised to possess and use methoxyflurane and nitrous oxide if required for use in connection with the carrying out of first aid at a mine.

I assume my correspondent also has the relevant training to use salbutamol ([12], Asthma First Aid) and adrenaline ([13] Anaphylaxis First Aid) though nothing turns on that to answer the question.

I’ll rephrase the question to get to the nub of the issue. As I see it the question is:

if, because of my employer’s administrative error, I’m sent to work without access to drugs that form part of my normal tools of trade, who is liable? My employer or me?

The answer is ‘your employer’. That is for a number of reasons.

First, where talking about a mine site. I assume that everyone on the mine site is an employee. They may not be an employee of the mine but if they are there for work, they are employed by the mine or a mine contractor. If they get injured in the course of their work their employer is liable to pay workers compensation (Workers Compensation Act 1987 (NSW) and Workplace Injury Management and Workers Compensation Act 1998 (NSW)). The compensable injury includes all aspects of that injury so if the injury is made worse because relevant paramedic care was delayed then that is all part of the injury and compensation is paid for the whole injury.

Second, if the injured person wanted to sue in negligence, they need to find a duty holder. The paramedic (my correspondent) clearly owes a duty of care to the patient (Kent v Griffiths [2001] QB 36; Queensland v Masson [2020] HCA 28) but the duty is to act reasonably in all the circumstances. Those circumstances include not having access to whatever drugs we are talking about. If you do the best you can with the resources you have, you have provided ‘reasonable care’.

The employer also owes a duty of care to their employees. That includes a duty to have appropriate first aid and emergency procedures (Work Health and Safety Regulations 2011 (NSW) rr 42 and 42; Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW) Sch 7).  If a risk assessment indicates that the appropriate response is to employ a paramedic and provide that paramedic with relevant drugs. A failure to have systems in place to ensure relevant permits and authorities are maintained would suggest a failure by the employer reasonably manage the business and so put staff members at risk. In other words, the fact that the employer allowed the permit to lapse so that the staff could not do the job they were employed to do would be evidence of negligence by the employer.

Finally, if the paramedic is an employee, then the employer will be vicariously liable for any negligence.

The paramedic/employee also has duties to the employer as well as professional obligations to provide good paramedic care. Good paramedic care is also restricted to the circumstances – it is not the best care that a patient could possibly get – it is the best evidence based, patient centred care that the paramedic can deliver in all the circumstances.  However, to ensure that the paramedic was seen to be delivering that care it would be prudent to bring to the employer’s attention that the permit had lapsed; that in the circumstances the paramedic cannot possess, supply or administer whatever drugs are involved and warn the employer of the potential clinical consequences – eg a list of drugs they can no longer access and why they are important.

Conclusion

If

1. a person at a mine site can demonstrate their injury was made worse, or their recovery was delayed, due to the fact that the on-site paramedic did not have a drug that they would normally have; and
2. that failure was due to an administrative error that caused the employer’s authority under the Poisons and Therapeutic Goods Act 1966 (NSW) to lapse; then
3. any legal liability would fall on the employer.

Any professional liability of course belongs to the paramedic but if the paramedic can show that the issue, and why it is important, has been brought to the attention of the employer or a relevant senior employee or officer of the employer (eg the paramedics immediate line supervisor, the site manager, the general manager, the CEO) then the paramedic can show that he or she has acted to advocate on behalf of future patients and done what they can do to rectify the issue.

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.

Today’s questions relate to the NSW SEs and the appointment of a Local Commander. My correspondent quotes the State Emergency Service Act 1989 (NSW):

17 Local commanders 

(1)  The Commissioner may, on the recommendation of the council of a local government area, appoint one or more persons as a local commander for the area….

(4)  The Commissioner may appoint as a local commander an emergency officer not recommended by the council of the local government area concerned if the council fails to make a recommendation which is acceptable to the Commissioner within 30 days after the council is requested to do so by the Commissioner. 

Present NSW SES practice is to conduct this appointment process entirely internally with no engagement from local councils. i.e. a call for expressions of interest is put out to the volunteers, interviews are undertaken by the Zone Office and the Zone Commander recommends an appointment to the Commissioner. Is this practice in line with the legislation? 

Further, with SES restructuring and changes to council boundaries many Local Commanders now cover multiple council areas. Some councils have been unhappy with this arrangement. 

If the affected councils were to each nominate their own Local Commander instead of agreeing on a joint candidate what grounds would the SES have to reject them for not being “acceptable” under (4)? 

Also, [section 17 says:]

(5)   The council of a local government area must, within 3 months of the appointment of a local commander for the area, provide (free of charge) suitable training facilities and storage and office accommodation to enable the local commander to exercise his or her functions. 

If one Local Commander is covering multiple LGAs under (5) is it to be read that each of those LGAs must provide him/her the suitable facilities as listed? 

There is a difference between a unit commander and a local commander. A unit commander (appointed under s 17A) is responsible for a single unit. A local commander is (s 17(3); emphasis added):

… subject to any direction of the Commissioner or the relevant zone commander, responsible for the control and co-ordination of the activities of SES units in the relevant local government area.

Circular to councils

A circular to councils issued by the Office of Local Government (Circular No 1829 / 27 September 2018) says that with the passage of the Emergency Services Legislation Amendment Bill 2018 there will be ‘new structure for the NSW SES’. It goes onto say:

In the new structure, Local Commanders are determined by clusters and not by Local Government Areas (LGAs). The Local Commander’s role is to support the Units within their cluster and facilitate collaboration within the cluster with external stakeholders.

It is anticipated Local Commanders will be assigned progressively from October 2018…

Councils will be advised of Local Commander appointments that are relevant to their LGA.

With respect that does not appear to be consistent with the Act,

Local commanders – appointment

As noted, s 17(3) says that Local Commanders are “responsible for the control and co-ordination of the activities of SES units in the relevant local government area” (emphasis added). The Act makes no reference to clusters and there is no supporting State Emergency Service Regulation to refer to. The Act still anticipates that the area of responsibility for Local Commanders appointed under s 17, are determined by Local Government Areas.

Second the idea that Councils are advised of Local Commander appointments is contrary to s 17(1). Reading ss 17(1) and (4) the process does seem clear. For a local commander to be appointed under s 17, the local council recommends a person as local commander. The Commissioner may appoint them to that role. If the nominated candidate is not acceptable to the Commissioner, or no recommendation is made, the Commissioner may request the council to make another recommendation and if they do not, then the Commissioner may appoint her own nominee to the position.  A person may not be acceptable to the Commissioner for any number of reasons, he or she may not be appropriately qualified or experienced or otherwise not a ‘fit and proper person’ for the appointment. There is no guidance in the Act as to what would make a person ‘acceptable’ (or not acceptable) to the Commissioner so that has to be a very wide discretion, but it could not extend to irrelevant considerations such as their shoe size or the cut of their hair.

It would certainly appear to be the case that if this decision is made completely without reference to the local government, then that is not complying with the Act. However, there may be much hidden behind the science. First, councils may have delegated the power to nominate the commander to the Commissioner or Zone Commander. I do not know if any such delegations exist, but as an example, the Rural Fires Act 1997 (NSW) s 15 provides a central role for councils in establishing rural fire brigades. That no longer happens, and brigades are established by the Commissioner. The transfer of responsibility has been achieved by delegation (see RFS Act s 12A; RFS Service Standard 1.3.1 Delegations and Authorisations (22 November 2013) and RFS Service Standard 1.3.4 Rural Fire District Service Agreements (16 August 2010)).

There does not appear to be an equivalent to s 12A of the RFS Act in the SES Act but even so local councils can delegate their decision making power (Local Government Act 1993 (NSW) ss 377 and 378).  It may be that the power to nominate a local controller has been delegated to the Zone Commander or the Commissioner. Alternatively, there may be an internal recruitment process and the name of the successful candidate is sent to council who in turn recommend that person to the Commissioner.  What follows is that what may look like a ‘process entirely internally with no engagement from local councils’ may in law not be that at all. One would need more internal documents to confirm what is going on. (As an aside let me again congratulate the RFS for putting so much of its internal governance online, it’s a fabulous resource for armchair commentators like me).

Local Commanders working across councils,

As noted the Act says that local commanders are appointed ‘on the recommendation of the council of a local government area, … for the area’ ie for the local government area.  They are ‘responsible for the control and co-ordination of the activities of SES units in the relevant local government area.” Presumably one person could hold more than one appointment ie they could be the local commander in two local government areas but they need to be appointed on the recommendation of the local government area.

If a person was appointed over two or more local government areas each local government would be required to provide ‘suitable training facilities and storage and office accommodation to enable the local commander to exercise his or her functions’ but there’s no reason that could not be done collectively, that is the councils could join up to ensure that the person had suitable facilities even if there was only one office in one local government area.  If there was an agreement between the councils (eg as to cost sharing but fundamentally on whatever terms they agreed to) then they are ensuring that the commander has relevant facilities.

An alternative analysis

The processes suggested by my correspondent could be implemented by the Commissioner acting under the Commissioner’s general responsibility for the administration of the service. The Commissioner is ‘responsible for managing and controlling the activities of the State Emergency Service’ (s 11) and ‘is required to undertake such planning and make such preparations as the Commissioner thinks fit for the purpose of enabling the Commissioner’s functions under this Act to be exercised in the most effective manner’ (s 12).

The Commissioner may (and has) divided the state into zones (s 14). She may then conclude that it would enable ‘the Commissioner’s functions under this Act to be exercised in the most effective manner’ by dividing the units within each zone into clusters and then appoint someone, that she calls a Local Commander to manage the units within that cluster. That is consistent with a position statement for Local Commanders which says:

The Local Commander position provides leadership in the development and coordination of Unit Commanders across a cluster of Units to ensure operational delivery and service support requirements are met to achieve the NSW SES Mission and Vision statement.

All of that is consistent with the Commissioner’s administrative functions and it is arguably not contrary to the Act even though the Act does not refer to clusters and even though the Local Controller’s may be appointed without reference to local governments.

Section 17(1) says ‘The Commissioner may …’ not the Commissioner must. The Commissioner may choose not to appoint local commanders under s 17. This situation could be similar to the Rural Fire Service (see Changing boundaries of a NSW rural fire district (April 19, 2022)) ie an exercise in administrative discretion. The concept of a cluster is an administrative arrangement created by the Commissioner, rather than in legislation. The Commissioner, having decided to group units in clusters is entitled to create a cluster leadership role.  All of that is within the Commissioner’s remit set out in ss 11 and 12.  Although these cluster leaders may be called Local Commanders, they would not be the Local Commanders anticipated by s 17. But section 17 does not compel or require appointments to be made under s 17(1). The consequence of not relying on s 17(1) is not that the appointments are unlawful, but that s 17(5) would not apply and the local government would not be required to ‘provide (free of charge) suitable training facilities and storage and office accommodation to enable the local commander to exercise his or her functions.’  The SES would have to provide their office etc. Whilst that approach appears to me to be legally permissible, I cannot confirm if that is the basis of the Commissioner’s action.  If it is I suggest the office holders should not be called ‘Local Commander’ (they could, for example, be called ‘Cluster Commander’) but fundamentally I don’t think anything turns on that.

Conclusion

I only have access to public documents.  Relying on them I agree that s 17 of the SES Act says:

• Local Commanders may be appointed on the recommendation of local government;
• The Commissioner may only appoint a local commander to a local government area without a recommendation from the local government if the local government has failed to make an acceptable nomination within 30 days of the requestion.
• Local Commanders appointed under s 17 are to be appointed by reference to local government areas.
• Where Local Commanders are appointed under s 17, the local government must provide office and other facilities.

However

• Section 17 is not mandatory – the Commissioner may appoint local commanders under that section, not must.
• The Commissioner is responsible for the administration of the service.
• The Commissioner may, consistent with s 11 and 12, create clusters and cluster leadership positions. (If that is what has happened, then it may be unfortunate (and confusing) to call them Zone Commanders, but not impermissible).

I cannot explain the actual legal reasoning behind the creation of clusters, the appointment of zone commanders without reference to local government (if that does in fact happen) but I can see an argument to the effect that such actions are lawful and consistent with the Act even if it appears inconsistent with s 17.

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.

Today’s question comes for a ‘curious’ correspondent who is:

… a fraction concerned) about two ‘private’ rescue providers in Victoria. There’s Echuca Moama Search & Rescue and also one in Shepparton. They provide the primary road accident rescue response in those communities. They’re recognised in the State EM arrangements but what legislation do they exist under? What gives them their responsibility, powers and protections?

I have no idea whether my correspondent is, or is not, a member of either rescue squad.

What legislation do they exist under?

The website for the Shepparton rescue squad says:

(SS&RS) is a Shepparton based Volunteer Rescue Organisation and is one of only two independent rescue units in the State of Victoria recognised by the Victorian Government and operates within the state Emergency Management Manual of Victoria (EMMV) Document and Road Rescue Arrangements of Victoria…

SS&RS is an Incorporated Association under the Victorian Associations Incorporations Act 1981 …

Details of the registered association can be found on the public register maintained by Consumer Affairs Victoria.  We know therefore that they ‘exist’ as a separate legal entity that can sue and be sued by virtue of, originally the Associations Incorporation Act 1981 (Vic), and now the Associations Incorporation Reform Act 2012 (Vic). The Echuca squad is also an incorporated association.

What gives them their responsibility?

We are told that the Shepparton squad operates within ‘the state Emergency Management Manual of Victoria (EMMV) Document and Road Rescue Arrangements of Victoria…’. Emergency Management Victoria says “Victoria is served by a network of 132 road crash rescue principal providers from the MFB, CFA and VICSES. There are also two independent providers at Echuca and Shepparton.” 

Road Rescue Arrangements (2017)

The 2017 Road Rescue Arrangements say (at p. 9):

1c AUTHORISING ENVIRONMENT

The key aspect of the RCR system in Victoria is the coordination of multiple agencies with responsibilities for RCR services to provide the best possible care to, and safe extrication of, persons involved in road accident. The Emergency Management Act 2013 describes the functions of the Emergency Management Commissioner and is fundamental in delivering this coordinated multi-agency service delivery model.

Emergency Management Act 2013

Functions and powers of Emergency Management Commissioner:

s.32

(a) be responsible for the coordination of the activities of agencies having roles or responsibilities in relation to the response to Class 1 emergencies or Class 2 emergencies;

(j) develop and maintain operational standards for the performance of emergency management functions by responder agencies;

(k) develop and maintain incident management operating procedures for responder agencies;

Independent Providers

The arrangements apply to the following approved independent providers of RCR services.

• Shepparton Search and Rescue Squad

• Echuca-Moama Search and Rescue Squad.

Emergency Management Manual Victoria

The Emergency Management Manual Victoria provides comprehensive guidance on the emergency management arrangements in Victoria. In respect of RCR services relevant sections are:

Part 3 – The State Emergency Response Plan 
(files.em.vic.gov.au/EMV-web/EMMV-Part-3.pdf)

Part 7 – Emergency Management Agency Roles – 
(files.em.vic.gov.au/EMV-web/EMMV-Part-7.pdf)

Section 32(a) – agencies having roles or responsibilities in relation to the response to Class 1 emergencies or Class 2 emergencies;

Allocation of roles and responsibilities to agencies is set out in the SEMP Roles and Responsibilities.

The Agency Role Statements document the roles and responsibilities each agency undertakes during mitigation, response (including relief) and recovery phases of emergency management.

Further:

Table 9 names the control agencies that lead response activities against a specific form of emergency. Control agencies are responsible for coordinating actions against a specific emergency and establishing management arrangements for an integrated response to the emergency.

Table 10 names the agencies that participate in a supporting role in response activities. Support agencies for response are the leads in a dedicated functional area. When a specific emergency falls in their functional area, they provide services, personnel, and materials to assist with control activities.   

Table 9 identifies that the control agencies for road rescue are “CFA/FRV/VICSES”. The control agency for other road emergencies and for land rescue is Victoria Police (VicPol).

Neither rescue squad is mentioned in table 9, in Victoria’s Emergency Management Performance Standards (v 3, December 2019), the Emergency Management Team  Arrangements (December 2014) or the Emergency Operations Handbook (4th ed, November 2021).

The only reference to the Shepparton Search & Rescue Squad Inc. in the Greater Shepparton Municipal Emergency Management Plan(v 10.3, October 2019) is where the Squad is listed as a member of the Municipal Emergency Management Planning Committee. Echuca Moama Search & Rescue are not mentioned in the Northern Victorian Integrated Emergency Management Plan: Campaspe Shire (Issue 2, November 2018). The squad is listed as a member of the Flood Emergency Planning Committee (Flood Emergency Plan for the Campaspe Municipal District(Issue 7:May 2018)).

It appears that neither rescue squad has been allocated ‘roles or responsibilities in relation to the response to Class 1 emergencies or Class 2 emergencies’.

Section 32(j) and (k)  – responder agencies

The term ‘responder agency’ (Emergency Management Act 2013 (Vic) s 3):

means the following—

(a)        Fire Rescue Victoria;

(b)       the Country Fire Authority;

(c)        the Victoria State Emergency Service Authority;

(d)       the Secretary to the Department of Environment, Land, Water and Planning;

(e)        any other agency prescribed to be a responder agency;

 The word ‘prescribed’ when used in legislation means “… prescribed by the Act in which the word is used or by a subordinate instrument made under or pursuant to that Act” (Interpretation of Legislation Act 1984 (Vic) s 38). Generally, that would mean prescribed by regulations made under the Act. The SEMP and other documents, we can also assume, meet the definition of ‘a subordinate instrument made under or pursuant to that Act’ (Emergency Management Act 2013 (Vic) s 60AD and Divisions 6 and 7).  

There are no regulations prescribing either rescue squad as a responder agency. Table 10 to the SEMP lists ‘responder agencies’ as ‘CFA, FRV, DELWP [and] VICSES’. It follows that neither rescue squad is a responder agency for the purposes of s 32(j) and/or (k).

Emergency Management Manual Victoria

Both parts 3 and 7 of the Emergency Management Manual Victoria have been repealed – see https://www.emv.vic.gov.au/policies/emmv

First conclusion

Neither the Shepparton or Echuca Rescue Squad is an agency with assigned ‘roles or responsibilities in relation to the response to Class 1 emergencies or Class 2 emergencies’, nor is either squad prescribed as a ‘responder agency’.  It follows that the references to the Emergency Management Act 2013 (Vic) s 32(a), (j) and (k) and the reference to the Emergency Management Manual do not explain the legal authority of either rescue squad to operate nor their obligation to be bound by the procedures in the Road Crash Rescue Arrangements. 

Independent providers

Notwithstanding that first conclusion, the Road Rescue Arrangements say that they do apply to these rescue squads as independent providers. It is that paragraph that binds them and it may be that that paragraph is there precisely because the references to the State Emergency Management Act s 32 do not cover the independent providers. The reference to the EM Act explains the Commissioner’s authority to bind the FRV, CFA and SES. They are required to comply because of the Commissioner’s powers under s 32 and due to provisions in their own legislation – Fire Rescue Victoria Act 1958 (Vic) s 7AC; Country Fire Authority Act 1958 (Vic) s 6D; Victoria State Emergency Service Act 2005 (Vic) s 4C. The independent squads are brought into the rescue community by the statement that they are bound by the Road Rescue Arrangements, rather than by legislation.

How does that work? If the rescue squads do not agree to, or do not comply with, the procedures and standards set out in the Arrangements then the Emergency Management Commissioner could withdraw their approval to operate (Road Rescue Arrangements, p. 22). If that happened the CFA or SES or FRV would be assigned the role of principal responder. The independent rescue squad would find itself with nothing to do even if it continued to exist. Without a specific statutory obligation, the statement ‘The arrangements apply…’ to the independent rescue squads implies that if they don’t comply, their role in Road Crash Rescue will be removed and it is that power – the power to revoke their authority to operate – that brings the independent squads into the Arrangements.

Second conclusion

The Road Rescue Arrangements bind the independent rescue squads because they are directed to comply. If they do not the Emergency Management Commissioner has the power to revoke their authority to operate. It follows that the responsibilities of the two independent rescue squads are found in Victoria’s Road Rescue Arrangements(2017).

Powers

Fire Rescue Victoria, the SES and the CFA all have legislation giving them specific powers to perform their statutory functions (see Fire Rescue Victoria Act 1958 (Vic) ss 32B and 56; Country Fire Authority Act 1958 (Vic) s 30; Victoria State Emergency Service Act 2005 (Vic) ss 32AB 32AC and 40). In the absence of legislation neither independent rescue squad has specific powers.

It follows that their powers must either be implied by the Road Rescue Arrangements, ie they must have the power to do those things they are required to do to comply with the arrangements, or they come from the common law (see The doctrine of necessity – Explained (January 31, 2017)). In Kuru v State of New South Wales (2008) 236 CLR 1, [2008] HCA 26, [40]), Gleeson CJ, Gummow, Kirby And Hayne JJ said:    

The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire fighters, police and ambulance officers will often invoke application of that principle.

In Southport Corporation v Esso Petroleum Co Ltd [1956] AC 218, 228 it was said:

The safety of human lives belongs to a different scale of values from the safety of property. The two are beyond comparison and the necessity for saving life has at all times been considered a proper ground for inflicting such damage as may be necessary upon another’s property.

And in New Zealand (Dehn v Attorney General [1988] 2 NZLR 564, 580 (Tipping J)):

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

If I see a person trapped in a car, I don’t need specific legal authority to go to their aid and neither do the rescue squads. Given they are unlikely to respond on their own, if there is a need to exercise special powers then police and fire brigades are likely to be on scene and can act under their legislation.

Third conclusion

The source of any necessary power for the rescue squads will be find as an implied power by virtue of their inclusion in the Road Rescue Arrangements or be amply supported by common law.

Protections

There are protections provided for the members of FRV, the SES and CFA (Fire Rescue Victoria Act 1958 (Vic) s 54A; Country Fire Authority Act 1958 (Vic) s 92; Victoria State Emergency Service Act 2005 (Vic) s 42). In the case of the SES and the CFA the legislation says that whilst no volunteer or service member is to be personally liable, any liability that would otherwise apply to them is to be borne by the relevant authority.

Members of the independent rescue squads might be considered volunteer emergency workers (Emergency Management Act 1986 (Vic) s 4). A volunteer emergency worker is:

a volunteer worker who engages in emergency activity at the request (whether directly or indirectly) or with the express or implied consent of the chief executive (however designated), or of a person acting with the authority of the chief executive, of an agency to which the state emergency management plan applies;

The rescue squads are acting with the consent of the Emergency Management Commissioner. If that is the case, they get the benefit of s 37 of the 1986 Act which says:

A volunteer emergency worker is not personally liable in respect of any loss or injury sustained by any other person as a result of the engagement of the volunteer emergency worker in emergency activity unless the loss or injury is caused by the negligence or wilful default of that worker.

That is not very helpful. If there is no negligence or wilful default there is no liability anyway so it is unclear what this section adds.

For the members of the Shepparton and Echuca rescue squads, better ‘protection’ is found in the Wrongs Act 1958 (Vic) s 37 which says:

(1)        A volunteer is not liable in any civil proceeding for anything done, or not done, in good faith by him or her in providing a service in relation to community work organised by a community organisation.

(2)        Any liability resulting from an act or omission that would but for subsection (1) attach to the volunteer attaches instead to the community organisation.

That puts the volunteers in the same position as volunteers with the CFA and the SES. The volunteers are not liable but the organisation for which they volunteer may be. That of course depends on their being negligence. The legal risk is low but not non-existent, so one hopes the rescue squads have appropriate insurance or an offered indemnity from the state.

The problem for volunteers is if they are considered a volunteer emergency worker then they are not a volunteer for the purposes of the Wrongs Act (see s 35(f)). This is to stop volunteers getting ‘double protection’.  It would be better for the volunteer rescue squad personnel not to be considered a volunteer emergency worker but where they sit might be an issue in the unlikely event anyone tried to sue a volunteer.

Conclusion

The Echuca Moama Search & Rescue and Shepparton Search and Rescue Squad ‘provide the primary road accident rescue response in those communities. They’re recognised in the State EM arrangements’. The questions I was asked were:

1. what legislation do they exist under?
2. What gives them their responsibility?
3. Powers? and
4. protections?

My answers are based solely on documents publicly available on the internet. There may be other relevant documents that I cannot access such as MOUs, directions or delegations between the EMC and the rescue squads, MOUs or other legal relationships between the squads and the councils.  In the absence of any of those documents my answers are:

1.         Both rescue squads exist ‘under’ the Associations Incorporation Reform Act 2012 (Vic) (formerly the Associations Incorporation Act 1981 (Vic)). 

2.         The Road Rescue Arrangements (2017).

3.         Relevant powers may be implied to give effect to the Road Rescue Arrangements and by common law.

4.         Protection may be provided to volunteers by the Emergency Management Act 1986 (Vic) s 37. Better protection is provided by the Wrongs Act 1958 (Vic) s 37.  The squads themselves don’t have specific legal protection.

The fact that the question was asked, and answered, should not be considered as any criticism of these squads or their role in Victoria’s Road Rescue Arrangements. They provide an essential service to their community and there is no suggestion that any legal issues have arisen, or will arise, from their service. Their legal position might be clearer if they were listed, along with FRV, SES and CFA, as control agencies for road rescue and if they were prescribed as ‘responder agencies’ but probably little turns on that. The legal arrangements even if they are somewhat opaque do not appear to be a barrier to the provision of effective rescue services. 

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.

This question, in various forms, is often asked – see all the posts at https://australianemergencylaw.com/?s=volunteer+scope+of+practice. Even so it’s worth revisiting for people new to the blog and because it is clearly a common and recurring issue. The question is:

A large percentage of SA Ambulance Service SAAS staff are volunteers (approx 47% of the workforce).

SAAS trains lay people who volunteer on their 90+ rural stations in 3 distinct volunteer Authority to practice/Credentialing levels – Ambulance Assist (non accredited training), Ambulance Responder (Certificate II) and Ambulance Officer (Certificate IV).

Many of these volunteers are Registered Health Care Professionals’ including Nurses and Paramedics.  Registered Paramedics volunteering for SAAS are currently limited to practice at the Ambulance Officer (Certificate IV) credentialing level. 

Considering their registration status with AHPRA, could a SAAS volunteer who is a Registered Paramedic:

1.         Be held to a high level of care or knowledge compared to a lay trained non-registered volunteer should an investigation occur e.g. coronial;

2.         If a patient or relative discovered the volunteer was a Registered Paramedic and limited by the employing organisation to practice at a lower level of scope (despite medications and equipment being available to them on shift), could the individual volunteer or the organisation be at risk of legal action?  Example could a family take action if they discover after the fact, the volunteer present at their family members cardiac arrest was trained in advanced life support procedures as a Registered Paramedic but their scope of practice was limited by the Statutory service engaging them? 

The simple answer to both questions is ‘yes’.

A paramedic is a paramedic. A paramedic who is volunteering with an agency like SAAS, or any other ambulance service or event first aid service, is volunteering in an area that is part of the traditional paramedic area of practice. It is not the same as volunteering to help prepare meals on wheels.

A registered paramedic is expected to deliver patient centred, evidence-based care (see Revised Code of Conduct that takes effect from 29 June 2022). Whatever one’s assigned status, as a paramedic you know what you know. If you are asked to treat a patient a person with a Certificate IV may form a view about the patient’s condition but a paramedic may know to ask more or different questions or may be able to form a more complete picture of the patient’s condition based on the history, signs and symptoms. One cannot deny that knowledge. Where a person with the Cert IV may reasonably say ‘I think you should go to hospital’ a paramedic may know that the advice should be ‘I think you go to hospital as a matter of urgency and we, not your family member should take you’.  To pretend you don’t know that just because, today, the service pretends you only have a Cert IV would be both unprofessional and negligent.

As for question 2 imagine you are indeed the relevant family member. How would you feel if you found that the person treating your family member had the skills and knowledge to identify the patient’s condition, knew what the recommended treatment was, had the skills and knowledge to administer the treatment but failed to do so to comply with a direction from the agency rather than acting in your family member’s best interest?  Personally, I would make a complaint that the paramedic had failed to deliver good patient centred care.

The definition of unprofessional conduct is “professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers…’ What would the public, or paramedic peers, expect of a paramedic, on duty with an ambulance service and faced with a patient in cardiac arrest and who had “medications and equipment … available to them” but did not use them to benefit the patient? My guess is that paramedics would, and as a member of the public I would, expect them to use that equipment and medication particularly if they are part of an ambulance response.

It is important to remember that there is no fine line (at least in law) between what is first aid, or ambulance work or paramedic work. The Australian Health Practitioner Regulation National Law does not define a professions scope of practice. If you are a paramedic, and particularly if you are wearing an ambulance uniform and responding to ambulance calls (ie traditional paramedic work) then you have to provide patient centred care. Now there can be limits. If you don’t have the ‘medications and equipment’ that you would have if you were in an intensive care ambulance, then you cannot use them. If the patient’s condition is such that they will not be disadvantaged by a delay in waiting for the on-duty paramedic crew to attend, then it may be reasonable to hold off.  But if it’s ‘life and death’ then a statement from the agency that you are only to pretend you have a Cert IV cannot be justification for not doing what you can within your skills and training.

Conclusion

Paramedics are registered health professionals. One of the advantages of that registration is that it can empower Paramedics to insist on providing appropriate care. It is no longer the case that an agency can say ‘you only practice at this level’ because the paramedics obligations are now owed to the profession and directly to their patient – not just or even to the agency for which they work or volunteer. 

A paramedic or a nurse knows what they know and cannot deny that just because today they are volunteering in a ‘different’ capacity. Your duty is always to provide ‘reasonable’ care, but it cannot be reasonable to pretend to not know something.  It can be reasonable to provide a lower level of care in the circumstances but only if there are good reasons for that decision. In my view telling a paramedic ‘pretend you are not a paramedic’ is not going to count as a ‘good reason’.

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.

Griffin v Health Secretary; Thorncraft v Secretary of the Department of Education [2022] NSWIRComm 1027 (22 April 2022) (Commissioner Murphy) is another case on covid vaccines. In this case the Industrial Relations Commission had to consider whether Public Health Orders, and determinations made by the Secretaries of the Ministries of Education and Health requiring employees to be double vaccinated against COVID-19, affected the Commission’s capacity to make orders in cases of alleged unfair dismissal.  The applicants were 10 health workers, and 2 education workers. All of ‘the applicants were dismissed for failing to comply with a directive from their employer to become double vaccinated against the COVID-19 virus by a certain date last year [2021] or to provide evidence of a medical exemption’ ([8]).

Those who hope the courts will rule on issues such as whether there really is a pandemic or whether the orders made are reasonable will continue to be disappointed. That is not the function of courts and certainly not the Industrial Relations Commission. At [37] Commissioner Murphy said:

… a considerable bulk of the submissions by some parties went to the validity and/or legality and/or enforceability of the Public Health Orders and Determinations set out … above, this Commission is not the forum in which to agitate such matters. These instruments will be accepted in this jurisdiction as valid and enforceable pieces of delegated legislation unless and until found to be otherwise in another place.

The Public Health Orders, and the departmental determinations were in place. The question before the Commission was how they affected the Commission’s jurisdiction, not whether the Minister or Departmental Secretaries either could, or should have made those orders or directions.

Education workers

The case for those employed by the Department of education turned on issues of their employment status as ‘temporary’ employees. Those cases are not relevant to the subject matter of this blog.

Health workers

The Public Health Orders applied to workers in several health fields including paramedicine.  The direction from the Departmental secretary was more limited, applying only to employees of the NSW Health Service.

Both the applicants, and the Department agreed that there was a distinction between the Minister’s Orders and the Department’s determination. The Public Health Orders required workers to be vaccinated, if they were not, they could not work in the health field. The determination from the Department went further and said that unvaccinated workers could not be employed by the Department. The applicants’ argued that the Commission could find that dismissing the employees was ‘harsh, unjust or unreasonable’ and could order that they be reinstated to their jobs even if they could not, presently, work.  They argued that they could be employed, but stood down, until the need for vaccination was removed ([41] and [42]).

At [48]-[49] Commissioner Murphy said:

Each of the applicants in the public health matters … would be, if reinstated to their former position, classified as a stage 1 health care worker for the purposes of the … Health Orders … As such, pursuant to clause 5 of the Fourth Health Order, they “must not do work as a health care worker unless the worker has had at least 2 doses of a COVID-19 vaccine”… In effect, the Fourth Health Order, which is currently in force, would prevent any of the applicants from doing the job into which they may be reinstated or re-employed by order or the Commission. This would render impracticable any order by this Commission for reinstatement or re-employment of any of the applicants in the public health matters.

Further, the Health Determination … has made it a condition of employment that all employees of local health districts, such as the applicants were prior to their dismissals, be double vaccinated against COVID-19 or hold a medical contraindication certificate. It is not open to the Commission, in this proceeding, to go behind the Health Determination and look at issues such as the medical and/or scientific basis or rationale for the making of the Health Determination by the Health Secretary. The Commission accepts that the Health Determination has been validly made and is now part of the industrial landscape for workers in the public health sector. It would be impracticable for the Commission to make orders which purport to restore the applicants to employment as NSW Health Service Employees … in circumstances where they do not satisfy an essential condition of that employment whilst they remain unvaccinated against COVID-19 or without a medical contraindication certificate.

And at [55]:

… no order can be made in favour of any of the applicants for reinstatement or re-employment whilst they remain unvaccinated against COVID-19 or without a medical contraindication certificate.

Discussion

In an earlier post Requiring COVID vaccines for emergency workers(April 1, 2022) I said ‘where the Minister or Chief Health Officer has exercised a power under relevant Public Health or emergency management legislation to issue an order or direction requiring certain workers to be vaccinated then the employer has no choice but to comply’.  This case continues that line of jurisprudence. The public health orders have been made – unless they are set aside by a court of competent jurisdiction (eg the High Court of Australia) employers, and in this case the Industrial Relations Commission have no choice but to comply. This case went further and held that where an employer (in this case the Departments) had set out that it is a necessary condition of employment that a person is vaccinated then the Commission could not order that the person be reinstated.

In should be noted that the Commission did not decide that it could not hear an application for unfair dismissal. There are other remedies, including the payment of damages. The Commission, in this case, was not entering into the question of whether dismissal was unfair, rather it was considering what it could do about. Given the public health orders and the determination made by the Secretary (noting that the power to make this determination was a statutory power – Health Services Act 1997 (NSW) s 116A(1) – not simply matter of a unilateral alteration to a contract of employment) the Commission could not order that the staff be reinstated to jobs that they cannot perform.

As Commissioner Murphy said (at [57]-[58]):

This determination … leaves open the possibility of orders being made for compensation… The parties have not been asked to address this aspect of the applications.

Further, the applicants, or some of them, may wish to reconsider their position with respect to vaccination and become vaccinated which would potentially remove the existing barrier to being employed in the NSW Health Service.

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 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. 

A correspondent says:

The NSW RFS has just concluded HSR elections for the ensuing three years. During the election period, a number of captains of brigades received an email from a Group Captain ‘encouraging members to nominate for the HSR/Deputy HSR roles stating ‘I encourage members of your brigades to apply for HSR/Deputy HSR positions so that other person does not get in’.

There are no names mentioned in the email but would this be considered to be discriminatory conduct under the WHS Act?

I have viewed the Act noting the below sections that in my opinion have been breached.

29   Duties of other persons at the workplace

A person at a workplace … must— …

(b)        take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and…

104   Prohibition of discriminatory conduct

(1)        A person must not engage in discriminatory conduct for a prohibited reason.

A prohibited reason includes that the person “is, has been or proposes to be a health and safety representative …” (s 106(a)).

105   What is “discriminatory conduct”

(1)  For the purposes of this Part, a person engages in discriminatory conduct if— …

(b)  the person—

(ii)        treats a prospective worker less favourably than another prospective worker would be treated in offering terms of engagement, or

108   Prohibition of coercion or inducement

(1)        A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce or induce the other person, or a third person—

(a)        to exercise or not to exercise a power, or to propose to exercise or not to exercise a power, under this Act, or

109   Misrepresentation

(1)        A person must not knowingly or recklessly make a false or misleading representation to another person about that other person’s—…

(b)        ability to initiate, or participate in, a process or proceedings under this Act, or

Discussion

The Rural Fires Act 1997 (NSW) s 116 says “The fire control officer for a rural fire district may form two or more rural fire brigades formed for the district into a group of rural fire brigades.” The Group Captain is ‘elected by the brigades in the Group’ (Service Standard 2.1.4, v 3.1). My understanding is that a Group Captain is a volunteer position.

I cannot comment on the particular email; I haven’t seen it, nor do I want to – but given what I’ve been told I cannot see how any of the sections of the Work Health and Safety Act 2011 (NSW) identified by my correspondent are relevant.

Writing to members encouraging them to stand for election cannot be discriminatory or a misrepresentation. And giving people an opinion on the suitability of a candidate is electioneering. It may not be very clever for a group captain to do that as it may give rise to an inevitable conflict that may impact upon their ability to perform their duties. It may be defamatory. It may breach any number of RFS service standards depending on how it’s phrased; but it doesn’t breach those sections of the WHS Act.

A person can lobby for a cause but still treat those who have a different view appropriately. The Group Captain may not want a particular person elected but that does not mean he or she is treating that potential candidate ‘less favourably’ in the context of their duties. It may give rise to difficulties later but encouraging people to nominate, and to not vote for a particular person, does not appear to be discriminatory conduct. There is also nothing to suggest the Group Captain is or intends to ‘take action’ against the person they don’t want to see elected, nor are they saying the person cannot stand for election.

If there is a process to elect an office holder, then it must be part of that process that people can be encouraged to nominate and people can campaign in favour of, or against, a particular candidate. In the context of an organisation like the RFS it may be unseemly for someone, particularly someone in some authority, to discourage a vote for a particular candidate but it does not mean that person will or is treating the person unfavourably when it comes to preforming the officer’s duties.

Conclusion

I haven’t seen it, nor do I want to see the email in question but given what I have been told it seems to me that whilst the email may be unfortunate, may give rise to future problems it does not appear to breach any of the WHS sections identified by my correspondent.

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  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. 

A correspondent who serves with the NSW Rural Fire Service (RFS) says:

My Local Government was merged in the 2016 Stronger Communities program.

Our local government area, the now Murrumbidgee Council was created by the former Murrumbidgee Shire Council assuming control of the former Jerilderie Shire Council. 

The NSW Rural Fire Service advised us that the districts would have to be ‘merged’ due to the local government being split between the Mid Murray and MIA Zones, but this is yet to occur. The NSW Rural Fire Service website currently refers to the areas as Murrumbidgee North and Murrumbidgee South.

My understanding is that the Jerilderie (Rural Fire District (RFD) would have to be pushed into the Murrumbidgee RFD per the legislation referenced below. Could you confirm or provide further reference material.

The website for the Murrumbidgee Council says:

History of our Council

At 12:10 pm on Thursday 12 May 2016 Jerilderie Shire Council and Murrumbidgee Shire Council ceased to exist.

The two former Councils became part of a new Council proclaimed as “Murrumbidgee Council”.

The merger created a new Local Government Area of 6,680 sq km with a population of 4,047. It encompassed the communities of Jerilderie, Coleambally and Darlington Point.

The Rural Fire Service and Rural Fire Districts

The RFS has a number of functions including the provision of ‘rural fire services for New South Wales’ (s 9(1)(a)). Rural fire services include (emphasis added) ‘services for the prevention, mitigation and suppression of fires in rural fire districts’.  In ‘fire districts’ fire services are provided by Fire and Rescue NSW (Fire and Rescue NSW Act 1989 (NSW) ss 5 and 5A). 

The Rural Fires Act 1997 (NSW) says: 

6   Rural fire districts

(1)        A rural fire district is constituted by this section for the area of each local authority, with boundaries of the district being the same as the boundaries of the area as at the date of commencement of this section. (3)  If the boundaries of the area of a local authority for which a rural fire district is constituted by this section change after the commencement of this section, the boundaries of the rural fire district change so as to correspond to the boundaries of the area.

(2)        A rural fire district is not constituted by this section for, and does not include, any land within an area that is within a fire district.

(3)        If the boundaries of the area of a local authority for which a rural fire district is constituted by this section change after the commencement of this section, the boundaries of the rural fire district change so as to correspond to the boundaries of the area.

(4)        If the whole of the area of a local authority for which a rural fire district is constituted by this section is dissolved after the commencement of this section, the rural fire district is dissolved.

(5)        If part of the area of a local authority for which a rural fire district is constituted is dissolved after the commencement of this section, the rural fire district constituted for the area is taken to have been constituted for the remaining part of the area.

Pursuant to s 6 of the RFS Act, the establishment, and amendment of the rural fire district occurs on the changes to local government areas. There is nothing the Rural Fire Service needs to do to make the changes, they are automatic. What follows is that the area of Jerilderie Shire and the area of Murrumbidgee Shire were both rural fire districts. When the councils merged, a new rural fire district was established, subject to any area that was excluded as a ‘fire district’. To put that in simple terms the RFS provided fire services in both the old and new council areas, excepting areas in any of the larger towns where Fire and Rescue NSW provided the fire services.

RFS districts and Zones

There is a difference between rural fire districts and RFS administrative arrangements. The RFS website is ambiguous. It refers to ‘Our Districts’ but then discusses various ‘districts’ and ‘Zones’. The website refers to (emphasis added):

• “The MIA district incorporates the six local government areas of Carrathool, Griffith, Hay, Leeton, Murrumbidgee and Narrandera”; and
• “The Mid Murray Zone (MMZ) incorporates the local government areas of Murray River, Edward River, and the Murrumbidgee local government area south of Coleambally.”

A map shows the various boundaries. It shows that area 37, Mid Murray Zone includes the local government areas (and therefore the fire districts) of Edward River, Murray River and Murrumbidgee. The MIA district (number 36 on the map) covers Carrathool, Griffith, Hay, Leeton and Narrandera.  There is a line that the key says is the border between the RFS districts even though it cuts through the Murrumbidgee local government area and therefore the Murrumbidgee rural fire district.

The inference is that the concepts of a ‘Zone’, and the less frequent term ‘district’ are references to administrative arrangement where the RFS has created a level of management that groups together a number of local government areas and the brigades within that area. An RFS district (eg the MIA district) and an RFS Zone (eg the Mid-Murray Zone) are not rural fire districts as defined by s 6 of the Act. That is clear when we see that the MIA district (created by the RFS for administration/management purposes) contains at least six ‘rural fire districts’ (each crated by the RFS Act). There is nothing to either require or stop the Commissioner making those sort of administrative arrangements.

Conclusion

Pursuant to s 6 the rural fire districts that were defined by the borders of Jerilderie Shire Council and Murrumbidgee Shire Council have ceased to exist and have been replaced by a rural fire district that covers the area of the Murrumbidgee Council less any land that is part of a declared ‘fire district’.  That process was automatic (RFS Act s 6) and it means that the RFS is responsible for providing fire services in that area.

How the RFS organises itself is a matter for the RFS. For the management of the RFS and the provision of rural fires services the RFS has created administrative Zones or Rural Fire Service (as opposed to rural fire) districts. It is open to the Commissioner to split the management of the service across the fire district that is to assign ‘the Murrumbidgee local government area south of Coleambally’ to one Zone, and the rest of the fire district to another Zone or district. This is not inconsistent with the Rural Fires Act s 6. That section defines where the RFS is responsible for the provision of fire services but is not about the administration of the RFS or how management responsibilities are allocated.

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  NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors. 

In response to my post ‘Commonwealth declares a national emergency’ (April 1, 2022) I was asked:

How does this affect say SASES deploying to NSW to assist eg with work etc. SASES are covered by legislation for any negative effects from employers (I believe) but only for State based work?

My reply (being the literal sort of person that I am) was “The declaration of a national emergency has no bearing on the deployment of SASES into NSW.”  That’s true but perhaps not a helpful analysis of a question that I have been asked before, which is how do the laws that empower, or limit the liability of, an emergency service (it doesn’t have to be the SES) apply when they travel interstate?”

I have previously written on the subject looking at laws that empower the emergency services – see:

• Interstate deployment (January 29, 2014);
• Interstate deployment from the ACT to NSW (June 29, 2014);
• Maintaining discipline when interstate (January 30, 2016);
• Transporting the mentally ill from NSW to the ACT (July 18, 2018);
• Mental health services by paramedics across the NSW/Victoria border (October 25, 2018);
• Carrying scheduled drugs between NSW and the ACT (December 19, 2018);
• Interstate paramedics treating the mentally ill (August 19, 2019); and
• Authority when on interstate deployment (November 13, 2019).

These posts have not looked at the liability protection provisions such as the Fire and Emergency Services Act 2005 (SA) s 127 which says:

(1)    No civil or criminal liability will attach to a member of an emergency services organisation, a person appointed or authorised to act under this Act by the Commission, or other person for an honest act or omission—

(a)        in the exercise or discharge, or purported exercise or discharge, of a power or function under this Act; or

(b)       in the carrying out of any direction or requirement given or imposed at the scene of a fire or other emergency.

(2)   A liability that would, but for subsection (1), lie against a person lies instead against the Crown.

Applying inter-state legislation

Let us assume that a member of the SA SES has, whilst in NSW, performed a task negligently, but in good faith, and someone is seeking to sue to recover their damages.  In Sweedman v Transport Accident Commission [2006] HCA 8 (at [18]; (Gleeson CJ, Gummow, Kirby and Hayne JJ) the High Court said “There is nothing necessarily antithetical to the system of federation established and maintained under the Constitution in the legislation of one State having legal consequences for persons or conduct in another State.”

Callinan J (at [116]) cited with approval a UK court decision, Macmillan Inc v Bishopsgate Investment Trust Plc (No 3) [1996] 1 WLR 387 where Aldous LJ said:

… ‘In order to ascertain the applicable law … it is not sufficient to characterise the nature of the claim: it is necessary to identify the question at issue.’ Any claim, whether it be a claim that can be characterised as restitutionary or otherwise, may involve a number of issues which may have to be decided according to different systems of law.

Where someone is suing the nature of the claim is likely to be a negligence action. Common law, as affected by the Civil Liability Act 2002 (NSW) is likely to determine whether the thresholds for liability have been established. But where the issue is the legal status of the defendant (in this context SA SES) and the obligation of the Crown in Right of South Australia to indemnify a member, then the relevant law will be SA law.  The ‘obligation … to indemnify [is] distinct from any underlying claim in tort’ (Sweedman, [27]; Gleeson CJ, Gummow, Kirby and Hayne JJ). Even if it is NSW tort law that determines if there is any liability, it is SA law that determines who, between the member and the state, is liable.

Conclusion

Laws passed in one state or territory can have application in another. If a member of a visiting emergency service commits a tort, then it may be the law of the domestic state that sets out the requirements that the plaintiff must prove to establish liability. But if they are suing the visiting member, or their agency, then it is the law of the sending state that constitutes that agency and defines who is the defendant. It is consistent with the Constitution and Australia’s federation that the legislation that identifies the legal relationship between the member, the agency and the government and which creates the potential defendant will continue to apply when that agency travels interstate to assist in an emergency.

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  NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors. 

I have previously written about potential Liability for dangerous trees (April 28, 2015; and see also Liability for advice on dangerous trees (June 13, 2016)). A case from the Land and Environment Court of New South Wales revisits these issues.]

In Byrnes v Ryan (No 3) [2022] NSWLEC 1177 (30 March 2022) before Commissioner Galwey the court had to consider liability for damage caused by a storm damaged tree that was brought down by the SES. The tree grew on the property owned by the Ryan’s but overgrew the property owned by Ms Byrnes. In 2020 Ms Byrnes had applied to the Court for orders to have the tree removed or pruned. This application was dismissed by Commissioner Douglas who held “there was no reason to interfere with the tree: it had not caused damage, nor was it likely to cause injury or damage in the near future” ([2]).

Later a branch ‘cracked’ during a windy day. The branch did not fall to the ground. The State Emergency Service (SES) were called and removed the damaged branch. In the course of the SES operations, “Ms Byrnes’ clothesline and vegetable garden were damaged. She said the fence was damaged too” ([8]).

Ms Byrnes again sought orders to have the tree removed or pruned and financial compensation for the damage to her property.

Commissioner Galway held that the fact a branch had come down meant the situation had changed and he could again consider the question of removal or pruning of the tree; that is he was not bound by Commissioner Douglas’ decision. He said (at [14]):

The recent loss of one long branch over Ms Byrnes’ property has now opened up the crown to different, and possibly greater, wind forces on that side. Another long branch over Ms Byrnes, dwelling is now more exposed. Its bark is a lighter colour than bark of the branch to which it is attached, suggesting this branch is of epicormic origin. That is, the branch is attached more weakly than an original, or non-epicormic, branch. Relying on my own arboricultural expertise and experience, I find this branch is likely to fail as a result of the recent change in circumstances. The risk can be mitigated by pruning.

As a result, His Honour made an order requiring the Ryan’s to have the tree pruned “to remove one branch over the applicant’s dwelling” ([17]).

The more interesting issue is the question of damages. As I’ve noted many times, the law does not require a guarantee of safety. Commissioner Galwey said (at [12]) that ‘the Ryans had no cause to remove the branch prior to its failure, given the Court’s earlier findings and decision’.  Further, His Honour said that “it is not clear whether [the damage] … resulted from the branch breaking and becoming suspended, or as a result of the SES personnel getting the branch to the ground. The adduced evidence does not show that the branch caused damage when it fell.”  In the circumstances he declined to order compensation.

Discussion

The duty on anyone is to act reasonably. Decisions are made with imperfect knowledge. Given the Court had rejected an application to have the tree pruned then it is reasonable that the Ryan’s did not remove it. That would mean there was no negligence.

The issue of the SES is interesting. The State Emergency Service Act 1989 (NSW) s 25A says

Any damage to property caused by the exercise in good faith of functions … by: …

(b) a person acting on and in accordance with a direction given by the Commissioner or a senior emergency officer authorised by the Commissioner under section 22A (1) during an emergency to which Part 5 applies, is taken to be damage by the happening that constitutes the emergency (being flood, storm, tsunami or other risk, contingency or event) for the purposes of any policy of insurance against the risk, contingency or event concerning an act or omission that covers the property.

That’s a long way of saying that if the tree was damaged in a storm (which is not defined; see The NSW SES is the combat agency for floods and storms – but what is a flood? or a storm? (October 6, 2015)) then any damage done by the SES is deemed to be damaged caused by a storm and the property owner (in this case Ms Byrne) could look to her insurer (if any) to cover the cost of repair.

Further s 25 says that anything done by a member of the SES “in good faith for the purpose of exercising the functions of or assisting the State Emergency Service …subject the member, officer or volunteer personally to any action, liability, claim or demand.” If it was the SES that did the damage, the members could not be liable, but the SES could be if there had been negligence in the way the volunteers performed their task (see Law Reform (Vicarious Liability) Act 1983 (NSW) s 10 – Effect of statutory exemptions). The Law Reform Act says that in deciding whether an agency like the SES is vicariously liable for the negligence of its volunteers, the fact that the volunteers have a statutory exemption is to be ignored, that is you cannot make the argument ‘the volunteer is not liable, and therefore there is no vicarious liability to be applied to the SES’. The Civil Liability Act 2002 (NSW) s 3C, on the other hand, says any protection provided to an individual by that Act extends to exclude vicarious liability. Protection of SES volunteers can be found in both Acts – SES Act s 25 and Civil Liability Act s 61. How vicarious liability will be applied – ie is the SES liable even though the volunteers are not; or does the protection of the volunteers extend to the SES – remains to be determined in a suitable case at some future time.

Arguably though, if the SES members had negligently damaged Ms Byrne’s property, then the SES could have been liable to make good the damage. But remember it’s not damage per se that is compensable, compensation is only payable when the damage is caused negligently. If there was no way to remove the risk posed by the dangerous branch without doing the damage complained of, then there could be no negligence.  Commissioner Galwey did not and could not determine whether there had been negligence by the SES. He was making a decision under the Trees (Disputes Between Neighbours) Act 2006 (NSW); it was not a common law claim for damages. Further the SES were not a party to the action, this case was between the neighbours. A court could not find that an agency that is not a party to proceedings was negligent as they had not had the chance to be heard. The issue of whether or not there had been negligence by the SES was simply not a question the Commissioner was asked or could decide.

Conclusion

This case confirms the position that I had previously argued and that is one is not liable just because your tree falls and causes damage. There has to be negligence, a failure to take reasonable care. Clearly where the issues have been canvassed before a court and a court has ruled that there is no reason to prune the tree, one cannot be under a duty to prune it and cannot be found negligent even if later, as the original applicant feared, a branch does fall and cause damage.

The position of the SES was not an issue before the court, but the facts do give rise to an interesting legal questions about the apparent contradiction between the Law Reform (Vicarious Liability) Act 1983 (NSW) s 10 and the Civil Liability Act 2002 (NSW) s 3C. This was not a case to determine the legal outcome if the SES volunteers had negligently caused the damage (and I don’t suggest that they had); but it does raise that interesting legal question.

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  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. 

A correspondent with Fire & Rescue NSW asks:

Legally what strike action are we able to do/not do? For example if a NSW government building was on fire and we only saved lives and protected non government buildings, but let the NSW government burn to ground, how would that sit with the law?

I’m not an industrial lawyer so I won’t try to understand all the ins and outs of industrial law, when industrial action is protected etc.  What I can say is that the Fair Work Commission can prohibit industrial action that would, or might, cause significant economic harm (Fair Work Act 2009 (Cth) s 423) would ‘endanger the life, the personal safety or health, or the welfare, of the population or of part of it’ or ‘cause significant damage to the Australian economy or an important part of it’ (s 424) or will have an ‘the employer, or any of the employers, that will be covered by the agreement (s 426).  Deliberately allowing NSW government buildings to burn would or could run foul of all those provisions. 

Conclusion

Regardless of any general industrial law principles (that I cannot comment on) I think we could say, with some confidence, that a deliberate policy of allowing ‘the NSW government burn to ground’ would not be lawful nor tolerated.