“Governments love to talk about ‘shared responsibility’ in a disaster – but does anyone know what it means?” This is a question posed by academics from the Queensland University of Technology (including my former UNE student and then colleague, Professor Amanda Kennedy).  They conclude:

…we need a better understanding of what “shared responsibility” actually means. Questions we need to answer include:

* Who makes the decision over the allocation of tasks at each stage of the disaster?

* Have all relevant groups and people been included in agreeing upon this allocation?

* Have duties been communicated and understood?

* Have allowances been made for unexpected situations?

Until we have these answers, the trauma of natural disasters will be compounded by confusion, inaction, political blame games and a lack of resources. And it will be individuals and vulnerable communities left to pick up the pieces.

You can read a report of their research via ‘The Conversation’ (21 March, 2022).

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

An issue that arises in disasters is the removal of waste and, particularly with floods, the escape of waste or hazardous materials into the flood waters.  Following the floods in Queensland and NSW, various exemptions had to be granted to allow for the disposal of waste and to avoid prosecutions for breaches of environmental protection legislation.

The situation is explained by Leanne O’Brien, Max Newman and Ivan Brcic from law firm Corrs Chambers Westgarth in a newsletter ‘Catastrophic flooding and murky legal waters’ which you can read on Corr’s website – https://www.corrs.com.au/insights/catastrophic-flooding-and-murky-legal-waters

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 been asked to comment on a news story from Tennessee in the United States – As a nurse faces prison for a deadly error, her colleagues worry: Could I be next? (March 22, 2022). The gist of the story is that a nurse has been charged with “reckless homicide and felony abuse of an impaired adult” for a drug error that led to a patient’s death.

The patient was supposed to get Versed, a sedative intended to calm her before being scanned in a large, MRI-like machine. But Vaught accidentally grabbed vecuronium, a powerful paralyzer, which stopped the patient’s breathing and left her brain-dead before the error was discovered.

This is a blog about Australian law so of course I cannot discuss Tennessee law. Equally I cannot comment on the facts of this case; but I can give an Australian context.

A person who causes the death of another may be guilty of any number of offences ranging from, for example, dangerous driving causing death, to murder. Murder is clearly at the top of serious criminal offences. To be guilty of murder the accused must cause the death of the deceased and intend to have caused death or serious injury and in some circumstances, realised that death would be the probable consequence of their actions (R v Crabbe [1985] HCA 22). The critical issue in murder is that it is deliberate, the accused intended or at least foresaw the fatal consequence of his or her actions. In the case cited we are told “Prosecutors do not allege in their court filings that Vaught intended to hurt Murphey…” In that case if the situation happened in Australia, it would also not be murder.

Manslaughter is unlawful killing that is one step down from murder. There are two categories of manslaughter – voluntary and involuntary manslaughter. Voluntary manslaughter is where the accused causes the death of the deceased in circumstances that would amount to murder – ie with intent to kill – but where the accused is given the benefit of one of the partial defences – provocation or diminished responsibility.  Given that the nurse did not intend to hurt the patient, again if the situation arose in Australia, it would not be voluntary manslaughter.

Involuntary manslaughter is where the accused kills the deceased without intention, but their conduct warrants criminal punishment. There are two categories of involuntary manslaughter – “manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury and manslaughter by criminal negligence” (Wilson v R [1992] HCA 31).  In the context of this discussion, unlawful and dangerous act manslaughter will not be relevant. That leaves manslaughter by criminal negligence.

In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment. (Nydam v R [1977] VR 430 at 445 (Young CJ, McInerney and Crockett JJ)).

In an earlier post (Professional discipline after serious criminal conviction – lessons from the UK (January 29, 2018). I said:

There is a difference between negligence that leads to an order for compensation and criminal negligence.  The diagram below may help:

Where conduct amounts to gross negligence (the red line, above) the negligence moves to the criminal sphere.  

Whether any particular action meets the standard that merits criminal punishment is a matter for the jury.

Conclusion

If a nurse, or a doctor, or a paramedic, makes an error in their treatment including giving the wrong drug and it can be shown that this error contributed to the death of the deceased then that practitioner could be guilty of manslaughter if their negligence went beyond ‘mere’ negligence and reached such a high level of culpability that it has moved beyond a mere matter of civil redress and demands criminal punishment.

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. 

The Sydney Morning Herald has reported (‘Minister scraps climate risk plan’ Herald AM News, 22 March 2022) that:

NSW Planning Minister Anthony Roberts has scrapped a requirement to consider the risks of floods and fires before building new homes only two weeks after it came into effect. Last week – while the state was still recovering from deadly floods – Mr Roberts revoked a ministerial directive by his predecessor Robert Stokes outlining nine principles for sustainable development, including managing the risks of climate change. 

The president of the NSW chapter of the Australian Institute of Architects, Laura Cockburn, said the move is a “short-sighted decision that could have enduring negative impacts”. But a spokesperson for Mr Roberts said the minister had been “given a clear set of priorities to deliver a pipeline of new housing supply and act on housing affordability” by Premier Dominic Perrottet. The government is also expected to scrap or substantially change the new Design and Place State Environmental Planning Policy, which emphasises sustainability, quality and liveability.

According to Kirstie Richards, Luke Salem and Larissa Hauser (‘”Nine Commandments” For The NSW Planning System: Planning Minister Announces Further Planning Reforms’ K&L Gates, (7 December, 2021; emphasis added):

The principles [for sustainable development] seek to achieve the following outcomes across nine policy focus areas:

1. Planning systems: A strategic and inclusive planning system for the community and the environment

2. Design and place: Delivering well-designed places that enhance quality of life, the environment and the economy

3. Biodiversity and conservation: Preserving, conserving and managing NSW’s natural environment and heritage

4. Resilience and hazards: Managing risks and building resilience in the face of hazards

5. Transport and infrastructure: Providing well-designed and located transport and infrastructure integrated with land use

6. Housing: Delivering a sufficient supply of safe, diverse and affordable housing

7. Industry and employment: Growing a competitive and resilient economy that is adaptive, innovative and delivers jobs

8. Resources and energy: Promoting the sustainable use of NSW’s resources and transitioning to renewable energy

9. Primary production: Protecting and supporting agricultural lands and opportunities for primary production

In an editorial (‘NSW puts property developer profits before climate action’, Sydney Morning Herald, April 6, 2022) the Herald says:

Building more houses is an important goal and it is true that some planning changes will come at a small cost but pretending climate change is not happening is not the way to solve those problems. Mr Roberts’ wilful ignorance suits developers who take their cash and move on to the next project but it is the poor residents who will discover five, 10 or 15 years from now, like those in Lismore, that their dream homes are not liveable.

In Western Australia (Sarah Brookes, ‘WA government denies fire boss power to veto ‘undefendable’ property developments’ Sydney Morning Herald, 1 April 2022) says that a:

… group fighting a controversial property development in the Perth Hills are disappointed the State Government has ignored an independent recommendation to give the DFES Commissioner the power to veto new subdivisions that would be undefendable during a major blaze.

The recommendation was one of 13 made public this week following a State government commissioned independent review into the 2021 Wooroloo bushfire that razed 86 homes and burnt through 10,000 hectares…

Save Perth Hills chair Jeremy Hurst said allowing the DFES Commissioner the power to veto residential developments in high-risk regions made sense.

“We cannot permit land developers coming into Perth’s volatile hills seeing only development dollars and not human dangers,” he said.

In another story Peter Hannam (‘Property developers fight NSW bid to make houses more energy-efficient and climate-resilient’ The Guardian, 28 March 2022)) discusses the NSW ‘draft Design and Place state environmental planning policy’.  He says:

According to the government’s commissioned cost-benefit analysis, the policy would add costs of $2.3bn over 30 years but be outweighed by almost $3.3bn in benefits. Despite that assessment, the industry has objected.

If one looks simply at cost/benefit the benefits clearly outweigh the costs, but the problem is often that the person who pays the costs is not necessarily the person who benefits.  For example requiring ‘apartment blocks to be built with electric vehicle charging stations’ will be great for those with electric vehicles but that may not be any of the current purchasers who may want to focus on their immediate budget and so not want to pay for what is an abstract future benefit even if the economics says its good value for money.

Discussion

Review after review into natural hazards shows that effective land use planning is a key to reducing exposure and vulnerability to hazards. At the next AFAC conference there will no doubt be papers that raise the question ‘why are people allowed to build in flood and fire prone areas?’ The answer appears to be a commitment to “a pipeline of new housing supply and act[ion] on housing affordability”. 

Delivering more housing, affordable housing and encouraging people to return is both a short-term benefit to government as well as a legitimate policy goal. People need to have houses and we can see with current house prices we need affordable housing stock. Simple economics says that if there is an increase in supply there should be a decrease in price (though I suspect the housing market is not governed by simple economics).  Governments have to balance these various competing demands – people want to live where they live, they cannot afford or don’t want to relocate, there are benefits in living where they do that they want to balance against the economics, we live in a society that values free choice and private property rights so if someone owns a block of land there are difficulties telling them what they can and cannot do (it’s clearly not impossible, we have land use planning and development laws, but it is problematic).  Balancing those issues against the risk of flood or fire is a matter for government, policy and politics (see M. Eburn and B. Jackman, ‘Mainstreaming fire and emergency management into law’ (2011) 28 Environmental and Planning Law Journal 59).

Can a homeowner sue the developer or council if and when their home floods or burns? Generally no. There is a separation of powers between the judicial arm of government and the executive and legislative arm of governments. The judiciary are not there to make judgments we wish the other branches of government would make.  As Beech-Jones J said in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 at [7] ‘… [I]t is not the Court’s function to determine the merits of the exercise of the power by the Minister … much less for the Court to choose between plausible responses to the risks’  (see Requiring COVID vaccines for emergency workers (April 1, 2022). Beech-Jones J was talking about the risk of COVID but the principle is the same. 

Because there are many plausible responses to the risks posed by both climate change and the demand for housing it is left to government to determine the response. Whether that is in favour of more development, or less, is a political choice. Governments cannot be sued for political choices as all choices have some winners and some losers. Governments are held to account at the ballot box.  Accordingly, decisions by a minister to scrap ‘a requirement to consider the risks of floods and fires before building new homes’ or to reject ‘an independent recommendation to give the DFES Commissioner the power to veto new subdivisions that would be undefendable during a major blaze’ is not something a court can review. Further a government does not owe a duty of care to particular individuals to make its policy choices as they are not making decisions for individuals and the class of people to be considered would be the entire electorate. A duty could not be owed to everyone affected one way or the other by a policy choice (see for example Barclay Oysters v Ryan [2002] HCA 54, [14] ‘the reasonableness of legislative or quasi-legislative activity is generally non-justiciable’; Minister for the Environment v Sharma [2022] FCAFC 35 at [7] ‘matters that are core policy questions [are] unsuitable in their nature and character for judicial determination…’).

Conclusion

Because there are many plausible responses to risk, governments are elected to navigate the path through those plausible responses. The answer to ‘why we let people build in hazard prone areas?’ is because governments choose to allow it.  Recent decisions by both the NSW and WA governments suggest, notwithstanding the scientific warning and lived experience of floods and fires, that their response is in favour of “… a pipeline of new housing supply…”

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. 

In Fire Brigade Employees’ Union of New South Wales v Industrial Relations Secretary on behalf of Fire and Rescue NSW [2022] NSWIRComm 1016, the Union challenged proposals put forward by Fire and Rescue NSW (FRNSW) to deal with situations where there are insufficient numbers of retained (ie part time) firefighters available to staff an appliance.  FRNSW had proposed new orders to deal with the situation. In simple terms they would move permanent appliances around the network to cover gaps before recalling permanent firefighters (who would then be paid overtime and relief penalties) to fill the gaps.

At [8], [10] and [13] the Commission said of the proposed arrangements:

First, the list of stations at which a pumper may be taken off line would increase from 34 to 56. FRNSW described the Proposed In Order as providing that “an additional 22 fire appliances at retained stations across the State may be taken offline”, representing “4.35% of the entire operational fleet and a 15% increase in the number of appliances available to be taken offline under In Order 2008/22” …

Second, the Proposed In Order would add a step in the crew supplementation process by allowing a permanent appliance and crew to be moved up to cover a retained station with a staff shortage, prior to the recall of off-duty permanent firefighters. …

Third, where a retained appliance has been taken off line due to a staff shortage, the Proposed In Order would permit a crew of two to respond to an incident with the appliance, provided that they engage only in defensive firefighting until sufficient number of firefighters have arrived to allow for a change in firefighting strategy…

The FBEU opposed the new order on the basis that

(a)   by allowing additional stations to be taken offline, the Proposed In Order will on average result in an increase in the response time and therefore have an adverse impact on FRNSW’s firefighting ability; [and]

(b)   the changes introduced by the Proposed In Order will pose safety risks for firefighters;…

The Union argued (at [65]) that no fire appliance should be taken ‘off line’ but the evidence was that fire appliances were moved between stations all the time, necessarily leaving some stations without an appliance. Commissioner Sloan said ([68]-[71]):

This evidence demonstrates that the FRNSW system is already being treated as a network capability. The question appears to be whether in this context a permanent appliance ought to be capable of being moved up to address staffing shortages at a retained station. I make two observations.

First, I consider that a restrictive, prescriptive and inflexible approach to the taking off line of appliances or stations due to staff shortages is inconsistent with a modern approach to risk management. Such an approach would be out of step with the manner in which the network capability is deployed by FRNSW for other operational reasons.

Second, the decision to take an appliance off line is not irreversible. The evidence demonstrated that if the staffing shortage at a retained station is resolved, the appliance will be restored to online status.

I find that the adoption of the Proposed In Order, underpinned by the Resource Index, the RAM and the DCT, is more reflective of a contemporary approach to incident and risk management than the perpetuation of the more rigid approach mandated by In Order 2008/22.

It was agreed that taking appliances off line could increase the risk to the public by increasing response time and decreasing the resources in the network ([83]-[84]).  As Commissioner Sloane noted (at [85]):

The question becomes whether any such risk warrants the intervention of the Commission, or is properly to be left managed by the Commissioner of FRNSW within the purview of his statutory mandate. 

The problem is that retained fire stations are largely in rural and regional areas of the state ([91]) and necessarily have a slower response time than city based permanent brigades. The evidence was (at [93]-[95]):

… that after 10 minutes a fire crew would be unlikely to be looking at saving lives and property, but rather “protecting exposures”.

It was common ground that it takes a fully staffed retained station, on average, approximately 15 minutes to arrive at an incident.In those circumstances, it is difficult to see on the evidence adduced by the FBEU how any additional delays would be significantly more likely to result in loss of life or property.

It was also reasonably common ground that where a permanent station moves up to a retained station, the local area will be better protected as the permanent crew will be able to respond more quickly to an incident than a retained one. This is a relevant consideration, albeit not a complete answer to the FBEU’s concerns. While move ups would be permitted under the Proposed In Order, it could not happen in every case. There will be instances where retained stations will be taken off line.

Further, there was evidence to suggest that allowing for at least two firefighters to attend an incident with an appliance and engage in defensive firefighting might enhance public safety…

Commissioner Sloan concluded (at [98]):

… in light of all of the evidence, I am not persuaded that to the extent that the Proposed In Order might increase response times, it would have a material bearing on public safety, either in terms of lives or property lost.

As for allowing less than four firefighters to respond to an incident but only to engage in defensive fire fighting, this had been the policy at FRNSW since at least 2008.Commissioner Sloan said (at [113]):

I am not persuaded that by allowing a minimum of two firefighters to attend an incident with an appliance the Proposed In Order materially increases the risks to firefighters. I do not accept the premise of the FBEU’s case that, in essence, firefighters cannot be trusted to comply with FRNSW’s policies and procedures, when the evidence overall suggests the contrary. The Proposed In Order does not, in this regard, impose unfair or unreasonable demands on firefighters.

Conclusion

The Fire Brigade Employee’s Union had sought an order ‘to the effect “that FRNSW is not to implement the Proposed In Order’ rather the status quo (set out in In Order 2008/22) was to be retained. We do not need to detail what In Order 2008/22 says.  We only need to note that the FBEU’s application was denied allow FRNSW to implement the new process that may see more retained appliances taken off line where there are insufficient retained firefighters to form a crew; and permanent firefighters will be moved around the network to fill the gaps left by the reduced capacity.  It will also be the case that where there are less than four retained firefighters, they may (not must; see [109] and [122]) respond to a fire call but must limit their response to defensive firefighting only.

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.

My first correspondent in the new look blog says:

The private company I work for wishes to not delineate between paramedics and nurses anymore, calling them instead ‘Medics.’ Fair enough I guess, it’s only a contractual name, however my concerns lie with the company taking that a step further by placing nurses in remote solo operator locations and expecting them to practice efficient pre-hospital care in pre-hospital situations without doctors present using paramedic clinical guidelines.

What do you see as the risks to the nurse (and then to the employer) that is placed in a predominantly pre-hospital role and being expected to use paramedic clinical guidelines, and vice-versa the risk to the paramedic that is placed in nursing scenarios without a doctor present using paramedic clinical guidelines? Both scenarios have emergency physicians available by phone, but nurses aren’t trained in paramedic processes and treatment decisions so would need to call the physician immediately/earlier? Can nurses practice paramedicine I guess is the crux of the issue.

The Health Practitioner Regulation National Law does not define scope of practice, it works by protecting titles. There is no law that says ‘this is what nurses do; this is what paramedics do’.  Nurses and paramedics work in many areas and many nurses do work that others may consider ‘paramedic’ work – think flight nurses and nurses in remote medical facilities. Equally, one of the arguments in favour of paramedicine registration was that paramedics could add to a flexible health workforce and paramedics are moving into areas that some might think is nursing work – think extended care and palliative care paramedics and see various posts by ‘the Paramedic Observer’).

I can demonstrate this point with the venn diagram below:

What is ‘paramedicine’ (and what is nursing) are largely matters for the relevant boards. The Paramedicine Board sets out ‘Professional capabilities for registered paramedics’. This document sets out the minimum skills expected of a paramedic but even that doesn’t go into details of particular clinical interventions. The Board also accredits programs leading to registration (https://www.ahpra.gov.au/Accreditation/Program-accreditation-and-approval.aspx) and that in turn gives some indication of what it is that paramedics (at least new paramedics) must be able to ‘do’.  Newer paramedics and nurses may have clear ideas of what is ‘nursing’ and what is ‘paramedic’ practice but a practitioner with many years’ experience in different areas may feel comfortable and experienced in skills that cross over the two professions.   

Fundamentally then what is paramedic, and nursing practice is determined by individual paramedics and nurses.  A nurse who is employed as a ‘medic’ (as described) is practising nursing as a paramedic is practising paramedicine. Each is answerable to their registration board that will ask did they practice as a good member of their profession but that mostly involves issues of professionalism, self-reflection and being able to draw their own lines on what they can do and what is beyond their skills, knowledge and experience. The issue is not whether ‘nurses [are or] aren’t trained in paramedic processes and treatment decisions’ but whether the particular nurse, or paramedic is trained and competent to perform the tasks they are being employed to do.

As the Paramedic Code of Conduct says (at [1.2]):

Professionalism … includes self-awareness and self-reflection. Practitioners are expected to reflect regularly on whether they are practising effectively, … They have a duty to keep their skills and knowledge up to date, refine and develop their clinical judgement as they gain experience, and contribute to their profession.

Practitioners have a responsibility to recognise and work within the limits of their competence and scope of practice. Scopes of practice vary according to different roles; …. To illustrate, in relation to working within their scope of practice, practitioners may need to consider whether they have the appropriate qualifications and experience to provide advice on over the counter and scheduled medicines, …

The risk for nurses and paramedics in the context given, and, in any context, is that they will be asked to perform tasks that they are not competent to perform. That competence does not depend on a fine line between nursing and paramedic practice but on their own experience. Many nurses practice in ways that overlap with paramedicine and vice versa.

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. 

During the response to the pandemic, the Victorian government introduced the Public Health and Wellbeing (Pandemic Management) Bill 2021 (Vic). This Bill created a great deal of criticism and controversy. Objectors to this Bill took part in street protests in front of the Victorian Parliament (‘Thousands protest in Melbourne CBD as Victoria records 1,221 new local COVID-19 cases, four deaths’ ABC News (Online) 13 November 2021). The Victorian Bar Association (ie the collective association for Barristers) said that the Bill was ‘subject to a rushed and/or severely curtailed consultation process’ (https://www.vicbar.com.au/news-events/public-health-and-wellbeing-pandemic-management-bill-2021).  The Bar had a number of objections to the Bill, summarised as:

The Bill confers powers that can be appropriately described as draconian in authorising virtually unlimited interference with the liberties of Victorian citizens.  Yet the Bill lacks the appropriate checks and balances to ensure the proper exercise of these powers. This represents the biggest challenge to the rule of law that this State has faced in decades.

The Bar Association made a submission to the Department of Health Expert Reference Group – a summary of which can be seen here – https://www.vicbar.com.au/news-events/summary-victorian-bar%E2%80%99s-submission-department-health-and-expert-reference-group-public.

In light of the criticism a number of amendments were made to the Bill. This article will look at the Act as passed by the parliament. Readers can look to the material cited above (and other news stories published at the time) if they want to see what was originally presented to Parliament and identify differences between the Bill when introduced, and the Act when finally passed.

The Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 (Vic)

Importantly this Act introduced a new Part 8A headed ‘Protection of life and public health during pandemics’. There had been objections that Victoria’s response to the COVID pandemic was uninformed, politically motivated and/or caused breaches of human rights (see for example, Victorian Ombudsman ‘Tower lockdown breached human rights, Ombudsman finds’ 17 December 2020).  With Part 8A the Parliament tries to ensure (s 165(b)):

… that decisions made and actions taken under this Part are informed by public health advice and other relevant information including, but not limited to, advice given by the Chief Health Officer;

This appears to be a recognition that there are issues involved beyond health issues. That the government is to take into account other ‘relevant information’ may be something that some see as a good idea, and others would object to. If the ‘relevant information’ is how a decision will impact upon a governments political standing, many might think that is irrelevant. If, on the other hand, other ‘relevant information’ is information about how a public health response will impact upon particular groups, the economy or liberties that may be a good thing.

In the amendments the Parliament (s 165A(2)):

(a)        recognises the importance of protecting human rights in managing the serious risk to life, public health and wellbeing presented by the outbreak or spread of pandemics and diseases of pandemic potential; and 

(b)       intends that nothing in this Part displaces the operation of the Charter of Human Rights and Responsibilities; and 

(c)        intends that the Charter of Human Rights and Responsibilities therefore applies to the following— 

(i)         the interpretation of this Part and subordinate instruments made under this Part; 

(ii)        acts done, and decisions made, under this Part by public authorities.

That sounds absolute but it has to be remembered that the rights guaranteed to Victorians are not absolute. The rights listed in the Charter of Human Rights and Responsibilities may be subject to (Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7):

 … such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—

(a)        the nature of the right; and

(b)       the importance of the purpose of the limitation; and

(c)        the nature and extent of the limitation; and

(d)       the relationship between the limitation and its purpose; and

(e)        any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

What follows is that even with a commitment to human rights expressed in s 165(2) it is not a guarantee that the rights enjoyed by Victorians will look the same during a pandemic as they would be in the absence of a pandemic.

Critically the Act provides that the Premier may make a pandemic declaration if he or she is satisfied (s 165AB):

… on reasonable grounds that there is a serious risk to public health arising from— 

(a) a pandemic disease; or 

(b) a disease of pandemic potential.

This is consistent with the provisions of the Emergency Management Act 1986 (Vic) which provides (in s 23) that the Premier may declare a state of disaster. It may be thought that brining the public health pandemic response in line with the response to other events (floods, fires etc) is an example of an ‘all hazards’ approach.

A pandemic declaration is in force for not more than four weeks, but it may be extended (s 165AC(1)(c)).  The declaration may be extended by the Premier. Each extension must be for no longer than three months (s ; but given there is no limit on the number of times the declaration may be extended there is in effect no statutory end time for a pandemic emergency (s 165AE(5)). That may be a good thing because a pandemic disease will not follow the law so it might be wrong to impose a limit where a pandemic is ongoing. On the other hand, allowing the Premier and not, say, the Parliament to extend the declaration indefinitely may be a dangerous grant of power.

There are provisions for review by Parliament. When making or extending a declaration the Premier must report to Parliament, whether the Parliament is sitting or not (ss 165AG and 165AH).

Once a declaration is made the Minister is empowered to act and to make orders ‘that the Minister believes is reasonably necessary to protect public health’ (s 165AI). Again, this is consistent with the Emergency Management Act where the relevant Minister is empowered (s 24) by the Premier’s declaration. This is also consistent with international best practice that the person who makes the relevant declaration is not the person empowered to act (Michael Eburn, Australia’s International Disaster Response – Laws, Rules and Principles (2010, VDM-Verlag, Saarbrucken, Germany)). It is some limitation on a Premier’s willingness to make a declaration when they know that it will be one of their subordinates who is empowered to take the lead in the relevant response.

This is however a significant change from the earlier version of the Act where it was the Chief Health Officer who was empowered to make public health orders. One might think that it is better to leave these decisions to the Chief Health Officer on the basis these are health only issues. On the other hand, some would prefer to see the matter referred to the Minister on the basis that the Minister is accountable to the Parliament and the electorate in a way a public servant is not; and the Minister can take the ‘bigger picture’ into account. The Minister, as an MP, is elected as a representative of his or her electorate and the electorate generally and can be expected to take into account relevant matters that are outside the focus of a health officer.

Any pandemic order made by the Minister must be considered by the Pandemic Declaration Accountability and Oversight Committee (s 1656AS).   That Committee can recommend that the order be withdrawn or suspended. An order can be disallowed by a joint sitting of both houses of the Victorian Parliament (s 165AU). Critically the Parliament can revoke a pandemic order made by the Minister; but not the Premier’s declaration that a pandemic exists.

There are many other provisions dealing with delegations, the power of authorised officers, the power to detain a person and the provision of a review process where a person has been detained. The extent of the orders and how they may be limited (eg by geography or to people on the basis of relevant characteristics eg age, vaccination status etc).  Given the wide range of discretion it is possible that the Act may be abused to target groups; but equally it may give the Minister and the public health advisers the flexibility required to address a public health risk with targeted public health orders. Whether one sees this Act as a draconian overreach or a necessary modernisation and application of lessons learned from COVID-19 no doubt depends on how one sees their government and one’s own views on the COVID pandemic.

Conclusion

This review cannot deal with all the details in the amendments which are significant. Key points to take from here is that there have been changes to the public health law that do empower the government to impose quite severe limitations on movement and other liberties. That is not new but now the key decision maker is the Minister, not the Chief Health Officer. But the amended Act comes more into line with the Emergency Management Act, creating a more coherent ‘all hazards’ emergency response scheme for Australia.

How the Act will be used, and its outcomes – good or bad – remain to be seen.

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 March 2022, the Commonwealth government declared that the flood emergency in Lismore, NSW was a national emergency (see Stephanie Borys and Henry Belot ‘Prime Minister declares floods a national emergency, more money for residents in Lismore and other NSW towns’ ABC News (Online) 9 March 2022). This was the first use of the Commonwealth’s powers under the National Emergency Declaration Act 2020 (Cth).

According to Borys and Belot:

The emergency declaration gives the federal government power to deploy money and resources faster and is a legislative power that [the Prime Minister] Mr Morrison sought after the 2019-2020 bushfire crisis.

Mr Morrison said he intended to ask the Governor-General on Friday to formally make the declaration, which would cover both NSW and Queensland. 

“To make sure all emergency power is available and we cut through any red tape that might be faced,” he said.

Mr Morrison said to make the declaration, both the NSW and Queensland premiers had to formally request it.

I have previously written about the National Emergency Declaration Act – see Federal Parliament passes the National Emergency Declaration Bill 2020(December 15, 2020).  As I noted in that post:

The effect of the declaration is that it gives Ministers the power to modify or vary provisions of legislation (s 15) that

… requires or permits any of the following matters (a relevant matter):

(a) the giving of information in writing;

(b) the signature of a person;

(c) the production of a document by a person;

(d) the recording of information;

(e) the retention of documents or information;

(f) the witnessing of signatures;

(g) the certification of matters by witnesses;

(h) the verification of the identity of a person;

(i) the attestation of documents;

(j) the reporting or notification of a matter to a Department, agency or authority of the Commonwealth.

The other effect is that whilst a national emergency declaration is in force:

The Prime Minister may, by written notice, require an accountable authority of a Commonwealth entity to provide specified information to the Prime Minister for the purposes of preparing for, responding to or recovering from an emergency to which the national emergency declaration relates.

It is not clear how these powers would or did affect the flood affected citizens of Lismore and other areas.

With respect to a request for a declaration, Queensland Premier Palaszczuk was quoted (Bryant Hevesi, ‘National emergency declaration: Annastacia Palaszczuk says ‘we’ve actually gone past that’ as flood waters in Qld recede’ skynews.com.au, March 10, 2022) as saying:

“Queensland has very good disaster management arrangements in place, unfortunately we’ve seen a lot of national disasters so we actually respond very quickly,” Ms Palaszczuk said. 

“We’ve actually used our own state specific disaster declarations and they’ve provided us with all the necessary powers that we need, especially when it means like closing roads or closing schools or relocating people.”

…

“All [the National Emergency disaster declaration] … does is effectively remove some red tape when it comes to how Commonwealth agencies are able to perform their duties in relation to this disaster. It doesn’t impact on the ADF resources. They’re already fully available. It doesn’t trigger any payments.” 

But the Prime Minister was only partially correct when he said ‘to make the declaration, both the NSW and Queensland premiers had to formally request it.’  A request from the Premier of an affected state is only one ‘trigger’ for a declaration (s 11(1)(c)(i)).  A declaration can be made, without the request of the State Premier, where the Prime Minister is satisfied that ‘the making of the declaration is appropriate, having regard to the nature of the emergency and the nature and severity of the nationally significant harm’ (s 11(1)(c)(iv)).  Later (‘Flood-ravaged Queensland set to be included in federal government’s emergency declaration, despite earlier refusal’ ABC News (Online), 10 March 2022) the ABC reported that the declaration was to be extended to Queensland ‘… despite Premier Annastacia Palaszczuk’s earlier refusal of the offer.’ The article continues:

“I think there’s been a bit of a misunderstanding about what the state of emergency declaration entails,” Mr Morrison said.

“It does not impact on the flow of funding support of defence force assistance or any of those things, that is all flowing.

“What it does is it assists the Commonwealth government in managing the regulatory issues in a more streamlined way, which particularly becomes more relevant as you move through the recovery phase.”

A spokesperson for the Premier’s office said it was a decision for the Commonwealth.

“It doesn’t require the Premier’s agreement,” they said.

One might infer that indeed the declaration was made without the Queensland premier’s request.

Under the National Emergency Declaration Act 2020 (Cth) s 14A the Senate Standing Committee on Legal and Constitutional Affairs must conduct a review of the declaration within one year of the declaration being made. We may have to wait until that review, or the report of the independent inquiry into the floods (‘NSW Government establishes independent flood inquiry’, NSW Government, 21 March 2022) to determine what, if anything, the declaration achieved and if any orders were made to relax Commonwealth requirements as part of the response to the floods.

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. 

This report is from the ABC: https://www.abc.net.au/news/2022-03-31/ambulance-victoria-paramedics-human-rights-report/100953792

The COVID-19 pandemic has seen restrictions and obligations imposed on the entire Australian community. Many of the steps taken to control the pandemic are unprecedented within Australian living memory.  One response to the pandemic has been to require people in some professions to be vaccinated against COVID if they are to continue in their role. This article will review legal challenges to these directions.

Work health and safety

A person conducting a business or undertaking (a PCBU) is required to take reasonable steps to ensure that workers (including volunteers) are not exposed to unnecessary risks to health and safety due to their work. Further there is an obligation to take reasonable steps to ensure that the work does not expose others, such as clients and customers, to a risk to their health and safety. To meet those obligations, a PCBU may require employees or volunteers to get vaccinated.

Before implementing WHS procedures and policies or changing employment conditions, a PCBU must consult with affected workers (ss 47 and 49). It was this failure to consult, rather than any fundamental rule against vaccine mandates, that led to a ruling that a mandate imposed by BHP was not lawful (CFMEU v Mt Arthur Coal [2021] FWCFB 6059).

Further, a PCBU that requires all employees to have a vaccine will have to demonstrate why, whether alone or with other control measures, that was a ‘reasonably practicable’ step to protect either the workers, or those affected by the work, from the risk of COVID-19. Deputy President Dean of the Fair Work Commission (in dissent) said (Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015. [138]):

It is very clear that a range of control measures will need to be implemented by employers to meet their health and safety obligations… [C]ontrols (based on a proper assessment of the risk in a particular workplace) might include appropriate air ventilation and filters, personal protective equipment including masks, staggered meal breaks, increased use of outdoor areas etc. The simple act of requiring people to stay at home if unwell and symptomatic will no doubt have a significant impact on the spread of all coronaviruses (whether a cold, flu or COVID).

Identifying that a vaccine is a necessary part of the reasonable control measures will be easier in some workplaces compared to others.  Paramedics for example are exposed to people in uncontrolled environments. People cannot be asked to refrain from calling paramedics if they are unwell as that if the very time, they need paramedics. Paramedics cannot ‘socially isolate’ from their patients. The use of PPE may reduce risk of infection, but that risk is further reduced with vaccination. Further paramedics who are not vaccinated may pose a risk to vulnerable patients. As Adamson J said in Larter’s case (Larter v Hazzard (No 2) [2021] NSWSC 1451, [83], discussed in more detail below):

… the effect of the orders was to remove the increased risk of transmission posed by unvaccinated NSW Health workers. It would be of no comfort to the vulnerable patient who is infected by the unvaccinated health care worker to be told that he or she was unlucky by being in the wrong ward at the wrong time because most health care workers had been vaccinated.

Similar arguments could also be made for rescue operators who must also operate in close contact with patients. Whether those arguments apply to fire fighters and others depends on all the circumstances. What is clear is that relying on the Work Health and Safety Act does not give an easy answer to the question of whether employers can or must require their workers to be vaccinated.

Public Health Orders

The presence of public health orders changes the issue. Where an order has been made under relevant public health legislation, or as has happened in some cases, emergency management legislation, then those operating in that environment have no choice but to comply. To draw a parallel an employer cannot employ someone to drive an emergency vehicle if they do not have a licence. The person may be a competent and safe driver but the obligation to have a licence is imposed by law and the employer has no choice but to comply.

Kimber v Sapphire Coast Community Aged Care Ltd involved a nurse who did not want to get an influenza vaccination. On 24 March 2020, the NSW Minister for Health made a Public HealthOrder which said that an employee of a residential aged care facility must not enter the facility if they did not “have an up-to-date vaccination against influenza, if the  vaccination  is available to the person” (Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [6]).  Sapphire Coast Community Aged Care wrote to Ms Kimber and advised her that because of her refusal to get vaccinated she was ‘unable to perform the inherent requirements’ of her role and so she was dismissed. The majority of the Full Bench of the Fair Work Commission upheld the finding that her dismissal was not ‘unfair’. They said (Ibid [54] (Vice President Hatcher and Commissioner Riordan):

Ms Kimber was at the time of her dismissal legally prohibited from working at Imlay House. That plainly made the continuation of her employment untenable. In circumstances where Ms Kimber was given ample opportunity by her employer to get vaccinated or demonstrate that she had a medical contraindication, no other consideration could operate to render her dismissal unfair.

Where there is a valid public health order, an employer has no choice to comply and if that order requires that a certain class of workers are vaccinated then the employer cannot continue their employment if they refuse to get the vaccination. But are the public health orders lawful?  That was the question in Kassam & Henry v Hazzard & Ors and again in Larter v Hazzard, a supreme court case involving a NSW paramedic.

In Kassam’s case (Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320)Justice Beech-Jones went through arguments regarding the scope of the powers vested in the Minister for Health and whether the orders made were unconstitutional or beyond the power of the Minister. This paper cannot deal with each step in His Honour’s reasoning but notes that all the objections were dismissed. His Honour’s reasoning was confirmed by the NSW Court of Appeal (Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299). In response to the claim that the various orders were a vaccine mandate, His Honour said (Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, [9]):

… the proper analysis is that the impugned orders curtail freedom of movement which in turn affects a person’s ability to work (and socialise). So far as the right to bodily integrity is concerned, it is not violated as the impugned orders do not authorise the involuntary vaccination of anyone.

In the Court of Appeal, Bell P said (Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299, [95]-[96]):

None of those Orders mandated vaccinations nor compelled citizens to be vaccinated, and none of the Plaintiffs in either set of proceedings had been vaccinated… 

The Orders recognised that not all workers may choose to be vaccinated, and that choice was respected. Vaccination was not a requirement under the Orders; rather, it was an element of the conditions by reference to which a worker would be permitted to take advantage of an exemption, namely to leave a particular area …  or to enter a particular place…

Leeming JA said “… “free choice” is a label which disguises the fact that many choices commonly made by people are influenced by incentives and burdens, which are not uncommonly put in place for the express purpose of altering behaviour” (Ibid [170]). Or, as Senator Jaccqui Lambie said “You have freedom to make a choice but, if you make a choice, those choices have consequences” (Commonwealth, Parliamentary Debates, Senate, 22 November 2021, 10 (Jacquie Lambie).

John Larter was a NSW Paramedic who chooses not to have the COVID-19 vaccination. He argued that the orders went too far. In making that argument he relied on the principle of legality – a principle of statutory interpretation that says a statute should not be held to interfere with fundamental rights and freedoms unless that intention is expressed by clear language. Her Honour Justice Adamson said (Larter v Hazard (No 2) [2021] NSWSC 1451, [80]):

The object of s 7 [of the Public Health Act 2010 (NSW)] is to permit orders to be made which may, for the greater good, interfere with fundamental human rights, such as freedom of movement. In these circumstances, the principle of legality is not of any real assistance in discerning the meaning of particular provisions…’

The Parliament had provided that “[t]he protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this [Public Health] Act” (Ibid [83]). In doing so the Parliament had given the Minister an intentionally broad power. It is not the role of the court to assess each of the options and make some determination as to which decision the minister should have made. As Beech-Jones J said in Kassam (Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, [7]):

… [I]t is not the Court’s function to determine the merits of the exercise of the power by the Minister … much less for the Court to choose between plausible responses to the risks to the public health posed by the Delta variant. It is also not the Court’s function to conclusively determine the effectiveness of some of the alleged treatments for those infected or the effectiveness of COVID-19 vaccines … These are all matters of merits, policy and fact for the decision maker and not the Court. Instead, the Court’s only function is to determine the legal validity of the impugned orders which includes considering whether it has been shown that no Minister acting reasonably could have considered them necessary to deal with the identified risk to public health and its possible consequences.

The Minister might choose to require certain workers to be vaccinated or he or she may take another of many options. In Larter’s case, Justice Adamson said (Larter v Hazzard (No 2) [2021] NSWSC 1451, [86]):

… The range of decisions reasonably open to the Minister is, in this context, wide. As long as the decision sought to be impugned falls within the ambit of those which are reasonably open, this Court has no power to set it aside on the grounds of unreasonableness. Each of the decisions between available alternatives are policy questions which Parliament has decided are to be matters for the Minister’s consideration and decision.

Her honour dismissed all the challenges to the relevant order requiring Mr Larter and other health care workers to be vaccinated.

Conclusion

I understand that both Larter and Kassam have sought leave to appeal to the High Court of Australia. Until the High Court rules on either matter the conclusion to be drawn is that 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.  Workers do retain a choice, there have been no orders that ‘authorise the involuntary vaccination of anyone’. Workers have a choice, but choices often come with a cost. In this case a worker in an area subject to an order must choose between the vaccine or their job. That is a hard choice, but it is a choice.

For readers of this blog these decisions are relevant first (and obviously) because they may be subject to a similar direction and these decisions explain the impact of those directions. On a different note, these decisions suggest that there is a wide discretion given to those empowered by legislation to make emergency decisions. Where in a flood or fire a duly authorised emergency officer makes a direction that impacts upon liberties, such as decision to order an evacuation or to restrict access to an area, or to cut off fuel or electricity, they too will be judged – not on the merits of the decision – but on whether they were legally empowered to make it.  Courts can be expected to leave decision making to those charged with the lawful authority to make those decisions recognising that in an emergency, however caused, decisions must be made and some of those decisions will impact upon what we perceive to be our fundamental rights and freedoms. It is in recognition of that need that legislation like public health and emergency management legislation has been passed.

This blog is returning with some slight changes, but first,

What is staying the same?

For 12 years the blog has been operated as a public access site, anyone can read it, and anyone can comment. This will remain.

What’s changing?

Back in January I ran a poll to see if people would be interested in subscribing to the blog. An overwhelming response was that the blog was of value but organisations should support it allowing it to remain open to the largest number of people. That has been successful, and I’m pleased to announce that the blog will continue and that is made possible by generous financial support from (in alphabetical order):

• the Australasian College of Paramedicine (ACP);
• the Australian Paramedics Association (NSW) (APA);
• Natural Hazards Research Australia;
• the NSW Rural Fire Service Association (RFSA); and
• the NSW SES Volunteers Association (SES VA).

.Although these donors will allow the blog to continue, they will not be responsible for the content of the blog. I will remain solely responsible for the views expressed, including any errors or omissions. Equally, because any views expressed are mine, they do not necessarily reflect the views of the donors.

The generous support of these organisations means I will continue to operate a ‘free to air’ blog for the next 12 months at least.  For members of ACP and APA there will be premium, subject specific content available via their social media and other channels. If you are a member of those organisations do look to them for further details.

Where you can access the blog is also changing. The High Court of Australia in Fairfax Media v Voller [2021] HCA 27 gave a chilling warning to those in social media. The Court found that news services were publishers of defamatory comments posted by members of the public on their Facebook pages. I anticipate that the same reasoning would also apply to LinkedIn.  I have never been a big user of LinkedIn (see Accessing this blog via LinkedIN and Twitter(January 18, 2020)) so, because of the need to moderate comments the LinkedIn feed will not be renewed.

The blog will continue to go out via Facebook and on the WordPress site.  On WordPress all comments are moderated before they appear.  Publication on Facebook will require moderation of comments after they appear.  If that becomes too onerous (see Answer questions, responding to posts (May 19, 2019) and Where’s my comment (August 22, 2020)) I will turn off the Facebook comments option.

I will continue the twitter feed, but the handle will change to @AusEmergencyLaw. If you liked receiving a Tweet with each new post, you will have to follow this new ‘handle’. Remember that I don’t use Twitter so questions, comments and replies via Twitter will not be seen.

In my post of 24 January I raised the possibility of resurrecting this blog. Based on the response to my survey, I am still exploring options. I expect to be able to make an announcement about the future of this blog by not later than the end of March. Watch this space …

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On 31 July 2021 the Australian Emergency Law closed. Since then there have been ongoing developments, particularly with the pandemic – decisions in Kassam and Larter’s cases, new Victorian legislation etc. I would like to return to blogging. Previously I was paid by a public university but now the project needs to fund itself. If I resumed the blog, but on a pay-by-month basis, would you be willing to subscribe? To help me understand whether there is sufficient interest, I invite everyone to complete a short (5 question) survey – just goto https://forms.gle/EYqsw1pKrGp1r6V86.

I look forward to hearing from you.

On 1 July I announced that this blog would close – After 12 years, this blog will close(July 1, 2021). In that post I said:

This blog will close with effect on 31 July 2021- If you’ve got a burning question (no pun intended) – ask it now.

31 July is now here. The questions received have been answered and the blog is now closed.

I will leave the blog here (https://emergencylaw.wordpress.com/) for the foreseeable future. Do consider that it remains as an archive, but the law is constantly changing so the older the post, the more likely it is that there have been developments in the law since that time. I will no longer respond to, or approve comments.

I will keep the Facebook version (https://www.facebook.com/EburnM/) but remember it simply links back to the WordPress site. I will leave it up, however, as there are comments there that people may want to access.  I will however lock that site so no further comments can be made.

Thank you again for everyone’s contribution and the kind words I received since announcing I would be closing the blog. It’s been both a pleasure and an honour to run this site.

Wishing everyone all the very best.

Michael Eburn

31 July 2021.

Today’s correspondent is hoping I:

… can shed some light on a discussion we have been having at work regarding the potential repercussions of failing to treat a patient to the standard expected of a paramedic (or registered health professional).

I accepted a job as a paramedic/emergency services officer at a site in the Hunter Valley, only to discover on arrival that the company did not have a contract to provide medical services on site, nor did they have CPG’s or a drug license. I was originally told to “work as a paramedic”, but wasn’t given an idea of what that was, or the scope of that “position”. I have therefore been working as a “first-aider” at the medical clinic on the days there is no occupational health nurse, as a favour to the contract manager, at the request of my boss, while they organise the return of the normally full-time nurse. My question has a few sides:

Would I be negligent in my provision of care should I not perform tests such as a fingerstick glucose, or ECG despite these things being available to me in the clinic? As these tests are far outside the scope of a “first-aider”. A few recent cases of chest pain I have investigated with chest inspection and auscultation, ECG and a full set of observations but have also called an ambulance. Both with the intention of providing high quality clinical care, and a good handover, and almost by reflex.

My initial thought is; if we are not contracted to provide this service, and are only attending on an as-needed basis, it could be considered a volunteer role, and therefore, the “Good Samaritan Act ” (I know you hate that phrase!) may apply. Could it then be argued that if I did not assess the patient appropriately, I was negligent?

Negligence requires proof of a duty of care, a breach of that duty and that the breach causes some damage. Let us consider those in turn.

Duty of care

A paramedic, a first aider or a nurse all owe a duty of care to their patient. That is axiomatic and will not be justified further.

Standard of care

The standard of care is problematic. There is no magic list that says ‘this is first aid but this is paramedic care’. The person providing care has the skills and knowledge that they have and are there to apply those skills for the benefit of the patient. The patient has no idea of the terms of any contract nor any control over that. They are seeking assistance from someone who is there to give it.

A registered paramedic has to deliver care that would be judged as appropriate care by their peers in all the circumstances.  A paramedic employed by a jurisdictional ambulance service with a drug box may administer some treatment. A paramedic employed on a site with no drugs cannot administer those drugs and cannot be remiss for not administering treatment that they cannot administer.

The standard of care question can always be distilled down to ‘did you act reasonably and in the patient’s best interests, taking into account all the circumstances?’

Damage

The real answer to these questions is about damage. What difference does or would it make if you do, or do not, take blood sugar levels, an ECG or listen for breath sounds particularly if an ambulance has already been called.   If it would make no difference to the treatment, then failure to do it won’t make a difference to the outcome.  If it would make an immediate treatment difference then failure to take those observations if the means are available may be negligent. Take blood sugar levels as an example. If there is glucose paste (a non-scheduled item (see https://www.ambulance.qld.gov.au/docs/clinical/dtprotocols/DTP_Glucose%20gel.pdf ) so it doesn’t need a drug licence) available and a blood sugar monitor, failure to take the blood sugar level, identify hypoglycaemia and get the patient to suck on the glucose syrup would be negligent if it can be shown that whilst waiting for the ambulance they fell into a coma and suffered permanent injuries that could have been avoided. But that’s true for anyone who knows how to use a blood glucose monitor whether they hold a first aid certificate or are a registered paramedic.

On the other hand, taking an ECG may reveal some heart condition but if the paramedic on scene has no means to treat it then failure to take the ECG can’t cause any damage.  The jurisdictional crew may need to take an ECG if they have equipment or drugs that can make a difference.

Good Samaritan

If you are being paid to provide a health care service, even as a ‘first aider’ you are not a ‘good Samaritan’ for the purposes of the Civil Liability Act 2002 (NSW).

Conclusion

You are employed to provide some level of care. There is no magic line between first aid and other care. You use the skills and knowledge you have in the best interests of the patient. Not taking observations is not negligent unless it would make a difference to your treatment decisions and patient outcomes and that, in turn depends on what equipment you have at hand. You cannot be liable for not administering drugs or using equipment that you don’t have.  If the outcome of the tests wouldn’t make a difference, then it’s not negligent not to do them. Equally there’s no negligence if you take the observations, identify the condition and even know the treatment (particularly drug treatment) but don’t administer that treatment as you do not have the means to do so. You wait like anyone else does, for the ambulance to arrive.

Today’s question is about radio communication. My correspondent says:

I note that in one of your prior blogs you wished not to delve into the area of communications law but I feel this remains well enough in the scope of emergency services and this is my last chance to ask it, so here goes.

Recently, prominent media networks in NSW have been intercepting and recording NSW Ambulance transmissions, and then inserting them into their news stories about the same events. While playing often dramatic emergency service radio traffic is nothing new for the media, what they have recently begun doing is intercepting and playing what are known as Code 3s.

To provide some context, when transporting a seriously ill or injured patient to a major hospital, the ambulance crew will communicate with the hospital via radio to conduct an in depth patient hand over. This is known as a code 3. It takes place on a separate radio channel to the mainstream talk groups and divulges a substantial amount of intimate patient details, including acute description of injuries, history of illnesses, social situation etc.

The radio channels these hand overs take place on are able to be scanned and listened to by anyone with the right equipment. In this case, the media networks are recording these communications and then replaying them within their news stories to thousands of people, not only on TV but embedded in online stories permanently.

My questions come to you from two angles, one of communications law and one of privacy law.

1) What is the legal standing of intercepting and rebroadcasting any emergency service radio communications, regardless of content?

2) What is the legal standing of rebroadcasting confidential medical information obtained via intercepted radio communications.

2a) Are media networks liable for rebroadcasting confidential medical information?

2b) Are paramedics liable for broadcasting confidential medical information into what could be considered an open domain in the first place?

I cannot take this much further than in my post Intercepting emergency service pager messages – amended (March 9, 2016).  There I said

… there is a Radiocommunications Act and a Telecommunications Act. Section 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) makes it an offence to intercept a Telecommunication but there is no equivalent for radiocommunications.  Put simply it’s an offence to intercept Telecommunications but not Radiocommunications, but what’s the difference?

It would seem if they are intercepting radiocommunications, it is not illegal.

Rebroadcasting is the journalists defence, if something comes into my hands I can publish it if I did nothing illegal to obtain it.

Media networks would be liable if their publication causes damage eg if it is defamatory. There is no general right to privacy. The privacy legislation imposes obligations upon relevant agencies to try and control access to their information, but it is not a right enforceable against the world.

Paramedics have a duty to try to maintain their patient’s privacy, but they only have the tools they have. If this is a real issue the obligation would be on the ambulance services to try to use encrypted radio or use a telephone and get the paramedics to ring the information in rather than use a radio. Equally paramedics should be careful and think about what they need to say. No doubt that is why relevant codes are used (such as Code 3).

The situation is a think very different where paramedics and ambulance services invite media to accompany them. I thought it was interesting in a recent news story where paramedics were holding up a sheet to protect a patient’s privacy but on another channel, paramedics were wearing cameras to record their interactions – How are reality ambulance shows legal? (Updated) (October 9, 2018).

Today’s question relates to a notice posted by Ambulance Victoria that you can see here:

The question is are:

… if an ambulance is to;

1)         Find and somehow fit into a parking spot to comply with council by laws, in narrow city parking spots, [and]

2)         This parking spot is 500m down the road, far enough away that would cause a substantial delay in response to a life threatening event if a crew is dispatched while picking up food or a coffee, is the potential for this event occurring considered ‘reasonable for the rules not to apply’ to park in a no standing zone or is the only alternative to either not pick up coffee/food or if in a dual crewed vehicle, have 1 person enter and pay for both individuals while the other waits in the vehicle a distance away in case?

The Road Safety Road Rules 2017 (Vic) says at r 307

A provision of Part 12 [Restrictions on Stopping and Parking] does not apply to the driver of a police vehicle, emergency vehicle, enforcement vehicle or escort vehicle if, in the circumstances—

        (a)     the driver is taking reasonable care; and

        (b)     it is reasonable that the provision should not apply.

An emergency vehicle includes ‘a vehicle operated by or on behalf of and under the control of— (i)     an ambulance service …’ (see What is a vehicle that is ‘operated by or on behalf of and under the control’ of Ambulance Victoria? (July 21, 2017)). So the ambulance crew can park there if they are taking reasonable care and it’s reasonable not to apply the provision. 

The sign in question refers to a ‘no standing’ zone.  A driver can stop in a ‘no standing’ zone. I’m not sure what a ‘no standing’ zone is as the Victorian rules refer to ‘no stopping’ (r 167) and ‘no parking’ (r 168), not ‘no standing’.  The sign shown (a black ‘S’ with a red circle and a red line through it) is a ‘no stopping’ sign (Road Safety Road Rules 2017 (Vic) Sch 2). Rule 167 says ‘A driver must not stop on a length of road or in an area to which a no stopping sign applies’. The penalty is ‘three penalty units’. Presumably areas are designated as ‘no stopping’ for a reason.

Is it any more reasonable to let an ambulance stop in a no stopping zone to collect lunch than say a vet, or a doctor, or any one of a myriad of other professions?  I suppose it’s an argument you could make but I don’t think any court would accept it (see Victorian police car stopped in a ‘no-stopping’ zone whilst officer eats lunch (November 29, 2014) for a more detailed discussion).

In short, I very much doubt that anyone would accept that getting food was sufficient excuse to justify parking an ambulance in a no stopping area. The signs correct. If you are not attending to a case, you need to comply with the road rules.

Today’s question comes from ‘Concerned and Confused Victorians’ but I would infer it’s more specific and is ‘Concerned and Confused volunteers with Victoria SES’.  They say:

Over the previous 12 months, we VICSES volunteers have been in many awkward situations across the state in many locations since the introduction of FRV [Fire Rescue Victoria] being challenged on response to jobs.

After reading your recent correspondence relating to the Fire Rescue Victoria Act Section 32 [see Response issues for Fire Rescue Victoria (July 23, 2021)], I pose the following questions as an extension:

1) With the introduction of the State Emergency Management Plan (SEMP), does this ‘trump’ agencies Acts, namely Victoria State Emergency Service Act and the Fire Rescue Victoria Act.  For example:

Vehicle into Structure, who may the control agency be? Is there a difference between being in an FRV District, vs outside in another area of the state. Who is the control agency for Vehicle into Structure with Building Damage in the current arrangements with consideration to the Acts/SEMP?

Road Rescue: Given the Road Crash Rescue Arrangements within Victoria are the main driver and rule book for the response of Road Rescue, is there anything within the CFA, VICSES or FRV Acts that override the Arrangements or are the arrangements the effective rule book of response?

2) The Fire Rescue Victoria Act within Section 32 indicates this ‘other type of emergencies’ – what is this? is this referenced anywhere? Does this mean that the VICSES primary responsibilities are now assumed by FRV within their ‘Districts’ or is this a presumption by some FRV Officers?

3) With question number one front of mind, what is FRV’s obligation to respond outside of an FRV District for road rescue, and other emergencies?

4) Within the VICSES act, when being compared to the FRV and CFA Acts, is VICSES an equal with regards to being required to respond to emergencies. Is this overseen by the SEMP at any part or are they not exclusive of each other.

I’m not going to get into the detail of each question. The Victorian emergency services in particular FRV, the CFA and Victoria SES are each established by an Act of Parliament. This Act sets up the organisation, gives it the powers it needs to function and sets out in broad terms why it is there.

The control of the prevention and suppression of fires in the country area of Victoria is …, vested in the [Country Fire] Authority (Country Fire Authority Act 1958 (Vic) s 14).

The functions of Fire Rescue Victoria are set out in the Fire Rescue Victoria Act (1958) (Vic) s 7. They include:

(a)        to provide for fire suppression and fire prevention services in the Fire Rescue Victoria fire district; and

(b)       to provide for emergency prevention and response services in the Fire Rescue Victoria fire district; and

(ba)      to implement the fire and emergency services priorities of the Government of Victoria; and

(bb)     to provide operational and management support to the Country Fire Authority in consultation with and as agreed by the Authority, to meet the Authority’s objective under section 6B of the Country Fire Authority Act 1958, including support to maintain, strengthen and encourage the capability of volunteers; and

(c)        to carry out any other functions conferred on Fire Rescue Victoria by or under this Act or the regulations or any other Act or any regulations under that Act.

The functions of Victoria SES (Victoria State Emergency Service Act 2005 (Vic) s 5) are to provide:

(a)        [deleted]

(b)       emergency response including—

(i)         responding to floods, earthquakes and storms and their effects;

(ii)        providing rescue services;

(c)        emergency support including—

(i)         assisting other agencies and organisations in relation to the performance and exercise of their duties and responsibilities under the Emergency Management Act 2013 ;

(ii)        acting in accordance with emergency management arrangements under the Emergency Management Act 2013 ;

(iii)       assisting search and rescue for persons lost on land or in Victorian waters;

(d)       other authorised emergency activities including—

(i)         co-ordinating and engaging in other emergency activities for the purposes of this Act;

(ii)        participating in civil defence activities;

(iii)       engaging in any other emergency activities for the purpose of carrying out any other functions conferred on the Authority by or under any other Act.

The definition of emergency is given in the Emergency Management Act 2013 (Vic) s 3. It says:

“emergency” means an emergency due to the actual or imminent occurrence of an event which in any way endangers or threatens to endanger the safety or health of any person in Victoria or which destroys or damages, or threatens to destroy or damage, any property in Victoria or endangers or threatens to endanger the environment or an element of the environment in Victoria including, without limiting the generality of the foregoing—

(a)        an earthquake, flood, wind-storm or other natural event; and

(b)       a fire; and

(c)        an explosion; and

(d)       a road accident or any other accident; and

(e)        a plague or an epidemic or contamination; and

(f)        a warlike act or act of terrorism, whether directed at Victoria or a part of Victoria or at any other State or Territory of the Commonwealth; and

(g)        a hi-jack, siege or riot; and

(h)       a disruption to an essential service;

You can see the scope for duplication. If Victoria SES are providing ‘rescue services’ and FRV are providing emergency response services and an emergency includes a road accident then there could be confusion.

Enter Emergency Management Victoria, the Emergency Management Commissioner and the State Emergency Management Plan. All three services are required to ‘collaborate and consult with Emergency Management Victoria’ (Victoria SES Act s 4B; Fire Rescue Victoria Act s 7AB; Country Fire Authority Act s 6C). Each must carry out their ‘functions in accordance with the operational standards developed by the Emergency Management Commissioner’ (Victoria SES Act s 4C; Fire Rescue Victoria Act s 7AC; Country Fire Authority Act s 6D).

The Emergency Management Act 2013 (Vic) provides for ‘class 1’ and ‘class 2’ emergencies. Relevantly a class 1 emergency is ‘any … major emergency for which Fire Rescue Victoria, the Country Fire Authority or the Victoria State Emergency Service Authority is the control agency under the state emergency management plan’.  The State Emergency Management Plan (SEMP) is a ‘plan to provide for an integrated, coordinated and comprehensive approach to emergency management at a State level’ (s 60AD)).

To get to the gist of the questions, the SEMP provides who is to be the ‘control agency’. ‘Control’ is, according to the SEMP (p. 19) ‘the direction of response activities across agencies, horizontally, including the coordination and tasking of other agencies’. Victoria Police is the control agency for ‘road … accidents/incidents … (unless otherwise designated)’.  FRV is the control agency within ‘the FRV Fire District’ for ‘rescue of persons from … road, … accidents’. Vic SES is the control agency for ‘rescue incidents involving rail, aircraft and industrial, road, and building structures’.

To reiterate that I’m not going to go into the details my answers to the questions are:

1)         If you like, the Emergency Management Act 2013 (Vic) and the SEMP ‘trumps’ the individual Acts. I’m not keen on that language but certainly the agency have to work with EMV, the Emergency Management Commissioner and work to the SEMP. The Acts that establish the agencies create the tools, the SEMP is the plan on how they will work together. If you want to call that ‘trumps’, fair enough.

The control agency for managing the response to a motor vehicle accident is Victoria Police; unless rescue is required in which case it’s FRV within the FRV Fire District’ and outside that district, it’s the SES.

2)         The definition of ‘emergency’ has been given above. This does not mean ‘VICSES primary responsibilities are now assumed by FRV within their ‘Districts’’. Who is the control agency, as the answer to q 2 shows, depends on the SEMP.

3)         As part of the all hazards all agencies response, FRV’s duty to respond outside the FRV district would depend on it being tasked by the relevant control agency (Fire Rescue Victoria Act 1958 (Vic) s 55E).

4)         The three emergency services, FRV, CFA and Victoria SES have similar legislation designed to ensure they work together but subject to the oversight of the Emergency Management Commissioner and in accordance with plans starting with the SEMP.   I don’t know the lived experience but according to their legislation they are ‘equal with regards to being required to respond to emergencies’ in accordance with the SEMP and relevant directions from the Emergency Management Commissioner.

Today’s question comes from a paramedic who says:

I was directed to you to assist me in answering a question about who should be responsible for the maintenance of skill competency. Specifically: intubation. As the scope of practice includes Intubation is it each clinician’s duty to maintain competency in this skill, or being a high risk low frequency skill is it the employers responsibility to ensure clinicians are performing competently by introducing skill competency assessment or minimum performance logs? Or does responsibility fall to a combination of both employer and employee?

The answer is ‘responsibility fall[s] to a combination of both employer and employee’.  If a paramedic thinks he or she is not proficient in the skill then he or she has an obligation to look for CPD opportunities to maintain that skill or raise it with their employer if it is a systemic issue.

The employer is sending people out representing it and given it’s ‘a high-risk low frequency skill’ the employer has a responsibility to ensure that it is done correctly. IN the health care setting the employer has a non-delegable duty of care, that is it has a duty of care to its patient’s, and it cannot meet that duty by simply saying ‘but I employed registered health professionals to do the job’. An employer also has obligations to ensure that the care provided meets the standard of reasonable care.

How the balance is managed is a matter for negotiation.

Today’s correspondent sent me a letter from the NSW RFS and addressed to their local council. They say:

In a recent subdivision which was required to comply with Planning for Bushfire Protection 2006, my understanding is a refuge was created by the following requirement included in the first page of the letter of the RFS to [the] Council of 3 March 2017 (copy attached, last sentence):

“At subdivision certificate stage, ongoing vegetation management will be required with lots 1 & 10 to reduce the impact of bushfire on the proposed public access road”

It would appear that a section of the public road is a fire refuge for firefighters and occupants of the subdivision.  

I have emailed [the] Council asking them whether they intend to signpost the refuge but they have not replied.  I would appreciate your opinion as to whether it is usual to have a public road as a fire refuge and whether [the] Council has any obligation to signpost the refuge.

I have not reproduced the letter nor named the council to maintain anonymity. The relevant paragraph is quoted above.

I cannot read the letter as my correspondent has read it. The concept of a ‘refuge’ does not appear in the Rural Fires Act 1997 (NSW). The Act refers to a ‘neighbourhood safer place’ (see Part 3A).  There are processes to establish a neighbourhood safer place but nothing in the material provided that suggests that this is what is occurring. The letter says “ongoing vegetation management will be required with lots 1 & 10 to reduce the impact of bushfire on the proposed public access road”.  I don’t understand how a requirement to manage the vegetation to reduce the impact of bushfire on the road is anything other than a requirement to manage the vegetation to reduce the impact of bushfire on the road, so that the road can continue to be used as a road during a bushfire. Read any post fire reviews (and take for example the 2009 Black Saturday Royal Commission or the coroner’s inquest into the 2005 Eyre Peninsula (SA) fire you) to understand the risk to people from fire impacted roads.

There is nothing to suggest the road is intended as a refuge or a neighbourhood safer space. Reducing the impact of a bushfire on a road does not make the road a refuge, it makes it a means of access. That interpretation makes the questions is ‘usual to have a public road as a fire refuge[?]’ and ‘[Does the] Council ha[ve] any obligation to signpost the refuge[?]’ irrelevant. It’s a road, not a fire refuge.