Today’s question asks:

With the registration of paramedics and the increasing scope of practice for private paramedics, what is the difference in insurance for someone who is a sole trader or sole company director in the private paramedic sector? For example, there is public liability, professional indemnity, and medical malpractice insurance… What is the difference?

At what stage does a private paramedic operating as a business need malpractice insurance?  If a private paramedic contracts out to another paramedic to assist with a job, does their business now need medical malpractice insurance?

Does it make a difference if the contractor were to become a casual employee?

Answering the question ‘what is the difference between ‘public liability, professional indemnity, and medical malpractice insurance’ is not possible as to a large extent it depends on the language used by the insurers so a person considering buying insurance needs to read the product disclosure statement to understand what risk the insurance covers, rather than rely on the title.

A paramedic needs appropriate professional indemnity insurance whenever he or she is practicing their profession as defined by the Paramedicine Board, below.

The Health Practitioner Regulation National Law gives this definition:

“appropriate professional indemnity insurance arrangements”, in relation to a registered health practitioner, means professional indemnity insurance arrangements that comply with an approved registration standard for the health profession in which the practitioner is registered.

Section 129 says:

A registered health practitioner must not practise the health profession in which the practitioner is registered unless appropriate professional indemnity insurance arrangements are in force in relation to the practitioner’s practice of the profession.

The Paramedicine Board’s Professional indemnity insurance arrangements registration standard defines ‘practice’ as

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

The standard also says that insurance must cover

… the costs of liability incurred by the insured arising from civil claims seeking compensation for personal injury, harm or loss incurred, where the claim arises directly from an alleged act, error or omission committed in the conduct of the practitioner’s practice or professional business during the policy period. Civil liability cover includes cover for legal expenses incurred in defence or settlement of a civil claim and for damages payable.

I would suggest that ‘professional indemnity’ and ‘medical malpractice’ insurance really mean the same thing save that ‘professional indemnity’ is a more generic term to mean any profession. As a lawyer I have professional indemnity insurance to cover any liability incurred by me in my practice as a lawyer, equally a dentist, a doctor, a paramedic, a nurse etc may all have ‘professional indemnity insurance’. Medical malpractice insurance is (subject to the terms of any specific product disclosure statement) is a specific example of ‘professional indemnity’ insurance for medical practitioners.

Public liability insurance would cover other forms of liability that may not be professional related, eg if you run a first aid training business you need liability insurance to deal with people who slip and fall on the uneven floor of your bathroom, or become ill because of the poor quality food you serve at morning tea etc. 

Another relevant insurance if you are a director of a corporation is director’s insurance to cover liability incurred by a director’s failures to properly manage the business.

A paramedic needs to be covered, as a minimum, by ‘appropriate professional indemnity insurance’ which may be provided by their employer or head contractor, or they need to buy their own.  Whether other forms of insurance are required depend on the business structure (sole trader, corporation, partnership etc) and the services provided.  Anyone thinking of starting a business should be getting advice from an insurance broker.

A business that contracts to provide paramedic services to an event or otherwise operates a private ambulance service would need to have appropriate professional indemnity insurance to cover its vicarious liability for its employees, including casual employees.

It would be a brave business that tried to engage paramedics as subcontractors rather than employees to avoid vicarious liability. A person who alleges negligence by the sub-contractor may still seek to sue the head contractor either for the negligence of its contractors or for its own negligence in how they engaged and managed the contractors and the delivery of services. Even if the head-contractor has a defence, they would want an insurance company to mount that defence, and to bear the cost if it is not successful.  In any event, trying to avoid vicarious liability by trying to lable people who are in reality employees as ‘contractors’ has its difficulties – see Hollis v Vabu (2001) 207 CLR 21; The expanding doctrine of vicarious liability (October 12, 2020) and Professional insurance for nurse providing on site first aid (April 2, 2019). 

See also Professional insurance for paramedics (May 30, 2018).

The short answers are a private paramedic needs professional indemnity insurance whenever he or she is practicing their profession.  A business that offers to provide paramedic service and engages other paramedics, whether as employees or contractors, should also be carrying appropriate professional indemnity and public liability insurance.

Today’s question relates to inconsistencies between an NSW RFS brigade constitution and an RFS Service Standard.

Each NSW RFS brigade has a constitution that is in the terms set out in Service Standard 2.1.2 (with an effective date of 21 December 2017).  Relevantly the standard constitution says at [7.16]:

Every ordinary member is entitled to vote in the election of field officers unless the Brigade has made a brigade rule establishing specific criteria for entitlement to vote in the election of field officers.

Apart from regular RFS brigades, the RFS operates community fire units. These are governed by Service Standard 2.13 NSW Rural Fire Service Community Fire Units (with an effective date of 27 August 2011).  That standard says (at [2.3]):

At the completion of the probationary period CFU members are ordinary members however, due to the nature and role of CFU’s, as CFU members they:

(a) do no regularly participate in Brigade activities;

(b) are not available to attend fire calls, and

(c) are not entitled to vote in the election of field officers

The inconsistency if obvious. If members of a CFU are ‘ordinary members’ of the RFS they are, by virtue of the standard brigade constitution, ‘entitled to vote in the election of field officers’ whilst, at the same time, by virtue of service standard 2.13 they are ‘are not entitled to vote in the election of field officers’.

There are two rules of statutory interpretation that could be applied to interpret these legislative like instruments. The first is that where there is a later inconsistent document one might infer that it was intended to amend the first document to the extent of the inconsistency. On that view the later Constitution which gives ordinary members the power to vote may be inferred to repeal the earlier service standard on members of a CFU.

The other, alternative approach, is that the specific service standard applies in preference to the more generic brigade constitution document (see Lex specialis).

The Commissioner is for all intents and purposes the relevant authority responsible for creating, managing and disbanding brigades (ss 15, 17, 20; Rural Fires Regulation 2013 (NSW) r 4; Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades and Service Standard 2.1.2 Brigade Constitution).  The critical issue is therefore what does the Commissioner intend.

My reading of the provisions is that it is intended that the specific continues to apply so ‘ordinary members’ (other than members of a CFU) may vote for the election of field officers.

The specific questions I was asked are:

• Can a Service Standard, not referenced in the Constitution, limit the rights of members as set out in that Constitution?

The two documents have to be interpreted to give effect to the Commissioner’s intention. There are rules that suggest that the CFU Service Standard either does or does not continue in the presence of the Brigade Constitution. That means the short answer is ‘yes, a Service Standard, not referenced in the Constitution, can limit the rights of members as set out in that Constitution’ but whether this particular service standard does, or does not, is open to interpretation. My view is that the accepted interpretation would be to confirm that CFU members cannot vote for the election of field officers but that is not certain.

• Does the date of issue of these documents bear in that decision (ie the Constitution was issued after the Service Standard)?

That would be one argument; that the later Constitution amends the Service Standard to the extent of the inconsistency but whether that would be accepted as the correct expression of the Commissioner’s intention is open to debate.

• Does the Rural Fires Act which specifically refers to the appointment of Officers override the votes cast for that appointment?

Absolutely. Members can vote for someone to appointed as a field officer, but the Commissioner is not bound to accept that vote. For example, Service Standard 6.1.2 Qualifications for NSW RFS Members sets out qualifications required for field officers. It is not referenced in the Constitution (it is referred to in the Service Standard, but not the Constitution itself) and limits who may be elected to office.  

There is an inconsistency and I suppose a disgruntled CFU member could seek a declaration that he or she is improperly excluded from voting for a field officer in their brigade, but I doubt the Supreme Court would entertain such an application.  Even if it did, I think the appropriate rule is that the specific document about CFUs and their membership continues to apply rather than the more general brigade Constitution. Ultimately that issue would have to be resolved by the Commissioner and then, as a final resort, the NSW Supreme Court (or perhaps the NSW Civil and Administrative Tribunal).

Vicarious liability – the doctrine that if an employee is negligent, their employer is liable – has been discussed often on this blog – see https://emergencylaw.wordpress.com/?s=vicarious+liability.  I have consistently argued that even though the doctrine has its genesis in employment law there is every reason to think that it would extend to ensure that organisations that use volunteers are vicariously liable for the negligence of those volunteers (see Vicarious liability for volunteers (April 23, 2018)).  That argument has been given further strength by the decision of Schmidt AJ in Plaintiff A and B v Bird; Plaintiff C v Bird; Plaintiff D v Bird [2020] NSWSC 1379 (and thank you Bill Madden of Bill Maddens WordPress for drawing this case to my attention).

The case was about claims for compensation by two children and their mothers, arising from allegations of abuse by a minority shareholder of a company which operated a childcare centre.  An issue arose whether the defendant, Mr Bird, was an employee or volunteer with the relevant childcare centre. The court found that he was an employee, but Her Honour said she would have found the centre vicariously liable if Mr Bird had been a volunteer. She said (at [418]-[425]):

If Mr Bird was not an employee

Contrary to the defence case I have concluded that the evidence does establish that in reality Mr Bird was an employee, even though he was not paid wages for his work and was represented to be a volunteer.

If I had not reached this conclusion I can see no reason, in principle, why there should not have been vicarious liability for his acts …

A case like this does not appear previously to have arisen for consideration in Australia, as it has in the UK. There in Cox v Ministry of Justice [2016] UKSC 10 the advent and principles of a “modern theory of vicarious liability” which extends beyond the strict relationship of employment was explained …

Those principles are concerned with harm done by an individual who carries on activities as an integral part of a business and for its benefit, rather than as part of the conduct of a recognisably independent business of his own, or of a third party, where the commission of the wrongful act is a risk created by the assigned activities.

Thus in DSN v Blackpool Football Club Ltd [2020] EWHC 595 (QB) the application of those principles resulted in the Club being vicariously liable for abuse committed by an unpaid volunteer.

These principles … demonstrate how the common law develops, when new situations arise for consideration.

I consider that application of the Australian principles to the facts I have found, would permit the conclusion that Little Pigeon was vicariously liable for Mr Bird’s acts, even if he provided his services to Little Pigeon as a volunteer, rather than as an employee.

But it is not necessary to decide the case on that basis.

As noted, Her Honour relied on the UK decision in Cox v Ministry of Justice. In that case, (heard in the UK Supreme Court which replaced the Judicial Committee of the House of Lords and is now the ultimate court of appeal in the UK, the equivalent of the High Court of Australia) LordReed (with whom Lord Neuberger, Lady Hale, Lord Dyson and Lord Toulson agreed) said this about vicarious liability (at [15]-[30] emphasis added and references omitted):

Vicarious liability in tort is imposed upon a person in respect of the act or omission of another individual, because of his relationship with that individual, and the connection between that relationship and the act or omission in question. … [T]he relationship is classically one of employment, and the connection is that the employee committed the act or omission in the course of his employment: that is to say, within the field of activities assigned to him, … [or] in the course of his job, considered broadly…

It has however long been recognised that a relationship can give rise to vicarious liability even in the absence of a contract of employment. …

The general approach to be adopted in deciding whether a relationship other than one of employment can give rise to vicarious liability, subject to there being a sufficient connection between that relationship and the tort in question, was explained by this court in the Christian Brothers case, in a judgment given by Lord Phillips with which the other members of the court agreed. That judgment was intended to bring greater clarity to an area of the law which had been unsettled by a number of recent decisions…

The case concerned the question whether the Institute of the Brothers of the Christian Schools, an international unincorporated association whose mission was to provide children with a Christian education, was vicariously liable for the sexual abuse of children by members of the institute…

At para 35 of his judgment, Lord Phillips stated:

“The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”

At para 47, he added:

“At para 35 above, I have identified those incidents of the relationship between employer and employee that make it fair, just and reasonable to impose vicarious liability on a defendant. Where the defendant and the tortfeasor are not bound by a contract of employment, but their relationship has the same incidents, that relationship can properly give rise to vicarious liability on the ground that it is ‘akin to that between an employer and an employee’.”

The five factors which Lord Phillips mentioned in para 35 are not all equally significant. The first – that the defendant is more likely than the tortfeasor to have the means to compensate the victim, and can be expected to have insured against vicarious liability – did not feature in the remainder of the judgment, and is unlikely to be of independent significance in most cases. It is, of course, true that where an individual is employed under a contract of employment, his employer is likely to have a deeper pocket, and can in any event be expected to have insured against vicarious liability. Neither of these, however, is a principled justification for imposing vicarious liability. The mere possession of wealth is not in itself any ground for imposing liability. As for insurance, employers insure themselves because they are liable: they are not liable because they have insured themselves. On the other hand, given the infinite variety of circumstances in which the question of vicarious liability might arise, it cannot be ruled out that there might be circumstances in which the absence or unavailability of insurance, or other means of meeting a potential liability, might be a relevant consideration.

The fifth of the factors – that the tortfeasor will, to a greater or lesser degree, have been under the control of the defendant – no longer has the significance that it was sometimes considered to have in the past, as Lord Phillips immediately made clear. As he explained at para 36, the ability to direct how an individual did his work was sometimes regarded as an important test of the existence of a relationship of master and servant, and came to be treated at times as the test for the imposition of vicarious liability. But it is not realistic in modern life to look for a right to direct how an employee should perform his duties as a necessary element in the relationship between employer and employee; nor indeed was it in times gone by, if one thinks for example of the degree of control which the owner of a ship could have exercised over the master while the ship was at sea. Accordingly, as Lord Phillips stated, the significance of control is that the defendant can direct what the tortfeasor does, not how he does it. So understood, it is a factor which is unlikely to be of independent significance in most cases. On the other hand, the absence of even that vestigial degree of control would be liable to negative the imposition of vicarious liability.

The remaining factors listed by Lord Phillips were that (1) the tort will have been committed as a result of activity being taken by the tortfeasor on behalf of the defendant, (2) the tortfeasor’s activity is likely to be part of the business activity of the defendant, and (3) the defendant, by employing the tortfeasor to carry on the activity, will have created the risk of the tort committed by the tortfeasor.

These three factors are inter-related… The essential idea is that the defendant should be liable for torts that may fairly be regarded as risks of his business activities, whether they are committed for the purpose of furthering those activities or not. This idea … was reaffirmed in the cases of Lister and Dubai Aluminium. In the latter case, Lord Nicholls of Birkenhead said at para 21:

“The underlying legal policy is based on the recognition that carrying on a business enterprise necessarily involves risks to others. It involves the risk that others will be harmed by wrongful acts committed by the agents through whom the business is carried on. When those risks ripen into loss, it is just that the business should be responsible for compensating the person who has been wronged.”

Lord Phillips’s analysis in the Christian Brothers case wove together these related ideas so as to develop a modern theory of vicarious liability. The result of this approach is that a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question…

It is also important not to be misled by a narrow focus on semantics: for example, by words such as “business”, “benefit”, and “enterprise”. The defendant need not be carrying on activities of a commercial nature: that is apparent not only from the cases of E and the Christian Brothers, but also from the long-established application of vicarious liability to public authorities and hospitals. It need not therefore be a business or enterprise in any ordinary sense. Nor need the benefit which it derives from the tortfeasor’s activities take the form of a profit. It is sufficient that there is a defendant which is carrying on activities in the furtherance of its own interests. The individual for whose conduct it may be vicariously liable must carry on activities assigned to him by the defendant as an integral part of its operation and for its benefit. The defendant must, by assigning those activities to him, have created a risk of his committing the tort. …

If we consider volunteers, particularly volunteers in the various state operated ambulance, fire and emergency services, they are not employees. But they are engaged and trained by the service in accordance with the service policies and procedures. They are tasked by the relevant service.  When a call is made to triple zero or 132 555 the request is for assistance by the service and the volunteers enable the service to meet that request.

The volunteer responds and conducts ‘activities as an integral part of the business activities carried on by [their service] and for its benefit’ that is to allow the service to meet its statutory obligations and provide the service it is established to provide. The volunteer’s activities are not ‘entirely attributable to the conduct of [their own] recognisably independent business’.  The fact that the service is not being provided ‘for profit’ is irrelevant, the volunteers are still conducting the ‘business’ of their ambulance, fire or emergency service. The volunteer stands in the relevant relationship with the agency such that the agency will be vicariously liable for the negligence of the volunteer.

The comment by Lord Reed that ‘[a]s for insurance, employers insure themselves because they are liable: they are not liable because they have insured themselves’ is also an important reminder. People tell volunteers ‘if you do the right thing, you’ll be covered by the agencies insurance’ but that is not correct. It is the agency that is insured because it is the agency that is liable. If the volunteer is negligent the agency is liable. If the agency has relevant insurance, they can look to that insurance to meet the liability. If they do not have relevant insurance it does not mean the volunteer (or employee) has to wear the liability, it means the agency has to meet the liability from its operational budget or other reserves rather that from insurance. The presence or absence of insurance, or the terms of insurance, do not determine whether an agency is vicariously liable for its volunteers or staff.

Apart from the developing common law, many jurisdictions have provided volunteer protection to ensure that volunteers are not personally liable for their mistakes, but the organisation for which they volunteer is – see Civil Law (Wrongs) Act 2002 (ACT) s 9; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 7; Civil Liability Act 2002 (Tas) s 48; Wrongs Act 1958 (Vic) s 37; Country Fire Authority Act 1958 (Vic) s 92; Victoria State Emergency Service Act 2005 (Vic) s 42; Volunteers And Food And Other Donors (Protection From Liability) Act 2002 (WA) s 7 and Commonwealth Volunteers Protection Act 2003 (Cth) s 7.

The decision in Cox v Ministry of Justice [2016] UKSC 10 developed the justification for vicarious liability. The court’s reasoning is consistent with those of Australian decisions such as Hollis v Vabu (2001) 207 CLR 21 (see the discussion in Trying – again – to put to bed a myth about vicariously liability (November 30, 2019)).  Her Honour, Schmidt AJ relied on the decision in Cox to confirm that in her opinion that vicariously liability would also extend to Mr Bird even if he were a volunteer not an employee.

The developing case law comes as no surprise and is consistent with arguments I have been making since at least 1999 (see Michael Eburn, Emergency Law (1st ed, Federation Press 1999) p. 16).

Volunteers should not be in any doubt that if there is an allegation of negligence in the course of their duties, it is the agency that they volunteer for that will be liable. 

Today’s correspondent has questions regarding a

 … video was posted on YouTube by ….  In it, the presenter discusses and demonstrates how to disassemble an EpiPen to obtain a further three doses of adrenaline.  Despite warnings in the title and throughout the video that this is for medical professionals only, I am concerned that these instructions would allow anyone to interfere with a medical device and access a drug which, if used incorrectly, could lead to adverse outcomes.  This is in addition to ignoring hygiene protocols in potentially reusing a syringe multiple times.  It fails to take into account the fact that in an “austere environment”, someone would be unlikely to have a hacksaw blade, sharps container, syringe bodies, drawing up needles or injecting needles.

 Given the propensity for people to blithely ignore warnings, I can see that there is a risk of someone attempting this procedure “just because”.  I would be curious to know your thoughts on the following:

1. Are there any legal issues in interfering with a TGA registered autoinjector?

2. Despite the warnings shown, would there be repercussions in a first aider accessing the contents of the auto injector without obtaining some form of clinical authorisation from, say, an Ambulance-service Clinical Officer via Triple Zero or a Doctor?

3. Would a first aider undertaking this procedure without seeking higher clinical authorisation be seen by the courts as acting beyond a “Good Samaritan”? (I appreciate that not all the facts could be known in this circumstance.)

4. Would a registered medical professional be placing their registration at risk by acting outside of the norms of their profession by undertaking or directing a lay person to undertake this procedure?

 While the video makes for interesting viewing, from a certain perspective, I would have thought this might be entering dangerous liability territory for the video producer.

 I thank you for your time in reading this and hope that it generates some important discussion around the liability of providing information to the public.

I have said, often enough, that this blog is not the place for specific advice, it’s a blog of general principles only. For that reason, I am not identifying the video or its author, but should anyone identify it nothing I write should be taken as either an endorsement nor a criticism of the procedures demonstrated in the video nor of the presenter or the company. 

The video does give ample warning that the procedures demonstrated are contrary to the manufacturer’s instructions, dangerous, should only be performed by a health professional and ideally under guidance from a more senior clinician and only in last resort circumstances where there is no immediate aid, a person has not responded to an initial epi-pen dose and they are, without further care, expected to die. The presenter points out that even after use there is sufficient adrenalin in the EpiPen for up to 3 more doses.

Are there any legal issues in interfering with a TGA registered autoinjector? I’m not an expert on the relevant legislation but I cannot see any issue. There would be if the person was modifying an approved device and trying to sell it; but that’s not what is happening here.  

The video says that people should seek advice from a more senior clinician. The question I’m asked is ‘would there be repercussions in a first aider accessing the contents of the auto injector without obtaining some form of clinical authorisation from, say, an Ambulance-service Clinical Officer via Triple Zero or a Doctor?’

I think the more interesting question is why anyone would think that ‘an Ambulance-service Clinical Officer via Triple Zero or a Doctor’ could or would give that sort of authority.  It might be relevant if the person giving the treatment was an employee and was ringing a company superior in the medical team, but imagine a first aider ringing triple zero or a doctor and saying ‘can I do this?’  The only answer would be, given that the clinical officer or doctor isn’t there, cannot see the patient, doesn’t know the first aider and may not have watched the video is ‘no, don’t do it’.  But even if the doctor said ‘yes go ahead’ so what, he or she still does not know anything about the patient or the person on the end of the ‘phone.

The clinical question is ‘should a person showing signs of anaphylaxis be treated with an EpiPen?’ Answer ‘yes’.  If you have done that and they are going to die without more, no doctor’s authority is going to make any difference (supervisor/employee relationship excepted) to any legal position. It’s up to the person on the scene to decide what they think is necessary based on their experience and training.  If they know what an EpiPen is, when its use is indicated and have watched the video, they are in a better position to know whether to act than anyone on the other end of a phone. If you are going to do it, you back yourself, a doctor’s approval may be some evidence that the conduct was ‘reasonable’ but a doctor cannot give lawful authority to someone else (see Doctors delegating authority to carry drugs (August 20, 2014)).

‘Would a first aider undertaking this procedure without seeking higher clinical authorisation be seen by the courts as acting beyond a “Good Samaritan”?’  That question seems to imply an ongoing misconception that there is some limit to the good Samaritan legislation – but see Good Samaritan legislation and scope of practice (March 27, 2015).  If we take the NSW law as an example, section 56 of the Civil Liability Act 2002 (NSW) says:

A “good samaritan” is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured.

Section 57(1) says:

A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

There are no limits here other than one has to be acting ‘in good faith’ that is with the honest intention of benefiting the patient. There is no requirement to stick within one’s training or scope of practice, that’s the very point. Doctors and nurses (and then others) were afraid of getting sued as people may expect them to meet a certain standard of care when they knew that emergency care was not their normal practice but surely something was better than nothing? This legislation is intended to encourage people to ‘have a go’ when they don’t know what they are doing.   Someone’s pinned by a truck – get in and move it and if you crush their legs in the process, at least you were trying (see American Good Samaritan protected by Ohio Statute (May 20, 2015).

I would think a person undertaking the procedures suggested would be considered exactly the sort of person the good Samaritan legislation is intended to protect. A person is at risk of dying, you have used the EpiPen, but they need more. You understand what an epi-pen is, there are no other resources, it’s this or nothing. That’s when the legislation applies – to protect you, the good Samaritan, even if you introduce infection or give an overdose if you are honestly trying your best to help the patient.

Would a registered medical professional be placing their registration at risk by acting outside of the norms of their profession by undertaking or directing a lay person to undertake this procedure? They might if the action were something that demonstrated a lack of skill or care in the practice of their profession but all the circumstances have to be taken into account including the emergency situation as well as the value of the information they are being given (see Doctors giving advice, not direction, to paramedics (October 23, 2019)).  As noted above however all a doctor could really do is give some reassurance to the person that it sounds like the patient might benefit from the drug and reassure them that it’s worth trying something. They cannot give legal authority to the ultimate decision.

I own a car. A car has to be maintained to the motor vehicle standards and needs to be safe. There are licensed mechanics who I can pay to maintain my car. But I can also buy DIY books and watch videos that will tell me how to do all sorts of things.  If I follow those videos and make my car dangerous, the video producer won’t be liable. And if I’ve watched a video on how to do an emergency repair if broken down in remote Australia the producer cannot be liable if I decide to use that repair even though holding the motor together with coat-hanger wire and gaff tape would never pass a roadworthy test but may save my life. Equally they won’t be liable if it doesn’t save my life or if I fail to get a proper repair at the first opportunity and insist on driving with a defective vehicle.

I cannot see that the video is ‘entering dangerous liability territory for the video producer’.  A person who applied the techniques in the circumstances described would be exactly the sort of person good Samaritan legislation is enacted for. They would not be ‘acting beyond a “Good Samaritan”’ they would be the archetype of a good Samaritan.

Today’s correspondent

… was chatting to a Veterinary Nurse while we watched John Wick suture himself. [“John Wick is a film about embracing classic action movie tropes while simultaneously reinventing them. Its brief scene of self-surgery is no exception.”] I joked that she could do a better job and she recalled that Veterinarians out in rural Victoria would often suture players at the local football match at their request while they happily watched the rest of the match.

My questions are:

1. What provisions would allow or prevent a Veterinarian to practice advanced techniques (basic first aid could be direct pressure and bandage in this context) on humans?

2. How might these relate to the Veterinarians registration and scope of practice?

3. If a patient were to pursue legal action due to iatrogenic injury, would the professional indemnity insurer still provide cover?

I always find it useful to consider extreme circumstances. Consider a major trauma where a person is going to die without active intervention such as suturing to tie off the bleeding artery. The only person there with the skills is a vet. Would there be any law to stop them saving the person’s life? The answer has to be ‘no’ but we can think that in those circumstances the concept of ‘necessity’ and ‘good Samaritan’ legislation would apply if there were any legal repercussions.

Let us then consider the less extreme cases. First the Health Practitioner Regulation National Law works via title protection, not by defining scope of practice. The law stops a person calling themselves a ‘medical practitioner’ but there is no list of skills (such as suturing) that only a doctor or nurse can do.

Equally only a registered vet can hold themselves out as a vet unless they are registered (Veterinary Practice Act 1997 (Vic) s 57).  That section also says that it is an offence to ‘carry out any act that is required to be carried out by a registered veterinary practitioner by or under an Act’ (s 57(1)(d)) but there is not a single list of restricted activities. In NSW the Veterinary Practice Act 2003 and Veterinary Practice Regulation 2013 (NSW) list various things that can only be done by a vet, but I’m using the Victorian legislation as that is the jurisdiction referred to in the question.

The first conclusion therefore is that there is nothing in the Health Practitioner Regulation National Law nor the Veterinary Practice Act 1997 (Vic) that rules out the sort of practice that is being suggested.  That does not mean it’s a good idea. Vets may be able to deal with all types of animals, and humans are just another type of animal; but clearly vet science and vet practice is not the same as medical practice. 

A vet presumably knows about infection control and is probably more used to suturing animals that then run about and fall in a field so he or she may be well qualified and do a good job.  But if we assume there are complications then whether a vet would be liable in negligence for injury caused to a person – the footballer in question – would depend on what all the circumstances, including what the footballer knew. If the footballer knew the person was a vet and this was not legitimate vet practice then he or she may be held to have voluntarily accepted the risk.

On the other hand, the test of negligence is whether the defendant’s conduct is reasonable in all the circumstances. The Wrongs Act 1958 (Vic) s 59 says

A professional is not negligent in providing a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.

I would suspect that no ‘significant number of respected practitioners in the field’ of veterinary science would consider suturing footballers at the local match was ‘competent professional [veterinary] practice’ even if they would accept that a reasonably competent vet might take the sort of action required to save a life.

If we turn to the questions:

• What provisions would allow or prevent a Veterinarian to practice advanced techniques (basic first aid could be direct pressure and bandage in this context) on humans?

Remember the general rule that a person can do what they like unless there is a law that says they cannot. There is no law specifically to prevent a vet from using his or her skills to bring a higher level of knowledge and technical skills to the care of a human being. That is not veterinary practice, but people know what they know. They do not commit an offence but they are not medical practitioners and if they cause avoidable harm then their decision to act is unlikely to be accepted as ‘competent professional practice’ by a vet except in extreme circumstances and not where a vet may make it know that he or she is willing to perform the procedures on a regular, rather than emergency basis.

• How might these relate to the Veterinarians registration and scope of practice?

Suturing people or otherwise treating people is not veterinarian practice. It would have nothing to do with ‘scope’ of practice as a vet any more than a doctor or nurse suturing an animal is practicing medicine or nursing. 

• If a patient were to pursue legal action due to iatrogenic injury, would the professional indemnity insurer still provide cover?

That would depend on the terms of their insurance policy, but I doubt it. I imagine that the policy applies to professional practice as a vet; and treating people is not veterinary practice.

I’m asked if I would

‘…  be so kind as to address this situation with the legal obligations and correct practice with regard to a “PCR” (patient care report)?

A paramedic working alone, on day shift, assesses and treats a high acuity pt. On the handwritten detailed PCR document which contains the patient’s personal details, condition, history, age, address, and phone number, etc. The ph number has the last 2 digits 5&1 joined at the top.

The next shift with the next paramedic takes over for the night shift, 5 hours after the patient was transported to the hospital. The oncoming paramedic goes through the PCR during their shift and doesn’t like the way the phone number is written, so crosses it out and writes it below.

Is this legal?’

Whether it’s ‘legal’ or not depends on why it was done. If it was simply to make it more legible, and if it was clear that there was a change then it’s not ‘illegal’ but one would wonder why anyone would bother.  In the unlikely event that the record is ever subject to forensic analysis (ie is the subject of examination and cross-examination) it may lead to unnecessary questions, but it’s not illegal per se. And if one paramedic gets into the habit of editing another paramedics case sheet it will make the case sheets irrelevant if they don’t record the treating paramedics observations and actions; but there is not law that I’m aware of that says that such an action would be an offence.

If the motivation was some sort of fraud or other improper purpose then it’s the purpose rather than the actual annotation that is the problem.

Having said that, Peter (in a comment below) makes the important point that it is important to know how and why the second paramedic had access to the record. If he or she had a supervisory role and it was part of their duty to review the record, fair enough. But if the records were simply left unsecured in the station and the second paramedic was reading them for fun, or for interest, then that does raise serious issues of privacy and document control – and there the issue is not so much about the addition but about how and why the second paramedic had access to the documents in the first place.

With thanks to Bill Madden’s WordPress for drawing my attention to the United Kingdom’s General Medical Council’s (the GMC) new guide on Decision making and consent, which will come into effect on 9 November 2020.

Of particular interest to readers of this blog will be the discussion on consent when there are time and resource constraints and treatment in emergencies. As a publication of the GMC this document is not directly applicable in Australia but Australian health care professionals would still benefit from reviewing the guide and considering if and how its principles and guidance can or should be applied in their practice.

Supplementary guiidance documents also exist, such as in relation to confidentiality.

Today’s correspondent is a paramedic who has had

… a question for long long time. We always use the term “duty of care” to convince patient to go to hospital, even patient doesn’t want to go.

Considering the fact that patient has the right to refuse treatment, how far the “duty of care” could go?

If the patient is incompetent in decision making, sure…

what about a guy who is a homeless person that is slightly intoxicated (long term alcoholic), conscious, oriented to place and person, but can’t tell the exact date (not uncommon for them, even they are not intoxicated anyway)?

I have seen so many of our fellow emergency responders force those patients go to hospital by referring to “duty of care”. Sometimes I just wonder do they have the rights to refuse?

Thank you so much for your kind attention.

I just always wonder how “legal” our decisions are…

The decisions, in the circumstances described, are not legal.

A patient has a right to refuse treatment/transport.

A paramedic does not have a duty to impose care, he or she has a duty to be careful.

There is not, generally, a duty to prevent harm occurring (Stuart v Kirkland-Veenstra; Graham Barclay Oysters v Ryan), there is a duty not to cause harm (Donoghue v Stevenson).

One might argue that not treating and transporting a person is causing harm by omission, but you only have a duty to avoid an omission that causes harm where you have a legal obligation to act (Airedale NHS Trust v Bland). You do not have a obligation – and therefore cannot have a duty – to assault or detain a person against their will where you have no legal authority to do so.  Any harm that is caused to them would be caused by their underlying condition and their decision to reject your advice (Ambulance Service NSW v Neal) not from your decision to respect their right to make an autonomous choice.  You cannot have a duty to do that which you are not allowed to do (Stuart v Kirkland-Veenstra).

Even if you had a duty to provide care to a person that you thought they needed, regardless of what they thought, your duty does not give rise to an obligation upon them to assist you to do what you want them to do to protect your own interests.  Nor do they have to accept care just because you think it is in their best interests.

There is of course a difference between ‘convincing’ a person to go to hospital and forcing ‘those patients go to hospital’.  Convincing a person to change their mind (that is providing advice that causes them to change their mind) is fine, putting them in a position where they think they have no choice is not. Forcing them into an ambulance is not fine. A competent patient has the right to refuse treatment.  Whatever duty you think you have it is not a duty to treat a competent patient without their consent (Rogers v Whitaker).

See also Transporting sedated patients in WA (December 30, 2019).

Today’s question relates to the word ‘paramedic’ on the side of a vehicle that is not staffed by paramedics. My correspondent writes:

Now that “Paramedic” is a registered title, should there be any considerations given to others responding to emergency cases in a marked ambulance with “Paramedic” on the side? I’m specifically talking about Victoria, where Ambulance Community Officers (ACO’s) respond to cases in an ambulance which has “Paramedic” on the side.

Ambulance Victoria described ‘Ambulance Community Officers’ as part of the volunteer first responder network – see https://www.ambulance.vic.gov.au/community/volunteers/ – even though it appears they are employees not volunteers. They say:

Ambulance Community Officers (ACOs) are First Responders, who are employed on a casual basis to work “on call” at either a Community or a Paramedic branch. They are trained to provide advanced first aid in rural and remote communities where the ambulance caseload is low, the ambulance branch is not staffed on a full time basis, or where the paramedic is not generally rostered to work with a second paramedic. ACOs are trained to provide a support service to qualified paramedics; they provide early interventions and can transport patients to hospital.

ACOs operating at a Community branch work in pairs and are responsible for providing first response emergency care in response to a “000” call. They may be “backed up” by the arrival of a Paramedic crew but may be required to treat and transport the patient to hospital without a Paramedic.

ACOs who are engaged to support service delivery at Paramedic branches are paired with a single paramedic, providing the advantages of a two-officer crew where this would not otherwise be routinely available due to location. At times, these ACOs may also be required to form an ACO only crew in response to demand to provide first response emergency care.

I note that the Ambulance Service Act 1982 (Tas) s 39 says:

A person must not drive, operate or have charge of, or allow another person to drive, operate or have charge of, a vehicle that is –

(a) marked with the word “paramedic”; or

(b) otherwise marked or altered so as to imply, or bears any inscription that may lead to the belief, that the vehicle is operated by a paramedic –

unless the staffing of the vehicle, at the time, includes a paramedic.

There is no similar provision in Victoria but given the term ‘paramedic’ is a restricted title it would be prudent for AV not to supply ACOs at a community branch with a vehicle marked ‘paramedic’ but perhaps there are limited vehicles and some may have to be moved about so that a community branch has a paramedic car whilst theirs is being repaired or they are at a paramedic branch it may be the only vehicle there even if there are no paramedics.

The legal rule is in the Health Practitioner Regulation National Law as adopted and modified by the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic). Section 113 says:

(1) A person must not knowingly or recklessly—

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

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

(2) A person must not knowingly or recklessly—

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

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

The question then is whether the use of the term ‘paramedic’ on the car ‘could be reasonably expected to induce a belief’ that the people who get out of the car are paramedics. For the ACO they have little choice but to use the car provided and so they may not be ‘taking or using’ the title, but it could be argued that AV, by putting ACOs in a car marked ‘paramedic’ are using the title in relation to a second person (ie the ACO).  That is AV could be in breach of s 113(2) if a court accepted that the word on the side of the ambulance ‘could be reasonably expected to induce a belief [that] the second person [the ACO] is registered under this Law’ as a paramedic.

I don’t think one could draw that inference simply from the signwriting, if one sees a vehicle marked ‘plumber’ or ‘electrician’ it does not mean that the driver is a plumber or electrician, they may work for that company but you could not know in what capacity. But if you had called for a plumber and they arrived and started to do the requested work one would, I think, reasonably infer that the person is a plumber. By that analogy merely driving the car would not, I think give rise to an inference that the person is a paramedic but if they respond to a triple zero call and start providing emergency care as one would expect a paramedic to, then in context a person may well be led to believe that the person who is providing that care is indeed a paramedic. 

Whether AV is guilty of an offence contrary to s 113 would depend on all the circumstances but, to return to my starting comment ‘it would be prudent for AV not to supply ACOs at a community branch with a vehicle marked ‘paramedic’’.

Today’s question is:

Can a person be prosecuted for a breach of NSW Rural Fires Act, sec64 (1) (b) where they (ie myself) phoned RFS New England RFS headquarters directly instead of 000 to report a bushfire on my property

The answer has to be ‘yes, they could be; but it would be pretty petty if they were’.  The Rural Fires Act 1997 (NSW) s 64 says:

(1)        If a fire (not being a fire or part of a fire lit under the authority of this Act or any other Act) is burning on any land at any time during a bush fire danger period applicable to the land the occupier of the land must:

(a)        immediately on becoming aware of the fire and whether the occupier has lit or caused the fire to be lit or not, take all possible steps to extinguish the fire, and

(b)       if the occupier is unable without assistance to extinguish the fire and any practicable means of communication are available, ensure that the fire is reported immediately to the 000 emergency telephone number.

Section 64(1)(b) was put into the Act, in its current form, by the Emergency Services Legislation Amendment Act 2018 (NSW) with effect on 26 October 2018.  Before then the section said:

if the occupier is unable without assistance to extinguish the fire and any practicable means of communication are available, inform or cause to be informed an appropriate officer of the existence and locality of the fire if it is practicable to do so without leaving the fire unattended.

In a rural fire district, the appropriate officer was defined in s 64(2) (now repealed) as

… the nearest available:

(i)  officer or member of a rural fire brigade, or

(ii)  fire control officer or deputy fire control officer, or

(iii)  employee of the Department of Industry, Skills and Regional Development, or

(iv)  employee of the Office of Environment and Heritage.

Ringing the relevant regional headquarters would have been compliance with s 64(1)(b) as it then was. When introducing the amendments, the then Minister for Emergency Services, the Hon. Mr Troy Grant said:

Clause 8 [of the Emergency Services Legislation Amendment Bill]amends section 64 (1) (b) to require occupiers to report out-of-control fires to 000 rather than to local fire brigade officers. This change is consistent with existing advice that the New South Wales Rural Fire Service provides to the public about reporting fires to 000. Contacting 000 is the best way to ensure a rapid, coordinated response to a fire.

What follows is that the reference to calling triple zero was deliberate. The Act sets out what is required to meet the obligation imposed by s 64(1)(b). Failure to call triple zero is a failure to comply with the section so one ‘could’ be prosecuted. But the law is not self-executing, someone would have to be bothered and if the fire had been reported to the fire control centre and if there had been a response then it would be trivial to complain that the call was not made to triple zero.

Further, one could argue that the Act is ambiguous. You cannot report a fire to a phone number, you need to report it to a person. When calling triple zero a Telstra operator will answer the call. The Triple Zero webpage says:

Telstra has responsibility for providing the service which answers calls to these numbers [000 and 106 and 112], and transfers them, with relevant associated information, to the requested emergency service organisation.

You do not report the fire to the triple zero operator, they put the call through to the requested emergency service and their call taker (not the number) takes the report.  If by calling the region headquarters direct the message was passed to the same person that one would have received the message had the call come via the triple zero process then one could argue that the matter had been reported to the relevant triple zero call taker, given it is in fact not literally possible to comply with s 64(1)(b).   The section would be better if it said ‘… the fire is reported immediately via the 000 emergency telephone number.’

Putting aside the semantics, the Act sets out the process to comply that is to call triple zero. Failure to report the number through that process is a failure to comply with s 64(1)(b) so could see someone prosecuted, but I’m sure a magistrate would be very disappointed to see such a prosecution come before their court if the person had indeed rung the relevant control centre and certainly if the call taker at that centre had not said ‘hang up, and ring triple zero’.

De minimis non curat lex – the law is not concerned with trifles.

The Australian Legal Information Institute (AustLII) has added two new databases where they have collected together the public health orders made in Queensland and Victoria. You can find them here:

• Queensland COVID-19 Public Health Directions; and
• Victorian COVID-19 Public Health Directions.

Having these collections should make it easier to refer to the various in-force orders.

Those looking for detailed explanations of the legal basis of the COVID response will find these papers of interest:

• Karen Elphick, Australian COVID-19 response management arrangements: a quick guide (Research Paper, 20 April 2020, Department of Parliamentary Services, Parliament of Australia); and
• Holly McLean and Ben Huf, Emergency Powers, Public Health and COVID-19 (Research Paper No. 2, August 2020, Department of Parliamentary Services, Parliament of Victoria).

Today’s correspondent asks:

In light of this evening’s revelation (reported by Sky https://youtu.be/I-KK-f-TVwc @7:35 and https://youtu.be/r6VozdBC89I @8:30) that the imposing of the curfew in Victoria (pursuant to s200, Public Health and Well-being Act, https://www.dhhs.vic.gov.au/sites/default/files/documents/202008/Stay%20at%20Home%20Directions%20%28Restricted%20Areas%29%20%28No%2014%29%20.pdf at [5(1AF)]) wasn’t the idea of the chief health officer I’d like to read your opinion on the legality of the directive in relation to the curfew.

The Premier seemed to confirm today the curfew was for “law enforcement” purposes. It appears to me the Government having no avenue to legally apply these curfews, chose the Chief Health Officers directive as the legal vehicle to achieve their goal, contrary to the purposes of the Act.

It follows that the curfew isn’t “necessary to eliminate or reduce the risk to public health -reasonably necessary to protect public health”, and therefore likely illegal?

As I’ve noted elsewhere this blog is about the law. The law applies to facts and I cannot test those facts. The relevance of that statement will become evident below.

The Public Health and Wellbeing Act 2008 (Vic) s 199 says:

(1)        This section applies if—

(a)        a state of emergency exists under section 198; and

(b)       the Chief Health Officer believes that it is necessary to grant an authorisation under this section to eliminate or reduce a serious risk to public health.

(2)        If this section applies, the Chief Health Officer may, for the purpose of eliminating or reducing the serious risk to public health, authorise—

(a)        authorised officers appointed by the Secretary to exercise any of the public health risk powers and emergency powers; and

(b)       if specified in the authorisation, a specified class or classes of authorised officers appointed by a specified Council or Councils to exercise any of the public health risk powers and emergency powers.

(3)        The Chief Health Officer may at any time revoke or vary an authorisation given under this section.

The list of emergency powers is set out in s 200 and the order imposing the curfew is said to be made pursuant to s 200.

The Chief Health Officer has to be satisfied (emphasis added) ‘that it is necessary to grant an authorisation under this section to eliminate or reduce a serious risk to public health’. Further he or she has to be satisfied that ‘for the purpose of eliminating or reducing the serious risk to public health’ he or she should authorise an authorised officer to exercise relevant emergency powers. The task of the Chief Health Officer, therefore, is to ‘authorise’ authorised officers to take action under s 200; it is not the Chief Health Officer’s role to make those directions or to be personally satisfied that each power that an authorised officer chooses to exercise is necessary.

Section 200 provides that one of the emergency powers that an authorised officer may exercise is a power to ‘restrict the movement of any person or group of persons within the emergency area’ (s 200(1)(b)).  That subsection does not say that the decision must be ‘reasonably necessary to eliminate or reduce a serious risk to public health’ or ‘reasonably necessary to protect public health’ (see s 200(1)(a) and (d) respectively).

The public health order referred to was not made by the Chief Health Officer, it was made by ‘Dr Finn Romanes, Deputy Public Health Commander’ who said that he considers ‘it necessary to eliminate or reduce the risk to public health – and reasonably necessary to protect public health’ to make the directions set out in that order including the imposition of the curfew. I assume Dr Romanes is an appropriately appointed ‘authorised officer’.

The first thing to note therefore is that it does not matter whether the Chief Health Officer thinks that the curfew is ‘necessary to eliminate or reduce the risk to public health’ or ‘reasonably necessary to protect public health’. The issue is whether Dr Romanes holds that opinion.

The Premier said that making that order was to make it easier for police. That is not unreasonable- and is the cause of grief for many motorists. People want to argue that speed limits are simply revenue raising because police issue infringements when it is early morning, no other cars on the road, perfectly safe. But having a clear rule ‘the speed limit is 80km/h’ is something that everyone can understand, is measurable and consistent. It avoids the argument ‘but it was safe’.  It may not be necessary in those terms for road safety, but it’s easy to enforce.

The Chief Health Officer and the Deputy Public Health Commander may both accept that the restrictions set out in the Stay at Home Directions (Restricted Areas) (No 14) without the curfew would meet the public health needs. But there is a whole of government response and no doubt they are, or should be, discussing these issues with their counterparts in other parts of the Victorian government and between Ministers.  If the police commissioner says ‘we can devote resources to the enforcement but between 20:00 and 05:00 our resources are more limited’ then that is something the Deputy Public Health Commander could and should take into account. He or she may form the view that the various reasons that permit people to be out and about are less relevant during the curfew hours (noting that there are still many permissible reasons listed in paragraph 1AF that allow a person to be out during the curfew hours). He or she may determine that given the states resources, the curfew hours are a way to make the orders effective.

Now we return to my original statement that neither I, nor Sky, can test the relevant facts. A grab from a media conference or interview with the person who did not make the direction, does not give the context. A person could elect to challenge the direction on the basis that it was ultra vires if the Deputy Public Health Commander did not, or does not, consider that the restrictions set out in the Stay at Home Directions (Restricted Areas) (No 14) including the curfew in 5(1AF) are ‘necessary to eliminate or reduce the risk to public health’ or ‘reasonably necessary to protect public health’. To do that one would need to get evidence and media grabs are not evidence; if they were, judges would just watch the TV instead of listening to witnesses. In an application for a declaration that the order was ultra vires one would need to cross examine Dr Romanes as to his state of belief and how he formed that belief. One would need to look over the minutes of meetings of the officials involved and the advice received from across the whole of government. Because of that, and because I can see that it might be the case that Dr Romanes may have considered that whilst a curfew as such was not necessary, it was necessary to make the directions effective given all the circumstances including the states enforcement resources, it is impossible to reach a conclusion that the curfew is or is not ultra vires (ie beyond power).  That depends on facts, that I cannot test.

In any event I would expect that the courts would give a great deal of latitude to the executive government in circumstances like this. If Dr Romanes gave evidence to the effect that he did genuinely believe that the directions were ‘necessary to eliminate or reduce the risk to public health’ or ‘reasonably necessary to protect public health’ even if that belief was based in part on advice that it would be easier to enforce, and therefore more effective, with an 20:00-05:00 curfew, then a court would be unlikely to find that the directions, or part of them was ultra vires.                   

Published by the Torrens Resilience Institute, this post – COVID-19 and Law: Australian and International Law – is written by Dr. Hossein Esmaeili. I sit on an external advisory board for the Institute and Hossein is my friend, a former UNE colleague and now Associate Professor at Flinders University.

Today’s correspondent asked

Do you agree that “In all but extraordinary circumstances, a patient who refuses treatment after a suicide attempt can and should be given life-saving treatment, under either mental health legislation or the common law concept of necessity”?

I think ‘extraordinary circumstances’ may be when the patient has a terminal illness or chronic illness AND has capacity to refuse treatment? What do you think?

The question is based on the fourth dot point in the abstract to the paper:

Christopher J Ryan and Sascha Callaghan ‘Legal and ethical aspects of refusing medical treatment after a suicide attempt: the Wooltorton case in the Australian context’ Med J Aust 2010; 193 (4): 239-242, doi: 10.5694/j.1326-5377.2010.tb03880.x  (Published online: 16 August 2010).

I do not agree with either of the propositions as set out in the question. 

If we accept that people have the right to make their own choices about the value of their life and the treatment that they want, why can’t people who attempt suicide also refuse treatment? One might say that a suicide attempt is the ultimate expression of wishes. If that’s true necessity cannot apply where treatment is contrary to the known wishes of the person (discussed further, below). 

Second what treatment are we talking about? If a person has attempted suicide without any success- a poor attempt at cutting one’s wrists or a very small overdose of drugs that were never going to be fatal, then the person retains the right to consent or refuse consent. In that case the mental health legislation may be relevant, but necessity is not. If the attempt is more effective and so the treatment actually required is lifesaving treatment to deal with traumatic injuries or a drug overdose that has left them insensible, how can the mental health legislation be relevant?

Necessity may apply where the person cannot at that time communicate and one might infer (as I understand the literature would discuss) that a suicide attempt is not necessarily evidence that the person wants to die, but that they want their symptoms to abate and they cannot think of how else to achieve that outcome. So one might infer that their suicide attempt is not, in fact, an expression that they don’t want treatment where they did not know what treatment was available or how to access it. One might, in all the circumstances, also infer that indeed they were not competent to make the relevant decision. I’m sure if anyone sued for battery a court would bend over backwards to find that sort of justification, but it could be complex.

Take for example a person who has been held up as a ‘pillar of the community’. A well-established reputation for ‘doing good’ who has enjoyed the good life but with a consistent life story of atheism and a belief that life is for the living now and that after death, there is nothing. A person has come out of his history alleging that 40 years ago he committed sexual offences against that person as a child. The man in question may think ‘I’ve led a good life, I’ve had fun. I don’t want to face the damage to my reputation and I see no value in living the last years of my life in gaol.’ He determines to take his own life and leaves a suicide note confirming that he intends to die and refuses all treatment. He completes an advance care directive with the assistance of a doctor and a lawyer and has been seeing a mental health practitioner who has never suggested that he is demonstrating symptoms of mental illness. Surely that direction is binding?

If it’s not, but if you accept that a person who ‘has a terminal illness or chronic illness AND has capacity to refuse treatment’ can refuse treatment after a suicide attempt then you are making judgments not about the person’s capacity but about the value of their decisions – it’s either a quality of life decision or it’s a decision that some suicides are ok but others are not and that smacks to me of medical paternalism. Who’s to say that ‘it’s perfectly reasonable that a person with a terminal or chronic illness would kill themselves, but that a person who is about to lose all that is of value to him is not acting reasonably’?

When I did my LLM the literature tried to argue that there is a moral difference between refusing lifesaving treatment and active steps to suicide so people tried to argue that the person who refuses treatment is not a suicide. If that is a valid distinction it may allow the person who ‘has a terminal illness or chronic illness AND has capacity to refuse treatment’ to indeed refuse treatment for their condition but would not apply to treatment for their drug overdose. 

In Stuart v Kirkland-Veenstra [2009] HCA 15 French CJ said (at [41])

Unless the person met the criteria set out in s 8 [of the then Victorian Act], including that of mental illness, there was no basis for further coercive action following upon examination by the practitioner. These provisions of the Act give nobody the legal power to prevent a person from taking his or her own life…

Prima facie, a person who refuses treatment after a suicide attempt but who is still conscious and able to consent to treatment can continue to refuse treatment. For mental health legislation to apply (using NSW law as an example) the paramedics would have to be satisfied that the person was suffering from a mental illness that is (Mental Health Act 1987 (NSW) s 4, definition of ‘mental illness’):

(a)           delusions,

(b)          hallucinations,

(c)           serious disorder of thought form,

(d)          a severe disturbance of mood,

(e)           sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d).)

But if you think that it’s reasonable not to treat a person who has attempted suicide and who ‘has a terminal illness or chronic illness AND has capacity to refuse treatment’ then you must accept that suicide is not, on its own, proof of either (c) or (d) above, nor is the decision necessarily irrational. 

If the suicide attempt has been such as to render the patient incompetent (‘…the treatment actually required is lifesaving treatment to deal with traumatic injuries or a drug overdose that has left them insensible…’) then I cannot see how the mental health legislation is relevant.  Assume that there is a hospital with an emergency department and an acute mental health unit with its own emergency department. If we take s 20 of the NSW Act it says ‘An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility …’ If the person has self-inflicted trauma, the paramedics are not planning to ‘take the person to a declared mental health facility …’ so s 20 has no role to play (and see Mentally ill, mentally disordered, mentally disturbed or just injured and in need of medical care in NSW? (August 27, 2017). The Mental Health Act is not about providing involuntary treatment for a condition that a person refuses because of their mental illness, it’s intended to provide involuntary treatment of the person’s mental illness (and see Part 3 of the NSW Act that deals with providing ‘other’ treatment to involuntary patients but that relates only to surgery but not other procedures). 

I think a better argument is that there is both a common law and statutory power to use force to prevent a suicide. For example, the Crimes Act 1900 (NSW) s 574B says:

It shall be lawful for a person to use such force as may reasonably be necessary to prevent the suicide of another person or any act which the person believes on reasonable grounds would, if committed, result in that suicide.

In Stuart v Kirkland-Veenstra, French CJ said (at [45]):

State intervention to prevent suicide may now be seen, at least in part, as the exercise of a parens patriae role and the interest of the State in protecting the life of its own citizens …

Gummow, Hayne and Heydon JJ talked about the legislation allowing the use of force to prevent a suicide (including the legislation in NSW, SA, the ACT and the NT).  With respect to the Victorian provision (Crimes Act 1958 (Vic) s 463B) they said (at [78]):

It is to be noted that provisions like s 463B of the Victorian Crimes Act did not permit apprehension or arrest of a person who had threatened or was threatening suicide. The provisions authorised the application of force to prevent suicide.

What does it mean to prevent a suicide? We may accept that stopping someone before they jump off the cliff or step off the stool whilst there is a noose around their neck is ‘preventing a suicide’.  But if the aim of suicide is to die then preventing them from dying is preventing a suicide and that is justified not by trying to find that the suicide was mentally ill but because the state has an interest in preventing suicide.  But if Gummow, Hayne and Heydon JJ are correct it may not warrant forced treatment of a person who, even after their attempt, retains competence and who is not displaying the symptoms of a mental illness listed above.  If they are not at risk of dying the use of force cannot be justified just because they did attempt suicide and may do so again in the future. 

I think Stuart v Kirkland-Veenstra makes it clear that people are allowed to take their own life if they want to, and there is no authority to prevent them unless the mental health legislation applies, and it doesn’t apply just because they are contemplating or have attempted suicide.

I think that if a person has attempted suicide and are not at the time competent to give or refuse consent any court would try to find that necessity applies and in any event the right to use force to prevent a suicide could be argued as authorising treatment to save their life. But if a person has attempted suicide but, notwithstanding that attempt, they remain competent, they are not at risk of dying from their attempt and are not displaying symptoms of mental illness then there is no power to detain and treat them without consent; just as Senior Constable Stuart had no power nor duty to detain Mr Veenstra.  

My conclusion would be ‘a patient who refuses treatment after a suicide attempt and who is at risk of dying (ie if left untreated, the suicide attempt will be, or there are reasonable grounds to believe it will be successful) may be given life-saving treatment, under the common law and statutory power to use force to prevent a suicide’.  Noting, as Ryan and Callaghan do that the use of these provisions in ‘the case of an otherwise valid refusal of medical treatment is not established’.

Do I think they ‘should’ be given that treatment? That is much more problematic but if someone does think the treatment ‘should’ be given then that has to apply to everyone including a person with ‘a terminal illness or chronic illness AND has capacity to refuse treatment’ otherwise health professionals are getting into the judgement of which decisions ‘make sense’ to them and not the patient. As we can see with the COVID response the states are taking very seriously the idea that all lives are valuable and are going to extreme measures to protect the lives of the elderly with serious co-morbidity. If the prevention of suicide is ‘the exercise of a parens patriae role and the interest of the State in protecting the life of its own citizens …’ then the state (except in those states that have legalised physician assisted suicide) has the same interest in everyone’s life. I cannot see any reason to add the ‘extraordinary circumstances’ exception suggested.

I note that the conclusions I’ve reached are very similar to those reached by Ryan and Callaghan. Relying on the 4th dot point of the abstract misses the other three dot points and their conclusion (emphasis added) ‘ clinicians will be acting ethically and within the law if they provide treatment to such patients, unless the patient cannot be treated under mental health legislation and there is no doubt that the patient’s refusal of treatment is competent.’

Today’s question comes from:

… a GP from Melbourne’s Stage 4 Lockdown … (although my question is not medically related).

The scenario is one where a mother was offloading her children from their parked car adjacent to a park area for the purposes of fresh air and exercise (well within the 5km radius from home, an open grassy park not a playground), and while she was managing the youngest child (5 years of age), police quite rapidly approached and began questioning her other children (aged 10 years & 15 years) as to their purpose of being there, where they had travelled from, were they in the same family, etc.

My question is whether it is legal permissible (and I suppose appropriate) for police to question minors without the consent of their (present) parents, or indeed before approaching the responsible adult/ parent first.

As for the fact the family were ‘well within the 5km radius from home’ presumably the police don’t know that unless they ask the question. The fact that someone is not committing an offence – because they have a lawful justification or excuse or are simply not acting contrary to the law – does not mean that the police cannot ask what’s going on. If they think someone may be committing an offence they can ask but the answers may put their mind at rest that nothing untoward is happening. So the fact that in the scenario given they were ‘well within the 5km radius from home’ is irrelevant unless the police already knew that.

There are rules about police interviewing children when the child is in police custody on suspicion of having committed a crime and the police are intending to use anything that is said or done as evidence against the child (see Crimes Act 1958 (Vic) s 464E; see also Victoria Legal Aid – Young people and the police).  Equally there are formal procedures to be followed when interviewing either an adult or child suspect (see ss 464 to 464JD). But those sections apply when a person is in custody.

Police can ask anyone they like anything they want. The person being asked may be under no obligation to answer but the police can ask. Police have to be able to question children in the absence of parents, there will be situations where children are out and about without a parent or guardian and police want to ask them questions whether those are about their own welfare or whether they saw something related to a crime police are investigating.

I won’t say what’s appropriate as every case is different, but it is legally permissible  ‘for police to question minors [except when the child is in police custody or where the police have formed a view that they have sufficient evidence to arrest the child] without the consent of their (present) parents, or indeed before approaching the responsible adult/ parent first’.

Today’s question is interesting as it’s a true forward thinking academic question.

I’m asked:

Now that paramedics are a registered health profession, I’ve had the same conversation with quite a few colleagues who, like me, envision fully autonomous paramedic practitioners becoming a reality in Australia.  Those conversations usually revolve around the question ‘what next?’ in terms of expanding the capabilities of the profession.  As far as we can see there are four major legal hurdles: (1) the ability to bill directly to Medicare, (2) the ability to prescribe medications, (3) the ability to refer to medical specialists, and (4) a ‘drug license’ (for lack of a better term) that allows us to autonomously take authority for medications, i.e. paramedics taking ketamine out of a pharmacy under their own authority for their medical kit in a trekking expedition they’ve been hired to take care of.  I recognise that some paramedics in some parts of the country can do some of these things, but I don’t believe there are paramedics anywhere in Australia that can do them all.

My question for you, from your perspective in law, is this: do you think these are all necessary, and do you think that in sum these four would be sufficient, or do you believe that there are other major steps that we need to take to become fully autonomous medical professionals?

I suppose one cannot answer the question until you define what you think makes a professional a ‘fully autonomous health care professional’.  I don’t think paramedics should aim to be ‘fully autonomous medical professionals’ because they are not medical practitioners, they are paramedic practitioners – they should aim to create a unique space for paramedics.

Personally, I think the most important step would be ‘a ‘drug license’ (for lack of a better term) …’ When the right to carry, supply and administer drugs comes with registration then paramedics are trusted health care professionals with an ability to create their own practice environment.

Having a Medicare provider number and being able to bill Medicare would certainly assist paramedics to develop an effective business model but there could be other ways to manage a business eg fee for service as event paramedics or billing health insurance companies for patient transport. One doesn’t have to charge the patient so having relevant Medicare items and an ability to charge Medicare would, I  think be helpful for paramedic business but – and without having an explicit definition of what constitutes a ‘fully autonomous health care professional’ in mind – I don’t think it’s essential to demonstrate professional autonomy.

The right to prescribe medication and refer patients to other health care practitioners would certainly open up business and practice opportunities particularly in extended and community care paramedicine.  Both would demonstrate ‘autonomy’ as the paramedic could form a view of the patient’s condition and provide care without having to refer them to a third party, ie a doctor.

This takes me back to an earlier point which is that paramedicine is not medicine. So one needs to think about what sets paramedicine apart from medicine. Paramedics don’t need to be ‘almost doctors’ (which of course is odd, given the root of the word ‘para-medic’ but whatever the linguistic history behind the word paramedic, it’s a word that’s taken on its own meaning with registration). If paramedics don’t have to be as close to ‘medical practitioners’ as possible then they have to define what are the essential issues of paramedicine. If paramedicine is about out of hospital care, and in particular out of hospital emergency care, then I think the need for prescribing and referral is less important than the right to carry drugs.

At the moment paramedics are registered health professionals but the right to carry an essential tool of their trade, the drugs they use for the benefit of their patients, belongs to their employer.  Until that is resolved they are not truly independent health professionals because they need their employer’s permission to practice their profession. When that’s attended to then they will, in my view, be ‘fully autonomous health care professionals’. The other issues – Medicare, prescribing and referral will help define and dictate what paramedic practice looks like.  They would be useful to give paramedics the widest scope of practice and communities the benefit of practice. But my answer to the question (remembering that I’m not a paramedic) is the essential step is a drug authority that comes with registration, not employment.

Another issue, I’m not sure if it’s required to ‘become’ fully autonomous health care professional or will be evidence that the profession has achieved autonomy, is to be personally accountable for decisions. This is an idea that Megan Jane-Johnston raised in her book ‘Nursing and the Injustices of Law’ (W.B. Saunders/Bailliere Tindall, 1994).  Her argument (if I remember it correctly) was that whilst nurses were not sued because they were employees of institutions and were simply following ‘doctor’s orders’ they were not and could not be considered independent professionals.  It is still the case that we rarely if ever see nurses getting sued because they nearly always practice as employees.  Equally in cases where paramedics are allegedly negligent it is their employer who is the defendant. When paramedics start having their own business practices and their own independent relation with patients then that may change. It may not be an indicium anyone wants, but it is I think an interesting argument. If paramedics could charge Medicare directly, prescribe medication and refer a person to a specialist, then it would certainly be the case that they would be personally liable for their decisions and that would indicate that they are indeed truly autonomous professionals.

Having said that I think (without rationalising the arguments in full) I still think that those issues would expand the ways paramedic could practice and could help widen the definition of what paramedicine is, but they are not essential for saying that paramedics are able to practice as autonomous paramedic practitioners.

But at the end of the day, defining what is or are the essential elements of paramedicine is not for me; it’s for the profession and bodies such as the Australasian College of Paramedicine. Once there is some consensus on what it is to be a paramedic – what is essential to paramedic practice – then it will be possible to define what is required to ensure that paramedics are truly autonomous health care professionals. Registration was a critical first step.

Today’s correspondent

‘own[s] and operate[s] a “private fire service” in Tasmania. Doing hazard reduction work for councils, landholders and forestry. As well as the help with bushfires. I own a fire truck it is fully equipped out. What are my rules relating to having red/blue lights?

My correspondent adds that the vehicle is a ‘registered fire tanker with TAS Roads’ but that the Tasmania Fire Service ‘don’t want me to have lights any more’.

The rules on lights that can be fitted to a vehicle in Tasmania are set out in the Vehicle and Traffic (Vehicle Standards) Regulations 2014 (Tas). Regulation 107 says:

(3) … a light vehicle must not be fitted with –

(a)        a light that flashes; or

(b)       a light or reflector that –

(i)         shows a light other than a red, yellow or white light; or

(ii)        shows a red light to the front; or

(iii)       shows a white light to the rear; or

(iv)       is shaped or located in a way that reduces the effectiveness of a light or reflector that is required to be fitted to the vehicle under the Vehicle Standards .

(4) Despite any requirement of a third edition ADR –

(a)        an exempt vehicle may be fitted with one or more flashing lights of any colour and one or more reflectors of any colour; and

(b)       an emergency vehicle may be fitted with one or more flashing red or white lights…

The term ‘emergency vehicle includes ‘a vehicle built or permanently modified for firefighting purposes’ (r 107(1)).  An ‘exempt vehicle’ includes ‘a vehicle operated, approved or authorised under the Fire Service Act 1979’ (r 5 and Part 15).

What follows is that if the appliance is ‘a vehicle built or permanently modified for firefighting purposes’ it may be fitted with flashing red or white lights (r 107(4)(b)).  That does not require permission or authority from the Tasmania Fire Service.  If the use of the vehicle has been ‘approved or authorised under the Fire Service Act 1979’ then it can fitted with any colour lights (r 107(4)(a)) that are part of that approval (eg red and blue).

As for the use of those lights, the Road Rules 2019 (Tas) are the Australian Road Rules as adopted in that state. Readers of this blog will be familiar that r 306 gives certain exemptions to the drivers of an emergency vehicle whilst rr 78 and 79 require other drivers to keep clear of, and give way to, emergency vehicles. For the purposes of those rules an emergency vehicle is a vehicle driven by an emergency worker in the course of his or her duty (Schedule 5). In Tasmania, relevantly, an emergency worker is a person ‘appointed or employed for the purposes of the Fire Service Act 1979’ (Schedule 6). 

Given we are talking about a private company, and given the objection by TFS, I infer that neither my correspondent nor the company has been ‘appointed’ to any position for the purposes of the Fire Service Act 1979’ it follows that the appliance, being ‘a vehicle built or permanently modified for firefighting purposes’ is an emergency vehicle for the purposes of the Vehicle and Traffic (Vehicle Standards) Regulations 2014 (Tas) but it is not an emergency vehicle for the purposes of the Road Rules 2019 (Tas). If that is correct it can be fitted with flashing red or white lights (not blue) but the use of those lights whilst travelling on a public road has no legal meaning and would just confuse other drivers.

Remember this is a blog, not legal advice. This outcome is the result of reading the Road Rules 2019 (Tas) and the Vehicle and Traffic (Vehicle Standards) Regulations 2014 (Tas). No-one should rely on it as proper advice would require consideration of the vehicles registration status, details of any agreement with TFS that allow a person to assist with firefighting, the impact (if any) of Fire Service Act 1979 (Tas) s 37 ‘Salvage corps or fire brigade may not be constituted unless authorized’ etc.  My correspondent (or anyone else) must remember the limitations of a discussion here and at least read the regulations him or herself and satisfy themselves how they apply and if they want definitive advice, obtain that from a Tasmanian practitioner who can consider those issues and confirm the facts; things that I, as a blog writer, cannot do.

Further to my post NSW advance care directives and paramedics (August 30, 2020) I received the following from someone in the Non-Emergency Patient Transport (NEPT) sector.

I’ve been questioning our current protocol … regarding Advanced Care Directives, specifically the NSW Health documents that accompany patients who either have terminal conditions or are in palliative care. This is a fairly common transport, and we require a copy of these documents to accompany the patient in case of deterioration within our care. About 2 years ago, I noticed that while we were being given a copy of the front page, we were rarely, if ever, given a copy of the back. When we were, it was either not filled in, not signed by the AMO or not completed. The bottom of the document clearly states that both front and back pages need to be signed, but I would also argue that the information needs to be complete on the back of the form. Especially the information regarding the validity of the form, and the capacity of the patient to make these end-of-life decisions, and who (if not the patient themselves) has made this decision for them. I have become very insistent that nursing staff contact the treating team to complete these documents as it’s my understanding that;

1.         As the provider taking over the duty of care (and an AHPRA registered health care professional) of this patient, I would be legally responsible if, for whatever reason, this patient passes away in the back of the ambulance, I do not attempt resuscitation and either the family or the doctor had revoked this Advanced Care Plan or decided not to go ahead with it, thus the reason for it not being completed, making them for full resus.

2.         Without a date it expires, or time until which the document remains valid, being declared the appropriate section of the form the document is invalid.

3.         Especially in regards to patients with advanced dementia (being the reason for their “Not For Resuscitation” status) who are incapable of making these decisions for themselves, finding numerous resus plans with “Withholding resuscitation complies with the patients verbally confirmed wishes” is alarming, and such statement could potentially invalidate the document as well.

A link to a sample of the form is here. My employer has told me that as long as the nursing staff hands over that there’s an NFR order, and the front page of the document exists and is signed, that’s good enough. However, I don’t believe this is based on legal advice, and I’m concerned that following this would leave me open to risk. The private industry in NSW Patient Transport is rapidly changing and keeping up legally as a staff member is hard.

Hope this question makes sense as I’ve tried to understand it myself and this is as far as I’ve gotten.

I note that patient transport officers are not registered under the Health Practitioner Regulation National Law so I infer my correspondent is a ‘nurse, registered nurse, nurse practitioner, enrolled nurse’ or a paramedic (or a member of one of the other health professions), but nothing turns on that.

In answering this question I’ve also located a NSW health training slideshow that includes the form (see slide 6). The form does say (emphasis in original) ‘Complete and sign both front and back pages. A copy must accompany the patient on all transfers & be included in discharge summary.’

The starting point is that there is no legislation governing advance directives or resuscitation plans in NSW. The law is the common law that says that a patient can refuse consent to treatment even where that will shorten their life, and that health professionals are not under a duty to provide futile treatment. That means that a patient may be ‘not for resuscitation’ because the patient (or their substitute decision maker) has decided they don’t want that care or where the doctors have determined that such treatment is not in the patient’s best interests or is otherwise futile.  We can see that reasoning in the section ‘Rationale for withholding CPR’ (on page 2).

To turn to my correspondent’s assertions, we are all legally responsible for our decisions. The patient transport officer is ‘legally responsible’ for their decision to commence or withhold CPR in all the circumstances. There is no automatic obligation to resuscitate everyone unless this form is fully completed; the obligation is always to treat the patient in accordance with the patient’s best interests.  What that means is this form is not the ‘be all and end all’ – “if form completed, no CPR; if form not completed full resuscitation”. The form is simply one way to communicate the outcome of the medical decision making. The same information could be communicated orally, or in a letter. The advantage of the form is that it is consistent and unambiguous. The question should become whether the patient transport officer has any serious doubt about the situation. 

It would certainly be a concern if the document does not say how long it is valid for depending on when it was signed. If it was signed minutes before the patient was collected then one can infer it is intended to apply during the transport, but if it was executed a month ago one would have to question whether it was still intended to apply.

I would agree that there should be concern ‘in regards to patients with advanced dementia … who are incapable of making these decisions for themselves’ and the notation that ‘Withholding resuscitation complies with the patients verbally confirmed wishes’ as that implies whoever was completing the form was not giving it the attention it deserved.

Regardless of the form however, if the patient is receiving palliative care then by definition care is being provided to relieve symptoms rather than prolong life. If the patient is being transported to or from a palliative care setting one might be more confident that the ‘No CPR’ order is consistent with the treatment being given – see Withholding treatment from a patient in palliative care (November 19, 2019)). A patent with a ‘terminal condition’ may not be in palliative care, they may be expected to die of their condition but that may still be a long way off.

I think, given the absence of legislation, the issue is not whether every box has been completed but whether there is any reason to doubt the desires or medical opinion being communicated?  Whether one has cause to doubt that it is not intended to subject the patient to CPR depends on all the circumstances including what else is known about the patient’s history, conversations at the time of transfer etc.  If the patient transport officer is satisfied that there is an NFR order in place that is sufficient.  But, having said that, medical and nursing staff should recognise that these forms have been designed for a reason and that proper attention to detail would require both sides to be completed and it is prudent for anyone in the health team to insist, for everyone’s benefit, that the medical officer completing the form complete both sides. I commend my correspondent for becoming ‘very insistent that nursing staff contact the treating team to complete these documents’.

But insisting on ‘full resus’ just because page 2 has not been completed could not be either required or justified. One would have ot consider all the circumstances to make a call on whether there is any doubt about the intention that has been communicated by the details on page 1.

The fact that the document is included in the patient care file is a bit like Ms Shulman carrying her ‘no blood’ card in her wallet. If ‘the family or the doctor had revoked this Advanced Care Plan or decided not to go ahead with it’ or it was still being subject to discussion it should not yet form part of the medical record. The fact that it is included forms part of the evidence to guide decision making. If there is actual reason to doubt its veracity then yes that should be clarified ideally before transport commences.

Today’s correspondent is

… an ambulance paramedic with ACTAS and I was having some robust discussion regarding Emergency Apprehension with my colleagues. What are legalities surrounding an ACTAS crew being sent across the border into NSW eg Queanbeyan to assess a patient with a mental illness/disorder and ‘thoughts of self harm’? I was of the opinion that legislation applied where the patient is currently located and not their current residential address eg ACT resident at Royal Hotel. As registered paramedics from the ACT, I believe we have no legislative powers to apprehend those patients located in NSW who meet criteria for apprehension under ACT legislation. Are we able to apply NSW legislation as RPs? Would appreciate clarification for both myself and my colleagues. Thanks for your informative blog

I have previously answered a similar question with respect to NSW Ambulance officers in the ACT (see Transporting the mentally ill from NSW to the ACT (July 18, 2018))n though that was about transporting a patient not detaining them.

As a general rule, legislature can only enact law that applies in their jurisdiction but there has to be some extraterritorial application. For example, when NSW paramedics drive into the ACT, they are still employed by NSW Health and the various standards under which NSW vehicles are registered continue to apply to those vehicles.  So, whilst it’s true that generally speaking the law of the ACT only applies in the ACT; and the law of NSW only applies in NSW it is not universally true.

The Mental Health Act 2015 (ACT) s 80 says:

A police officer or authorised ambulance paramedic may apprehend a person and take the person to an approved mental health facility if the police officer or paramedic believes on reasonable grounds that—

(a)        the person has a mental disorder or mental illness; and

(b)       the person has attempted or is likely to attempt—

              (i)     suicide; or

              (ii)     to inflict serious harm on the person or another person.

The Mental Health Act 2007 (NSW) s 20(1) says:

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

Section 22(1) says:

A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that–

(a)        the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and

(b)       it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.

I won’t revisit why I think NSW paramedics don’t have the power to detain (see Detention or apprehension under mental health legislation (August 27, 2020)). It is my opinion that ACT paramedics do have that authority do detain in s 80; and I will assume, for the sake of the argument, that s 20 does imply an authority to detain.

The question then is ‘can an ACT paramedic drive into NSW as part of the inter-jurisdiction cooperation that exists and detain a person under the Mental Health Act 2007 (NSW) s 20, or the Mental Health Act 2015 (ACT) s 80?’

To act under s 80 of the ACT Act a person must be an ‘authorised paramedic’.  An authorised paramedic is (s 2 and Dictionary):

… a member of the ambulance service—

        (a)            employed as a paramedic; and

        (b)            authorised by the chief officer (ambulance service) to apprehend people with a mental disorder or mental illness.

The Legislation Act 2001 (ACT) tells us that the term ‘”ambulance service” when used in ACT legislation ‘means the ACT Ambulance Service established under the Emergencies Act 2004’.  It follows too that a NSW paramedic is not an ‘authorised paramedic’. 

However, to complicate matters, the Emergencies Act 2004 (ACT) s 64 says:

(1)        This section applies if an interstate or overseas emergency service responds to an emergency or incident in the ACT.

(2)        A member of the interstate or overseas emergency service has the functions of the chief officer of an emergency service in relation to the emergency or incident if—

(a)        the member has charge of other members of the interstate or overseas emergency service; and

(b)       no-one else present is, under this Act, in charge of the operations at the emergency or incident.

If there is an emergency and NSW Ambulance are asked to respond into the ACT because ACTAS cannot get there, then NSW Ambulance will be an ‘interstate emergency service’ (given that ambulance services in the ACT are part of the emergency services).  Without looking at in detail I think it would be uncontroversial that they can act as an ambulance officer but query whether that would extend to acting as an ‘authorised paramedic’ but let us assume that it would. If nothing else if they have all the functions of the chief officer, they could presumably authorise themselves.  I will assume (though it is not clear) that regardless of the definition of ‘authorised paramedic’, by virtue of s 64 a NSW paramedic in the ACT can act under s 80 of the ACT legislation.

To act under s 20 of the NSW Act, a person must be an ‘ambulance officer’. An ambulance officer is defined as ‘a member of staff of the NSW Health Service who is authorised by the Secretary to exercise functions of an ambulance officer under this Act’. An ACTAS paramedic is not employed by NSW Health so they are not, and cannot be, an ‘ambulance officer’ for the purposes of the NSW Act. There is no equivalent to s 64(2) in the Health Services Act 1997 (NSW) ie the legislation governing NSW Ambulance.  It follows that prima facie then an ACT paramedic in NSW cannot exercise the powers under s 20 of the NSW Act; they can only act if they carry s 80 of the ACT legislation with them.

Chapter 8 of the NSW Act, and chapter 15 of the ACT legislation, provide for the application of interstate laws and for making agreements between the jurisdictions. There is an agreement between NSW and the ACT – the Mental Health (Treatment and Care) (Interstate Application of Mental Health Laws) Agreement 2003. Although the agreement pre-dates both the NSW and the ACT legislation, it is still on the ACT legislation website as an ‘in force’ agreement. The NSW Act provides that actions taken under previous legislation is taken to have been done under the current Act so that would have the effect of ensuring that an in force agreement made under an pre-2007 Act remains in force so this 2003 agreement is deemed to be an agreement under the 2007 Act.

If the 2003 agreement is in force it is complicated as it refers to the Mental Health (Treatment and Care) Act 1994 (ACT) and the Mental Health Act 1990 (NSW); now both repealed.

The agreement between NSW and ACT is intended to facilitate the operation of the laws in each state and to facilitate patient transfer. The agreement is made

… for or with respect to:

(i) involuntary admission of interstate persons to facilities in NSW and ACT;

(ii) the transfer of interstate persons between facilities in NSW and ACT;

(iii) the apprehension of interstate persons who abscond from the ACT to NSW and from NSW to the ACT;

(iv) the recognition of community treatment orders made under the NSW Act for the care and treatment of interstate persons; and

(v) the recognition of psychiatric treatment orders made under the ACT Act for the community treatment and care of interstate persons.

Clause 5.2 of the agreement says:

The parties agree:

(a) … a person apprehended by a NSW Police Officer in accordance with section 24 of the NSW Act may be admitted to and detained in an approved [ACT] facility; and

(b) a person apprehended under section 37 of the [Mental Health (Treatment and Care) Act 1994 (ACT)] may be admitted to and detained in a gazetted mental health service in NSW.

Clause 5.4 says

A person who may be taken to a hospital by a NSW Police Officer under sections 22 or 24 of the NSW Act, may be taken to and detained at an approved facility in the ACT by a NSW Police Officer.

Neither the Mental Health (Treatment and Care) Act 1994 (ACT) nor the Mental Health Act 1990 (NSW) provided for apprehension or detention by ambulance officers or paramedics. Section 24 of the old NSW Act equates to the current s 22. Section 37 of the old ACT legislation equates to s 80 though s 80 has added paramedics to police as people authorised to apprehend a mentally ill person.

Assuming that via the transitional provisions these references should be read to ss 20 and 22 of the current NSW legislation and s 80 of the current ACT legislation  then it would say that a NSW ambulance officer or police officer can detain a person in NSW and take them to the ACT; or an ACT police officer or paramedic can detain a person in the ACT and take them to NSW. But the agreement does not say, and did not say, that a police officer (and by extension to modern times an ambulance officer) from NSW could detain a person in the ACT based on the NSW Act; or that an ACT police officer in NSW could rely on their ACT powers to detain a person.

If that’s true then I’m at a position where an ACT ambulance officer in NSW cannot detain a mentally ill or disordered person under s 20 of the NSW Act as he or she is not an ‘ambulance officer’ as defined in the Mental Health Act 2007 (NSW), nor can they rely on s 37 of the ACT Act as they are not in the ACT. A NSW ambulance officer on the other hand could, by virtue of the Emergencies Act 2004 (ACT) s 64 act as if they were an authorised paramedic under the Mental Health Act 2015 (ACT), but could not rely on s 20 of the NSW Act as it prima facie only applies in NSW.  But that adds to a complexity in that it would require NSW paramedics to get some training in ACT law.

An alternative is to consider that paramedics carry their powers with them. Section 80 of the ACT legislation refers to an ‘authorised ambulance paramedic’ and that is authorised by the ACT’s Chief Officer – Ambulance.  The NSW Act talks of ‘An ambulance officer who provides ambulance services …’ A NSW paramedic who is dispatched into the ACT is continuing to provide ambulance services.

In either case the paramedics are going to travel interstate but they still carry their own equipment (subject to the discussion that’s been had before about carrying drugs (see Carrying scheduled drugs between NSW and the ACT (December 19, 2018) and Paramedic practice in NSW and Victoria (September 14, 2017) but regardless of any conclusion I draw, paramedics do carry their drug boxes across state borders) and work to the protocols and procedures set by the ambulance service. In inter-state agreements they are asked by the requesting state to come and provide their services – to work – in the hosting state; so if NSW asks ACTAS for assistance to respond to an emergency in Queanbeyan they are asking ACTAS to provide their ambulance services in that jurisdiction, not to come and be part of NSWAS.

If that is right then I think the conclusion (though not without difficulties) is that when travelling interstate ACTAS paramedics carry s 80 with them and vice versa for NSWAS officers. (That analysis could also be applied to confirm that they can carry schedule drugs when responding interstate, but would not help other ambulance providers who were the subject of the discussion in the posts referred to above).

Although the answer is not clear and involves asking the question ‘what do I think a court would do to find a pragmatic solution?’ I think the answer is that when requested by the other state – so if NSW Ambulance asks ACTAS to respond into NSW or vice versa, the paramedics carry their legislation with them and can act in accordance with the powers given in the legislation that empowers their ambulance practice.

Of course the issue would be so much clearer if the legislation gave relevant power to ‘paramedics’ and now that paramedics are nationally registered, a paramedic in NSW is also a paramedic in the ACT!  Or update the agreement to reflect the current law.

For another post on interstate application of mental health laws see Interstate paramedics treating the mentally ill (August 19, 2019).