This from Bill Madden’s WordPress (https://billmaddens.wordpress.com/2020/05/22/application-to-set-aside-a-subpoena-trauma-claim-by-paramedic/):

The interlocutory decision of Henry v State of New South Wales [2020] NSWDC 222 (available on Caselaw) arose against the background of a claim by a paramedic employed by the Ambulance Service of NSW. The plaintiff alleged breaches by the defendant of, inter alia, duties of care said to be owed to the plaintiff in relation to his proper training and supervision and having procedures in place to deal with the traumatic experiences that paramedics must confront as part of their duties. Breaches are alleged in relation to the failure to have systems in place and, in particular, the failure to exercise proper care following the plaintiff’s exposure to specified particular traumatic events.

The interlocutory dispute concerned the width of the plaintiff’s subpoena for various reasons, including a claim for “all Patient Health Care Records in which”  the plaintiff was one of the attending paramedics, over a specified range of dates. To that extent privacy issues arose in that documents would refer to other persons, the patients. In that regard the Court commented at [34] – [35]:

In relation to the privacy issues, in my view, whilst they are important, they can be dealt with through undertakings or through limited access and potentially redaction. In relation to the Health Records and Information Privacy Act 2002 (NSW), clearly the interests of patients is highly significant. I agree with the matters consistent with that referred to by Hall J in paragraphs 117 and 119 of the GB case which I have mentioned above. The clear policy of the Act is, where relevant, to attempt to protect the privacy of third parties and they are the persons who are referred to in the documents sought.

However, I accept the submission of Mr Morris that the matter can be properly dealt with through undertakings and there is protection through the Harman v Home Office principle. There could also be redactions.

The Court ultimately held that the subpooena was too wide but commented that a narrower subpoena or notice to produce seeking more specific documents, using the list or particular dates may well be held to be permissible.

As Bill said in an email to me this is a “Preliminary note obviously, but a judgment on the primary claim may follow at some point.”  On the other hand, the case may ultimately settle but if there is a judgment I’ll report it here.

I have made previous comments on claims that the COVID19 restrictions are somehow unlawful because of the infringement of our rights.  It’s not a debate I really want to get into but I received this comment in response to the post “COVID19 and the Law of Australia” (May 16, 2020)

The post was a link to online resources so people could see what the laws were and it included a discussion on the constitutionality of the response. I did make it to direct people there rather than here, a blog on emergency law. But I did receive this comment via facebook:

Although we don’t have a Bill of Rights as the U.S does, do we not have Rights under Common Law? So the question I’d ask is ‘have our rights been marginalised or removed contrary to our common law rights ‘?

And preparing an answer took so much work and whilst not directly on topic for this blog, given the discussions that have occurred, that it seemed a shame to have it lost on Facebook so I repost it here as an post in its own right.

First, even if there were rights under common law, someone has to actually challenge the matter in court. Asserting them won’t make a difference (see https://emergencylaw.wordpress.com/2020/04/23/challenging-covid-restrictions-part-1/).

If you want to rely on the common law to protect rights, then you want to rely on a fundamentally un-democratic institution (albeit an independent judiciary although not elected, is a bulwark of democracy).  The common law comes from the King sending his judges to travel the country and apply the ‘common’ law but as many people complain, judges are unelected, so the Parliament has the power to make laws including laws that modify or set aside the common law.

In Kable v DPP (NSW) [1996] HCA 24 Dawson J said:

Lord Reid’s reference to earlier times would appear to hark back to the view expressed by Coke CJ in Bonham’s Case (1572). He said:

“And it appears in our books, that in many cases, the common law will … control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void”.

Academic debate over the meaning of those words continues to the present time. It is unclear whether Coke CJ was intending to say that Acts of Parliament which are repugnant to the common law are void or whether he was merely laying down a rule of statutory interpretation. If he was intending the former, he appears to have had second thoughts, because in his Fourth Institute he described parliament’s power as “transcendent and absolute”, not confined “either for causes or persons within any bounds”. He there contemplated the enactment of bills of attainder without trial and statutes contrary to Magna Carta without any suggestion of their invalidity.

However, Coke was not alone and there were other early expressions of opinion which appear to suggest that courts might invalidate Acts of Parliament which conflict with natural law or natural equity. But they are of academic or historical interest only for such views did not survive the Revolution of 1688 or, at the least, did not survive for very long after it. Judicial pronouncements confirming the supremacy of parliament are rare but their scarcity is testimony to the complete acceptance by the courts that an Act of Parliament is binding upon them and cannot be questioned by reference to principles of a more fundamental kind. Indeed, it is a principle of the common law itself “that a court may not question the validity of a statute but, once having construed it, must give effect to it according to its tenor”

There are many claims by people thinking there is some overriding law – many relate to the idea that we cannot be forced to hold a licence or register a car due to some undefined common law right to travel. People have gone to gaol defending such views. For a discussion of the ‘sovereign citizen’ movement see https://youveenteredlawland.com/freeman-on-the-land-australia/

For a recent discussion see Flowers v State of New South Wales [2020] NSWSC 526. In that case Mr Flowers argued that he had an inalienable right to have his civil (not criminal) claim determined by a jury notwithstanding the provisions of the legislation in that state. Harrison J said:

“Mr Flowers contends that trial by jury is an inalienable right guaranteed to him by the Magna Carta over 800 years ago and remains the common law of the land…

“Mr Flowers submits that denial of his right to a trial by jury is “sinister, vile and reprehensible”. Lord Edward Coke also gets a run, telling me that “Common law doth control Acts of Parliament and adjudges them when against common right to be void”. I feel confident I have heard similar submissions before…

“Mr Flowers also reminds me that no “evil counsellors, judges and [sic, or] ministers” can be allowed to subvert or extirpate the laws and liberties of the people: Bill of Rights, 1688. To deny trial by jury is to deny democracy and to deny democracy is treason.

“Mr Flowers’ contentions appear to proceed upon the underlying basis that, to the extent to which s 85 of the Supreme Court Act or UCPR 29.2 operate somehow to modify or extinguish what would otherwise be an automatic right to a trial by jury, they are ineffective or void. Mr Flowers maintains that no Act of Parliament can take away his right to trial by jury. In Mr Flowers’ submission, rights never die. Mr Flowers asserts that “people are not subject to statute law, which is inferior to common law, and are only accountable to common law that is made and imposed by their equals, i.e. accountable only to juries”…

“At least one difficulty with Mr Flowers’ contentions is that they are no more than that: unsupported assertions. Mr Flowers offers no evidence that could support a claim that, for example, the Supreme Court Act is void or was not enacted according to law.

“Another difficulty lies in the fact that this Court and the Court of Appeal have consistently operated upon the basis that s 85 of the Supreme Court Act is a valid law of New South Wales and have applied it accordingly. In the absence of an arguable legal basis supported by evidence that suggests that I should take a different approach, I consider that I am bound to apply the provision according to its terms.

“It will be apparent that I consider that s 85 operates and applies in the present circumstances to govern the question of the mode of trial.”

And so, the application for a trial by jury was rejected and the law set out in the Supreme Court Act was applied.

In a patient discussion with a self-represented litigant before the High Court (Essenberg v The Queen B55/1999 [2000] HCATrans 386) McHugh J said:

“… we are ruled by law and law is the law of Parliament; it is called legal positivism. It is the law laid down. This Court makes decisions and, unless they are constitutional decisions, the Parliament can overrule them and often does. We lay down a law, Parliament can change it. It is the democratic right of the people to do it through their parliamentary representatives. So, what you are faced with is the Queensland Parliament enacting this legislation, which you obviously think is a bad piece of legislation and infringement with your rights and which other members of the community think is a good thing, that is something to be debated at the ballot box, but it is not a constitutional matter…

“Magna Carta and the Bill of Rights are not documents binding on Australian legislatures in the way that the Constitution is binding on them. Any legislature acting within the powers allotted to it by the Constitution can legislate in disregard of Magna Carta and the Bill of Rights. At the highest, those two documents express a political ideal, but they do not legally bind the legislatures of this country or, for that matter, the United Kingdom. Nor do they limit the powers of the legislatures of Australia or the United Kingdom. “

Executive government, the Ministers and government departments, come before courts and are required to comply with the law written by Parliament (which the Ministers are part of). But (to again quote McHugh J) “Parliament – some people would regard it as regrettable – can, in effect, do what it likes.”

As for your rights – what are they?

Freedom of association? “This Court has held, more than once, that no “free-standing” right of association is to be implied from the Constitution” and “The right of association under the common law is subject to legislative regulation …” (Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35 upholding NSW ‘anti-bikie’ laws).

Liberty? “It is not true, as Kirby J asserts, that “indefinite detention at the will of the Executive, and according to its opinions, actions and judgments, is alien to Australia’s constitutional arrangements”…” (Al-Kateb v Godwin [2004] HCA 37 upholding indefinite detention of a person who could not be deported to another country even though he had not be tried or convicted of any offence).  And in Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64:

“… a Bill of Attainder or a Bill of Pains and Penalties is a law (1) directed to an individual or a particular group of individuals (2) which punishes that individual or individuals (3) without the procedural safeguards involved in a judicial trial…. No express prohibition against the enactment of Bills of Attainder or Bills of Pains and Penalties is to be found in the Constitution. However, it is a necessary implication of the adoption of the doctrine of the separation of powers in the Constitution that the Parliament of the Commonwealth cannot enact such Bill …An Act of the Parliament which sought to punish individuals or a particular group of individuals for their past conduct without the benefit of a judicial trial or the procedural safeguards essential to such a trial would be an exercise of judicial power of the Commonwealth and impliedly prohibited by the doctrine of the separation of powers.”

The separation of powers enshrined in the Commonwealth constitution doesn’t stop states passing a Bill of Pains and Penalties provided that they do not involve the Courts in executive decision making (Kable v DPP [1996] HCA 24; Fardon v Qld [2004] HCA 46).

A right to due process and a lawyer?

Howie, Sattler and Hood, Hayes and Eburn Criminal Law and Procedure in NSW (6th ed, 2019, LexisNexis) p. 654:

“The Australian Security Intelligence Organisation (ASIO) can obtain warrants to access computers, use listening devices, use concealed tracking devices and inspect postal articles (Australian Security Intelligence Organisation Act 1979 (Cth) ss 25A–27). ASIO may also obtain a warrant to permit the detention of a person for questioning. A warrant can be issued that allows ASIO to detain any person for up to seven days. The warrant may be issued where the issuing authority is satisfied that such questioning will ‘substantially assist the collection of intelligence that is important in relation to a terrorism offence’. The person detained need not be suspected of any offence, only that he or she has information of interest to ASIO. Once detained under a warrant, ASIO may (but need not) tell someone (for example, a lawyer or the detained person’s family) that the person has been detained. A person detained may be questioned and commits an offence if he or she does not answer these questions (Australian Security Intelligence Organisation Act ss 34A–34ZY). These provisions were initially supposed to lapse in July 2016, but have since been extended several times. At the time of writing they were due to expire on 7 September 2019 (ASIO Act s 34ZZ)….

The ongoing, so-called ‘war on terror’, and anti-terrorism legislation reflect a fundamental shift in the traditional balance between civil liberties and the power of the state and its security, intelligence and police forces by dramatically reducing the fundamental freedoms outlined above…”

And recent news suggests that there are moves to further expand the policing powers to include detention of people as young as 14 and to remove the need to get court issued warrants (see https://www.abc.net.au/news/2020-05-14/peter-dutton-introduces-bill-giving-asio-powers-to-talk-to-teens/12246886)

Conclusion

If you are relying on the common law, rather than your choice when you cast your vote, to protect what you consider are fundamental rights and freedoms you are pinning your hopes on a flimsy safeguard. Courts and judges do recognise that there are fundamental rights and read down legislation where they can to protect them within the words used by the legislature, but at the end of the day ‘a court may not question the validity of a statute [with the exception of the High Court when determining whether a statute is within power as allocated by the Constitution] but, once having construed it, must give effect to it according to its tenor”.’

​COVID-19 and the Law of Australia, written by Emrys Nekvapil, Maya Narayan and Stephanie Brenker, is an online textbook, organised by subject area, providing guidance on the laws made by the legislature, executive and judiciary (and administrative tribunals) of the Commonwealth and each State and Territory in response to the COVID-19 pandemic.

This text is intended to provide readers with succinct, timely and accurate information about the interaction of COVID-19 and the law of Australia. The authors hope that it will assist practitioners to navigate the legal complexities of the pandemic.

Chapter 1 provides an overview of the text and the methodology used by the authors.

Chapter 2 addresses the constitutional context in which law relating to COVID-19 is made.

Chapter 3 deals with issues of substantive law.  As published, this chapter includes summaries of decided cases in the areas of commercial law, criminal law, family law, guardianship and administration, human rights, industrial law, migration, planning, property, regulatory law/professional discipline and tort.  It also provides observations about areas of substantive law that will inevitably be the subject of judicial consideration and decision. As the courts (and tribunals) determine the numerous issues that have arisen, and will continue to arise, in relation to COVID-19, this chapter will consider those decisions in further detail.

Chapter 4 deals with issues of practice and procedure. It provides a survey of the measures implemented by courts and tribunals to respond to COVID-19, including consideration by courts and tribunals of procedural issues arising in the context of litigation.

(And thank you to Bill Madden’s WordPress for bringing this to my attention).

Today’s correspondent has drawn my attention to a news story published by the ABC – Amy Sheehan, ‘Police investigate Queensland rural firefighters over controversial blue card rules’ ABC Sunshine Coast (Online) (13 May 2020).  The story says:

Several volunteers and employees with Queensland Fire and Emergency Services (QFES) have been questioned and cautioned for signing off blue card applications for volunteers with a criminal history…

The ABC understands that on at least two occasions, police questioned QFES staff and volunteers in the Central Region who signed the declaration on the form despite the applicants knowing they should not have applied…

The Rural Fire Brigade Association of Queensland (RFBAQ) said the volunteer First Officers who signed the declarations for the volunteer rural firefighters were not aware they could not apply.

An internal email sent to staff last Wednesday warned that any QFES officials signing the declaration must also initial the document to say they had verbally warned the applicant it was an offence for a disqualified person to apply.

My correspondent says:

It still isn’t clear what the Qld Police investigation is about.

Any organization with a blue card requirement is required to actually sponsor or support the application.

How is it the responsibility of the representative of the organisation to conduct the Police checks?

Isn’t that the requirement of the organization issuing the Blue-card?

I’m not seeing how a RFS or even a SES Group leader is responsible for anything other than confirming the applicant is a member of the organization?

I suppose that the first thing to note, albeit unhelpfully, is that it’s not surprising that it ‘isn’t clear what the Qld Police investigation is about’ what we have is a news story and the journalist has to try and get the story out and doesn’t have the time nor the space to give all the details though there is a certain lack of clarity in this article. To try to resolve some issues I will (given that is the nature of this blog) look at the law.

The relevant legislation is the Working with Children (Risk Management and Screening) Act 2000 (Qld).  In short where a person is subject to the Act an application is made for a prescribed notice.

The chief executive must decide the prescribed notice application by issuing either of the following to the person—

(a) a notice declaring the application is approved (a positive notice);

(b) a notice declaring the application is refused (a negative notice).

Where the application is approved the person gets a positive notice blue card.  With that context the question turns to the application process.

Section 199 provides that the applicant is a person ‘who proposes to start employing, or continue employing, another person in regulated employment’ that is it is the employer and not the employee. For the purposes of this Act, a volunteer is ‘a person who is employed by another person and does not carry out any work for the other person for a financial reward’ (s 165; see also s 161).  In context QFRS is the employer of both its staff and its volunteers.

An application must include (s 200):

(2) …

(a) identifying information about the employee; and

(b) certification by the applicant that the applicant has sighted the employee’s proof of identity documents; and

(c) a declaration by the applicant that the applicant has given the employee a warning as required under section 199(3); and

(d) a declaration by the employee that he or she is not a disqualified person; and

(e) the employee’s consent to employment screening under this chapter.

(3) The approved form mentioned in subsection (1)(a) must include—

(a) a warning that it is an offence for a disqualified person to sign the application; and

(b) a statement about applying for an eligibility declaration.

A disqualified person is (s 169) a person who:

(a) has been or is convicted of a disqualifying offence [defined in s 168 and schedules 4 and 5]; or

(b) is subject to—

(i) offender reporting obligations; or

(ii) an offender prohibition order; or

(iii) a disqualification order; or

(iv) a sexual offender order; or

(c) is the respondent to an application for an offender prohibition order under the Offender Reporting Act.

Section 199(3) says:

If a person who makes an application under this division asks the person about whom the application is made to sign the application, the person making the application must warn the person asked to sign it that it is an offence for a disqualified person to sign the application.

Putting that together one can infer that:

• The application is made by QFRS (or the local brigade without re-entering the debate of the status of bush fire brigades in Queensland; see Status of Queensland Rural Fire Brigades (September 10, 2014) and Rural Fire Brigades as part of Queensland Fire and Emergency Services (not Queensland Fire and Emergency Service) (August 6, 2018));
• The person signing the application on behalf of the applicant is the volunteer First Officer.
• The volunteer First Officer as the applicant is not required to certify that the proposed employee is or is not a disqualified person but they, or the form, is required to warn the employee/volunteer that they commit an offence if they declare that they are not a disqualified person.
• The employee or volunteer is required to declare that they are not ‘a disqualified person’. A disqualified person commits an offence if he or she signs the application ‘made by someone else’ (s 174(1)(a)).

To return to the ABC story, it starts by saying:

Several volunteers and employees with Queensland Fire and Emergency Services (QFES) have been questioned and cautioned for signing off blue card applications for volunteers with a criminal history.

There is no offence in signing the application where the proposed employee has a criminal history. The applicant cannot be expected to know their history, that is why a system of checking is in place. The proposed employee is required to declare that he or she is not a disqualified person and if they say they are not, they sign the application. The application is sent off and the process is there to confirm that this it is indeed the case that they are not disqualified. Further a criminal history does not make a person a disqualified person, it has to be history that involves conviction of a disqualifying offence, not any offence.

The paragraph

The ABC understands that on at least two occasions, police questioned QFES staff and volunteers in the Central Region who signed the declaration on the form despite the applicants knowing they should not have applied.

Is certainly confusing. If by ‘the applicants’ the ABC means the member then it’s true they should not have signed the declaration on the form if they knew they were disqualified; but they are not the applicants. If they mean the first officer who signs as the applicant, then it is not their role to check the member’s criminal history, that is what the blue card check is for.

The story goes onto say:

“We will supply that list [of disqualifying offences] to volunteer Brigade First Officers, and also suggest that if they in any way feel uncomfortable with witnessing any application they can pass that responsibility onto QFES paid staff.”

That too is confusing as the First Officers are not ‘witnessing any application’ they are the applicant. The list of disqualifying offences needs to be made available to employees and volunteers so they can make the declaration that they are not disqualified.

Certainly the way the story is reported, both on what is happening with police and QFRS but the very reporting itself would confirm that ‘the process of implementing the blue card system had been a “shemozzle”’.

The problem evidenced by the story is confusion as to who is the applicant and who has to verify that the volunteer or staff member is not a disqualified person. The employer is the applicant, they do not commit an offence if they make an application and it turns out that the employee or volunteer is a disqualified person. They cannot know that; that is why there is this process. The employee or volunteer is not the applicant but they have to declare that they are not a disqualified person and indeed they should know their own criminal history and do commit an offence if they declare that they are not disqualified when indeed they are.

The news story is sufficiently ambiguous that it is not clear whether police are having these discussions with applicants or volunteers/employees. They are not the same person.

After writing the post I received an email from the Rural Fire Brigades Association Queensland Inc. where they added ‘We also had a meeting with the Commissioner and Deputy Commissioner … where we were informed that signing on behalf of the organisation without issuing a warning is an offence.’

That is indeed true. The penalty for not giving the warning required by s 199(3) is a maximum fine of 10 penalty units.  A penalty unit is currently $133.45 so the maximum fine is $1334.50.

I did not get, from the ABC story, that the issue was first officers not giving the required warning. The news story implied that the issue was that applicants were submitting applications where the employee/volunteer was disqualified.  But if the issue is First Officers not giving the warning and then signing a form to say they have – that’s not really an issue at all.

The application form, as noted above, must have a declaration by the applicant (the First Officer) that the relevant warning was given to the employee/volunteer.  Everyone should understand that if they are signing a form saying they did something, then they should indeed have done that thing, ie issue the warning. Say what you mean and mean what you say – don’t sign a form saying you have done something if you have not.

In Ivers v Mehdi [2020] ACTSC 112, Justice Burns of the ACT Supreme Court found that the plaintiff was entitled to recover compensation from the driver at fault. On 25 November 2016 Ms Ivers was getting into her car in a shopping centre carpark. At [30]-[33] Burns J described what happened:

… It was at this point that she heard somebody “screaming for help”.

The plaintiff recalled that she “initially just sat there listening”. She did not know where the screaming was coming from but thought it may be behind her. She turned to look over her right shoulder and saw a bright blue Ford Ranger reversing into the wash bay. The plaintiff said she continued to hear screams and as she looked back at the wash bay again, she saw a “bald head and an arm outstretched, laying across the wash bay toward the back”. Mr Atkinson was lying parallel to the back wall, with his right arm outstretched, and his head and arm on the passenger’s side of the car. The plaintiff said that the rear wheel of the vehicle appeared to be almost on Mr Atkinson, and it “looked like it was on his arm or on his shoulder somehow”.

The plaintiff said she got out of her car and saw the Ford Ranger “rock backwards and forwards”, as if there was a log parallel to the back of the car and the car had to accelerate to get over it. The plaintiff ran towards the car, waving her arms around for the driver to stop. When she was halfway to the car, the screaming stopped, and the plaintiff believed Mr Atkinson was dead. However, the plaintiff then saw Mr Atkinson’s fingers move, and realised he was still alive.

The plaintiff said she told the driver to move forward a couple of metres, so the car was out of the bay, and no longer on top of Mr Atkinson. After the car moved, the plaintiff said she reached Mr Atkinson and saw that he was lying down, trying to get up. The driver and the plaintiff assisted Mr Atkinson to his feet. The plaintiff and the driver walked Mr Atkinson a couple of metres outside of the wash bay, but Mr Atkinson’s legs gave way and he landed face down on the ground. The plaintiff asked Mr Atkinson to notify his wife, and the plaintiff called 000, requesting police and ambulance attendance.

As a result of her involvement in this incident the plaintiff developed Post Traumatic Stress Disorder (PTSD) that affected her work, social and personal life. She sued Mr Mehdi, the driver of the Ford Ranger, and the Compulsory Third Party insurer for damages caused by his negligence.  Section 34 of the Wrongs Act 2002 (ACT) says (emphasis in original):

(1) A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

(2) For the application of this section in relation to pure mental harm to a person, the circumstances of the case to which the court must have regard include—

(a) whether or not the mental harm was suffered as the result of a sudden shock; and

(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger; and

(c) the nature of the relationship between the plaintiff and anyone killed, injured or put in danger; and

(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

(3) For the application of this section in relation to consequential mental harm to a person, the circumstances of the case to which the court must have regard include the nature of the bodily injury out of which the mental harm arose.

(4) This section does not affect the duty of care a person (the defendant) has to another person (the plaintiff) if the defendant knows, or ought reasonably to know, that the plaintiff is a person of less than normal fortitude.

The relevant question was, therefore, whether a reasonable person in Mr Mehdi’s position would have foreseen that a person of normal fortitude … might, in the circumstances of witnesses a pedestrian being struck by a reversing vehicle in circumstances where the immediate appearance was that the person had suffered potentially fatal injuries, suffer a recognised psychiatric illness.

At [157] Burns J said:

As someone who witnessed at least part of the accident, who was present at the scene and ran to provide assistance to Mr Atkinson, the plaintiff falls within the class of persons whom the first defendant should have foreseen may suffer a recognised psychiatric injury if he negligently collided with a pedestrian.

As such the defendant owed a duty of care to Ms Ivers, a duty that he breached when he negligently knocked down the pedestrian, Mr Atkinson.  Mr Mehdi, via his insurer, was ordered to pay damages of $176,312.43.

Discussion

Earlier case law has ruled out compensation for mental harm for merely observing an accident even a traumatic accident. Traditionally there has to be some connection with the accident eg that the person killed or injured is a family member of the witness or the person who suffers psychological injury is also exposed to risk of physical injury. This list is reflected in s 34(2) and see also Rescuers and nervous shock or mental illness; Wicks and Sheehan v SRA (June 17, 2010).

But there is no absolute requirement to that effect (see Jaensch v Coffey [1984] HCA 52 discussed at [142]). The issue is, at least under the ACT legislation, whether it is foreseeable that a person ‘in all the circumstances’ might be put at risk of psychiatric injury. Section 34(2) lists some relevant circumstances, but that list is not exclusive, ie it is not a complete list of the only things to be considered.

It would, I think, be fair to describe Ms Ivers as a ‘rescuer’.  She did not merely observe the accident, she ran over and told the driver of the Ford that he had struck a pedestrian and to move his vehicle forward. She assisted Mr Atkinson. She was not merely an observer. Although His Honour did not use the term ‘rescuer’ he did identify that the relevant circumstances were (at [159]):

… that, from her vantage point, she believed that Mr Atkinson had been killed or seriously injured. She ran to alert the first defendant to the presence of Mr Atkinson under the car, and then provided assistance to Mr Atkinson.

His Honour accepted the

… clear opinion of Dr Allnut that what the plaintiff perceived and her actions in coming to the assistance of Mr Atkinson, in combination, might cause a person of normal fortitude to develop a recognisable psychiatric illness.

That His Honour did not describe Ms Ivers as a ‘rescuer’ or good Samaritan is irrelevant.

As noted in other discussions on this blog, Australia does not have an equivalent of the United States’ Firefighters rule.  In an earlier post (Negligent occupier to repay workers compensation paid to injured NSW firefighter (February 27, 2020) I said:

… there is no equivalent of the ‘firefighters’ or ‘firemens’ rule in Australia (see Court of Appeal upholds verdict in favour of injured Queensland police officer/rescuer (December 18, 2019)’ see also see http://www.firelawblog.com/category/firemens-rule/).  To quote from the decision the subject of that earlier post ([Name Redacted] v AAI Limited [2019] QSC 7, at [30]):

The authorities to which reference has been made establish that, provided the usual principles that govern the right of rescuers to recover damages for injuries are satisfied, the fact that a rescuer happens to be a police officer [or fire fighter] does not constitute a legal bar to liability whether the injury is physical (Haynes v Harwood), psychiatric (Jausnik) or both (Hirst).

The implications of that is that it is again confirmed that if ‘a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken’ then a defendant owes a duty of care not to expose the person to that risk. That means they have a duty to a person like Mr Atkinson not to run them over, and they have a duty to others not to expose them to a risk of psychiatric injury by running someone over. And that duty applies whether the person who suffers the psychiatric injury is a professional rescuer or not.

This case confirms that person who suffers a psychiatric, or physical, injury due to the negligence of another, in circumstances where that injury is foreseeable, can sue the negligent tortfeasor for their losses.  That applies to good Samaritans like Ms Ivers and, in the absence of a the ‘firemens’ rule’ [sic], that is also true for professional rescuers.

For related discussions see:

• Rescuers and nervous shock or mental illness; Wicks and Sheehan v SRA (June 17, 2010);
• Death of a good Samaritan (June 17, 2012);
• “Cop sues offender’s family” (May 22, 2013);
• Rescuer injured when responding to an aircraft accident (February 4, 2018);
• Deceased driver liable for police officer’s PTSD (February 1, 2019);
• Firefighter joining a class action (August 24, 2019);
• Court of Appeal upholds verdict in favour of injured Queensland police officer/rescuer (December 18, 2019); and
• Negligent occupier to repay workers compensation paid to injured NSW firefighter (February 27, 2020).

Today’s question is again about disciplinary action in the RFS.

My correspondent has been the subject of an investigation conducted in accordance with Service Standard 1.1.2 Discipline.  A complaint was made and referred to an investigator (SOP SS1.1.2-2 Investigation of Allegations; cl 2.1 and cl 2.4-2.6).  My correspondent understands that an investigator’s report has been delivered to the appointing officer. The member has asked for a copy of that report. They have been advised by the appointing officer that ‘I have a copy of the Investigator’s report and plan to have it forwarded to you ASAP pending the Disciplinary Panel setting a hearing date’.  The question is: can the appointing officer withhold the report ‘pending the Disciplinary Panel setting a hearing date’?

Clause 2.9 of SOP SS1.1.2-2 Investigation of Allegations says:

2.9       Upon receipt of a report prepared in accordance with clauses 2.6 or 2.7 the appointing officer must consider the report and:

a. If he or she believes that the matter should be dealt with, in whole or in part, as a breach of discipline:

i. Refer it to a disciplinary panel or discipline delegate for hearing;

ii. Give a copy of the report to the respondent; and

iii. Notify the person who made the allegation that the matter will proceed to a hearing;

b. The appointing officer may provide additional material to the disciplinary panel or discipline delegate provided that a copy of that additional material is also provided to the respondent;

c. If he or she believes that the matter should not be dealt with as a breach of discipline:

i. Notify the respondent of that decision;

ii. Notify the person who made the allegation that the matter will not proceed further; and

iii. Make an appropriate notations detailing the reasons for that decision.

The obligation to give the respondent a copy of the report arises when the appointing officer makes the determination that ‘the matter should be dealt with, in whole or in part, as a breach of discipline’ (cl 2.9(a)). (If he or she ‘believes that the matter should not be dealt with as a breach of discipline’ (2.9(c)) then there does not appear to be an obligation to provide the report, even if there is an argument that as a matter of fairness the person the subject of the investigation should get it).

Assuming that the decision ‘that the matter should be dealt with, in whole or in part, as a breach of discipline’ has been made, then the appointing officer’s obligations is to provide the report to the Panel and to the member the subject of the complaint and investigation. Clause 3.8 of Service Standard 1.1.2 Discipline says:

3.8       A disciplinary panel (or discipline delegate) which receives a report from an appointing officer in accordance with clause 2.9 of SOP 1.1.2-2 Investigation of Allegations must:

a. Set a time and place at which the disciplinary hearing will be held;

b. Give the respondent not less than 7 working days’ notice in writing of the time and place at which the disciplinary hearing will be held; and

c. Give the respondent a copy of this Service Standard and the associated SOPs.

That is, they set the ‘time and place’ when they receive the report. There is nothing in the Standard or SOP to say the Panel delivers the report to the respondent, that is a duty imposed on the appointing officer.

SOP 2.9 says that the appointing officer must send a copy of the investigator’s report to the respondent and to the panel. Having sent it to the panel, the panel sets the hearing date and time and gives the respondent not less than 7 days notice of the hearing. That notice period is unrelated to the delivery of the report.

There is no justification, at least not in the Service Standard or associated SOP’s to withhold the report ‘pending the Disciplinary Panel setting a hearing date’.  The obligation upon the appointing officer is to provide both the Panel and the respondent with a copy of the report. His or her involvement is then over until the Panel makes a finding and recommendations.

I would agree that withholding the report ‘pending the Disciplinary Panel setting a hearing date’ is inconsistent with the Service Standard and its associated SOPs and can only disadvantage the respondent by giving him or her less time to prepare a response.

“The Royal Commission into National Natural Disaster Arrangements has published an Issues Paper, “Constitutional Framework for the Declaration of a State of National Emergency”, which is available on the Commission’s website. This paper explores legal and constitutional questions surrounding the concept of a declaration of a ‘state of national emergency’ by the Commonwealth of Australia, and how this might operate and interact with existing state and territory emergency management frameworks.

The paper poses three questions, on which the Royal Commission invites comment by 25 May 2020. If you would like to provide comment, please email the Royal Commission.”

For my take on the answers to this question see these posts:

• What is a ‘national emergency’? (December 25, 2019); and
• What is a national emergency? Answer: Covid-19 (March 25, 2020);

and these published papers:

• Australia’s International Disaster Response – Laws, Rules and Principles (2009 Monash University PhD thesis (published 2010, VDM-Verlag, Saarbrucken, Germany)).
• Michael Eburn, ‘Responding to catastrophic natural disasters and the need for Commonwealth legislation’ (2011) 10(3) Canberra Law Review 81-102;
• Michael Eburn, ‘Managing ‘civil contingencies’ in Australia’ (2014) 18(2) The International Journal of Human Rights 143-158;
• Michael Eburn, ‘Coordination of federal, state and local disaster management arrangements in Australia: lessons from the UK and the US’ (2017) 119 Strategic Insights (Australian Strategic Policy Institute, Canberra); and
• Michael Eburn, Cameron Moore, and Andrew Gissing, The potential role of the commonwealth in responding to catastrophic disasters (2019, Bushfire and Natural Hazards Cooperative Research Centre, Melbourne).

The ABC is reporting that a Tasmanian Coroner questions decision by paramedics to leave Tasmanian woman later found dead (5 May, 2020).  The news story says:

Ambulance Tasmania paramedics left a woman with a history of mental illness alone in her home without electricity, hot water or lighting before she was found dead months later, in a move a coroner has labelled “difficult to understand”.

In the Record of Investigation into Death (Without Inquest) Coroner Simon Cooper noted that in May 2018 police had attend the home of Ms Szemes. Having concerns for her physical and mental health:

… Attending police called for an ambulance, which arrived at 4.31pm. The Police left to attend to other matters. Police indicate that when they left they were under the impression that Mrs Szemes would be transported to the Royal Hobart Hospital by ambulance.

However, the attending paramedics did not take Mrs Szemes to hospital. Instead, because she asked them to leave, they left her in bed and left her residence at 6.16pm. Why they left is difficult to understand – especially given that the Ambulance Tasmania case description records that:

• the house had no electricity, hot water or lighting;
• Ms Szemes was difficult to understand and had had poor enunciation;
• She repeated sentences;
• Ms Szemes had had minimal fluid intake in recent days; and
• She was unable to tell paramedics how or when she washed.

In the same records, as part of the secondary survey, the attending paramedics recorded:

• Ms Szemes refused to move;
• Her behaviour was ‘bizarre’;
• Her responses were ‘inappropriate’;
• Her facial expression was ‘flat [and] non-responsive’;
• Her concentration was ‘poor [lacking] ability to organise thoughts [and having a] short attention span; and
• Her speech content was ‘bizarre/irrational [with] repetitive questions/statements [and an] inability to have a coherent conversation’.

Despite these observations, there is nothing in the Ambulance Tasmania records indicating the attending paramedics considered whether Mrs Szemes had capacity to make an informed decision to refuse treatment.

There is no evidence of anyone seeing Mrs Szemes alive after the ambulance paramedics left her in bed at 6.16pm on Monday 28 May 2018.

Ms Szemes was found deceased on 8 October 2018. The exact date of her death could not be determined but the coroner did say that ‘. It is likely that she died closer to May than October given the state of decomposition of the body’.

The Coroner did have access to the ‘Ambulance Tasmania electronic patient care report’ but the list of evidence does not include any affidavit from treating paramedics. Because this was a determination without inquest no-one was called to give evidence.

The coroner may have found the decision ‘difficult to understand’ but he made no effort to get evidence to help him understand that decision. It is well known and accepted, and discussed often enough here, that people have the right to refuse treatment even if that refusal will cost their life and, further, people can refuse treatment for whatever reason they want. On the other hand, where a patient is not competent to make a decision their purported refusal is not effective and treatment that is reasonably necessary and in their best interests can be delivered. The presumption is that people are competent. Whilst the symptoms listed might cause someone to think that Ms Szemes was not competent, the presumption in favour of competence means one would expect paramedics to explain why they form a view that a patient is not competent.

It has to be remembered that patient care records are written for many reasons (First aid patient records – who and what are they for? (January 31, 2015). When completing records paramedics cannot know what the future holds and what will become relevant or a concern. If there is something omitted that is relevant, one would need to ask why it was omitted before drawing or implying any adverse conclusion.

Why I think these comments are less than helpful is that some may infer that the Coroner made or intended a criticism of the paramedics. If the Coroner did not understand why the paramedics made the decision they did, he had every resource to find out. He could have asked the paramedics to provide an affidavit or asked police to interview them. As it stands there is a suggestion of incomplete assessment, but it has not been tested.

The role of the coroner is to (s 28):

(1) … find, if possible –

(a) the identity of the deceased; and

(b) how death occurred; and

(c) the cause of death; and

(d) when and where death occurred; and

(e) the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1999 .

(f) .  .  .  .  .  .  .  .  [Sic]

(2)  A coroner must, whenever appropriate, make recommendations with respect to ways of preventing further deaths and on any other matter that the coroner considers appropriate.

(3)  A coroner may comment on any matter connected with the death including public health or safety or the administration of justice.

The coroner made the findings required by s 28(1). He did not make any recommendations (s 28(2) or comments (s 28(3)). It must follow that the coroner did not determine that the actions of the Ambulance Tasmania paramedics relevantly contributed to Ms Szemes’s death.

With respect to the Coroner, it would have been more useful to delete the comments about decisions being hard to understand if he was not going to explore it. He could have said, consistently with s 28, accurately and without the hanging implication:

However, the attending paramedics did not take Mrs Szemes to hospital. Instead, because she asked them to leave, they left her in bed and left her residence at 6.16pm. The Ambulance Tasmania case description records that…

He could and should have omitted the comment

Despite these observations, there is nothing in the Ambulance Tasmania records indicating the attending paramedics considered whether Mrs Szemes had capacity to make an informed decision to refuse treatment.

That comment was not relevant to his finding and he did not seek to explore, if it was relevant, what observations were made, what conclusions were drawn and why this was not recorded.

My assertion that these comments may lead some to ‘infer that the Coroner made or intended a criticism of the paramedics’ is I think supported by the ABC report. If the coroner had not made those comments this report would not have attracted their interest or the headline. In essence the coroner did question the decision by the paramedics, but did not invite them to give an answer. With respect that is less than helpful.

A correspondent has written and said

I found this article online last night, and notwithstanding the (alleged) poor professional and ethical conduct of the individual who released the images, it is interesting that an individual can be suspended (and potentially prosecuted) for sharing photos, yet the Services’ as a whole are freely able to broadcast ‘000’ calls, show the public undergoing BAC tests and interviews in a police station, and (in the case of ambulances) show patient care in the back of ambulances and in private homes. I do wonder if the arrested individual hadn’t been so high-profile if the release of the photos would have received the same level of attention.

Police officer suspended over leaked images of former AFL coach Dean Laidley in police station

Victoria Police suspends an officer over an “unlawful and criminal” privacy breach after images were released of former North Melbourne coach Dean Laidley in custody inside a police station. Read the full story

I share my correspondent’s concerns – see:

• How are reality ambulance shows legal? (Updated) (October 9, 2018);
• Posting on social media by police – and others (February 2, 2019); and
• ‘City councilman calls for Sacramento department to pull out of ‘Live Rescue’ TV show’ (February 6, 2020)

The Victoria Police Act 2013 (Vic) has detailed provisions on the confidentiality of police information (ss 225-251). Police information is defined (s 225) as:

(a) in relation to a member or former member of Victoria Police personnel, any information that has come to the knowledge or into the possession of the member—

(i) in the performance of functions or duties or the exercise of powers as a member of Victoria Police personnel; or

(ii) otherwise as a result of being a member of Victoria Police personnel…

It is an offence for an officer or former officer to ‘without reasonable excuse, access, use or disclose any police information…’ (ss 227 and 228).  There are provisions to release to the media ‘agency photographs’ (ie a photograph of the face of a person who has been found guilty of an offence) but as the definition notes, that is after a person has been convicted.  Where an agency photograph has been released by the Chief Commissioner the convicted person cannot sue for defamation or breach of confidence (s 243).  There are also provisions to allow police to release information ‘for the purpose of protecting the public or gaining information that may be of assistance in the investigation of an alleged offence’ (s 234).

Even so, as my correspondent has noted ‘… the Services’ [feel free to authorise the] … broadcast [of] ‘000’ calls, show the public undergoing BAC tests and interviews in a police station, and (in the case of ambulances) show patient care in the back of ambulances and in private homes.’

The argument would, no doubt, be that in these ‘fly on the wall documentaries’ the material is not broadcast unless the patient or prisoner consents but as I have argued in those earlier posts, it is actually the process of taking the video or photos and allowing it to be shared even among the production crew that represents a breach of privacy.  It can also be Breaching patient privacy to tell a good news story (February 1, 2020).

I infer from this story that the officer is alleged to have taken photos which have been posted rather than post ‘official’ police photos. The deputy commissioner is appalled that the photos were taken. I suggest that must also be true where TV stations record material in a police station. Even if the footage is not shown on TV, it is still an invasion of the person’s privacy and an abuse of power to allow those images to be recorded.

I commend Victoria Police for recognising that taking, let alone releasing the photo of a prisoner was an ‘”appalling” privacy breach’.  I would urge the other emergency services and Victoria Police to consider the same issue when next approached to install cameras in an ambulance, emergency department or police interview room.  Individual police and others should also be cautious when they are asked to take part in these programs and are asked to wear body cameras to record their interaction with the community.

The COVID-19 pandemic and the paramedic response to it, has raised a raft of legal, ethical and professionalism questions for paramedic clinicians and managers.

Come along, listen to and ask questions of this webinar panel with legal, ethical and clinical experts Dr Michael Eburn, Dr Ruth Townsend and Adam Parker who will discuss the issues encountered and lessons learned so far.

Thursday 14th May 2020, 15:00 AEST

For more details, and to register go to https://paramedics.org/events/legal-ethic-covid

In Woodhouse v Fitzgerald and McCoy (No 2) [2020] NSWSC 450, Schmidt AJ had to determine questions of liability for a land clearing burn that escaped onto a neighbouring property.

The defendants, Mr Fitzgerald and Ms McCoy were absentee landowners who, in 2011, bought the property ‘Doran’ in Berridale, southern NSW, with the intention of ultimately retiring there. When they bought the property, it was subject to notices requiring them to take steps to remove weeds.

The defendants asked the Rural Fire Service (RFS) if they would conduct a burn on the land to clear the weeds and to reduce dry fuels on the land – ie it was a burn both for land clearing and a hazard reduction burn.  The RFS agreed to do the work at no cost to the defendant and subject to some acknowledgments from the defendants (to be explained in more detail, below). It was planned to conduct the burn on 20 and 21 August 2012 but rain meant the second day was put off until 28 August.

550 acres of Doran was burnt by the RFS. The burned area included land close to the border with Mr Woodhouse’s property, ‘Myack’. Burned, but left standing on a ridge was an old hollow gum tree.  5 September 2012, after periods of rain and snow, was a day of unseasonal fire weather. There was low relative humidity, a relatively high temperature and strong winds. A total fire ban was declared. The evidence was that the tree on Doran continued to smoulder with fire in the root structure that may have been insulated, rather than extinguished by the cover of snow.  Embers escaped (either from the roots or from a falling branch) and caused an extensive fire that burned onto Myack and caused damage to the farm and homestead valued in excess of $1.2 million.

Mr Woodhouse sued Mr Fitzgerald and Ms McCoy alleging both negligence (a lack of reasonable care) and nuisance (unlawful interference in his use and enjoyment of his land). No-one attempted to sue or ‘join’ the RFS with the parties accepting that provisions of the RFS Act (in particular s 128 providing immunity for acts done in good faith) meant that they were not liable even if they were negligent.

There are two types of duty of care. The ‘normal’ duty is a duty to take reasonable care to avoids acts or omissions that might injure your neighbour. There was no doubt that the defendants owed a duty of care to Mr Woodhouse but one might ask – what more could they do? They were novice landowners who did not know how to conduct a burn so they turned to the ‘experts’ the RFS and engaged them to do it. They took ‘reasonable care’ by ensuring that people who did (or should have) known what they were doing undertook the task.   Put that way one might have sympathy for the defendants but that is too superficial.

First there is another, higher duty, referred to as a ‘non-delegable’ duty.  A non-delegable duty arises in cases where the risk of injury is so high that a defendant cannot escape responsibility by ‘delegating’ the task to someone else. A duty of care is a duty to take reasonable care, a non-delegable duty is a duty to ensure that reasonable care is taken including by one’s agents. Her Honour reviewed earlier case law including Burnie Port Authority v General Jones (1994) 179 CLR 520 (discussed in all the posts found here – https://emergencylaw.wordpress.com/?s=burnie).  In Burnie Port Authority, Mason CJ along with Deane, Dawson, Toohey and Gaudron JJ said (at [41]):

Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. … Even where a dangerous substance [such as fire] or a dangerous activity … is involved, the standard of care remains “that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances”.   In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of “reasonable care” may involve “a degree of diligence so stringent as to amount practically to a guarantee of safety”.

Her Honour could not distinguish this case (and others) from the one before her and held that here too there was a non-delegable duty owed by the defendants to the plaintiff. She said (at [235]-[236]; [239]; [243]):

There can be no question as to the nature of the danger that eradicating weeds and dry vegetation on over 550 acres on Doran by fire posed to Myack, given the risk of fire escaping either during, or after the burn if it was not properly extinguished. Nor can there be any question that Mr Woodhouse was especially vulnerable to such damage, having not been given prior notice of the burn, despite his undoubted vulnerability to damage if reasonable precautions were not taken to ensure that fire did not escape from Doran, either during or after the burn.

The RFS was authorised by Mr Fitzgerald and Ms McCoy to enter Doran to undertake the burn in their absence. That they [Mr Fitzgerald and Ms McCoy] decided not to be present cannot have diminished the duty which they owed Mr Woodhouse. After all, as owners of Doran, if at any time they were not satisfied that reasonable precautions were being taken by RFS volunteers, particularly during post burn monitoring, they were unarguably entitled to take other steps, to ensure that the necessary precautions were taken…

The lighting of the fires on Doran, which could readily spread to Myack and cause great damage there, both during the burn and afterwards, if the fires were not properly extinguished, involved an operation necessarily attended with significant danger. That required that Mr Fitzgerald and Ms McCoy use all reasonable precautions to prevent the fire extending to their neighbour’s property, which could not be satisfied simply by engaging the RFS and its volunteers…

This means that they are liable for any breach of their duty, notwithstanding that they left the performance of their duty entirely to the RFS

If the RFS failed to exercise reasonable care, then the landowner had failed to ensure reasonable care was taken and was liable for the damage even though they did not and could not undertake the burn themselves.

The defendants’ arguments were in part, that they did all that they could reasonably do. They had engaged the RFS and they did not know of the risk that could be posed by a burned, smouldering tree (see [153]).  They were given no advice from the RFS of the need to monitor the tree but that was contradicted by a pro forma “request for assistance with a prescribed burn” that they signed. The contents of the form were (at [150]):

“I Barry Thomas Fitzgerald and Virginia McCoy as owner/occupier of “Doran” XXXX request the assistance of the NSW Rural Fire Service (the RFS) in undertaking a prescribed burn (the Burn) on the Land. A description of the Burn and a map identifying the Land and the site of the Burn is attached.

I acknowledge I am responsible for:

* obtaining all relevant environmental approvals, including a bush fire hazard reduction certificate if required; N/R

* obtaining a fire permit if required; N/R

* making any notifications that are required (including all adjoining land owners/occupiers 24 hours prior to lighting the Burn); Local RFS Personnel will do

* establishing any ‘control lines’ that may be required. Done 14 & 15 August Lex Suthern.

I also acknowledge that I will remain responsible for preventing the spread or escape of the fire and ensuring that it is properly extinguished notwithstanding any assistance that may be provided by the RFS.

I hereby consent to members of the RFS: entering the Land for the purpose of assisting in the planning, preparation and execution of the Burn.”

The notes “N/R” next to the bush fire hazard reduction certificate and fire permit dot points, “Local RFS Personnel will do” next to the notification dot point and the entry “done: 14 and 15 August Lex Suthern” were made by Ms McCoy ([152]).

It should be noted that the RFS did not agree that they had said they would make any notifications ([276]) or take responsibility for monitoring the land after the fire.

At [157] and [159] Her Honour said:

Despite these obligations, Mr Fitzgerald and Ms McCoy did not concern themselves with either the work they had engaged Mr Suthern to perform, or the conduct of the burn or its aftermath. Even on 2 September when Mr Fitzgerald went to Doran, he did not inspect the burn site, other than by going to the knoll which overlooked it, to see what had been burnt. Mr Fitzgerald and Ms McCoy did not even make any enquiries of the RFS or anyone else, as to whether they needed to do anything themselves, either during or after the burn…

On 5 September the ambient temperature was unseasonably high, with low humidity and gale force winds, with the result that a total fire ban was imposed, but Mr Fitzgerald and Ms McCoy did not monitor the weather conditions and took no steps even to enquire of the RFS whether any precautions needed to be taken, to deal with any risk of the fire reigniting. Nor did the RFS take any precautions to guard against that risk materialising that day.

And at [170]:

Having given their acknowledgment of the responsibility which they had even after the burn, when obtaining the assistance of the RFS, it is difficult to conceive that Mr Fitzgerald and Ms McCoy had no understanding of their own responsibility for the control of the fire they arranged to be used on Doran …

Her Honour found that there was a breach of duty.  Helpfully she summarised her findings before going into them in detail. For the purposes of this blog, Her Honour’s summary will suffice.  She said (at [299]).

… I am satisfied that reasonable precautions which were available and ought to have been taken included:

(1)        dowsing the tree with water mixed with fire retardant;

(2)        when the tree was identified as posing an ongoing risk, knocking it over, exposing the roots, dowsing and reburying them;

(3)        inspecting the tree on the morning of 5 September, when high fire risks prevailing that day became known; and

(4)        Mr Fitzgerald and Ms McCoy making enquiries to ascertain what ongoing fire risks had been identified; what precautions were being taken to deal with those risks; that they were being taken by the RFS and if not, to take those precautions themselves.

Failure to do that, or to ensure that this was done, was a breach of duty by Mr Fitzgerald and Ms McCoy.

The Civil Liability Act 2002 (NSW) Part 4 provides that a court can allocate liability between concurrent wrongdoers to the extent that ‘the court considers just having regard to the extent of” their responsibility…’ ([340]). I imagine this provision was passed to stop people suing the defendant with the deepest pockets but who may only have contributed a small extent to the total losses.  At the time of the moral panic surrounding the legislation there was outrage that people who were only ‘a little bit’ negligent were being hit with large liability bills; but at common law liability was never dependent on degrees of negligence.  If you were negligent you were liable to make good the losses.

In this case it was argued that it was the RFS that was principally responsible for the losses.  Her Honour held (at [348]) that the fact that the RFS would not be liable to Mr Woodhouse (by virtue of the Rural Fires Act and indeed that they had not been joined as a party) did not stop the court from being able to make a finding that they were a concurrent wrongdoer.  In apportioning blame Her Honour said (at [357]-[360]):

… a reasonable person in the position of Mr Fitzgerald and Ms McCoy, given the acknowledgement which they had given, would not have simply accepted the assistance of the RFS and its volunteers at no cost, in the expectation that they would undertake all necessary post burn monitoring of over 550 acres of Doran, to guard against the real risk of the fire reigniting and spreading to adjoining properties. Rather, such a person would have taken available steps to understand the ongoing risk of reignition which continued after the burn; what precautions were to be taken by the RFS to guard against them; to ascertain that they were being taken; and if they weren’t, to themselves take precautions to deal with the ongoing risks.

They did none of those things. Mr Fitzgerald and Ms McCoy’s acts and omissions having also contributed as they did to Mr Woodhouse’s damages, the just apportionment of these concurrent wrongdoers’ responsibilities, could not result in only a nominal apportionment on their part.

I am also satisfied that the apportionment must, however, reflect the greater contribution of the acts and omissions of the RFS, to the damage which Mr Woodhouse suffered. That flows from its statutory role and what it undertook, knowing that Mr Fitzgerald and Ms McCoy were absentee landowners who would not be present themselves to deal with the risk of the fire reigniting after the burn; not having communicated with them after the burn, about the risk of reignition which had been identified and how it was to be monitored; not inspecting the tree on 5 September, despite the unseasonal high fir risk which existed that day and the tree having been identified as posing a risk of re-ignition, a risk well known to be difficult to detect and able to continue, for weeks and even months after a burn.

In my assessment the just apportionment between these wrongdoers results in Mr Fitzgerald and Ms McCoy bearing responsibility for 35% of Mr Woodhouse’s damage.

Finally, Her Honour considered the claim that Mr Woodhouse was in part responsible for his own losses. Without going into details it was accepted that, given the unseasonal conditions on 5 September he failed to take reasonable steps to protect his own property (see [383]-[389]).  His contribution was assessed at 10%.

If Mr Woodhouse’s damages were $1.2m, a 10% discount for contribution negligence would see him receive $1 080 000. But if Mr Fitzgerald and Ms McCoy only had to pay 35% they can be expected to pay $378 000.  Because the RFS were not joined no-one determined whether they would or could have been liable but as they were not parties they could not be ordered to pay damages.  So Mr Woodhouse will be left out of pocket in the sum of $702 000.

I confess I fail to understand Her Honour’s reasoning on this point.  If the duty that the defendants owed was a non-delegable duty to ensure that care was taken, their breach was not only the failures set out [357] and quoted above, but also a failure to ensure that the RFS did all the things they should reasonably have done and a failure to make sure those things were in fact done.  This is particularly the case given the defendants knew they were asking volunteers, who had other commitments, to do this work for their benefit and for no cost.   I am not familiar with the case law on Part 4 of the Civil Liability Act but this outcome seems to me to be, at best, perverse.

It is particularly perverse, in my view, because the RFS were not a party to this case. This means they were not represented by counsel.  Further as Her Honour noted at [259] that it had not been put to RFS witnesses that their conduct was negligent and ‘it was not even apparent that they were aware that this was a part of his case’.

In a paper I wrote with my ANU colleague, Associate Professor Geoff Cary entitled ‘You own the fuel, but who owns the fire?’ ((2017) 26(12) International Journal of Wildland Fire 999-1008; and see A new publication (December 4, 2017)) we argued that under current Australian law a landowner may be at lower risk by doing nothing rather than setting a hazard reduction burn. One might think this case proves the point.  This burn was in part for weed control and in part for fire hazard reduction.  If we limit the discussion to the fire hazard control, had they done nothing and a lightning strike cause the fire that burned onto Myack the defendant’s would not have been liable.  As it was their efforts, which at one level seem reasonable ie engaging the RFS to conduct the burn on their behalf saw them liable.

To be fair, in that paper we said

It would be possible to make changes to the law that would bring the law more in line with the policy direction.

• Bushfire management legislation should provide that where a landowner obtains a permit to conduct a prescribed burn, and the landowner honestly and in good faith complies with the restrictions, requirements and conditions of any permit, that should be prima facie evidence that the landowner’s conduct was reasonable and should provide a defence to any claim in negligence should the fire escape.

Even if that amendment were in place it would not have helped Fitzgerald and McCoy because they did not obtain necessary permits, give notice to Mr Woodhouse or otherwise comply with their obligations.  But even so they were, as Cary and I predicted, liable because they caused the ignition (in that they contracted for it not that they set the match) in circumstances where they would not have been liable if a naturally occurring fire had spread to the neighbours land.

It is also perverse that the defendants have managed to minimise their liability by engaging the RFS to undertake the burn. Had they done it themselves or engaged private contractors they would not have had the benefit of the statutory protection. It would certainly make it prudent for future landowners to get the RFS to do their hazard reduction burns if they can enjoy the benefit of the statutory protections for the RFS to reduce their liability.

The case confirms that ‘if you own the ignition you own the fire’.  Mr Fitzgerald and Ms McCoy arranged for a fire on their land, for their benefit and they were liable for the spread of the fire. The high risk of fire meant that they were responsible to not only take reasonable care but to ensure that those they engaged also took reasonable care to prevent the spread of fire. The failure of anyone, RFS or the defendants, to inspect a large hollow tree that had been burned, in circumstances where it was foreseeable and known that such trees can smoulder for some time after the fire was negligent. It was particularly negligent when there was forecast a day of unseasonal high fire danger. That is not controversial.

What I find controversial is the finding that the RFS was held 65% responsible (but not liable) notwithstanding:

• the defendant’s acknowledgment that they were ‘responsible for preventing the spread or escape of the fire and ensuring that it is properly extinguished’;
• that the RFS was not a party to the action and therefore was not on notice, or able to make representations about the conduct of its volunteers; and
• at least in my view, the finding seems inconsistent with the rational behind the idea of a non-delegable duty of care.

This is the decision of a single Supreme Court judge. Trial courts are busy and have to write judgements on the facts. It is not a binding precedent on future cases. For that we need a decision of the Court of Appeal or the High Court of Australia.

Today’s question involves holding out as a paramedic.  My correspondent is

… currently working on a film set with another individual who has been representing themselves as a paramedic – both through being paid to be one and wearing clothing with the title paramedic displayed. I had known of this individual previously through others as a Paramedic working for many years prior to registration. This person at time of writing however is not registered and I have good authority to believe he has not lodged in accordance with the provisions contained within the Act.

There have been a number of occasions at which I have been concerned about the fact that this individual is a.) holding themselves out to be a paramedic and b.) providing treatment that would fall reasonably within a paramedic’s scope of practice but superior to that of a First Aider.

At some point after I raised my concerns about him holding out to be a paramedic, he has ceased the wearing of said insignia and is now being employed as a “medic”. In this capacity he is still providing the same level of medical care as was previously, which includes administering medications. To the best of my knowledge he does not have a TGA poisons licence and is not operating in accordance with another companies as he is a sole contractor.

My questions are in regard to whether there are any mandating reporting obligations for holding out offences.

To repeat what has been said often before, the Health Practitioner Regulation National Law works via title protection, not scope of practice. Section 113(1) says:

A person must not knowingly or recklessly—

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

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

For paramedicine the relevant ‘title’ is paramedic. If this person is ‘wearing clothing with the title paramedic displayed’ then I would suggest that at least prima facie an offence is being committed.  But if  he has ‘ceased the wearing of said insignia and is now being employed as a “medic”’ then there is no offence.

There is no paramedic scope of practice. Anyone can give any treatment that they know how to give.  ‘[P]roviding treatment that would fall reasonably within a paramedic’s scope of practice but superior to that of a First Aider’ is not an offence under the National Law.

There are no relevant mandatory reporting obligations.  A health professional has to report another health professional or him or herself (see s 140).  Just because there are no mandatory obligations does not mean, however, reports cannot be made.

If you believe a person:

1. is holding themselves out to be a paramedic contrary to s 113 a complaint could be made to the Paramedicine Board.
2. is unlawfully accessing, possessing, supply or administering scheduled drugs, make a complaint to the relevant health department.
3. who is not a registered health practitioner is  putting patient safety at risk make a complaint to the relevant health department or health complaints authority particularly in those jurisdictions (eg NSW and SA) that have a code of conduct for unregistered health practitioners.

Today’s question is a follow up to the post COVID-19 and paramedic work health and safety (April 1, 2020). I’m asked for my:

… thoughts on the impact to a paramedic’s registration when they elect to not follow their employer’s PPE directive. The first paramedic into a cardiac arrest have been directed by Ambulance Victoria to use a lesser level of PPE than their partners (getting into the higher level after arrival at scene). Would delaying entry into the scene to put on the higher level of PPE (CPR is considered an aerosol generating procedure in the context of COVID19) leave the paramedic vulnerable to disciplinary action / sanction?

In that original post I was not told the jurisdiction involved but I assume that this question relates to the same direction and in both cases we were, and are, talking about Victoria.

That question can be answered at many levels. First would it leave the paramedic ‘vulnerable’? Yes I guess it would. One can imagine a situation where CPR is delayed by the paramedic taking time to ‘don full PPE’.  The patient dies. The family of the patient become aware of the directive that ‘the initial rhythm check and shock may be performed by a paramedic with goggles, face mask and gloves’ but are also aware that this was not done.  They may feel sufficiently aggrieved to lodge a complaint about the paramedic’s conduct so in that sense the paramedic is ‘vulnerable’.  But I don’t think that is really what the question intends to ask; the question is would, or is it likely that, or do I think that, the complaint would be upheld. That is a more complex question.

One of the benefits of paramedic registration – of recognising paramedicine as a profession – is that it moves the capacity to define what is appropriate professional conduct from the employer, to the profession.   Prior to registration a failure to comply with the employer’s direction might lead to the employer taking disciplinary action and ultimately an employee’s termination. If you were a paramedic by virtue of your employment with Ambulance Victoria, then losing that employment also lost that status.  That is no longer the case. Even if the employer wants to take internal action, one’s status as a paramedic is determined by the profession.

A complaint can be made that a paramedic is guilty of (in increasing seriousness) ‘unsatisfactory professional performance’, ‘unprofessional conduct’ or ‘professional misconduct’.  All those terms are defined in cl 5 of the Health Practitioner Regulation National Law. (The National Law is set out as a Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) and adopted as part of the law in Victoria by the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic)).  The definitions are:

“unsatisfactory professional performance”, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.

“unprofessional conduct”, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers…

“professional misconduct”, of a registered health practitioner, includes—

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

Note that the definitions refer to conduct that is ‘below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’ or ‘of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers’.  It is not the employer that determines whether the allegation has been made out.

With respect to allegations of ‘unsatisfactory professional performance’ or ‘unprofessional conduct’ it is a Performance and Professional Standards Panel (established under s 182) that must decide whether a paramedic’s conduct in all the circumstances meets the relevant test (s 191).   A panel must have at least 3 members of which at least 2 of whom are registered paramedics (s 182(2) and (4)).  A panel can impose conditions on a paramedic’s registration but cannot cancel the paramedic’s registration.  To use old language, it cannot ‘strike off’ the paramedic.

A paramedic can only have his or her registration cancelled if a complaint of ‘professional misconduct’ is established.  Allegations of professional misconduct are heard by a ‘responsible Tribunal’ (s 193) which, in Victoria, is the Victorian Civil and Administrative Tribunal (VCAT) (Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) s 6).

Would a refusal to commence CPR until a paramedic has put on full PPE, despite the direction from the employer that ‘the initial rhythm check and shock may be performed by a paramedic with goggles, face mask and gloves whilst each subsequent member of the attending team don full PPE’ constitute either ‘unsatisfactory professional performance’, ‘unprofessional conduct’ or ‘professional misconduct’?

If a complaint were to proceed it would be up to the complainant (most probably the Paramedicine Board) to establish to the panel or Tribunal’s satisfaction that the complaint has been established. The burden of proof is ‘on the balance of probabilities’ (not ‘beyond reasonable doubt’) subject to the High Court’s statements in Briginshaw v Briginshaw (1938) 60 CLR 336.  In a paper Briginshaw In Land And Environment Court Proceedings – Introductory Observations from the Judicial Perspective, Justice Rachel Pepper explained the effect of Briginshaw. She said (at [5]-[8]):

The seminal statement or explanation derives from Dixon J in Briginshaw v Briginshaw, where his Honour stated that “when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence … It cannot be found as a result of a mere mechanical comparison of probabilities.” His Honour went on to explain that the standard is one of “reasonable satisfaction”:

…but reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer…. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

… The Briginshaw principle so-called is understood as requiring care in cases where serious allegations have been made or a finding is likely to produce grave consequences…

… [It] does import some flexibility to the civil standard by directing attention to the strength of the evidence required in attaining the civil standard of proof, focusing on the probative value of such evidence. Essentially, it goes to the degree of persuasion of the mind.  Thus the High Court in Neat [Holdings Pty Ltd v Karajan Holdings Pty Ltd] stated that: “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”.  In short, the more serious the allegation, the more probative or stronger the evidence needs to be.

Clearly a finding of professional misconduct is a very serious finding with potentially grave consequences for the paramedic.

The prosecution case

In the circumstances described above, if I was counsel for the complainant one would point to the direction from Victoria Ambulance supported by scientific evidence and professional opinion that the risk of catching COVID-19 by doing ‘the initial rhythm check and shock … by a paramedic with goggles, face mask and gloves’ was sufficiently low that other paramedics of equivalent level of training or experience’ would perform that task and would be expected to do so by ‘the public or the practitioner’s professional peers’.  That would of course require evidence from professional peers and educators.

I would also make the point (as I’ve made elsewhere on this blog) that risk is not and can never be zero. Paramedics (and firefighters and police) do things that carry risk all the time – it is in fact part of their job. The risks may be mitigated but are not reduced to zero.  Risk may be described as a calculation of probability x likely consequences but even if that can be determined with mathematical precision, it does not determine whether the risk is worth ‘running’.  We ask – we expect – our emergency services to take risks that we don’t ask of others.  In the days of COVID-19 we are all asked to stay 1.5m from each other. Health practitioners cannot do that.  In fires we ask everyone to evacuate but firefighters may enter the burning building.  We ask emergency services to respond in a heavy motor vehicle with lights and sirens because the community accepts that the risk to them and to others is justified by the benefit of a usually faster response time.

To return to my submissions, if I was counsel for the complainant, I would want to bring evidence of

• How the decision to issue the directive was made. Who was advising Ambulance Victoria, what science were they relying on and how did they balance the risks to patients and the risk to paramedics;
• How long does it take to put on full PPE compared to ‘goggles, face mask and gloves’;
• What impact that delay is likely to have on survival rates for those needing CPR;
• What difference in protection is offered by ‘goggles, face mask and gloves’ compared to ‘full PPE’;
• What other risks paramedics are expected to take as part of their job and how the risk of COVID when wearing ‘goggles, face mask and gloves’ sits with those other risks (remember paramedics drive on urgent duty, crawl into damaged cars, get lowered out of helicopters into bush ravines, deal with people who are potentially violent due to the effect of drugs, alcohol or mental illness or just sheer bastardry, deal with people with other communicable diseases etc);
• I would draw on the ethics of the profession – paramedics are there to assist people in a medical emergency at their time of greatest need. Whilst the duty is not to sacrifice their lives, they do have to consider the well-being of the patient and are expected, by the public and peers, to take risks that others do not in order to do that.
• I would want to call senior paramedics and those who made the directive to lead evidence that the risk should be regarded as acceptable and that the community and other paramedics would expect this paramedic to act according to the direction.

The evidence would, I would hope, support a final submission that although there was a greater risk in doing ‘the initial rhythm check and shock … with goggles, face mask and gloves’ it is not out of proportion to other risks in paramedic practice and that a paramedic of ‘‘equivalent level of training or experience’ would, and the paramedics peers would expect him or her, not to delay those initial steps that are critical to the patient because of a misplaced fear or an unreasonable expectation as to how far risk can be reduced.

The respondent’s case

If I was counsel for a paramedic in this case one would refute the sort of material above. I would seek all the background papers to the policy to question who made the decision, how was it made and whether all the relevant factors (such as those listed in the Occupational Health and Safety Act 2004 (Vic) s 20(2)) had been considered.  I would lead evidence from other experts to comment on the risk both the paramedics and patients.  I would seek to find peer opinion from other paramedics the decision in the particular case given all the circumstances in that room (rather than looking at the policy in general) the decision by this paramedic to delay CPR was a decision that another paramedic of ‘equivalent level of training or experience’ would also have made in the same circumstances.

With respect to risk and what is an acceptable risk I would focus on the fact that the risk calculation is different if you are the one at risk. A general who commands troops into battle may recognise that there will be certain losses but that this is a price to pay for the greater objective. The soldiers on the front line may see the calculation very differently. The community may be willing to accept the risk posed by responding emergency vehicles, but the family of the person killed in a collision with an ambulance, fire appliance or police car may not see it the same way. Ambulance Victoria may recognise that the risk of doing CPR without full PPE is higher than doing it without but the risk to the patient of not delaying CPR is much higher.  They are looking at the big picture, the paramedic is looking at his or her own risk and that from that perspective the decision to delay commencing CPR is reasonable and what other paramedics, and the public if they understood the issues, would expect.

I would certainly look to see if Ambulance Victoria had complied with the Occupational Health and Safety Act 2004 (Vic) on questions of whether they had consulted with employees and what alternative policies had they considered and rejected, and why.

The evidence would, I would hope, support a final submission that even if it were accepted that the policy in question was reasonable as a general statement, every case and every patient presentation is different and in this presentation the decision by this paramedic was one that other paramedics of ‘‘equivalent level of training or experience’ would also have made and that this performance, in this case, was what would be expected by peers who knew all the facts.

Conclusion

That is a very long answer but it’s long for a reason. It is to show, again, that law only operates on facts. It is rarely the case that can draw a legal conclusion by looking up a rule book, finding the rule and then knowing the answer.  The question was would dealing ‘the initial rhythm check and shock’ whilst the paramedic dons full PPE leave the paramedic ‘vulnerable to disciplinary action / sanction?’

The first part of the answer is ‘what do your peers think?’  If there is a body of opinion that says the policy direction is unreasonable then the answer is more likely to be ‘no’. (And if there is such a body of opinion then, rather than wait, it should be raised both as an industrial issue and under the consultation processes set out in the Occupational Health and Safety Act 2004 (Vic)).

Whether such conduct does amount to either ‘unsatisfactory professional performance’, ‘unprofessional conduct’ or ‘professional misconduct’ is not determined by Ambulance Victoria or the Paramedicine Board, but by a Panel or the relevant Tribunal (VCAT).  All I can do here is demonstrate the process and the sort of arguments that might be made. How the Panel or Tribunal would determine any matter would depend on all the facts.

I suppose one can say, with some certainty, that ‘delaying entry into the scene to put on the higher level of PPE …’ contrary to a direction not to do that but to perform ‘the initial rhythm check and shock …by a paramedic with goggles, face mask and gloves whilst each subsequent member of the attending team don full PPE’ could lead to a complaint and therefore ‘leave the paramedic vulnerable to disciplinary action / sanction’ (even if they ultimately win).  On the other hand, entering the room and performing ‘the initial rhythm check and shock … with goggles, face mask and gloves whilst each subsequent member of the attending team don full PPE’ could not be subject to a complaint by the patient or AV.  At that very simple level, one would have to answer the question ‘yes’ but again it’s all a question of risk.

There’s a risk the family may complain if they realise you did not act in accordance with the policy direction (and it’s just a risk, it’s not certain they’ll complain, it’s not certain the Paramedicine Board would entertain the complaint, it’s not certain what the result would be).  There’s a risk that your employer will seek to impose internal disciplinary action. And there’s a risk you will contract COVID-19 (but the patient may not have it, goggles etc may be sufficient protection, you won’t be in contact with them for more than 15 minutes before your colleagues in full PPE take over). And finally, there’s the risk that the patient you have come to help will die and I would infer that no-one became a paramedic to let people die who they can save.  How you balance those risks is a matter of your clinical and professional judgment.  Make the call you’re comfortable with and are prepared to defend – to AV and the patient’s family (if you delay treatment) and to yourself, your colleagues and your family if you come home with COVID.

That’s the sort of reasoning that you do everyday even if not consciously. In response to a triple zero call you drive at 70km/h in a 60 zone but your response time would be faster at 90km/h. Some would argue (and have done so on this blog) that paramedics should have no exemptions because of the danger to others.  The patient’s family and your employer may be concerned that your response time at that speed is 10 minutes, not 6 and want to complain that you did not ‘proceed with all speed’ (to quote, out of place, the Fire and Rescue Act 1989 (NSW) s 11)).  The police may issue a ticket because you caught by a speed camera and they think that, in all the circumstances, you were not taking reasonable care and the exemption in rule 306 of the Road Safety Road Rules 2017 (Vic) should not apply.  You make the call and you may have to defend that decision to any of those people and to yourself that you thought about the risk to other road users, the patient, you and your family and that was the call you were prepared to make.

And if you think the AV policy is unreasonable and unacceptable, exercise your rights under the Occupational Health and Safety Act 2004 (Vic) to get the policy statement changed.

In Challenging COVID restrictions – part 1 (23 April 2020) I discussed the difficulty of challenging the COVID restrictions on the basis of some alleged breach of human rights. Even if that is not possible, there are ways to challenge the orders. For this exercise I will use NSW and ACT as my exemplars.

The various orders in NSW are set out at https://www.health.nsw.gov.au/Infectious/diseases/Pages/covid-19-phos.aspx. Let us take, for example, the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (30 March 2020). That order is said to be made under s 7 of the Public Health Act 2010 (NSW). That section says;

(1) This section applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health.

(2) In those circumstances, the Minister–

(a) may take such action, and

(b) may by order give such directions,

as the Minister considers necessary to deal with the risk and its possible consequences.

(3) Without limiting subsection (2), an order may declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary–

(a) to reduce or remove any risk to public health in the area, and

(b) to segregate or isolate inhabitants of the area, and

(c) to prevent, or conditionally permit, access to the area.

That is a very broad power. There are no limitations on what the Minister may consider or may ‘direct’. The Minister’s decisions may be subject to ‘administrative review’ (s 7(7)) but again that takes time. Further given the width of the power unless you could show ‘bad faith’ (ie he did not hold the belief required by s 7(1)) or that the decision was Wednesbury unreasonable ie ‘so unreasonable that no reasonable authority could have decided that way’ (named after the decision in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223).

In Part 1, I quoted from Addisons lawyers’ blog post What is the scope of government powers in response to COVID-19? (6 April 2020) which set out the sort of powers state governments can exercise. Whilst one could go through each order, paragraph by paragraph, to ask whether the Act allows such a restriction, there is no serious question (that I can see) that the states do have the power to make the sort of orders they are making. Further the power is given to them by law, it is not the executive government simply ruling by decree, rather the need for these powers has been identified and they have put in place to be used in exactly the circumstances now confronting Australia and the world.

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

Finally there is the question of enforcing the orders. As we have seen this has been largely left to police. The orders have been written quickly and have drafting errors. Some have pointed out that in NSW it says ‘a person must not, without reasonable excuse, leave the person’s place of residence.’ It does not say that once you have done what was ‘reasonable’ you have to go home so if you leave with the reasonable excuse of undertaking exercise, there is no breach if you chose not to go home after you have finished your exercise (see The Wigs, Episode 9 – Are the NSW social distancing laws fatally flawed (and other aspects of the public health law response to Covid-19) (4 April 2020).

The NSW order says ‘For the purposes of subclause (I), a reasonable excuse includes doing an activity specified by Schedule I’. Schedule 1 contains a list of activities but others have noted that the use of the word ‘includes’ in [5(2)] means that the list is not exhaustive (Australian Criminal and Family Lawyers, The Stage 3 Coronavirus Lockdown Laws Explained (undated)). There may be other things that constitute a ‘reasonable excuse’ even if we don’t know what they are.

In the ACT we are allowed to have two people visit at a time provided that ‘social distancing of 1 person per 4 square metres can be observed’ (Public Health (Non-Essential Gatherings) Emergency Direction 2020 (ACT) (31 March 2020)). Note that it provides that it must be the case that the social distancing ‘can’ be observed, not that it ‘is’ observed. Arguably there is no offence even if everyone is cuddled together provided the floor space is such that the distance ‘can’ be observed.

What happens if the police issue an infringement notice? That does not set a precedent. If a police officer issues a ticket to someone sitting on a bench eating a burger, that does not mean that the person’s conduct was unreasonable. It means in the mind of that police officer it was unreasonable. An infringement notice is just an allegation. People are entitled to deny the allegation and the police then have to prove the case, beyond reasonable doubt, before a court. The burden is on the plice to prove that there was no ‘reasonable excuse’ or whatever is alleged to be a breach of the relevant order.

If you allege you left your NSW home to go to work and the allegation is that you did not, that you are lying, that is a question of fact. If a magistrate found against you that would be the end of the matter. If on the other hand if you argued that you were going to visit your mother and the Magistrate did not think that was a reasonable excuse that would be a question of law and something that could be taken to the Supreme and ultimately the High Court of Australia. Their determination would be a precedent for future reference.

Anyone who receives an infringement notice retains the right to challenge it. For a much more detailed explanation of what the police can and cannot do and how to challenge their allegations, see again (Australian Criminal and Family Lawyers, The Stage 3 Coronavirus Lockdown Laws Explained (undated).

If you believe that being directed to shave, or to have a flu vaccination to continue to work, or being told to stay at home is a step too far you can do something about it. What you cannot do is simply point to a rule or a document such as the International Declaration of Human Rights or the Human Rights Act 2004 (ACT) and say ‘but I have a right’. Equally writing to your local member or the Attorney-General pointing out that there are rights involved won’t help. The governments of the world have lots of lawyers who are aware of human rights obligations. Acts like the Biosecurity Act 2015 (Cth) and the state and territory public health Acts were written by people who understand law and were subject to parliamentary scrutiny. You won’t be telling them anything they don’t know.

The only place that can give a definitive ruling on law is a court so you would need to bring a legal action arguing that the various orders are beyond the powers granted under legislation or are so unreasonable that no Minister or Health Officer, having regard to the matters they are required to consider, would make such an order. Good luck to anyone who wants to bring those actions.

There will no doubt be challenges to individual infringements where people will challenge allegations that their conduct was in breach of the various orders. Those challenges may also call into question the validity of the orders but will face all the problems discussed above.

What follows is that there is no point writing long treatises to me trying to convince me that these orders are unreasonable or beyond power. Whether I agree with you or not won’t make the slightest difference. The legal principles are set out above. What is left are questions about facts – what is the evidence that the governments of the world are relying on and what is the advice they are receiving and is their response reasonable in those circumstances.

In response to various posts on COVID restrictions I have received comments, both public and private, from people wanting to put arguments about why the restrictions are unlawful. This is a blog not a series of refereed journal papers and I have not had time to deal with those questions fully. In this post, and in the one that follows (Challenging COVID restrictions – part 2) I will try to address some of those questions.

This first part will look at the big picture and the power of state and federal governments to impose the sorts of restrictions they have.  In part 2 I will look at some criticism of the specific restrictions and their enforcement.

The Australian Constitution does not have a bill of rights.  We do not have any constitutionally guaranteed rights other than the implied right to freedom of political communication. Even so Australia has signed up to various international treaties in particular the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights.  Those two treaties, along with the Universal Declaration of Human Rights are said to be the International Bill of Rights.

Even though Australia has signed up to those conventions, they do not form part of Australian law until adopted by the domestic legislature.  The Commonwealth does not have a Human Rights Act but there is the Australian Human Rights Commission established by the Australian Human Rights Commission Act 1986 (Cth). One of the functions of the Commission (s 11(e)) is:

… to examine enactments, and (when requested to do so by the Minister) proposed enactments, for the purpose of ascertaining whether the enactments or proposed enactments, as the case may be, are, or would be, inconsistent with or contrary to any human right, and to report to the Minister the results of any such examination.

But human rights (other than the right to life) are not absolute. Every convention provides that rights can be limited, for example the International Declaration of Human Rights says (emphasis added):

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

In the current crisis minds may differ what is required for the ‘just requirements of … the general welfare’.  Some people may think the current restrictions go beyond that limitation; others will think that it does not.  One way to resolve that, other than a shouting match, is the requirement that the restrictions ‘are determined by law’.

In Australia, the Commonwealth legislature has the power to make laws with respect to, inter alia, ‘quarantine’ and ‘immigration and emigration’ (Australian Constitution s 51(ix) and (xxvii)).  To give effect to those powers (and others) the legislature has passed the Biosecurity Act 2015 (Cth).  Addisons lawyers, in their blog post What is the scope of government powers in response to COVID-19? (6 April 2020) say (references omitted):

Since the declaration of a “human biosecurity emergency” under the Biosecurity Act in relation to COVID-19 on the 18 March 2020, the Federal Health Minister has had expansive emergency powers to:

• restrict the movement of persons, goods or conveyances;
• require that places be evacuated; and
• make directions to close premises,

which can be exercised up to 18 June 2020, unless the “human biosecurity emergency” is extended. The Governor-General may extend the period indefinitely, with each extension being for no longer than 3 months.

The Director of Human Biosecurity also has expansive powers to create temporary quarantine areas (“human health response zones”) to reduce the risk of spread of COVID-19, and biosecurity officers have powers to require individuals to undertake certain biosecurity measures (e.g. movement restrictions and medical examination).

We can see the Commonwealth’s action in areas like requiring everyone who enters the country to undergo 14 days quarantine.

The states have much wider powers than the Commonwealth and most of the restrictions imposed are being imposed under state or territory public health laws.  To again quote Addisons (references omitted):

The States and Territories have very broad powers under each of their public health legislation, which each state and territory has used in its response to the spread of COVID-19 in Australia.

In NSW, the Minister for Health and Medical Research has wide powers under the Public Health Act 2010, to take actions and give directions considered necessary to deal with public health risks. Additionally, on 25 March 2020, the NSW Parliament enacted the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 to amend various pieces of legislation to prepare services and institutions for the impacts of COVID-19.

In Victoria, there are general public health powers available to authorised officers to eliminate or reduce risks to public health (e.g. closure of premises, restriction on movement and information gathering). However, following the declaration of a state of emergency on 16 March 2020 in relation to COVID-19, the Chief Health Officer has the expansive power to give any direction that is reasonably necessary to protect public health.

On the 29 January 2020, the Queensland Minister for Health and Minister for Ambulance Service declared a public health emergency in relation to COVID-19. By declaring a public health emergency, this gave emergency officers access to an exhaustive list of powers to do such things as restrict the movement of people and entry into premises. On 19 March 2020, the Queensland Government enacted the Public Health and Other Legislation (Public Health Emergency) Amendment Act 2020, to give the Chief Health Officer expansive additional powers, including the ability to give any direction considered necessary to protect public health.

If we take as given that the current restrictions are curtailing what are otherwise expected, and accepted, human rights (see Facemasks, beards and COVID-19 (March 26, 2020)) they have to meet the sort of threshold set out in the International Covenant of Human Rights – that is the restrictions have to be a reasonable and proportionate response to the risk to human health (see Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7; Human Rights Act 2004 (ACT) s 28; Human Rights Act 2019 (Qld) s 13).

If you think that the laws do not meet those thresholds ie that they are not ‘reasonable and proportionate’ you would have to do something about it.  And here let me make it clear that yelling into the wind (ie writing to me, or your MP, or posting on Facebook) is not doing something about it.  You could complain to a human rights watchdog such as the Australian Human Rights Commission but that Commission, like those in Victoria, the ACT and Queensland, cannot declare legislation ‘invalid’ because it breaches human rights. They can make a report to the Minister or Parliament or a court may rule that an Act is inconsistent with human rights. The Parliament may or may not chose to amend the law, but a law that is a contravention of those international obligations remains a law (even if you want to describe it as a bad law) (Australian Human Rights Commission Act 1986 (Cth) s 29; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 31; Human Rights Act 2004 (ACT) s 32; Human Rights Act 2019 (Qld) s 43)).

Agencies like the Health Department etc are required to give effect to human rights. So the Act may not be inconsistent with human rights but the way it is used may be.  Again one could seek a declaration or a finding that the actions is a breach of human rights. Let us assume someone wants to do that about the terms of a public health order currently in force.  Rights can be limited. To again use the phrase from the International Covenant (which is not exactly the same as that in the human rights legislation in those states that have human rights legislation but will suffice to convey the meaning), the restriction has to be ‘for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of … the general welfare in a democratic society.’

If you were to try to get a remedy from a Supreme Court, or the High Court of Australia, you would need to do more than assert your belief that governments are not acting for that purpose or that the restrictions go beyond the ‘just requirements of … the general welfare in a democratic society.’  You may think those things are true but no doubt the government would have evidence to say that is exactly their purpose, they want to restrict our movement not only to protect us but to protect others from us, ie to secure the right to life of those particularly vulnerable to COVID-19.  As for what is acceptable in a democratic society it would be very hard to argue that the restrictions we face are exceptional given that they are consistent with what is happening in nearly every other country including those that would be accepted as ‘democratic’.

A person’s conspiracy theory, that the actions of government are really an attempt to silence objectors, or to make money by those that sell PPE etc won’t prove that there is an ulterior purpose, no matter how much you believe it.  Equally claims that COVID-19 is no worse than seasonal flu or that the economic consequences exceed the benefit won’t prove that’s true particularly if all you can rely on is what you found on the internet. Remember that those advising governments will no doubt be aware of and have studied for years, other pandemics and diseases. Mere assertions that you think they should do something else will no way persuade a court that this is true.  If you wanted to challenge the government’s decisions you need to be privy to and address their evidence and advice, not merely present your own.

If you get nowhere in Australia, you could go to an international body like the Human Rights Committee of the United Nations.   Assuming you meet the thresholds to get there you are not going to get a ruling in time to make any difference to the current restrictions.  In any event, as noted, human rights can be limited and given every country in the world is doing so, arguing that the restrictions in Australia are not ‘for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of … the general welfare in a democratic society’ would seem like a hard mountain to climb.

If you think the current restrictions on your liberty is a breach of your fundamental and inalienable human rights, you could challenge them.  You could apply to a human rights watchdog and in some states, you may be able to seek a declaration in the Supreme Court.  My prediction is that, given the near universal international response, you would have no chance of persuading any tribunal that the current powers are not lawful.  (I would also predict that it would take so long that by the time you got a result the restrictions will have been lifted anyway).

If the general power to make restrictions cannot be denied, the alternative is to challenge the particular application, that is to argue that the various orders are not lawfully made under the Act or that the enforcement is not lawful.  That will be the subject of Challenging COVID restrictions – part 2 (23 April 2020).

Today’s question comes from a Queensland paramedic who says:

QAS [Queensland Ambulance Service] have stated that all employees must have a flu vaccine. Just wondering if that can actually be enforced?

I referred my correspondent to an earlier post – Discrimination in ambulance employment for refusing a vaccine (January 2, 2017). They came back to me saying

Thank you. Just read the article, however I have been employed by QAS for many years. We received an email a few days ago stating we were ‘expected’ to obtain the vaccine. It has never been a mandatory requirement in the past. Just wondering if it could be legally enforced now ie could we lose our job if we refuse to have the vaccine?

I appreciate that there is a difference between applying for a job and continuing employment but I think my reasoning in that earlier answer still stands and should be read as part of my answer to the question.

I did ask for a copy of the notice to understand exactly what was being said – there’s a difference between ‘we expect everyone will want to get vaccinated’ and ‘we expect you all to get vaccinated’ and I did not want to mis-quote QAS. I have now been provided with Queensland Ambulance Service’s Medical Director’s Circular No. 21/2020 which says:

Annual vaccination strategies are an important and effective measure to protect against seasonal influenza. Each year a new influenza vaccination is developed to protect against the most likely strains of the virus expected to spread and cause illness. This year, more than ever due to the challenges presented by COVID-19, it is important for staff to be vaccinated against influenza to not only protect yourself but also the vulnerable patients within our community.

QAS staff can access a 2020 influenza vaccination from the following options:…

It goes on to list how and where QAS staff can access the vaccine and get reimbursed if there are out of pocket expenses.   The circular goes on (emphasis in original):

 Importantly, the Federal Government has mandated that all health professionals who enter an aged care facility must be immunized by 1 May 2020. Therefore, we need every frontline operational officer to confirm they have been immunized by that date…

… I ask that all staff take the time to get vaccinated against influenza to not only protect yourself, the patients, your colleagues, your families but also to protect our broader community.

An Australian Government Fact Sheet on Restrictions on entry into and visitors to aged care facilities confirms that ‘everyone entering a residential aged care facility need[s] to be vaccinated’.  It also says ‘The state and territory directions include specific requirements in relation to flu vaccinations and are published on websites…’. The Queensland website refers to the Aged Care Direction (No.2) (effective date, 17 April 2020).  That direction says (at [6]):

a person … must not enter or remain on the premises of a residential aged care facility in the State of Queensland from the time of publication of this direction until the end of the declared public health emergency if:…

(e) after 1 May 2020, the person does not have an up to date vaccination against influenza, if the vaccination is available to the person.
Example – the vaccination is not available to a person with a medical contraindication to the influenza vaccine

Paragraph 8 says:

Despite paragraphs 6(e), a person may enter and remain on the premises for the period reasonably required to provide an emergency service that is necessary for the effective operation of the residential aged care facility or to protect the health and safety of staff and residents, on the condition that the person must practise social distancing wherever possible, including maintaining a distance of at least 1.5 metres.

Example – A plumber may make emergency repairs if an employee or contractor with an up to date vaccination against influenza is unable to attend.

In my earlier post (Discrimination in ambulance employment for refusing a vaccine (January 2, 2017)) I talked about an ambulance service’s duty to look after both its staff and its patients. If there was a change in policy from recommended flu vaccination to compulsory flu vaccination on the basis that this was a response to risk as required by work health and safety legislation, there would need to be a process of consultation (Work Health and Safety Act 2011 (Qld) s 49).  Equally if this represented some fundamental change in the job one was employed to do there would have to processes to amend duty statements and the like.

But that is not the case here; this is a regulatory change. There has been a change in the law that affects whether or not a paramedic can do the essential part of their job.  If there was some change in the traffic licensing laws so that a different licence was needed to drive an ambulance, then that is something QAS would have to comply with. They would hope there was a lead in time (as there is here) and they would have to take steps to get their staff up to speed, but it is something they would have to comply with.  The requirement to have a vaccination is something imposed on QAS rather than something of their choosing.

Can you be fired if you elect not to have the vaccine? I’m not an industrial lawyer so I won’t try to answer that question but I think one could conclude that if a paramedic refused the vaccine he or she could not do the job of a paramedic if they were prohibited from entering an aged care facility.  The exception for an emergency would not be sufficient as many ambulance calls would not constitute an ‘emergency’ and QAS could send vaccinated paramedics. I would suggest that it would be perfectly reasonable for QAS to say to a paramedic ‘if you are not vaccinated, you cannot do your job’.  Whether they would be under some obligation to find the paramedic another job (eg move them into coord or training) I am not prepared to say as I would have to study much more industrial/employment law. Presumably if they could not, or did not have to, find the person another job they could be sacked because, by their own decision, they have made it impossible to do the job they were employed to do.

The question was ‘could we lose our job if we refuse to have the vaccine?’.  I think there is a safe answer you could not do your job if you refused the vaccine so QAS would have to do something.  That would mean either they would have to find you another job within QAS or if there was no other job, it would seem likely that you could lose your job.

Critically my correspondent has misquoted the circular.  It does not say paramedics are ”expected’ to obtain the vaccine’.  It does say that the Commonwealth and Queensland governments have mandated that a person cannot enter an aged care facility without up to date flu vaccine. It’s not QAS that are making it mandatory, but QAS and QAS paramedics have to comply if they are to do what I would suggest is a common part of their job and that is enter aged care facilities.

For a related post – see Refusing a paramedic access due to Covid-19 fears (March 28, 2020). That post related to a facility that refused entry to a paramedic with a temperature in excess of 37.2 degrees.  The current directions on access to aged care facilities including Aged Care Direction (No.2) now say that a person cannot enter the facility if they have a temperature of, or in excess of, 37.5 (see [6(c)].

This article, by Clayton Utz lawyers, explains the role of the new agency – Resilience NSW:

• Nick Thomas and Emma Whitney, New agency to drive disaster preparedness and recovery in NSW (Clayton Utz, 16 April 2020).

Situation’s change but somehow remain the same. Earlier this year we were discussing respirators for firefighters (Donated respirators for RFS firefighters (updated 12 January 2020) (December 29, 2019) now it’s facemasks for health practitioners but the issues are similar in particular can someone direct another not to wear a facemask. This question comes from the same person who was raising funds to buy respirators and who has now had:

…an influx of nurses and doctors contacting me telling me that they have been told that they are NOT ALLOWED to wear masks at hospital if they are not directly in contact with co-vid patients.

Excuses include “it will stop you social distancing” or “you’re not in the areas affected” or “you don’t need them”

To date I know of two midwife’s who contracted co-vid having never been on the ‘exposed’ wards and two nurses who also worked in wards unrelated to Co-vid.

These nurses were told specifically not to wear masks.

What is the legal position on such orders?

Can they demand a nurse or Dr remove PPE?

The answer is going to be, as it so often is, ‘is the demand reasonable in all the circumstances?’

Now many people say they are told or directed to do things when this is not the case. Eg during the fires and the respirator issues I was told the RFS was directing people not to wear respirators, which the RFS denied (see that earlier post). Or that people were being directed to sign a disclaimer which again the RFS denied and wanted know if anyone had seen such a disclaimer so they could take it up with field management to make them stop. And there’s the story of the RFS firefighter who insists he was sacked because of a conversation rather than formal proceedings.  Just because people hear things, just because someone does say something, does not make it correct.   Also in this case if there are two health professionals who have contacted COVID-19 without being exposed to COVID-19 at work we cannot know whether the source of their contagion was work and if so whether a mask at work would make any difference to them (though it course it may reduce the risk of spreading it to patients if a person has the virus but is asymptomatic).

I will therefore not address any of the specific issues but look at this in broad terms – ‘can an employer stop a person wearing PPE that they think they need?’  I’ve discussed some issues before – see Choosing your own PPE (June 5, 2019).

One way to think of answers to these questions is to start at an extreme point. Imagine a nurse who is also a retained firefighter decides that the only way to be safe is to wear self-contained breathing apparatus (BA) whilst working as a nurse. Assume they buy their own equipment so they’re not using firebrigade equipment.  They turn up to work with air-tank, full mask and insist that is how they are going to work. Presumably that is safe, but is it reasonable?

People are allowed onto premises at the licence, permission, of the occupier (see the discussion in Patient’s demands do not create a duty to treat (April 11, 2020) about a hospital’s right to insist that a patient leave).  An employee also enters with the permission of their boss albeit that the terms of the licence or permission are complicated being made up of the employment contract, general employment law and of course the employers and employees obligations under the Work Health and Safety legislation.

As a general rule we can all do what we like unless there is a law that says we can’t.  As a citizen, if I want to wear BA as I go about my business that is indeed my business.  I commit no offence, and no-one can tell me to take it off except as a condition they may set to enter their premises – so the bank or service station may not let me in. But I do no wrong by wearing my BA if that’s what I want to do.

When I go to work my employer may issue a uniform and set certain dress standards, but they don’t issue everything. I pick my own underwear, socks and no doubt other bits and pieces.  My employer may supply pens, but I prefer to take my own. So no-one can seriously say that in employment you can only wear ‘issued kit’ and nothing else; that would be unworkable in nearly every case. If an employer was issuing basic masks and a nurse wanted to buy N95 or P2 masks it would be, in my view, unreasonable to stop them.  So what about BA?

There would be reasons a hospital would not want one nurse wearing BA.  The hospital does have dress standards (hence the term ‘uniform’) and the nurse in BA is out of place. Importantly wearing BA may impact upon their ability to do their job, it will be harder to communicate with patients and colleagues so that is an actual barrier to performance. The disruption that it may cause to the working of the ward may be higher than the benefit given wearing of BA is not clinically indicated.

The obligation under WHS Law to provide, or perhaps allow, PPE is an obligation to provide reasonably required PPE, not whatever PPE and employee thinks they need even if they make the claim without sound reason.

What about paper masks? In this day and age not as ‘shocking’ as BA. The hospital administrators may say ‘it’s not clinically indicated’ but the problem when dealing with other doctors, is that they may say it is. So are they clinically indicated or is there a difference of professional opinion?

So it comes down to the question of what is the reason for the ban (and hearsay statements is not enough to know, one would want to see the direction, in writing). There may be good reasons. One might be that the hospital has a limited supply and so rations them: “You can’t wear these on the ward because that is low (not no) risk and we need them in the covid ward and operating theatres”.  Rationing is a fact of life. That may be an excuse not to issue them but would hardly be good grounds to refuse permission for someone to supply their own. To stop people wearing their own masks one would need to point to a risk to patient care or a risk to the staff member, or at the low end of the scale a risk to the institution.

What are the risks? I’m not a clinician so I’ll look to my trusted source, the ABC:

• Face masks debate: WHO consider evidence for widespread face mask use, as US set to change its advice (3 April 2020)
• Should we be wearing face masks in public during the coronavirus pandemic? Can a cloth mask protect you against COVID-19? (9 April 2020)

The Australian Department of Health’s Information on the use of Surgical Masks (Version 5 (26/03/2020)) gives this advice for health care workers:

During the course of their work, health care workers may be exposed to patients who are suspected or confirmed of having COVID-19. When caring for patients with suspected or confirmed COVID-19, health care workers are required to wear appropriate personal protective equipment (PPE) (masks, gloves, eye shields and/or gowns) to protect themselves from infectious illnesses and help stop the spread of disease. The PPE required will depend on the  type of interaction. It is important that our health workforce remains strong and healthy during this time.

Information for health care workers looking after patients in hospitals and non-inpatients is available at www.health.gov.au/covid19-resources.

Concerns about people not knowing how to put masks on and off or not adopting other measures like hand care would, I suggest, be less relevant when talking about health care professionals.

On reading the reports above there is not clear statement that health care workers who are not treating people diagnosed with COVID should, or should not, wear masks.

The next question, in thinking about an answer, is what is anyone going to do about it? An employee has to obey the reasonable directions of an employer.  What is an employer going to do to a nurse or doctor who is wearing a face mask? If they sack them would that be considered ‘unfair’? Again that would depend on the employer’s ability to show a good reason for the prohibition and why dismissal was not harsh or unjust.  I can imagine a hospital might sack a nurse who insisted on working every shift in BA, but in a paper mask?

I cannot resolve this issue.  Like other questions it actually depends on the science and clinical indications, not the law (see also Refusing a paramedic access due to Covid-19 fears (March 28, 2020)).  Often you may have an employer who can point to ‘clinical advice’ so the person who is given the direction has little option but to accept that, but where the ‘clinical advice’ is being given to other clinicians the problem of saying where the clinical balance is much harder.

The only answer one can give is that an employer could give a direction not to wear some equipment (whether its PPE or anything else) where wearing that equipment poses a risk to the patient, the staff member or the employer and the demand from the employee is unreasonable.  To paraphrase the decision in University College London Hospitals NHS Foundation Trust v MB [2020] EWHC 882 (QB) (discussed in the post Patient’s demands do not create a duty to treat (April 11, 2020)) an employer’s obligation to provide a safe system of work does not mean an employee can ‘…insist on the level of PPE they believe they need’. The employees demands and the employers choices will all be judged against what is reasonable in all the circumstances.

In short an employer has to be able to stop a person wearing something to work, including what they believe is necessary PPE if they have good reason to do so.

I have argued, at least since I wrote my Master’s thesis ‘Euthanasia and Medical End-of-Life Decisions: The need for Law Reform in Australia (1998, University of Newcastle (NSW)), that a patient’s demand for treatment does not give rise to an obligation to provide that treatment (and see:

• Do paramedics have to transport everyone? (February 3, 2014);
• Transporting the agitated patient – Victoria (August 10, 2014) and
• Not for Resuscitation in Western Australia (April 8, 2016);
• Paramedics withholding futile treatment (June 14, 2019);
• NFR orders and changing circumstances (April 5, 2020);
• see also Michael Eburn and Ruth Townsend ‘Save 000 for emergencies: A flawed approach to reducing demand for emergency ambulance services’ (2017) 44(4) Response pp. 23-26).

That position has been confirmed by the Queen’s Bench Division of the England and Wales High Court in University College London Hospitals NHS Foundation Trust v MB [2020] EWHC 882 (QB) (9 April 2020) (and I thank Bill Madden’s WordPress for bringing this case to my attention).

The defendant, MB, was a patient in a room on a hospital operated by the claimant – the University College London Hospitals NHS Foundation Trust. The ward in which MB was a patient (at [1]) ‘has 12 beds and is intended for those requiring acute neuropsychiatry care for periods of up to 14 days (sometimes extended to 28 days depending on clinical need).’  The claimant NHS trust wanted MB to leave the hospital. The bed was required (at [2]):

… because the COVID-19 pandemic meant that the bedroom is urgently needed for other patients; and because in any event it is contrary to MB’s interests to remain in the Hospital, where she is at increased risk of contracting COVID-19. The Claimant says that MB can be safely discharged to specially adapted accommodation provided by the local authority, Camden London Borough Council (“Camden”) with a care package, which the Claimant considers more than adequate to meet her clinical and other needs.

MB refused to leave, and the claimant sought an injunction requiring MB to vacate the room on the hospital. MB’s case (at [4]) was that she:

…  wished ultimately to be discharged from hospital, but had concerns about the care package offered by Camden. Those concerns were connected to her complex mental health conditions, which amounted to disabilities. If she were discharged while those concerns remained unaddressed, and irrespective of whether the concerns were objectively well-founded, she would be at risk of suicide or self-harm or at least of suffering extreme distress. To discharge her in those circumstances would be contrary to the Claimant’s obligations under Articles 3, 8 and 14 of the European Convention on Human Rights (“ECHR”) and contrary to ss. 29 and 149 of the Equality Act 2010 (“the 2010 Act”).

The European Convention on Human Rights and the Equality Act 2010 are not law in Australia, but the principles set out in the judgement would, I suggest, be considered equally applicable in Australia.

The gist of the case was that although steps had been taken to provide suitable accommodation and ongoing care for MB, she was not satisfied with the arrangements and did not want to leave the hospital until all her demands had been met and her concerns addressed.

A psychiatrist involved in MB’s care said (at [26]) ‘It is unlikely that [MB] can ever be fully reassured as she does not trust hospital authorities, council and possibly other authority figures – this is something that professionals and [MB] have had to manage. There is no current intervention that can rectify that. Hence expecting that [MB] will be satisfied and agree to discharge is not a realistic endpoint.’

MB argued that the court should not proceed to grant the order requiring her to vacate the room until she had the opportunity to call her own expert witnesses to give evidence as toe the impact her discharge would have no her mental health. Mr Justice Chamberlain refused that application.  He said (at [43]-[44]):

First, a decision by an NHS hospital not to provide in-patient care in an individual case might, in principle, be challengeable on public law grounds by judicial review if the decision were tainted by improper purpose or had been made in breach of statutory duty or otherwise contrary to law. But, if such a decision were taken on clinical grounds, it would not be open to a claimant in such proceedings to adduce expert evidence with a view to impugning the clinical basis of the decision…

Second, clinicians cannot be required to provide treatment or care contrary to their own clinical judgment:… Dr Christofi’s careful evidence shows that it is the considered view of the treating team that MB does not require hospital care and can safely be discharged. It would be quite wrong for the court to entertain expert evidence with a view to compelling them to continue to provide that care, even if other clinicians may take a different view as to what is clinically indicated.

With respect to the care package that was being offered by Camden London Borough Council, one of MB’s concerns was that it would be reviewed after three months and naturally a review might mean it could be changed, She wanted a guarantee that the package, including 24 hour care, would be in place for at least 12 months. At [47] Mr Justice Chamberlain said:

… it is necessary to say something about the concerns expressed by MB about the care package currently offered. The first such concern is not one that it could be reasonable to expect Camden to accommodate. Local authorities are both entitled and obliged periodically to review the care needs of those for whom they are obliged to make provision. Individuals in receipt of care packages are not entitled to insist on the level of care they believe they need…

As to her demands as to who would provide therapy, the judge said (at [48]) ‘… MB is not entitled to insist on therapists of her choosing. The identity of the therapists is a matter for the local authority, to be determined in the light of any relevant clinical advice.’

With respect to ongoing treatment in hospital, and in light of the COVID-19 pandemic the need to allocate resources, His Honour said (at [51])

Patients have no right to occupy beds or rooms in hospitals except with the hospital’s permission. A hospital is entitled as a matter of private law to withdraw that permission. In deciding whether to withdraw permission, the hospital is entitled and indeed obliged to balance the needs of the patient currently in occupation against the needs of others who it anticipates may require the bed or room in question. Unless its decision can be stigmatised as unlawful as a matter of public law, there is no basis for the court to deny the hospital’s proprietary claim to restrain the patient from trespassing on its property…

As for the argument that unless MB’s concerns are met, she will become so distressed that she may harm herself and, in those circumstances, ([53]) ‘the Hospital is legally precluded from discharging her until those concerns are met…’, His Honour said (at [54]-[56]):

It is a tragic feature of MB’s complex constellation of mental health difficulties that she frequently suffers from extreme distress, whether she is in hospital or not. But, if the Hospital were precluded from doing anything which might precipitate such distress, it would soon end up in a situation where it was legally precluded from taking any step other than in accordance with MB’s wishes. In this case, MB would be entitled to insist on the provision of whatever she considers she needs as a condition of discharge from hospital, even if the result of her doing so were that the needs of others could not be met. That is not the law, because her needs are not the only ones that the law regards as relevant.

In some circumstances, a hospital may have to decide which of two patients, A or B, has a better claim to a bed, or a better claim to a bed in a particular unit, even [if] ceasing to provide in-patient care to one of them [or requiring them] to leave will certainly cause extreme distress or will give rise to significant risks to that patient’s health or even life. A hospital which in those circumstances determines rationally, and in accordance with a lawful policy, that A’s clinical need is greater than B’s, or that A would derive greater clinical benefit from the bed than B, is not precluded by Article 3 ECHR from declining to offer in-patient care to B. This is because in-patient care is a scarce resource and, as Auld LJ put it in R v North West Lancashire Health Authority ex p. A [2000] 1 WLR 977, at 996, “[i]t is plain… that article 3 was not designed for circumstances… where the challenge is as to a health authority’s allocation of finite funds between competing demands”. Decisions taken by a health authority on the basis of finite funds are, in my judgment, no different in principle from those taken by a hospital on the basis of finite resources of other kinds. In each case a choice has to be made and, in making it, it is necessary to consider the needs of more than one person.

The present situation does not involve a comparison of the needs of two identified patients. But the decision to withdraw permission for MB to remain in the Hospital is still a decision about the allocation of scarce public resources. Decisions of this kind are a routine feature of the work of hospitals and local authorities, even when there is no public health emergency. The fact that we are now in the midst of the most serious public health emergency for a century is likely to accentuate the need for such decisions. The absence of evidence identifying a specific patient or patients who will be disadvantaged if MB remains where she is does not mean that such patients do not exist. It is important when considering human rights defences in cases of this sort not to lose sight of that.

An order was made requiring MB to leave the ward by midday on 10 April 2020.

As noted in previous posts, the COVID-19 pandemic will bring up difficult ethical issues including how to ration scarce resources (see Covid-19 ethical framework for clinical care (April 11, 2020) and Reasonable’ paramedic practice in the face of COVID-19 (March 23, 2020)).

On one view this decision was about the circumstances of the public health emergency and both the need, and authority of a hospital to ration finite resources based on assessment of clinical need. Who gets treatment – who gets the respirator and who does not – is not a simple matter of ‘first come first served’.  If we step back from the current pandemic that is nothing new and can be seen in emergency departments every day where decisions are made about treatment priority. In the ED one may expect that everyone will get seen eventually but decisions are still being made about who gets to see the doctor and who gets treated and whilst some are being treated, it follows that others are left in the waiting room or given the suggestion to go home.  As His Honour said ‘Decisions of this kind are a routine feature of the work of hospitals and local authorities, even when there is no public health emergency.’

Also of general application is the point that ‘clinicians cannot be required to provide treatment or care contrary to their own clinical judgment’ and ‘Individuals in receipt of care packages are not entitled to insist on the level of care they believe they need…’. In the context of this blog, that is addressed to paramedics rather than medical or nursing practitioners, the principle must remain true.  Where a person rings triple zero they cannot demand that they are transported to hospital by ambulance.  The paramedics are clinicians and ‘cannot be required to provide treatment or care contrary to their own clinical judgment’.  If it is the opinion of the practitioner that treatment or transport is not indicated by the patient’s condition they should be able to exercise that judgement and refuse to provide such transport (see

• Transport everyone or act as a professional? A question for paramedics (May 6, 2013);
• Do paramedics have to transport everyone? (February 3, 2014);
• Paramedics decline to transport in NSW (March 21, 2014);
• Refusing treatment documentation (June 9, 2016);
• No adverse comments regarding paramedics following death of a woman in Ballarat, Victoria (April 3, 2017); and
• Paramedics and recording honest advice (April 15, 2018)).

A person who rings triple zero receives care from the ambulance service but they cannot ‘…insist on the level of care they believe they need’.  They may be able to refuse treatment from Paramedic A; but they cannot insist that they get treated by paramedic B.

Hospitals (Darnley v Croydon Health Services NHS Trust [2018] UKSC 50) and ambulance services (Kent v Griffiths [2001] QB 36) may well have legal duties to treat those that come to them for care but the duty is not to provide whatever care the person demands, but that care which is indicated by the person’s clinical need taking into account the other demands on the health services resources, including the demands of other patients, both ‘real’ patients currently under care as well as a reasonable expectation of what other patients may present.

For paramedics and ambulance services this should serve as a reminder that just because someone calls triple zero and asks for ambulance transport to hospital, they are not legally obliged to meet those demands if they are not clinically indicated or the person’s needs can be reasonably met by other means.

In our article ‘COVID-19 – Legal and ethical implications for your practice’ (2020) 17 Australasian Journal of Paramedicine, DOI: http://dx.doi.org/10.33151/ajp.17.796 Ruth Townsend and I discussed how COVID-19 may legally and ethically impact upon paramedic practice (see also Reasonable’ paramedic practice in the face of COVID-19 (March 23, 2020)).

In another piece on ethics in the days of COVID-19, Sydney Health Ethics have published An Ethics Framework for Making Resource Allocation Decisions within Clinical Care: Responding to COVID-19 (and I thank Bill Madden’s WordPress site for alerting me to this publication).  He says:

Ten working party members of Sydney Health Ethics have published a short document entitled An Ethics Framework for Making Resource Allocation Decisions within Clinical Care: Responding to COVID-19.

This ethics framework is designed to help clinicians, hospital administrators and policy makers decide how to allocate clinical health resources as they become scarce within a pandemic such as COVID-19.

You can access the Framework here: https://www.sydney.edu.au/content/dam/corporate/documents/faculty-of-medicine-and-health/research/centres-institutes-groups/she.-clinical-ethics.-resource-allocation-framework.-version-1.-2-april-2020.pdf