Subscribe to Michael Eburn: Australian Emergency Law feed Michael Eburn: Australian Emergency Law
Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD, Australian Lawyer. Email: meburn@australianemergencylaw.com
Updated: 6 hours 57 min ago

The role of insurance in disater recovery

6 April, 2020 - 14:05

Today’s correspondent is doing a project on insurance and natural disasters. I offered to answer their questions provided I could put the answers here (private answers cost a professional fee).  They agreed so here are the questions and my (not fully researched; which also attract a fee) answers:

  • Is disaster insurance legislated for? For example, in New Zealand after the earthquakes, the public were able to access a specific fund that the EQC (earthquake Commission) had set up after the 1931 earthquake.

Australia does not have an equivalent of the Earthquake Commission or disaster insurance.

There is legislation governing insurance but that is not directed to ‘disaster insurance’ per se. The Insurance Contracts Act 1984 (Cth) and the Insurance Act 1973 (Cth) are items of Commonwealth legislation as the Commonwealth has the powers to make laws with respect to ‘insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned’ (Australian Constitution, s 51(xiv)).

The commonwealth does legislate for and provide a re-insurance pool to help carry the risk of terrorism events; Terrorism Insurance Act 2003 (Cth).  There is no equivalent for natural disasters.

Arguably the Disaster Recovery Funding Arrangements 2018 are a form of insurance.  Under those arrangements the Commonwealth meets up to 75% of state expenditure on eligible relief and recovery tasks. Eligible expenditure falls into one of four categories:

  • Category A ‘forms of emergency assistance to individuals’ ;
  • Category B counter disaster operations for the protection of the general public b) emergency works for essential public assets c) immediate reconstruction works for essential public assets d) essential public asset reconstruction works for which the state develops an estimated reconstruction cost in accordance with these arrangements and low interest rate loans and subsidies for primary producers and business;
  • Category C ‘a community recovery package that is intended to support a holistic approach to the recovery of regions, communities or sectors severely affected by an eligible disaster’; and
  • Category D ‘an act of relief or recovery carried out to alleviate distress or damage in circumstances which are, in the opinion of the Commonwealth, exceptional.’

This is not however insurance as understood as a contract between an insured and an insurer. The states do not pay a premium for this protection. It is an exercise in cooperative Federalism.

  • Does the government contribute to any disaster insurance fund?

Beyond the terms of the Terrorism Insurance Act 2003 (Cth), not to the best of my knowledge.

  • Are there emergency management policies that include insurance in their plan

The National Strategy for Disaster Resilience says (at [3.5], emphasis added) that a resilient community:

  • … develops a strong understanding of the financial implications of disasters, options such as insurance are available to reduce the financial burden, and there are more choices and incentives to mitigate financial risks to households and businesses.
  • Individuals and businesses have a strong understanding of the availability and coverage of insurance, including the risks that are included and excluded from their existing insurance policies.

At [3.6]:

  • Settlements, businesses and infrastructure are, as far as is practicable, not exposed to unreasonable risks from hazards or have implemented suitable arrangements, which may include hardening infrastructure or taking up adequate insurance, to protect life and property from known hazards.

The National Disaster Risk Reduction Framework (p. 9) sets as one of its priority outcomes to ‘Improve the accessibility, variety and uptake of insurance’.  To that end Strategy E is:

All sectors should work to diversify the variety of insurance products, better communicate these products, and address barriers to insurability – for example, by supporting assessment of asset conditions.

  • If so, are these hazard specific?

No

  • If a major event or disaster happened, what part if any, do insurance bodies play or get involved?

Critically the Insurance Council of Australia, on behalf of its members, declares an event to be a ‘catastrophe’.  More information on that process can be found on the ICA website – https://www.insurancecouncil.com.au/for-consumers/catastrophe-arrangements.

  • If they do, at what stage does this happen?

That is a matter for the ICA.

  • Who decides (State or Federal) when insurance is made available?

I’m not sure I understand the question.  Essentially it is insurers that decide when they will offer insurance.  If they do offer insurance, they must do so on the terms of the Insurance Contracts Act 1984 (Cth).  That Act (ss 34 and 37A and the Insurance Contracts Regulations 2017 (Cth) rr 21 and 22) says that an insurance policy for home or home contents must include cover for damage caused by:

  • fire or explosion;
  • lightning or thunderbolt;
  • earthquake;
  • bursting, leaking, discharging or overflowing of fixed apparatus, fixed tanks or fixed pipes used to hold or carry liquid of any kind;
  • impact by a falling tree or part of a tree; or
  • storm, tempest, flood (within the meaning given by section 34), the action of the sea, high water, tsunami, erosion or land slide or subsidence;

Following the 2011 floods, there is now a common definition of flood that applies to all home and home contents insurance policies.  A flood is (r 34):

… the covering of normally dry land by water that has escaped or been released from the normal confines of any of the following:

(a)  a lake (whether or not it has been altered or modified);

(b)  a river (whether or not it has been altered or modified);

(c)  a creek (whether or not it has been altered or modified);

(d)  another natural watercourse (whether or not it has been altered or modified);

(e)  a reservoir;

(f)  a canal;

(g)  a dam.

  • If insurance is made available, who administers this?

The private insurance sector.

  • Is there any emergency management plan, policy or legislation that specifically references insurance?

That question has been answered, above.

  • What is the role of insurance in responding to natural disasters?

Insurance is a means to spread financial risk.  The role of insurance is to build resilience by giving those who are insured access to funds to recover from their insured losses – whether that is loss of income, loss of homes, loss of business assets etc.  Having insurance is part of an individual’s personal resilience because most of us could not afford to absorb disaster losses on our own account.  Insurance is also relevant to business and governments to spread the predictable losses from disasters. Insurance assists community recovery by putting funds into communities by way of payments to those insured so that they can use the money to engage trades people and buy goods and services.

For a discussion on ‘Insurance Based Disaster Recovery’ see https://disasters.org.au/

 

 

 

Categories: Researchers

NFR orders and changing circumstances

5 April, 2020 - 16:10

This question was stimulated by a video that I shared via Facebook- for those that don’t access this blot on that platform, I had reposted a blog from Bill Madden’s WordPress – see https://billmaddens.wordpress.com/2020/04/04/nfr-discussions-video/.  The post has a link to a video discussing NFR (Not for Resuscitation) orders.  The question that this prompted is:

Does the cause of the cardiac arrest need to be inline with the medical conditions stated on the NFR. eg. if a PT in a nursing home choked on a piece of meat and the staff tried to help them up until the point they go into cardiac arrest. Should the foreign body be removed, and resuscitation started being that the cause of the arrest was not in line with the medical conditions on the NFR?

That’s a complicated question and it really depends on the circumstances (doesn’t everything?)

First an NFR order may came about in one of two ways. One is that the patient may be making an express decision to refuse treatment they don’t want.  Move away from resuscitation and think blood transfusion. The person does not want that treatment even though the medical staff and good medical practice says that it is indicated.  It doesn’t matter, treatment cannot be given if the patient refuses to consent to that treatment.  In this context the question of why they are refusing may be relevant; I’ll come back to that, below.

The other source of an NFR order is where the treatment is not indicated by the patient’s condition or will be futile.  That is a medical decision and it may be that the patient wants the treatment, but a patient’s desires does not give rise to an obligation. The example I often use is a person who insists on a prescription for antibiotics for a viral infection. Antibiotics are not indicated so a doctor’s decision to not administer the treatment is a clinical decision and does not depend on the patient’s wishes. In the resuscitation context if a person is approaching the end of their life and given the various co-morbidities resuscitation is not likely to be effective, in effect cardiac arrest will simply be the end process of whatever else that is affecting them, then the medical staff may order ‘NFR’ – we’re not going to resuscitate this person just as we are not going to give them a transplant or attach them to expensive machines because in the circumstances it would not be good medical practice.

How is that relevant? Well the answer to the question does to a certain extent depend on how we got there.  Consider a person who refuses treatment. In In Re T [1992] EWCA Civ 18, Ms T refused a blood transfusion but she had been advised that she was unlikely to need blood and that there were non-blood products that could be used.  When her situation deteriorated the court had to consider whether she had intended to make a choice between life and death, or between (all else being equal) blood and non-blood products. Because the situation that had arisen was not the situation she’d been contemplating (and for other reasons) it was held that her refusal did not apply and that the hospital could, in accordance with good medical practice, administer blood.

In Malette v Shulman (1990) 67 DLR (4th) 321, on the other hand, Ms Malette had a card that said she did not want blood under any circumstances.  How it was that she came to be in need of a blood transfusion was irrelevant.

As noted in the video, at the road side the default position has to be commence CPR but in hospitals there may be opportunities to explore people’s wishes and in residential facilities particularly those that are established for nursing, aged or palliative care there should be open discussion about what people want and what is medically indicated. In those circumstances you can ask ‘what was being refused/denied and why?’

If CPR is being refused because in the circumstances it is not medically indicated then whether the person arrests due to an arrhythmia in their sleep or after a period of hypoxia caused by choking, the relevant circumstance where the NFR order was contemplated has indeed arisen.

If, on the other hand, the person has in their advance directive indicated that they realise they are suffering from a terminal illness and when the illness reaches its end stage they do not want to be kept alive by heroic means, including resuscitation, then the fact that they choked on their sandwich may well indicate that resuscitation in this circumstance was not what they were refusing.  This may be particularly relevant if medical staff are called upon to do the resuscitation and they know that the patient is not yet at the end stage of their illness so the condition that was intended to trigger the refusal does not yet exist.  But in those circumstances, the decision may still be that this treatment is, all things considered, not medically indicated.

It may be worth noting that in Victoria, the Medical Treatment Act 1998 (Vic) s 5 (now repealed) provided a process for a person to refuse treatment ‘for a current condition’.  That Act was repealed and replaced with the Medical Treatment Planning and Decisions Act 2016 (Vic) that does not have that limitation that is it does not say that advance care directives are limited to treatment for a ‘current condition’ (see ss 11-13).  Section 11 says:

Subject to any statement in an advance care directive to the contrary, a reference in an advance care directive to particular medical treatment includes a reference to any other medical treatment that is—

(a) of substantially the same kind; or

(b) only distinguishable on technical grounds not likely to be understood or appreciated by the person who gave the advance care directive.

Assume a person is being treated for a terminal illness and completes an advance directive acknowledging that their death is imminent, and they do not want CPR. IF they choke on a sandwich and have a cardiac arrest the treatment, CPR, is substantially similar as the treatment they have refused as a result of their illness and in line with s 11 I would interpret the advance care directive as also including a refusal of CPR in those circumstances.

Conclusion

That’s a complicated answer I’ll grant you.  If I can simplify it, it would be:

  • If the NFR order is made because all things considered, the treatment is not medically indicated then it cannot matter that the cause of the cardiac arrest is not related to the conditions the person is being treated for. If, because of their co-morbities CPR is not indicated then it is not indicated however it is triggered.
  • If the NFR order is made to honour the patient’s own choices – an advance directive – the answer would depend on its terms. Is it intended to apply only in one circumstance but another has arisen (like in In Re T) or is it a refusal ‘in any circumstance’ (as in Malette v Shulman). To borrow the language from the Victorian legislation, is the treatment ‘substantially the same’ as the treatment that has been refused.

 

 

 

Categories: Researchers

Selling home-made masks

5 April, 2020 - 14:30

Today’s question is about

…  entrepreneurs designing and making face masks and selling to the public.

While they are showing great passion and help to the community in times of need. I very much doubt that these ‘home made safety masks’ are made to AS/NZ standards. Is what they are doing legal?

The answer to that question will really depend on the claims that are being made.  Anyone can make a scarf, or bandanna, or face mask and sell it; it is if you claim it has therapeutic affects that an issue arises.  The Therapeutic Goods Act 1989 (Cth) s 3 says therapeutic goods are goods:

… that are represented in any way to be, or that are, whether because of the way in which the goods are presented or for any other reason, likely to be taken to be:

(i) for therapeutic use; …

Therapeutic use includes ‘use in or in connection with ‘preventing, … a disease, … in persons’ (see also the definition of Medical Device in s 41BD).  The sale of therapeutic goods is subject to the Therapeutic Goods Advertising Code (s 42BAA) and the need for goods to be on the Therapeutic Goods Register (s 9A) and to meet prescribed standards (Parts 4.2-4.5).

The regulatory scheme is too complex to explore here but it does confirm the point that the regulatory regime does depend on what claims people are making about the face masks.  If they are claiming they meet a standard (like N95 and P2) then they would in fact need to meet that standard.  If it is just a mask that holds a piece of cloth over your face and the seller does not make specific claims about its therapeutic use, I cannot see how that is illegal.

Categories: Researchers

Telling WA responders about COVID status

3 April, 2020 - 10:11

Today’s question from Western Australia but given the national response the answer is likely to be the same in every jurisdiction.  The question is:

In reference to the current climate re: SARS-Cov-2, what is the standing on false information provided to health/emergency services (In the context of a frontline service attending to a request for medical assistance or other requirement)? For example, when the attending service arrive and conduct an initial distanced assessment including direct questions such as “are you isolated/positive test/quarantined persons residing in the premise/displaying symptoms xyz”. Is the person obliged under any legislative or other requirement to provide accurate information? Is there any repercussion for providing false information? Purposefully providing false or misleading information could result in the risk to the health of responding personnel.

It would be valuable to understand the legal standpoint on this topic and if it was possible to advise the patient/POI etc their obligation to provide accurate information (if any) and if any repercussions apply.

After an earlier post (The coronavirus question (March 12, 2020)) I was asked ‘Does a resident have a duty of care then to notify those providing a service (SES) that they have been in contact with, are infected with or potentially carry coronavirus?’ My answer started with ‘There is no clear answer to this…’ and then went onto consider some common law principles (see https://emergencylaw.wordpress.com/2020/03/12/the-coronavirus-question/#comments).

Despite the development of the crisis and numerous orders regarding social distancing and home isolation (in WA see https://www.wa.gov.au/government/document-collections/covid-19-coronavirus-state-of-emergency-declarations) I cannot find any express requirement that a person who has been diagnosed with the condition is under any obligation to tell anyone including, for example, paramedics who are called to their home.

The Public Health Act 2016 (WA) s 34(1) says:

A person must take all reasonable and practicable steps to prevent or minimise any harm to public health that might foreseeably result from anything done or omitted to be done by the person.

That may imply, but it does not expressly give rise to a duty to tell. Further breach of that public health duty does not (s 35(1)):

(a) give rise to any right or remedy; or

(b) constitute an offence.

It is simply a factor to be considered by an authorised officer in deciding whether to impose particular requirements on an individual to manage public health risks.

There are obligations upon people to answer questions asked by authorised officers (ss 133-135) but those obligations relate to contact tracing and not the delivery of information to first responders.

The Self-Quarantine and Isolation (Tested, Close Contact and Appearance of Symptoms) Directions made under the Emergency Management Act 2005 (WA) s 67 says (at [6]):

A person (C) must not enter premises in which a person (D) is residing in compliance with a direction in paragraph 3 or 4 unless:…

(c) C enters the premises for medical or emergency purposes.

But that does not impose an obligation upon D to tell C of D’s COVID status. The Order also says (at [7]):

If a person who is in self-quarantine develops symptoms, the person must:

(a) inform a responsible officer as soon as possible that the person has been in self quarantine and has developed symptoms; and

(c) comply with any oral or written instructions given to the person by the responsible officer or any other responsible officer, whether to the person specifically or to all persons who are in self-quarantine and develop symptoms; and

(b) self-isolate until the person is informed in writing by a responsible officer that the person is no longer required to self-isolate.

Again, that does not create an obligation to tell a person that may lawfully come to the premises such as a responding paramedic.

In New South Wales the Public Health (COVID-19 Self-Isolation) Order 2020 says that

… while residing at the residence or place under a direction under this Order, the diagnosed person must do the following— …

(b) not permit any other person to enter the residence or place unless— …

(ii) the entry is for medical or emergency purposes…

It does not say that in allowing entry for medical or emergency purposes the person subject to the order is required to tell the responders of their COVID status.

The Public Health Act 2016 (WA) makes it an offence to ‘engage in conduct that the person knows will cause, or is likely to cause, a serious [(s 37) or material (s 38)] public health risk…’  To engage in conduct means (s 36) to:

(a) do an act; or

(b) omit to do an act.

Arguably not telling the paramedics or others is to ‘omit to do an act’ of telling so I could imagine that in some circumstances that could be relevant.  For example if a person allowed paramedics to approach and touch them without full PPE then the person may be allowing ‘conduct to continue to be engaged in in a manner that the person knows will cause, or is likely to cause, a serious public health risk’ (s 37(f)).

Conclusion

On March 13 I was asked:

Does a resident have a duty of care then to notify those providing a service … that they have been in contact with, are infected with or potentially carry coronavirus?

With respect to common law and a duty of care, my answer was, and remains:

There is no clear answer to this. This would not be an established duty of care so a court asked to determine the matter would have to have regard to all the salient features in the relationship between the plaintiff (the SES member who is infected with Covid-19) and the potential defendant (the person who failed to notify of their exposure). The court would consider, but would not be limited to (Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258, [103]):

(a) the foreseeability of harm;

(b) the nature of the harm alleged;

(c) the degree and nature of control able to be exercised by the defendant to avoid harm;

(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;

(e) the degree of reliance by the plaintiff upon the defendant;

(f) any assumption of responsibility by the defendant;

(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;

(i) the nature of the activity undertaken by the defendant;

(j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;

(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;

(l) any potential indeterminacy of liability;

(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;

(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;

(o) the existence of conflicting duties arising from other principles of law or statute;

(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and

(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

The best one could say is that it would be arguable that ‘a resident [has] a duty of care then to notify those providing a service (SES) that they have been in contact with, are infected with or potentially carry coronavirus’ but it will take someone to get Covid-19 and to sue in negligence to actually find the answer to that question.

There may be offences relating to public health risks (in WA, Public Health Act 2016 (WA) ss 37 and 38) that may be relevant but determining whether they apply or not would depend on all the circumstances. If there was some doubt about a person’s status it would probably be accurate to say, with reference to ss 34, 37 and 38 ‘You do have an obligation to warn me if there are risks to public health in this house?’ but whether there would be true in any particular case and whether there would be consequences for failure to do so is another matter.

Categories: Researchers

Consent in mass screening

2 April, 2020 - 14:43

Today’s correspondent asks:

In light of Covid 19 and the increase of non medical professionals or reliance on first aiders undertaking diagnostic testing on members of the public or workplaces on employees, what are the legal obligations surrounding consent?

I note some testing is done either non-contact (infrared device) or contact (in ear thermometer)

Is there a difference in consent and skill level required between the two?

In Rogers v Whitaker (1992) 175 CLR 479 the High Court (Mason CJ, Brennan, Dawson, Toohey and, McHugh JJ at [14]) said:

… except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it. In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended’.

The critical issue with consent is that it converts an unlawful touching – a battery – into something lawful. Older cases on sexual assault say that effective consent to sexual intercourse requires ‘a perception as to what is about to take place, as to the identity of the man and the character of what he is doing’ but fraud eg a claim that the offender is a movie director that can make the victim famous, does not mean there is no consent even if the perpetrator is not a movie director, but a liar (Papadimitropoulos v The Queen (1957) 98 CLR 249). That may no longer be good law when it comes to sexual assault (given significant reforms to sexual assault law since 1957), but it does give meaning to the statement in Rogers about what being informed in broad terms means.

If you attend a clinic and someone approaches you and you cooperate with letting them put a thermometer in your ear then provided you understood that this person was going to put that device in your ear, your cooperation would be evidence of implied (as exposed to express) consent to that.  The fact that they are or are not a nurse or a doctor or anyone else is irrelevant. The person who you expected to put a thermometer in your ear put a thermometer in your ear.  And if they say ‘do you mind if I put this in your ear’ and you agree, there is an express consent.

Where it is a non-contact thermometer the issue of consent becomes even less clear as there is no touching (battery). But even so, if consent is required your cooperation – standing still and waiting whilst they point the thermometer at you would be consent.

Consent is relevant to the law of assault and battery.  If there are risks in the procedure ie if you could actually harm someone with an in ear thermometer and the person using the thermometer does then the issue would be one of negligence, not battery.

Conclusion

To be fair I’m not sure I really understand the question, but from what I can make of it the legal obligation for consent is that you need consent before you touch someone.  If someone knows what you are going to do and they cooperate, and you do exactly what they were expecting, whether that’s giving an injection (O’Brien v. Cunard S.S. Co., 154 Mass. 272) or putting a thermometer in their ear, then consent is established and the legal obligation for consent has been met.

Categories: Researchers

Impact of responding on workers’ compensation benefits

2 April, 2020 - 13:59

Today’s correspondent:

… was under the impression that during the NSW/ACT bushfire season 2019/2020 legislation was enacted to protect volunteers from being harmed by employers doing things to their wages or work conditions. The question is ‘an employee who is on workers comp is given permission to help by the insurer as long as what they do complies with the medical certificate; are these legislated protections then applied to the insurer if they then change the wages or stop payments?’ I ask as I feel that this should cover me but I’m being told no the insurer can basically do as they please.

It’s not the case that legislation was passed, legislation is in place, at least in New South Wales. The State Emergency and Rescue Management Act 1989 (NSW) s 60B says:

An employer must not victimise an employee of the employer for being absent if the absence was due to the employee taking part, as a member of an emergency services organisation, in emergency operations to which this Part applies.

This section applies during a declared state of emergency or when the Premier or an authorised officer declares that the section applies to a particular event (ss 60AA and 60D). Section 60C says:

An employer victimises an employee if the employer:

(a) dismisses the employee from employment with the employer or terminates the engagement of the employee by the employer, or

(b) alters the employee’s position in his or her employment with the employer, or alters the circumstances of the employee’s engagement by the employer, to the employee’s prejudice, or

(c) otherwise injures the employee in his or her employment with, or engagement by, the employer.

As I’ve noted before, the obligation to pay workers compensation is the employer’s obligation. The employer has insurance and the insurance company manages the claim but in effect the insurer is the employer. I will therefore assume that s 60B applies to the insurer as it does to an employer but there are limitations. The insurer cannot dismiss the employee nor alter the employee’s position in his or her employment.  An insurer can however affect an employee primarily by accepting, or rejecting, a claim for workers compensation.

The critical issue has to be because the ‘employee was absent … due to the employee taking part … in emergency operations’. That, and in particular, ‘absence’ is not likely to be an issue for insurers.

Insurers cannot do ‘as they please’. What they do is implement the workers compensation legislation. Where a person makes a claim for workers compensation they are necessarily claiming that they were injured at work and if they are claiming payments for loss of income they are claiming that they are unable to continue to work either at all or at the level or in the type of work that they used to do.  Just because someone claims that something is true does not mean the insurer has to accept that claim. They look into claim and look for evidence to support, or challenge claims. That may feel like they can do ‘as they please’ but it is governed by law.

There are obligations upon everyone, employers, insurers and workers and of course there can be disputes – where an insurer thinks the injury was not work related, or not as bad as the applicant makes out.  There are detailed provisions outlining everyone’s obligations including an insurers right to have, and an employee’s obligation to submit to, medical examinations and on everyone to provide information. Where there is a dispute there are detailed provisions to have decisions, in particular decisions made by insurers to reject claims or reduce compensation payable, reviewed. These are reviewed internally and ultimately by a court.

Discussion

Whenever you are dealing with anyone – police, insurer, your neighbour – you have to consider that not everyone sees an event the same way so one person says ‘you did x’ and you say ‘no I did y’; but whether it was ‘x’ or ‘y’ will not necessarily be obvious just because one is ‘the truth’.  (As I used to say, when I was in practice to client’s who refused to accept a good compromise because they ‘knew’ the truth – ‘don’t expect truth to shine down like a vision from God onto the judge’.). The true position is not always self evidence so we resolve disputes through review processes and evidence.  If an employee on workers compensation turned out with the emergency services that may cause the insurer to think that their injury is not as bad, or their capacity to work, is greater than claimed. They may believe that the work done was not in compliance with any medical certificate or limitations. The employee may disagree and that’s the start of a ‘dispute’.

Whilst I would accept that s 60 means that a worker who was on workers compensation but who did not attend work in a accordance with a return to work program agreed to by the worker, the employer and the insurer (Workplace Injury Management And Workers Compensation Act 1998 (NSW) s 48A), could not be disadvantaged for non-compliance because of his or her absence as part of the emergency services.

However, protection under s 60B (to the extent it can be applied to an insurer) will not apply if the insurer makes a decision to reduce or stop compensation benefits if there is evidence that the worker is no longer entitled to them. That is not ‘victimising’ the employee on the basis of him or her ‘being absent’. It is making a decision in accordance with the provisions of the Workplace Injury Management And Workers Compensation Act 1998 (NSW).

Australia over my life-time has taken a more and more punitive approach to people on compensation or social security – ‘Of all of the factoids bequeathed to us by departing treasurer Joe Hockey, the most dangerous is that the Australian population can be divided into two: “lifters” and “leaners”.’ (Peter Martin, ‘Hockey’s dangerous legacy: We’re neither lifters nor leanersSydney Morning Herald (September 18, 2015).

This attitude and (until COVID-19) the punitive approach to welfare and compensation has meant that more and more law has been passed to ensure that no-one gets one-cent more than they are entitled to – mutual obligation requirements that require people to apply for jobs they’ll never get, cashless welfare card, having to submit to multiple medical examinations, private investigators videoing people trying to function and (until COVID-19) an ‘Newstart’ allowance that committed recipients to live in poverty.  Legislation like the Civil Liability Act 2002 (NSW) was intended to and has made claims for common law compensation harder and reduced the amount of damages that an be paid.  It is not surprising that there are many provisions in the workers compensation legislation to ensure that insurers not only can, but given their duties to their shareholders and clients, must seek to minimise payments hence we see and hear reports of intolerable conduct – close supervision etc. Whether you have to report constantly to Centrelink or an insurer, being ‘on compo’ is no luxury.

Conclusion

To the extent that s 60B might apply to an insurer it would be, as it is for an employer, limited. It involves victimisation due to absence. I suspect an insurer that saw that a person who was able to take active part in an emergency response would be able to point to evidence to show that any decision was not due to the person’s ‘absence’ whilst responding but what their response indicated about their eligibility to compensation.

The claim that the insurer said it was ok ‘as long as what they do complies with the medical certificate’ just opens the door to an argument of what was permitted, and what did the person do. The employee may say they did no more, the insurer may disagree. That can only be resolved through the dispute resolution processes in the legislation.

Remember that a workers’ compensation insurer is not the worker’s insurer. It is the employer’s insurer. And the primary obligation of any company is to its shareholders. They may make money by being an insurer and they have to protect employers by paying out compensation as required by law; but they also make sure they don’t pay out anymore than that which is required by law.

Categories: Researchers

COVID-19 and paramedic work health and safety

1 April, 2020 - 12:18

Todays’ question comes from a paramedic employed by a jurisdictional ambulance service, but which one is not identified. I’m told that

… one of the statutory ambulance services released the following statement regarding the management of cardiac arrests during the COVID19 pandemic. It reads as follows: ”

In suspected cardiac arrest patients, it may not be practical for first responding paramedics attending an arrest to don full PPE prior to approaching the patient, since this might significantly delay the initial rhythm assessment, first shock and commencement of chest compressions. If a family member is present, a rapid assessment of COVID-19 status might be possible and if confirmed positive, full PPE must be donned. If COVID-19 is uncertain, then 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.

Understandably I think this statement has caused some concern amongst paramedics working for this service. The part of particular concern is where it is suggested that in cases where the patient’s COVID19 status is uncertain (so where it cannot be established clearly as to whether or not the patient meets the suspected case definition), it is considered appropriate for one paramedic to enter and conduct patient management whilst wearing substandard PPE whilst other paramedics don appropriate PPE.

My question is whether or not the statutory Ambulance Service has breached Work Health and Safety Legislation by instructing employees to enter a potentially unsafe situation without appropriate PPE?

And secondly, if this does breach the Workplace Health and Safety legislation, is it no longer a “lawful direction” and can paramedics therefore refuse to enter the scene until they are wearing appropriate PPE.

The short answer is that provided there are reasons behind the decision, ie the policy wasn’t written by the accountant working at home one night, then it won’t be a breach of the work/occupational health and safety legislation.  In exploring the answer I’m going to assume that the ambulance service is from a jurisdiction that has adopted the model Work Health and Safety Act 2011 (so every jurisdiction other than Victoria and Western Australia) and I will refer to the model Act as published by Safe Work Australia rather than as enacted in any particular state or territory.

The obligation under the Work Health and Safety Act is not (a duty to ensure the health and safety of workers; it is a duty (s 19) ‘ensure, so far as is reasonably practicable, the health and safety of: (a) workers…’. The addition of the words ‘so far as is reasonably practicable’ is vitally important. Section 18 says what is ‘reasonably practicable’

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(a)        the likelihood of the hazard or the risk concerned occurring; and

(b)       the degree of harm that might result from the hazard or the risk; and

(c)        what the person concerned knows, or ought reasonably to know, about:

            (i)         the hazard or the risk; and

            (ii)        ways of eliminating or minimising the risk; and

            (d)       the availability and suitability of ways to eliminate or minimise the risk; and

(e)        after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

That is not a duty to reduce risk to zero and risk cannot be reduced to zero; rather what is required is steps to minimise the risk to an acceptable level, but what is acceptable will differ between people and where you stand.

Firefighters are exposed to risk. To manage that risk they are issued with PPE and equipment to allow them do their job and given training to reduce risk.  But there is still a risk. Some people will say ‘the risk is too high, I’m not prepared to be a firefighter’ and they chose to do something else.  For others, given the benefits of being a firefighter whether they are judging the benefits to their community or to themselves, the risk is acceptable, and they go to work or volunteer. The use of PPE does not make firefighting safe, it makes it safer.  Sending firefighters to fight fires, even with PPE, is to instruct employees or volunteers ‘to enter a potentially unsafe situation’ but it’s not a breach of the WHS Act because when you consider the risk (as reduced by training, PPE, equipment) and the benefit of fighting a fire it’s worth ‘running the risk’.

Paramedics also work in a risky environment.  It is indeed, in my view, one of the factors that distinguishes paramedicine from the other health professions. Paramedics work in uncontrolled environments, they take health care to where people are, in their homes, workplaces, the street, remote areas etc. Some nurses and some doctors do that too, but that is not an essential part of what it is to be a doctor or nurse. Equally some paramedics do (and will increasingly) work in controlled environments (doctor’s surgeries, hospitals, health clinics etc) but that doesn’t, in my view, change the fact that what sets paramedics apart from other professions is that they work where they do not control the environment in which they work.

Every time paramedics step into the ambulance they are entering ‘a potentially unsafe situation’. The biggest risk is probably driving the ambulance from the station to the patient. This could be made safer by taking the lights and sirens off the vehicle and requiring that ambulance are not driven in excess of 50km/h. That is a way to make the work environment safer but it comes at a cost in terms of the risk to the patients that the ambulance service is there to serve. That is it means the paramedics cannot effectively do their job.

In a cardiac arrest my understanding that time is of the essence. So taking time to don full PPE increases the risk that the patient won’t survive or, if they do survive, they will have a permanent impairment. The risk to the patient is something the ambulance service has to consider along with the risk to the staff.  Paramedics also have to consider the risk to patients as well as the risk to themselves and different people will come to different conclusions on what is ‘reasonable’. Some people may try and talk a potentially violent jerk into leaving to allow them to treat a patient; others will wait for the police.  Both options may be ‘reasonable’.

If a person has been tested and the test has returned positive and you are given copies of that test result, then you can know that person’s COVID status. You cannot ‘know’ anyone else’s. Even if you are told they had a negative test yesterday it does not mean they are not positive today; and most people will never have been tested.  Managing the risk of blood borne disease means everyone uses protection every time for every patient – gloves, eye protection etc.  It would be ‘reasonable’ to require paramedics to put on full COVID PPE for every patient they treat – treat everyone as if they COVID and you are best protected if they are and are not discriminating on unlawful grounds (see The coronavirus question (March 12, 2020).  But to say it’s ‘reasonable’ is to say there are ‘reasons’ behind that decision; not that it is the only ‘reasonable’ decision.

It may be also be ‘reasonable’, taking into account the probability that someone will have COVID and the need to start resuscitation as soon as possible and the evidence of transmission, to give the direction quoted. Like the question of excluding a paramedic with a temperature in excess of 37.2 (see Refusing a paramedic access due to Covid-19 fears (March 28, 2020)) it’s a clinical question.

My correspondent put the question as, ‘has ‘the statutory Ambulance Service … breached Work Health and Safety Legislation by instructing employees to enter a potentially unsafe situation without appropriate PPE?’  That question can only be answered if one can answer the question ‘are goggles, face mask and gloves appropriate PPE for performing initial rhythm check and shock when considering all the matters listed in s 18 of the Work Health and Safety Act?’ I cannot answer that question, that question needs to be answered by health clinicians.

What I would say, however, is that if the answer to the question ‘are goggles, face mask and gloves appropriate PPE for performing initial rhythm check and shock when considering all the matters listed in s 18 of the Work Health and Safety Act?’ is yes; then why isn’t that true even they are COVID-19 positive? And if it does make a difference, don full PPE for every patient.  But again, at least in the first instance, these are clinical or factual, not legal questions.  The law applies to the facts and what we don’t have in this question are ‘the facts’ ie what is the reasoning behind the directive; are goggles, face mask and gloves appropriate PPE?

Conclusion

What we can say is that if the policy maker had regard to the factors listed in s 18 and genuinely and with regard to the state of the evidence and knowledge, considered those matters then no, this is not a breach of the duty upon an employer under s 19. But remember there are also duties to consult workers on WHS measures and that also needs to be considered, and if paramedics do not think this response is reasonable, that should be escalated through the WHS consultation process and/or one’s trade union.  I would certainly be asking the question ‘if goggles, face mask and gloves are not good enough when we know a person is COVID-19 positive; why are they good enough when we don’t?’

Categories: Researchers

QAS asked to ‘return’ patients

30 March, 2020 - 12:46

Today’s correspondent has

 … had increasing instances recently where hospitals are contacting QAS [Queensland Ambulance Service] requesting patients be returned under guardianship act for mental health patients who are not on authority to return orders who have left hospital for whatever reason. They are then unable to provide paperwork and then leave it up to us to deal with. Often happens at night where we are expected to go out to people’s houses and attempt to bring them back.

I have attempted to answer this question myself but am unable to find anything in the guardianship act that may legally cover a paramedic crew and usually QPS [Queensland Police] (as in most cases we will ask them to assist for officer safety) turning up and taking these patients against their will based on nothing more than a phone call from a hospital stating that a patient is under the guardianship act.

QPS also seem to not like to assist with these matters either and usually, like QAS operate when complete Authority to return paperwork is sent through.

Can you assist with helping me understand this a bit better?

Medical treatment requires consent. There are some exceptions where the patient is unable to consent, and emergency care is required but the basic principle is that all medical treatment needs the patient’s consent and people can refuse treatment for whatever reason they want even if the treatment is necessary to save someone’s life.  It follows that without very sound legal authority, neither QAS nor QPS can force people to come with them to hospital even if going to hospital might be a good idea.

The Mental Health Act 2016 (Qld) deals with people who are mentally ill and does provide for involuntary treatment, ie treatment of someone who can, but refuses to consent.  The Guardianship and Administration Act 2000 (Qld) deals with people who can no longer manage their own affairs.  A guardian is appointed by QCAT (Queensland Civil and Administrative Tribunal) after an application and the presentation of evidence to show that the person cannot manage their affairs and the appointment of a guardian is appropriate (s 12).

Where a guardian is appointed he or she ‘is authorised to do, in accordance with the terms of the guardian’s appointment, anything in relation to a personal matter that the adult could have done if the adult had capacity for the matter when the power is exercised’ (s 33).  That is the guardian can give effective consent to medical treatment as if they were the person receiving the treatment.

Chapter 5 deals with giving medical treatment without consent from either the patient or the guardian. For the purposes of the Act, ‘health provider’ means ‘a person who provides health care, or special health care, in the practice of a profession or the ordinary course of business’ and would include a registered paramedic.

Section 63 says:

(1) Health care, other than special health care, of an adult may be carried out without consent if the adult’s health provider reasonably considers—

(a) the adult has impaired capacity for the health matter concerned; and

(b) either—

(i) the health care should be carried out urgently to meet imminent risk to the adult’s life or health; or

(ii) the health care should be carried out urgently to prevent significant pain or distress to the adult and it is not reasonably practicable to get consent from a person who may give it under this Act or the Powers of Attorney Act 1998…

(3) However, the health care mentioned in subsection (1) (b) (ii) may not be carried out without consent if the health provider knows the adult objects to the health care unless—

(a) the adult has minimal or no understanding of 1 or both of the following—

(i) what the health care involves;

(ii) why the health care is required; and

(b) the health care is likely to cause the adult—

(i) no distress; or

(ii) temporary distress that is outweighed by the benefit to the adult of the health care.

(4) The health provider must certify in the adult’s clinical records as to the various things enabling the health care to be carried out because of this section.

Uncontroversial health care can also be administered but not ‘if the health provider knows, or could reasonably be expected to know, the adult objects to the health care’ (s 64).  If the person has left the hospital and gone home that would be some evidence that they object to that care.  That may also be evidence that they object to treatment within the meaning of s 63(3).

An application for a warrant to enter a place and to remove an adult can be made by the Public Guardian (s 148).  Section 149 says:

(1) The tribunal may issue a warrant only if the tribunal is satisfied there are reasonable grounds for suspecting there is an immediate risk of harm, because of neglect (including self neglect), exploitation or abuse, to an adult with impaired capacity for a matter.

(2) The warrant must state—

(a) that the public guardian may, with necessary and reasonable help and force, enter the place, and any other place necessary for entry, and remove the adult; and

(b) that the public guardian may ask a police officer to help in the exercise of the public guardian’s powers under the warrant; and

(c) the hours of the day or night when the place may be entered; and

(d) the date, within 14 days after the warrant’s issue, the warrant ends.

Where does that leave QAS?

If I was QAS and a hospital contacted the service and requested ‘patients be returned under guardianship act’ I would want them to explain, and document, exactly what they mean.  Do they mean there is an appointed guardian and that guardian is giving consent to the treatment and transport of the person? If so, I would want to see a copy of the guardian’s appointment and speak to the guardian to understand what they were consenting to.  Ideally the guardian should be asked to meet the ambulance at the person’s home. One would hope that the guardian has a personal relationship with the person and can assist but that may not be the case (eg if the guardian is the Public Guardian), or the guardian may be a long way away.  It may not be possible for the guardian to attend but that would be my starting position.

If the hospital means they think treatment is warranted under s 63 one would want more details on the patient’s condition and given the person was fit enough to walk out and go home: what is the urgency (s 63(1)(b)(i)) and why is it not ‘reasonably practicable to get consent from a person who may give it under this Act or the Powers of Attorney Act 1998’ (s 63(1)(b(ii))?

If I was a paramedic, as a registered health professional I would want to satisfy myself by talking to and examining the patient, that the criteria in s 63 are met; that is that the person has impaired capacity and the treatment is urgently required.  QAS should take the hospital’s call as if it were a triple zero call reporting an emergency in which case QAS attend and make their own assessment of the patient’s needs and conditions and whether criteria for treatment and transport without consent have been established.

Conclusion

Where a person was under care in a hospital, has left and is now at risk if they are not returned to care the Act provides the means for their return.  Either

  • The guardian gives consent on the person’s behalf;
  • QAS paramedics determine, exercising their own professional judgment, that the criteria in s 63 are established; or
  • The public guardian obtains an ‘Entry and Removal’ warrant.

A request by a hospital to QAS to collect a patient, even if that is in the patient’s interests, is not sufficient lawful authority.

 

 

 

Categories: Researchers

Giving notice of NSW Public Health directions

30 March, 2020 - 11:37

Today’s correspondent asks

… a Covid emergency related question. How/when is a person considered to have notice under section 10 of Public Health Act 2010 (NSW)? How does that notice need to be served?

“10   Offence not to comply with Ministerial direction

A person who—

(a)  is subject to a direction under section 7, 8 or 9, and

(b)  has notice of the direction,”

There is no prescribed means of bringing the notice to any person’s attention so the issue would be what we lawyers call ‘a question of fact’.  Did the person who is alleged to have failed to comply have notice of the direction? Proof of that would depend on what efforts were made to bring the notice the attention of that person or the community generally, whether their behaviour indicated that they did know (even if they say they did not etc).

To understand that one needs to put s 10 in context by looking at ss 7, 8 and 9.  Section 7 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.

(4) An order must be published in the Gazette as soon as practicable after it is made, but failure to do so does not invalidate the order….

(6) Action may not be taken, and an order has no effect, in relation to any part of the State for which a state of emergency exists under the State Emergency and Rescue Management Act 1989

Section 8 is in similar terms but it ‘applies in relation to any part of the State for which a state of emergency exists under the State Emergency and Rescue Management Act 1989 …’. That section requires cooperation and coordination between the Minister responsible for the Public Health Act and the Minister responsible for the State Emergency and Rescue Management Act.

Section 9 is about orders directed to public authorities and in context I don’t think is relevant to the discussion.

Current orders made under s 7 can be found here – NSW Government Public Health Orders.

One can see that given the broad nature of the orders and directions that can be made, it would be impracticable to require that every person affected by the order is to be given personal service. Where the order is directed to a specified group of people or people in a small area, personal service may be possible, but where orders are applicable to the whole state, s 10 cannot require that everyone receive a written copy of the order.

Equally given the broad range of matters that might be covered in an order prescribed means of bringing a notice to people’s attention would always miss some group in some foreseeable or unforeseeable emergency.  There needs to be flexibility (which is not available if there are prescribed notice provisions) to tailor the way that directions are brought to peoples’ attention in order to deal with the myriad of matters and emergencies that may arise under the Act.

In a prosecution it would be up to the Crown to prove that the defendant did have notice of the directions contained in the order.  For example, if a person was found to have arranged a gathering of 5 friends after the Public Health (COVID-19 Gatherings) Order (No 3) 2020 [NSW] was made, a prudent investigator would ask – ‘did you know that you were not allowed to have this many people here?’ If the answer was ‘yes’ that would be evidence that could be used to prove the person had ‘notice’ of the direction. If they said ‘no’ a prudent investigator (or cross-examining counsel) would not leave it at that but would explore what the person had done, how they had used the media (a forensic review of their search history perhaps) and their behaviour to try and leave no doubt that they did in fact know of the directions; but at the end of the day their knowledge would be something that the Crown would have to prove ‘beyond reasonable doubt’.

 

Categories: Researchers

Refusing a paramedic access due to Covid-19 fears

28 March, 2020 - 12:55

Today’s correspondent is a paramedic who

… received a Signal 1 job (that’s the Victorian code for lights, sirens, urgent response) to one of the major nursing homes for a reported stroke patient.

On arrival at the facility, the receptionist was unaware of why we were there (pretty common, not a problem). She then asked us to read and sign a full A4 page document with questions relating to COVID-19 inclusion criteria; have we travelled overseas recently, have we interacted with other people who have been overseas recently etc.

She then insisted we submit to a tympanic temperature test.

My partner returned a reading of 37.3 and was refused entry to the facility.

I advised the receptionist that the normal temperature range is anywhere between 36.5 and 37.5 degrees Celsius.

She replied that her instructions were that nobody with a temperature over 37.2 would be permitted entry and the recently contracted security guard next to her desk would see those instructions were carried out.

We were both stunned.

A paramedic employed by a jurisdictional ambulance service is being refused access to a patient that on-site nurses had deemed to require urgent care and transport.

My question to you is; is that legal?

The question ‘is that legal’ raises so many issues because there are so many relationships at play. The operator of the facility has a duty to try to minimise the risk of COVID-19 to residents and staff, they also have a duty to ensure that residents get the medical care they need. Victoria ambulance also owes various duties to everyone involved.  The receptionist and the security guard have obligations to obey the directions of their employer and you cannot expect them to know whether 37.5o is or is not safe if they’ve been told no-one above 37.2 o  is to come in.  And you may think that’s an unreasonable and arbitrary line but all lines are arbitrary and we don’t know who came up with the 37.2 line or on what basis, but if it is a nursing home one might at least expect that medical advice was considered.

With all those variables the only question I’m going to answer is ‘is it legal to exclude a paramedic employed by Victoria ambulance’?

The Ambulance Services Act 1986 (Vic) does not give any statutory authority to allow Victoria Ambulance to insist on, or force entry (compare that to the Ambulance Services Act 1991 (Qld) s 38 ‘Powers of authorised officers’).  There is therefore no offence in refusing paramedics entry. (There may be relevant offences and obligations under nursing home licensing legislation regarding the proprietor’s obligations to residents but that is about the proprietor’s duties to the patients and that is beyond the scope of this blog).

The common law of necessity would suggest that paramedics can force entry – see Paramedics forcing entry to premises (March 25, 2014). The response has to be proportionate however and here they were not refusing entry to Ambulance Victoria or to everyone, just to one person. The other paramedic, my correspondent could go in and assess the patient and other paramedics may have been allowed in.  Using force to push past the receptionist and security guard would not only inflame the situation and risk injury, it may also have been unreasonable in the circumstances.

The Ambulance Services Act 1986 (Vic) s 39B says:

At the request of an operational staff member providing care or treatment to a patient or attempting to provide care or treatment to a patient, a police officer is authorised to remove any person who interferes or may interfere, by his or her presence or otherwise, with the provision of care or treatment.

Police could have been called and they could have ‘removed’ the receptionist and security guard but whether they would have done so is another question.

Imagine a paramedic turned up, untidy, obviously dirty uniform, unclean hands dirt with obvious dirt under the fingernails etc and strong body odour suggesting that they hadn’t had a shower for some time.  I don’t think anyone would think it would be unreasonable for a health facility to say ‘you’re not coming in here’.  In COVID-19 times the health risk is not so obvious but if there are indicia (in this case a temperature over 37.2o ) why would the right to refuse be any different?

Things are legal unless there is a law that says they are not.  The Ambulance Services Act 1986 (Vic) does not say that an occupier has to allow access to the paramedics, and in this case they were not refusing access to Ambulance Victoria just one paramedic. And if one were to consider their duty to their residents one cannot say that refusing access to this one paramedic was unreasonable where the institution had determined an indicium for access. Whilst that decision may have created an increased risk to one patient (ie they would be assessed by one, rather than two paramedics) it also reduced another risk to all the residents (the risk of introducing COVID-19).  It would no doubt be subject to a lot of expert evidence before anyone could determine whether the decision was or was not a reasonable response to the competing risks.

Conclusion

Given that they were not refusing access to Ambulance Victoria, and they were not refusing access for no reason I cannot see that the action was prohibited or unlawful.  It was not a breach of any provision of the Ambulance Services Act 1986 (Vic).  The issue is not however ‘was the action legal?’ but ‘was the indicia reasonable?’ and that’s a question for clinicians.

Categories: Researchers

Workers compensation and COVID-19 in South Australia

28 March, 2020 - 11:51

Today’s question comes from a correspondent who is concerned about

… the extent of coverage of occupationally acquired COVID-19 for health care workers, specifically in ambulance services and the quality of PPE available/used. Concern applies because I’m advised in SA AS PPE was not available for covering the head – glasses yes (apparently).

And does WorkCover extend to your quarantine / self isolation?

I cannot answer that question in detail as I’m not a specialist in personal injuries law.

What I can say is that the definition of injury includes disease (Return to Work Act 2014 (SA) s 4). For a disease to be compensable it must be ‘established on the balance of probabilities that it arises from employment’ (s 9).  Where it can be shown that a person acquired the disease as part of their work they will be entitled to workers compensation. Workers compensation is ‘no fault’ so the issue of PPE would not be relevant.

With respect to how one proves that the disease was contracted at work, that would depend on all the circumstances (see Compensation for contracting COVID-19 whilst volunteering – NSW SES (March 23, 2020)). There has been a trend for presumptive benefits so firefighters in particular don’t need to prove a causal connection between their firefighting and various diseases, rather if they meet the requirements regarding length and type of service, and they are diagnosed with a listed illness or cancer, they are entitled to compensation and it is ‘presumed’ that the disease was a product of their service (see for example Return to Work Act 2014 (SA) s 9(2) and schedule 3).  It may be that there should be a provision added to the effect that if a paramedic, nurse, doctor or other front-line health service worker contracts COVID-19 that will be presumed to be because of their employment without the need for evidence.

If the PPE issued is not up to scratch that may give rise to a claim in negligence against the employer but as will all negligence claims, the employers obligation is to act ‘reasonably in all the circumstances’ and those circumstances include a world where there is a shortage of PPE.  An employer has to decide whether to ask staff to bat on with less than ideal kit, or withdraw services and in doing that they also have to consider the needs of patients and the need to try to curtail the virus. If a person got sick and spent a long time in hospital, or died, a common law action may be worth it. If they get mild or no symptoms but spend two weeks in isolation with no income, a common law action would not be worth either the time or money.

Conclusion

Assuming that a person contracts COVID-19 as part of their work it would follow that their lost wages and health care costs would be met either by the employer or the employer’s insurer.  What is less clear is if someone is required to self-isolate as a precaution, but they are not actually ill and don’t actually contract the illness.   I cannot say whether workers compensation would cover lost wages in those circumstances.  My guess is that it would not as the worker has not actually acquired the disease/suffered an injury.

Categories: Researchers

Refusing to take ‘no’ for answer to the question: ‘Are St John (NSW) volunteers deemed employees of NSW Ambulance?’

27 March, 2020 - 16:28

I have previously reported on the case of Secretary, Ministry of Health v Dawson [2019] NSWWCCPD 30 (see Are St John (NSW) volunteers deemed employees of NSW Ambulance? (July 10, 2019)). In that earlier post I said:

Ms Dawson was (or is) a volunteer with St John Ambulance Australia (NSW). Whilst setting up for a duty at the Broadmeadow Racecourse she was injured. She suffered a fracture dislocation of the ankle and was transported to John Hunter Hospital where she underwent surgery. She spent 5 nights in hospital and had further surgery. She sought compensation for her losses…

The gist of Ms Dawson’s argument was that by virtue of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) Sch 1, cl 16 she was, when volunteering for St John Ambulance NSW, a deemed employee of the Ambulance Service of NSW and entitled to workers compensation. Based on that reasoning, her solicitors directed her claim to QBE, the workers compensation insurer for the Secretary, Ministry of Health. The insurer denied liability. That decision was challenged in the NSW Workers Compensation Commission. An arbitrator agreed with Ms Dawson and found she was entitled to compensation. An appeal to the Presidential Division of the Commission was heard by Deputy President Snell who allowed the appeal but did not resolve the issue, instead referring the matter back to another arbitrator to redetermine the matter. That appeal was the subject of discussion in my earlier post.

The matter was re-heard by a different arbiter on 5 September 2019. The Arbitrator found that Ms Dawson was not a deemed employee and entered an award in favour of the Ministry of Health. This time Ms Dawson appealed the decision. The appeal was heard, and dismissed, by Deputy President Wood – Dawson v Secretary, Ministry of Health [2020] NSWWCCPD 16 (19 March 2020).

The legislation

The Workplace Injury Management and Workers Compensation Act 1998 (NSW), along with the Workers Compensation Act 1987 govern compensation for employees injured in the course of their work. This scheme is extended to people who are not employees. Some people are ‘deemed’ to be employed that is they are treated as if they are employees even though they are not. The list of deemed employees is set out in Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998.  Clause 16 of Schedule 1 says:

16 VOLUNTARY AMBULANCE WORKERS

(1)        A person who (without remuneration or reward) voluntarily and without obligation engages in any ambulance work with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation constituted by the Health Administration Act 1982 is, for the purposes of this Act, taken to be a worker employed by that Corporation.

(2)        For the purposes of assessing the compensation payable to a person to whom this clause applies, the “average weekly earnings” of the person are–

(a)        if the person was working under a contract of service immediately before engaging in the ambulance work–to be computed according to the earnings of the person under that contract of employment, or

(b)       if the person was not working under a contract of service immediately before engaging in the ambulance work–to be such amount as the Commission considers to be reasonable in the circumstances.

(3) In this clause,

“ambulance work” means work in or in connection with the rendering of first aid to, or the transport of, sick or injured persons.

Relevantly the Health Services Act 1997 (NSW), which governs NSW Ambulance, says:

67H HONORARY AMBULANCE OFFICERS

(1) The Health Secretary may appoint such persons as the Health Secretary thinks fit to be honorary ambulance officers.

Note: Honorary ambulance officers are not members of the NSW Health Service employed under Part 1 of Chapter 9.

(2)        Honorary ambulance officers–

(a)        may carry out, without remuneration, such of the functions of the Health Secretary under this Act as the Health Secretary may from time to time direct, and

(b)       are subject to the control and supervision of the Health Secretary.

As the note to s 67H(1) says, honorary officers are not employees so are not, prima facie, entitled to workers compensation if injured in the course of their duties.  I would suggest that cl 16 of Sch 1 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) is intended to govern those officers appointed as honorary officers with NSW Ambulance.

The Health Services Act 1997 (NSW) s 67B also says:

(1) The Health Secretary has, on behalf of the Crown, the following functions–

(a) to provide, conduct, operate and maintain ambulance services,

(b) to co-operate with or provide assistance to any person or organisation for the purposes of providing, conducting, operating and maintaining ambulance services…

The question was not, however whether NSW Health could cooperate with St John in the provision of ambulance services, but relevantly whether it did at the time and in circumstances relevant to Ms Dawson’s injury (Dawson v Secretary, Ministry of Health at [66]).

Ambulance work in cooperation with NSW Health

Ms Dawson’s argument was that St John Ambulance (NSW) did ‘ambulance work’ ‘in co-operation’ with NSW Health and NSW Ambulance and she was therefore a deemed employee.  In support of that argument she relied, at first instance, on the fact that the St John patient care record was a triplicate form and one page was delivered to attending paramedics if and when they were called to take over the care of a patient.

On appeal she sought to rely on the reference to St John Ambulance as a supporting organisation in NSW Healthplan (see Commonwealth to pay NSW to reimburse firefighters (December 29, 2019)) also demonstrated the she ‘was working in co-operation with NSW Health’ ([11]).  At [27] Deputy President Wood said ‘The HEALTHPLAN is not evidence of any arrangement with St John or co-operation between the Health Administration Corporation in respect of the first aid services St John provided at race meetings’. The application to tender the Healthplan as relevant evidence in the appeal, was rejected.

Before the arbitrator, Ms Murphy Manager of Insurance and Risk for NSW Health gave evidence ([53]-[56]) that:

(a) at no time had a St John Ambulance worker or volunteer ever been included in any workers compensation policy;

(b) St John’s vehicles were never included in the Health Administration Corporation’s vehicle declaration or the vehicle declaration for NSW Ambulance;

(c) St John had never been identified as an organisation or entity within the NSW Health Annual report;

(d) St John was not a non-government organisation that received funding from NSW Health;

(e) the Health Administration Corporation did not exercise any control over the operations of St John Ambulance;

(f) she was not aware of any affiliation between NSW Ambulance and St John Ambulance, and

(g) the Health Administration Corporation did not indemnify or give approval or instruction to St John about attending events.

Ms Murphy said that the appellant’s work as a volunteer with St John was solely at the direction of St John and was not with the consent of or under the authority or supervision of Health Administration Corporation. Ms Murphy added that the Health Administration Corporation would have no knowledge of St John’s work.

Ms Murphy stated that the pink copy of the Patient Record referred to by the appellant was St John’s internal document and was not required by NSW Health or NSW Ambulance who would each complete their own documents and patient records.

Ms Murphy denied that the appellant voluntarily attended the events with the consent or authority of the Health Administration Corporation. Ms Murphy added that there was no indication in the NSW Health annual financial report of any payment or reimbursement from NSW Health to St John.

Deputy President Wood, reviewing the Arbitrator’s decision, said (at [77]):

The Arbitrator considered that what emerged from the evidence was that St John and the Health Administration Corporation worked independently of each other in providing first aid services or treatment to a patient who had been injured at an event in which St John was providing those services up to reaching the point where their competency skills were exhausted. In the Arbitrator’s view, the fact that there may have been communications between the volunteer and the paramedic was purely coincidental and not a consequence of any planning or arrangement about how the first aid was to be administered at such events. The Arbitrator said that the ambulance work that the appellant did on the day of her injury could not have been work done together with the Health Administration Corporation.

Ms Dawson appealed.

The appeal

The question on appeal is whether the decision below was made according to law and was open on the evidence. It is not a chance to simply reargue the case. The appellant has to demonstrate that the original decision maker, in this case the arbitrator, had made a legal error.

When the matter was first before a court (rather than an arbitrator) Deputy President Snell determined (at [122]) that cl 16 ‘directs attention to the relationship between the alleged deemed worker and the Health Administration Corporation. Further the word “co-operation” meant “working or acting together or jointly.”

Ms Dawson argued that DP Snell’s comments were merely an observation not a binding determination and the second arbitrator was required to form his own view on what cooperation, in context meant. The alleged error was that the arbitrator failed to exercise his own discretion.  This was rejected at [125] where DP Wood said:

I do not accept that submission. It is apparent that in determining the meaning of the word “co-operation,” which is a finding of fact, the Deputy President embarked upon a process of statutory construction… Such an exercise is part of the functions of the Commission and is, at the Presidential level, in the nature of a judicial exercise  which is authoritative in respect of the Commission’s primary decision makers, the arbitrators. The Arbitrator applied that interpretation as he was required to do.

The second alleged error was the need to find that at the time of the injury, that is on 18 September 2015, Ms Dawson was working ‘in cooperation’ with NSW Health rather than finding that, in general St John and NSW Ambulance work together.  DP Wood said (at [128]) ‘The appellant does not explain why she considers the Arbitrator was wrong’ and (at [132]) ‘The appellant has failed to identify any error…’

The third alleged error was that the Arbitrator look for proof beyond the civil standard of ‘on the balance of probabilities’.   At [134] DP Wood said ‘The appellant’s submissions do not assist in relation to the identification of any error in the Arbitrator’s careful consideration of the evidence.’

The fourth ground of appeal was that the Arbitrator ‘erred in enlarging and including the issue of ‘injury’ with ‘co-operation …’.   According to DP Wood this ground of appeal was ‘… incomprehensible and the absence of any cogent submission to explain or support the ground is fatal.’

The fifth ground was that ‘the Arbitrator erred in failing to accept that the appellant’s “uncontested” evidence’ of cooperation. At [146] DP Wood said ‘The appellant refers to her evidence as “uncontested”. That assertion is patently incorrect.’  The evidence of the appellant was challenged by the evidence of Ms Murphy and the Arbitrator had to weigh and consider that evidence to reach a conclusion. There was no error.

The sixth ground was an allegation that s 67B of the Health Services Act (quoted above) imposed an obligation upon NSW Heath to cooperate in the provision of ambulance services and this was evidence that they did cooperate.  Of course s 67B gives a power to cooperate, but it does not impose a duty or obligation to do so.  The arbitrator is quoted (at [151] as saying:

“The fact that the respondent had power to co-operate with St John with respect to the ambulance work St John did is one thing – the issue in this case is whether the respondent actually did so with respect to the work that Ms Dawson was doing voluntarily for St John on the day she had suffered her injury…’

Again, there was no error.

The seventh ground was that the arbitrator should not have accepted or been persuaded by Ms Murphy’s evidence as she was not a paramedic and did not know how paramedics and St John volunteers interacted in the field.  At [157] DP Wood said:

The Arbitrator considered both the appellant’s evidence and that of Ms Murphy. The Arbitrator took into account the appellant’s submission that Ms Murphy’s role did not give her the capacity to provide evidence of whether the pink copy of the Patient Record was a document relied upon by the NSW Ambulance paramedics. He formed the view that Ms Murphy was familiar with the work undertaken by NSW Ambulance paramedics when attending a patient. He noted Ms Murphy’s responsibility for strategic management of the insurable risks in relation to employees and NSW Health volunteers. This included NSW Ambulance employees. He said those responsibilities would require her to have knowledge of the work that is done by those employed by NSW Health to provide ambulance services, including paramedics.

The Arbitrator also considered the submissions that the parties made about the evidence provided.  DP Wood said (at [161]):

The Arbitrator’s reasons for accepting Ms Murphy’s evidence took into account the submissions of the appellant as to Ms Murphy’s capacity to give that evidence, the plausibility of her evidence, as well as her presentation. The Arbitrator’s conclusions were open to him. … there is no basis upon which to disturb the Arbitrator’s finding and this ground of appeal fails.

The eight, and final ground, was the allegation that the arbitrator failed to recognise that the fact St John Ambulance were allowed to charge fees for ambulance services (Health Services Act 1997 (NSW) s 67E(3) and the Workers Compensation (Ambulance fees) Order 2015) demonstrated the necessary cooperation.  The Arbitrator said (quoted at [163]):

The order prescribes the maximum amount of compensation for which an employer is liable under s 60(1) to pay a worker for any cost the worker has incurred for any ambulance service as a result of an injury a worker has received arising in or out of the course of employment. It is fanciful to suggest, in my view, that the making of the order provides a basis from which an inference can be made that St John and HAC co-operate with respect to the performance of ambulance services.

Again there was no error.

All the grounds of appeal being dismissed, the Arbitrator’s determination that Ms Dawson was not a deemed employee stands.

Discussion

As noted in my earlier post it strikes me that this case must have been run by people who had, and despite earlier rulings have failed to gain, any understanding of how ambulance services are operated in Australia.

There are jurisdictional ambulance services (such as NSW Ambulance) and an increasing number of private providers including St John Ambulance.  Of course they cooperate when patients move from the care of one to another but if that level of cooperation was all that was required for the Workplace Injury Management and Workers Compensation Act 1998 (NSW) then NSW Health would be the defacto workers compensation insurer for every paramedic and first aider in NSW. Even people who just stepped up at a car accident but made notes on their observations to give to the paramedics.

Volunteers who provide ambulance work in cooperation with NSW ambulance are honorary ambulance officers, it may extend to spontaneous volunteers at an emergency or community first responders. For community first responders who are part of the NSW SES or RFS one could debate whether the appropriate basis for compensation is the Workplace Injury Management and Workers Compensation Act 1998 or the Workers Compensation (Bush Fire, Emergency And Rescue Services) Act 1987 (NSW) but not much will turn on that given it is likely to be the same insurer given that all are state agencies.

Conclusion

To suggest that a volunteer with a separate legal entity (St John) that enters into its own arrangements with event providers is somehow a deemed employee of NSW ambulance strikes me as bizarre.  St John is a provider in a market place and is responsible for its own volunteers.  As I noted in my original post:

Ms Dawson’s best route for compensation would be to direct her claim to St John Ambulance which, hopefully, has insurance to provide workers compensation type cover for injured volunteers.

I have not idea if that happened or what the outcome was.

 

 

 

Categories: Researchers

First aid training – covid-19

26 March, 2020 - 10:58

Today’s correspondent wonders what my:

… take on the following would be?

On 19th March the Australian Resuscitation Council released the following statement on their website (https://resus.org.au/ accessed 26 March 2020):.

COVID-19 Impact on First Aid and Resuscitation Training

The ARC recommends that the teaching of routine first aid and resuscitation courses should be postponed until the current COVID-19 pandemic has abated and expert consensus opinion is that there is no longer an unnecessary risk involved in participating in a course.

The ARC recommends that the requirement for resuscitation training and re-certification be considered in the light of the current concerns.

The ARC will be regularly reviewing this recommendation.

Yesterday the First Aid Industry Reference Committee, as part of the SkillsIQ (the Skills Service Organisation) released the following advice to RTOs

First Aid Industry Reference Committee recommendations in regard to delivery of First Aid training impacted by the COVID-19 pandemic

Many RTOs have raised concerns about the ongoing delivery of First Aid training during COVID-19. RTOs must comply with State and Federal Health Authority directions. RTOs should perform a risk assessment, when deciding whether or not to continue to provide First Aid training, taking into account the following:

Specific concerns have also been raised about the transmission of the virus while performing ventilations on mannikins. The potential for transmission of the virus is significantly reduced if proper infection control procedures are followed, which involves excluding anyone who shows symptoms of the virus. The Assessment Requirements are clearly stated, and the performance of compressions and breaths must be demonstrated on a mannikin in order to make a determination of competency. It cannot be a demonstration of compressions only.

A reasonable adjustment may apply where a student states they will not put their mouth on the mannikin during breaths (even with a barrier device in place), in which case the student is required to demonstrate all aspects of giving breaths (i.e. head tilt and blowing to the side of the mannikin) while not actually blowing into the mouth of the mannikin. This reasonable adjustment is to only apply at this time of the COVID-19 pandemic and only if the student requests exemption (i.e. on an exception basis only).

Further information may be found as follows:

My take is that they are not inconsistent positions.  ARC says ‘don’t do first aid training at all’ and the First Aid Industry Reference Committee says ‘if you are doing first aid training this is what you have to do’.  They do say trainers have to comply with ‘State, Territory and Federal Health Authorities advice’ and given directions to limit numbers and unnecessary groups that may confirm the ARCs advice.

I don’t understand why the Committee says that only those that ask should be allowed, or ‘required to demonstrate all aspects of giving breaths (i.e. head tilt and blowing to the side of the mannikin) while not actually blowing into the mouth of the mannikin’. That would seem like a reasonable adjustment to apply to everyone.

Conclusion

The ARC are saying ‘don’t do first aid training at all’; the Committee are saying, in effect if you are going to still do training, to sign people off you need to do ‘this’. Anyone thinking of doing training would need to consider all of that –

ARC says ‘don’t do it’; federal and state directions may have specifically prohibited first aid training but they put up lots of barriers – social isolation so people can’t work together so how do I demonstrate practical skills like bandaging or stable side position? I have to consider CPR and comply with Committee’s recommendation.  Taking all that into account what’s the sensible thing to do?

I would suggest any sensible RTO would follow the ARC recommendation and stop first aid training during the current crisis.

Categories: Researchers

Facemasks, beards and COVID-19

26 March, 2020 - 10:35

Today’s correspondent is wondering about:

… the directive to be clean shaven due to COVID-19 for paramedics in Queensland. Does this not impinge my rights in some way, or will it be ‘you have a beard, so you are not covered by work insurance etc’?’

I have been provided with a copy of the email that says:

Under the Work Health and Safety Act 2011, the QAS has primary obligations to ensure, so far as reasonably practicable, the health and safety of our people.  As such, we must ensure that all of our employees understand the importance and responsibilities each individual has to ensure they comply at all times with organisational policies and directions that are designed to ensure staff safety.

As per the Medical Director’s Circular No.3/2020 – the minimum standard of PPE required to be worn when clinicians are attending a patient where there are suspicions of any type of infective respiratory condition are as follows: P2/N95 masks, gloves, safety glasses, and disposable long sleeve blue gowns (thumb gowns).

The effectiveness of the P2/N95 mask relies on establishing and maintaining a good seal with the wearer’s face.  Please be reminded of the ‘fit checking’ requirements of the P2/N95 mask, which must be performed each time the mask is put on.  This is to ensure that the mask is properly applied and that a good seal is achieved over the bridge of the nose and mouth and there are no gaps between the mask and face.

Facial hair, including beards, moustaches, sideburns and/or stubble, between the sealing surface of a tight-fitting facepiece and the face will stop the mask from sealing properly and has the very real potential to risk the health and safety of our workforce.  To reduce this risk, all staff are required to be clean shaven where a respirator facepiece comes in contact with the skin before wearing their respirator.  This approach is consistent with other allied front line health professionals and emergency service personnel here in Queensland, interstate and internationally.

It is acknowledged that this requirement may have an impact on the personal appearance of some QAS staff, however this decision is being taken in the best interest of ensuring the health, safety and wellbeing of all employees and patients in the current environment and must be complied with.  It is expected that all QAS employees will ensure compliance with this direction.

If an employee believes that they have an extraordinary reason whereby this direction is unable to be complied with, please email QAS.WHSState@ambulance.qld.gov.au and these circumstances will be considered in conjunction with the Medical Director.

Let me assume, for the sake of the argument, a person does have a ‘right’ to wear a beard. If that’s true then of course a directive not to wear a beard would infringe that right.  But let us look at some less controversial rights claims. The Universal Declaration on Human Rights says:

Article 13

(1) Everyone has the right to freedom of movement and residence within the borders of each state.

(2) Everyone has the right to leave any country, including his own, and to return to his country.

Article 18

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 20

(1) Everyone has the right to freedom of peaceful assembly and association…

Article 23

(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment…

Article 27

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits…

(And see also the Human Rights Act 2019 (Qld) Part 2, Division 2; and thanks to Sven Lotzvie, commentator on Facebook for bringing that Act to my attention ). That we cannot chose to leave Australia, and others cannot chose to enter, we cannot move within the borders of the ‘state’ (noting that in international law the ‘state’ is Australia, not the sub-national states, NSW, Qld etc); church services are banned an weddings and funerals limited so people are not free to practice their faith in accordance with traditional edicts, our right to assembly and association has been restricted.  People have been told they must close their business restricting their right to work and the cultural life of the community has been curtailed.  These are all infringements of our rights.

But rights are not absolute.  As the Universal Declaration says (Art 29(2)) ‘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.’  The Human Rights Act 2019 (Qld) s 13(1) says ‘A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.’

One could have an argument that the restrictions are not required to deal with COVID-19 or are disproportionate to the threat and therefore unlawful, but given the world-wide response and the latitude that would be given to executive government, I seriously doubt that either the Supreme Court of Queensland or the High Court of Australia would uphold such an argument.

Queensland ambulance

As QAS have noted, it has obligations under the Work Health and Safety Act 2011 (Qld) to take steps to ensure the safety of its staff and of those who come into contact with staff.  These are extraordinary times so extraordinary steps are in order.  If the reasonable response is P2/N95 masks and they don’t work if the wearer has facial hair then there are two options, shave or stop working as an on-road paramedic. That a person has a right to work does not mean that another person has an obligation to employ them (if it did, unemployment would always be zero).  So a paramedic can insist on their right to wear a beard but provided the decision is not arbitrary (ie provided there are good reasons) a jurisdictional ambulance service does not have a duty to keep employing them.

It is not just a case of insurance.  People misunderstand who is insured.  A worker who is injured at work, which includes contracting a disease, is entitled to workers compensation (Workers’ Compensation and Rehabilitation Act 2003 (Qld) (and see s 32 for the definition of ‘injury’ which includes ‘a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease’).  Workers compensation is ‘no fault’ so if you get the injury, you get the compensation. The obligation to pay compensation falls to the employer (in this case, QAS) (s 46).  It is the employer, not the employee, who is insured. The employer must take out workers compensation insurance (s 48) to ensure that there are funds available to meet the employer’s obligations.

But an employer has obligations under common law, work health and safety law and common decency to try to ensure that staff are not injured and that may also reflect their insurance premium.  So no, it is not the case that ‘you have a beard, so you are not covered by work insurance’; rather it is ‘you have a beard so you are being exposed to an unreasonable risk and exposing others to an unreasonable risk’.

A right to wear a beard might justify, in some circumstances, saying ‘well that carries this risk to you and if you want to carry that risk, go for it’.  But here the risk is also to patients and rights can be curtailed to the extent that the exercise of your right poses a risk to others.

Not only does QAS have an obligation to its staff and patients, so to do the staff. As an employee a paramedic has a duty (Work Health and Safety Act 2011 (Qld) to:

(a) take reasonable care for his or her own health and safety; and

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

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

Further (and thanks to Warren Kelly in the comments, below) the Work Health and Safety Regulation 2011 (Qld) r 46 says that a:

… worker must, so far as the worker is reasonably able, use or wear the equipment in accordance with any information, training or reasonable instruction by the person conducting the business or undertaking.

Assuming that the QAS directive is based on evidence and sound advice failure to follow the directive could put a paramedic in breach of all of those provisions.  That is not only a criminal offence (ss 30-34) continued disobedience would, I surmise, be sufficient grounds for dismissal.

The issue is not one of insurance but risk management. You may have a right to wear a beard but QAS is under no obligation to employ a person who, by their behaviour, poses an unreasonable risk others.

Paramedics

Registered paramedics also have duties to their patients. Having been put on notice of what PPE is required, failure to wear it, or wear it properly such that one is exposing a patient to unnecessary risk may be considered professional misconduct. A panel of professional peers might find that such conduct 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’ (Health Practitioner Regulation National Law, definition of “unprofessional conduct”); or a responsible tribunal may find that such conduct is ‘conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience’ (Health Practitioner Regulation National Law, definition of “professional misconduct”).  A paramedic who fails to take reasonable steps to protect his or her patient may also be putting his or her registration at risk.

Conclusion

Paramedics are treating those who will be more vulnerable to COVID-19 so even if we assume that for a fit young paramedic the risk that COVID-19 will kill them is low, the risk to their patients may be much higher. Assuming that the QAS directive is based on evidence and sound advice the restriction would be a reasonable restraint ‘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’.

The consequence of non-compliance is not a loss of workers compensation rights but a risk to ongoing registration and employment and potential criminal penalties.

Categories: Researchers

Maintaining currency in days of COVID-19

26 March, 2020 - 09:29

A question has been raised about NSW State Rescue Board currency requirements and whether they must be met in light of the current COVID-19 crisis.

  • What happens if there is a cock up and it’s proven the member hadn’t maintained currency?’
  • Should the SRB continue to enforce their policies?
  • What should Units do that fail to meet currency in the current climate?

The NSW State Rescue Board Policy (4th ed, 2018) says (at [1.17]):

Currency means the process that recognises member’s skills, training and capabilities, captured via operational activity or skills maintenance, as determined by the agency.

Further (at [3.07]):

Agencies which provide accredited rescue units are required to maintain a register of personnel who comprise each unit, including the currency of qualifications.

With respect to flood rescue, the policy says (at [7.09]):

Agencies are to ensure they provide for currency training to support their flood rescue operators. Once accredited, flood rescue operators must maintain currency in their skills as follows:

1. Fit for task

i. Agencies are to determine the ‘fit for task’ components of the response arrangements for Flood Rescue as part of their risk assessment.

ii. Operators must demonstrate that they are fit for task to ensure the safety of both the rescuer and the person being rescued.

2. Skills maintenance

i. Agencies must ensure that their operators maintain competence through regular training, exercising and operational deployment.

What is apparent is that it is the agency, not the SRB that determines what constitutes currency and what is the appropriate way to ensure currency.  The correct question then, as with all training, is how can agencies manage training to ensure that members retain currency in skills to complete their tasks. There are no doubt many ways to do that and it’s not for me to tell anyone how they will manage training in these new times.

As for what happens ‘ if there is a cock up and it’s proven the member hadn’t maintained currency?’ The answer is that the question of currency, like a licence, is fairly irrelevant.  It’s illegal to drive a motor vehicle without a licence but that does not mean that an unlicensed driver does not know how to drive or is necessarily at fault in an accident.  An unlicensed driver may be very competent; a licensed driver may be dangerously incompetent. The question as to fault in the accident is ‘what happened’ not who had what ticket.  The difference between driving and rescue is that it is a criminal offence to drive without a licence so the unlicensed driver can be given an infringement notice or court attendance notice regardless of competence and fault.

Just because your certificate of currency has expired it does not mean that you are no longer competent.  First aid certificates are valid for three years and you are meant to redo CPR every year.  But if you haven’t renewed either or both it does not mean you should not, or must not, perform CPR or provide other first aid if it is required.  And given COVID-19 and social isolation, it may be harder to get the chance to renew first aid and CPR certificates in the next few months.

A person who has maintained currency up to 1 January 2020 won’t suddenly forget everything they knew if they cannot do refresher training before 1 January 2021 and it is unlikely that they won’t have operational activity and some chances to practice in that time, even if the practice looks different to what they have done before.

Conclusion

Neither the State Emergency and Rescue Management Act 1989 (NSW) nor the NSW State Rescue Board Policy set out prescribed, mandatory currency requirements.  These are set by agencies based on their own assessment. The correct question should not be about NSW State Rescue Board currency requirements but agency currency requirements. It is up to the agencies to determine how they will modify their training programs to ensure members retain skills and fitness for purpose and that’s as true for rescue as it is for everything else that agency might do (firefighting, storm response, community first responders etc).

If a unit fails to ‘meet currency’ that means they are no longer competent and/or no longer fit for purpose. They should advise the SRB accordingly and give up their accreditation.  But, by ‘fails to ‘meet currency’’ I do not mean ‘failed to attend 3 training nights in six months’. What I mean is ‘are no longer competent or fit’ eg because someone in the team contracted COVID-19 and now the entire team is in self isolation and cannot respond.

Just because the planned training regime has been thrown out of whack does not mean that members cease, overnight to be competent or fit for duty. Competence is not measured by the number of training nights attended or forms ticked off.  What agencies need to do, with respect to all aspects of their training, is make adjustments and rethink what do they need to do to be satisfied that they are able to respond to their essential tasks.  That might vary agency to agency, and unit to unit.

If there’s a ‘cock up’ the question will be, as it always is, ‘was the conduct reasonable in all the circumstances’.

POSTSCRIPT

After posting the answer above, I received the AFAC (Australian Fire and Emergency Services Authorities Council) email newsletter that reported, inter alia:

AFAC Operations Groups convene to discuss response to COVID-19

Following discussions at the recent AFAC Board meeting, all AFAC Operations Groups will meet within the next week via teleconference to share information and response mechanisms taking into account the COVID-19 pandemic. This series of meetings will also identify key risk mitigation mechanisms implemented in agencies.

Agendas will cover:

  • Preparedness measures for the next three months
  • Current advice to first responders:
    • operational directives
    • safety advice and precautions
    • personal protective clothing and equipment
    • single crew response
    • emergency medical response impacts
  • Decontamination measures
  • Round table on information, knowledge gathering and learnings
  • Training
  • Other strategies in place for workforce impact minimisation

It is hardly surprising that there are not yet answers to questions on what COVID-19 means for the usual business (but nothing is ‘business as usual’) of the rescue services; but clearly the agencies are ‘onto it’.

Categories: Researchers

What is a national emergency? Answer: Covid-19.

25 March, 2020 - 10:19

I wrote the post ‘What is a ‘national emergency’? (December 25, 2019) in response to the summer bushfire crisis.  It was my view then, and remains my view, that those fires did not constitute a ‘national emergency’.  In response to the current COVID-19 pandemic a correspondent has written, in response to that post:

I guess this issue will be raised again now that we have a pandemic. Having separate States coming up with their own response, but the public and media looking to the PM to solve it, results in a circular blame game. Is their capacity in times like this for the federal government to direct state departments?

Based on work I did for my PhD and published work (‘Responding to catastrophic natural disasters and the need for Commonwealth legislation’ (2011) 10(3) Canberra Law Review 81-102; Michael Eburn, Cameron Moore and Andrew Gissing, The Potential Role of the Commonwealth in Responding to Catastrophic Disasters (Bushfire and Natural Hazards CRC, 2019) I argue there are three situations that would meet the definition of a true national disaster.  They are:

  1. A disaster is having impact on areas allocated to the Commonwealth by the Australian Constitution;
  2. The disaster is so large that it overwhelms the ability of state governments to function
  3. The disaster is truly national in character or impact so that it is ‘peculiarly within the capacity and resources of the Commonwealth Government’ to manage the response.

The sort of situation that is covered by (2) above is demonstrated by the impact of Cyclone Tracey on Darwin in 1974 that destroyed local administration. This event is not of that nature.  But the current crisis would, in my view, fit scenarios (1) and (3).

The Commonwealth, under s 51 of the Australian Constitution has the power to make laws with respect to:

  • trade and commerce with other countries, and among the States;
  • taxation; but so as not to discriminate between States or parts of States;
  • borrowing money on the public credit of the Commonwealth;
  • the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;
  • quarantine;
  • foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;
  • the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;
  • immigration and emigration;
  • external affairs;
  • the relations of the Commonwealth with the islands of the Pacific;

All of those powers (and perhaps others that have been omitted from the list, above) are relevant here. Quarantine, determining who can enter or leave the country, meeting our obligations to other nations to be part of the national response all make it clear that this event is very much a matter of direct interest to and an emergency for the Commonwealth.

Secondly the size of the event, the fact that it is not restricted to state boundaries, the need to use the military and other commonwealth assets and the impact on the national economy (see Pape v Commissioner of Taxation [2009] HCA 23) mean this is indeed a national emergency.

Unlike natural disasters (eg bushfires) the Commonwealth does have relevant legislation. The Commonwealth legislation is the Biosecurity Act 2015 (Cth).  That Act provides for the declaration of a Human Biosecurity Emergency (Chapter 8, Part 2) which gives extensive powers to the Health Minister.

There is capacity for the Commonwealth to direct the states where that is provided for in the Act and where that can be implied as part of the Commonwealth’s executive power to manage the disaster.  Section 109 says that where there is an inconsistent law the Commonwealth will prevail.

But power and how you make decisions are different matters.  We have the ‘national cabinet’ which we are told is the PM and state and territory Premiers and Chief Ministers. The states still exist and employ the doctors and nurses, run the hospitals and have their own public health laws. Believing that you could manage this event ‘by direction’ would I suggest be unwise. Working with the states and communities is the only effective way to proceed.

Conclusion

This is a national disaster and the response is being led by the national government.  The relevant disaster declaration has been made.  The states still exist, so I don’t think the Commonwealth could order the state premiers not to appear on TV nor do I think the Commonwealth can manage this event on its own.  The Commonwealth does have the power to direct the states in the areas of its constitutional responsibility.

Categories: Researchers

“New wide-ranging bans on indoor and outdoor gatherings and a ‘human biosecurity emergency’”

24 March, 2020 - 12:32

I’m not providing an ongoing commentary on the response to COVID-19 (see No running commentary on COVID-19 (March 23, 2020)) but others are and I’ll repost blogs that come to my attention and which I think may be of interest.

The first is ‘New wide-ranging bans on indoor and outdoor gatherings and a ‘human biosecurity emergency’ written by Aaron Gadiel, a partner at Mills Oakley, Lawyers.

Categories: Researchers

No answer to a question on inter-state travel restrictions

24 March, 2020 - 12:23

Today’s question comes from someone who conducts

… patient transport services within Australia, particularly NSW, however, hospitals often require interstate transfers of patients.

Unfortunately, since the current coronavirus crisis is quite fluid, hospitals we deal with, are continuing most operations as normal, and require patients to be transferred to other health care facilities.

My question/s are;

As the public information given thus far indicate restricting movements to essential travel and Essential Services (including Medical), how does this affect –

    1. patient transport services including moving patients for medical procedures? We currently believe this will be covered as Essential Medical travel
    2. movement of patients between Aged Care Facilities in both cases the movement would have been cleared between facilities.
    3. Interstate movement of patients, by road (ambulance) or air (Air Charter medical aircraft), particularly where a State or Territory may have closed its borders to the general public for travel, but allow Essential Travel (including Essential Services- Medical)?

In this case, I believe current arrangements will allow for patient transport movements, however, do we require a specific document from the dispatching facility, that may be presented (if requested) by authorities at the land border/airport?

I have sent these questions through to federal health since the authorities in NSW don’t really have an answer.

Just wondering on your opinion around such matters.

My opinion is twofold. First, this blog cannot give specific advice and second, I cannot comment on the details of the public health response (see No running commentary on COVID-19 (March 23, 2020)).

With respect to that first limitation – general and not specific advice –  I can say that my first general observation is that the federal government is not the appropriate place to send these questions.  It is not the Federal government that is imposing quarantine restrictions on the state borders, that is a matter for state governments, so the questions need to be send to the various state health departments.

The South Australian Health Department says

The State Government has taken unprecedented action in response to the coronavirus pandemic requiring all people entering South Australia to isolate for 14-days from their arrival.

This will apply immediately to South Australians, other Australians and other travellers, and will be supported by border control from Tuesday 24 March at 4pm.

This is an enforceable obligation applicable from 4pm on Tuesday 24 March 2020.

Exemptions will apply for essential transport including health and medical supplies, and health personnel and patients, food and commercial supply chains (i.e. the carrying of goods), health workers, near border interactions, travel of a relative/carer of a dependant individual, and for emergency services.

Given this blog attempts to speak to general principles I can say that these orders can be made South Australian Public Health Act 2011 (SA)  Part II.  It would be specific advice, based on incomplete information and unhelpful for me to say whether the service provided by my correspondent falls within the exemption described on the web page.  As I said in my earlier post there needs to be one source of truth – so ask SA (or WA, or NT, or Tasmania or Queensland) Health.  Even if I did attempt to answer the question there is no value in turning up at the border and saying ‘but Eburn said we’re ok…’ if the SA Police direct you into quarantine.

 

Categories: Researchers

Paying overtime for F&RNSW firefighters whilst on intrastate deployment

24 March, 2020 - 11:53

In March 2017 heavy flooding in the Northern Rivers area of New South Wales led to the deployment of firefighters to assist in emergency rescue work. The Fire Brigade Employees’ Union of NSW (“the Union”) alleged that the employed firefighters were eligible to be paid overtime for the entire period of their deployment. The matter was heard in the industrial courts before ending in the NSW Court of Appeal – Industrial Relations Secretary v Fire Brigade Employees’ Union of New South Wales [2020] NSWCA 46.

The issue before the court was described by Basten JA (at [1]):

In March and April 2017 firefighters from other parts of New South Wales were deployed to Lismore to assist in rescue work resulting from heavy flooding. Teams were deployed for periods of four or five days. The firefighters were paid various allowances and overtime calculated by reference to the hours they were at work, but excluding night time when they were directed to rest. The respondent union brought proceedings in the Local Court against their employer, asserting that the firefighters were entitled to be paid at overtime rates for the full period of their deployment.

The application was dismissed by the Chief Industrial Magistrate.  An appeal to the Supreme Court was allowed, finding in favour of the union. The respondent appealed to the Court of Appeal.

At [22] Basten JA said:

At the heart of the Union’s case was the proposition that the Secretary had no power to stand a firefighter down whilst on deployment away from his or her base and therefore that person was “on duty” throughout the period of absence from the base.

His Honour noted that the relevant award provided for the payment of travelling allowance, accommodation and incidental expenses when a firefighter was required to travel away from work.  At [26]-[27] he said:

These provisions are, as the Secretary submitted, inconsistent with the conclusion that any deployment away from the location to which the employee is “permanently attached” constitutes an unbroken period of “on duty” employment throughout the period of absence.

It follows that, whilst the firefighter is deployed away from his or her usual station, he or she must be paid in accordance with a usual roster, or an alternative agreed roster; overtime may be worked, at the direction or with the approval of the Secretary. It therefore follows that the Secretary has power to put an end to a particular period of duty (outside rostered hours) by standing the employee down.

Leeming JA said (at [44]):

In this Court, the respondent [the Fire Brigade Employees’ Union] maintained that there was no power to direct an employee to cease to be on duty unless and until the employee returned to his or her home station or muster-point. I do not accept that submission.

White JA said (at [110]-[111]):

The Union submitted that overtime would be payable from the time the firefighter clocked in at the muster point and returned to the muster point. But on its construction, the muster point was not a relevant point for determining when a firefighter came on duty or ceased to be on duty. On the Union’s submission the time when a firefighter came on and left duty was determined by his reporting to his station. On the Union’s case, properly analysed, a firefighter would remain on duty and be entitled to overtime for 24 hours a day, until he returned to his station. This could be days after he returned from his deployment.

Fire and Rescue NSW’s construction of the Award should be accepted. If the deployed firefighters were dismissed from duty at times during their deployment, overtime was not payable. Whether they were so dismissed from duty during their deployment was a question of fact.

Discussion

Firefighters may be away from home for several days during these deployments but even though they are away at the request of their employer and even in accommodation arranged by their employer they are not ‘on duty’ for the entire time of their deployment.  The employer (FRNSW) can stand them down, ie send them to their motel or other accommodation, and during that time they are not at work. They return to work when they return to whatever station or place they are asked to report to and the clock on their shift and their eligibility for overtime starts again at that time.

Categories: Researchers

‘Reasonable’ paramedic practice in the face of COVID-19

23 March, 2020 - 12:33

Ruth Townsend and I published a short piece to get the conversation going on legal and ethical implications of COVID-19 for paramedics in theAustralasian Journal of Paramedicine today.

https://ajp.paramedics.org/index.php/ajp/article/view/796

Categories: Researchers