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. 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.

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.

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.

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

Further my post No running commentary on COVID-19 (March 23, 2020) I have received this question from a volunteer with NSW SES:

As a volunteer for the NSW SES, I am interested to understand if as a volunteer we are responded to an incident and during attendance become infected by COVID-19. The assumption would be that all who attended followed all the appropriate protocols put in place by the relevant agencies.

I understand many of us attend our employment or emergency service tasks and sometimes get the flu, this has just become an accepted part of life, however COVID-19 has the potential significant health consequences, potentially death. If a worker follows all current protocols, does that remove all liability from their agency in the event they become infected?

As someone who is generally unfamiliar with the law, I feel it may be hard to provide strong evidence for the claim that a person became sick whilst attending an emergency incident. Do you feel the current systems and protections in place within NSW or Australia are suited to cater for these potential outcomes in the favour of staff/volunteers?

A volunteer with NSW SES who suffers an injury or illness as a result of their volunteering is entitled to compensation as if they were an employee entitled to workers compensation (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW)).  Under that Act and the Workers Compensation Act 1987 (NSW) s 4, ‘injury’ includes ‘a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease’.

One might imagine it may not be that hard to prove a link between volunteering and COVID-19.  If for example a crew was engaged in road crash rescue and the patient was transported to hospital, it was identified that they had a fever (not the usual response to a trauma) so was tested and found to be COVID-19 positive then there would be contact tracing. That would hopefully lead back to the rescuers and if one of them was COVID-19 positive and developing symptoms after the accident that may be sufficient to establish that was the cause of the infection.

But we are all at risk and could all catch it anywhere (hence all the recommendations).  If one could not establish the source of infection, then the entitlement under the Act would not apply. But that of course is true of everyone.  Anyone who is still going to work may contact COVID-19 in circumstances where they would not have had they stayed at home.  If the only place they are going is work then that may show that is the source of their contagion, but if they go to the shops, interact with others (including family) etc then there may be other sources.

I’m not sure ‘the current systems and protections in place within NSW or Australia are suited to cater for these potential outcomes in the favour of staff/volunteers’ for any organisation.  Most people who have to isolate for 14 days will need to rely on their own resources, their leave entitlements and/or the generosity of their employer or the Federal Government. That’s true no matter what their occupation or volunteer status.

The ‘business as usual’ legal response is not well-suited to this pandemic for anyone.  How people will be provided for if they have to isolate for 14 days, or worse, is a constantly evolving process and no doubt varies with employer or agency, but if you can trace exposure to an emergency response, the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) will apply.

Australia is facing its greatest emergency in the last 100 or so years but on this blog there is no running commentary on the legal issues involved in the response.  That is true and there are several reasons for this:

1. This blog, Australian Emergency Law has always focussed on the ‘traditional’ natural disasters – fire, flood, storm, accidents – and the response by the red/blue light emergency services – the SESs, fire and ambulance services. Whilst the current COVID-19 emergency has many things in common with those emergencies and does trigger some of the same legislation (a public health emergency can also be an emergency for the purposes of emergency management legislation), public health, and public health law, is its own area of speciality.  I do not claim to be an expert in public health law.
2. The sheer pace of events makes regular blogging by one part time person impossible. The pace of events in December/January was hard enough, I simply cannot keep up with hourly changes in response and arrangements.
3. In the past I have had the privilege of blogging with the objectivity of distance. I have commented on disasters as an observer. Like everyone else, today I am a participant and that brings its own demands that sit higher than writing a blog.
4. The law is fairly irrelevant. If the government health advice is stay 1.5m apart its more important to do that, than worry about whether that is advice or enforceable.  Commentary on the law can wait until after the event is over.
5. There should be one source of truth. If you want to know how edicts and limitations apply to you, go to the Department of Health website in your state or territory or health.gov.au for the answer.
6. Having said all that, I am willing to consider questions about the COVID-19 response and implications for the emergency services, the normal subject of this blog.

The coronavirus pandemic has pushed the summer’s bushfires off the news, but even so the various inquiries continue.  The Commonwealth’s Royal Commission
into National Natural Disaster Arrangements has been established and is inviting submissions. Submissions will close on Friday, 3 April 2020.

The Royal Commission’s website is here: https://naturaldisaster.royalcommission.gov.au/

Bill Madden’s WordPress is reporting that:

Dominic Villa SC has helpfully established a website to collect COVID-19 related legal  resources. It has limited content at this point but will include Commonwealth, NSW and international materials.

You can access the collection here: http://covid-19law.simplesite.com/

Today’s question is about the release of prisoners – see Thalia Anthony ‘Why releasing some prisoners is essential to stop the spread of coronavirus’ The Conversation, March 18, 2020. This question comes from the Northern Territory and my correspondent has been

… wondering what the legal mechanism is for release in an emergency. I see the power to give people directions to leave premises / locations under the NT Emergency Management Act.

I also see – from searching below, that there is something called ‘executive release’ of prisoners in the UK. I haven’t found info about the source of that power.

I wonder if you happen to have any pointers…?

I am given links to reports from the UK:

Prisoners ‘may’ be released if COVID-19 breaks out in jails SkyNews, March 15 2020 ‘Steve Gillan, head of the Prison Officers Association, says previous governments have actioned “executive release of prisoners” in the past.’

The USA:

Alene Tchekmedyian, Paige St. John, Matt Hamilton ‘L.A. County releasing some inmates from jail to combat coronavirus’ Los Angeles Times, March 16, 2020.

Marco Lucas, ‘Ohio Jail Eyeing Possible Release Of Hundreds Of Inmates Due To COVID-19’ International Business Times, March 16, 2020.

And Iran

‘Iran releases 54,000 prisoners temporarily to limit coronavirus spread’ SBS News, 4 March 2020.

In the Northern Territory the relevant legislation is the Public and Environmental Health Act 2011 (NT). That Act provides for emergency powers during a declared public health emergency. The Chief Health Officer (CHO) may (s 52):

(1) … may take the actions (including giving oral or written directions) the CHO considers necessary, appropriate or desirable to alleviate the public health emergency stated in the declaration.

(2) The actions the CHO may take include any of the following: …

(d) evacuating persons from an area or a particular place…

(3) The directions the CHO may give include directions requiring any of the following:…

(b) a stated person to remain in, or move to or from, a stated area or place immediately or within a stated period…

Further, s 53(2):

An authorised officer assisting the CHO may use the force that is necessary and reasonable to do any of the following: …

(b) prevent entry into or close off an area or place;

(c) remove a person from an area or place…

Prima facie that would look like a power to order the evacuation of a gaol. They could not direct a prisoner to leave the gaol as he or she would not be able to leave the prison (if you can just walk out of prison, it really is minimum security). Presumably however the CHO could direct the prison authorities to evacuate prisoners from a gaol and an authorised officer could (save that prisons are designed to resist forced entry) enter the prison to remove person and to close off the prison.

Putting aside the logistic issue that prisons are designed to stop people coming in, or going out there are other issues. Ordering the evacuation of a prison is not the same as ordering the prisoner’s release. A prisoner under sentence would still be under sentence so could, consistent with such an order, be moved to another place of incarceration. I cannot see that the CHO has the power to order that prisoners are released even if he or she can order that a particular prison be closed.

When a judge sentences a person to a period of imprisonment, the management of that prisoner is a matter for the prison service administration. The judge does not determine where or how the prisoner serves his or her sentence. For example, in the Correctional Services Act 2014 (NT) s 38 says ‘The Commissioner [of Correctional Services] is to determine at which custodial correctional facility a prisoner is to be held’.

The Commissioner cannot simply decide to end the sentence of a prisoner but he or she can (s 109):

(1) … authorise a prisoner to be absent from a custodial correctional facility by issuing to the prisoner one of the following (a leave permit):

(a) a general leave permit;

(b) an interstate custodial leave permit;

(c) a foreign legal matters leave permit;

(d) an administrative home detention permit.

(2) A leave permit authorises the prisoner to be absent from a custodial correctional facility in accordance with the terms and conditions of the permit.

Section 118 says:

The Commissioner may issue a permit (a general leave permit) to a prisoner that authorises the prisoner to be temporarily absent from a custodial correctional facility for a purpose the Commissioner considers appropriate.

A general leave permit remains in force (s 110) for ‘a period the Commissioner considers appropriate having regard to the purposes for which the permit is issued.’ Whilst on leave a prisoner must (s 111):

(a) … must obey all reasonable directions of the Commissioner, a correctional officer or a probation and parole officer;

(b) the prisoner must not commit an offence;

(c)any conditions prescribed by regulation;

(d) any conditions specified in the permit

That is not called ‘executive release’ but that is what it is. Governments are divided between the legislative, judicial and executive branch. The legislative branch is the parliament, in this case the Parliament of the Northern Territory. The judicial branch is the judges and the courts. The executive branch is the government departments and public service. The Commissioner of Correctional Services is part of the executive government.

The Parliament may make a law saying some conduct is criminal. The executive government (police and DPP) may allege that a person has committed the crime. The person (the accused) may deny that. It is a court, the judicial arm of government that determines whether or not the executive has proved the case beyond reasonable doubt and determines the sentence. If the sentence is one of imprisonment the prisoner is placed into the custody of the Commissioner (s 8) ie the executive government.

A prisoner must be released on the expiration of his or her sentence (s 61) or could be released on judicial order (eg by a court of appeal setting aside their conviction or sentence). If they are released by the Commissioner it must follow that this is executive release, it is release on the decision of the executive government applying the law made by the legislature.

In context the Chief Health Officer could order the evacuation of a prison if that was necessary to manage the public health risk, but that would not compel the Commissioner to release the prisoner. The Commissioner could transfer them to another prison or make other arrangements for their custody.  The Commissioner could also choose to grant the prisoner leave; if they are on leave, they remain under sentence.

One would imagine it would never come to the CHO ordering the Commissioner to do anything. One hopes that with an all of government response the CHO and the Commissioner would talk and the Commissioner would take the CHO’s advice and if that meant giving leave to some prisoners to reduce the gaol population that would be within the Commissioner’s powers under the Correctional Services Act 2014 (NT)

Colleagues at the Australian National University are conducting a research project that ‘aims to explore paramedics’ perceptions of the law, and the extent to which paramedics feel empowered to make critical decisions in the field, including the decision not to transport a patient to hospital.’

If you are a registered paramedic and would like to contribute to this study, go to https://paramedicperceptionsoflaw.wordpress.com/ for more details, or download the Participant Information Sheet.

As the Participant Information Sheet says:

Legislation or policy governing paramedic practice cannot and will not change overnight. By understanding your perceptions of the law and how these perceptions influence your decision making, it may be possible to identify key changes to or clarifications of the law so that it better supports paramedics’ clinical practice.

If you want to make at least a possible contribution to relevant law reform, I urge you to consider taking part in this research.

Disclaimer- This project is being conducted by a student at the ANU College of Law under the supervision of the College Dean, Professor Sally Wheeler.  I am an Honorary Associate Professor at the College but I am not involved in the project and get no benefit from your choice to participate, or not. I promote the project here as a service to the researcher and the College.

Today’s correspondent has:

… been wondering lately, should the pandemic reach Italian proportions or worse, what emergency powers do current national and state legislation allow the state governments to invoke? Could they for instance establish a curfew, could they assume control of private ambulance services (WA), could they cancel annual leave of private ambulance service employees etc?

This blog is about Australian Emergency Law but that has been limited to ‘natural’ disasters (fire, flood, storm etc) and responders to those emergencies.  Public Health law uses similar language but it is a different area of expertise. Further given there is relevant public health law in every jurisdiction, including the Commonwealth (Biosecurity Act 2015 (Cth)) I cannot give a single answer for all states.

With those limitations I can try to answer the question. In Western Australia, the relevant law is the Public Health Act 2016 (WA). The Act provides for a ‘serious public health incident’ and a ‘public health emergency’.  I don’t think there has (yet) been a declared public health emergency in WA it is likely that such a declaration will be made given that those sorts of declarations have been made in Victoria, South Australia and the ACT.  During a public health emergency in WA, an emergency officer may

(s 180)—

• direct or, by direction, prohibit, the movement of persons, animals and vehicles within, into, out of or around the emergency area or any part of the emergency area; or
• direct the evacuation and removal of persons, animals and vehicles from the emergency area or any part of the emergency area; or
• close any road, access route or area of water in or leading to the emergency area.

(s 181) ‘… use a vehicle in any place and in any circumstance despite any provision of any written law that requires …’

(s 182) ‘… take control of, or make use of, any premises or property…’

(s 183) ‘take control of, or make use of, any vaccine or drug’

(s 184) ‘direct a person to do all or any of these —

(a) to remain in an area specified by the officer for any period specified by the officer;

(b) to remain quarantined from other persons for any period, and in any reasonable manner, specified by the officer;

(c) to undergo medical observation, medical examination or medical treatment or to be vaccinated, as specified by the officer;

(d) to undergo decontamination procedures within any reasonable period, and in any reasonable manner, specified by the officer.

Presumably s 184(a) could be a curfew as people could be directed to stay at home during given hours.

Notwithstanding my comment, above, regarding ‘natural’ disasters versus public health emergency, s 164 says:

(1) Nothing in this Part [dealing with public health emergencies] prevents the making of an emergency situation declaration or a state of emergency declaration under the Emergency Management Act 2005.

(2) The making of a declaration referred to in subsection (1) does not prevent the making of a public health state of emergency declaration under this Part.

(3) Nothing in this Part limits the operation of the Emergency Management Act 2005 section 8(1).

In other words, the event that constitutes a public health emergency can also constitute an emergency under the Emergency Management Act 2005 and vice-versa.  If a declaration is made under the Emergency Management Act 2005 (WA) then all the emergency powers under that Act are also available.

The critical question is ‘could they assume control of private ambulance services (WA), could they cancel annual leave of private ambulance service employees’.  I don’t see any specific power to that effect; there are powers to give directions to a public authority (ss 4 and 166) but I do not think St John Ambulance Australia (WA) would fall within that definition. Directing employees of St John would, in my view, be outside the powers listed in s 184.

The question of leave is clearly an industrial issue. The Fair Work Act 2009 (Cth) s 88 says ‘Paid annual leave may be taken for a period agreed between an employee and his or her employer.’ What rights an employer has to cancel previously agreed annual leave given the emergency would depend on the terms of employment and industrial law that is beyond my expertise.

St John Ambulance (WA) is a contractor to the WA government to provide ambulance services and is required to undertake ‘major incident planning and preparedness’ (Services Agreement Between State of Western Australia and St John Ambulance Western Australia Limited cl 4).  

I cannot see that there is any specific power to ‘assume control of private ambulance services (WA) [or]… cancel annual leave of private ambulance service employees.’  However in a public health emergency I would imagine that private ambulance providers generally, and St John Ambulance (WA) in particular, will respond to requests from the government to be part of the public health response.  As employers, and without being an expert in industrial law, then I imagine that the services as employers could move to cancel pre-approved annual leave to respond to the emergency.

Responding to emergencies is part of what state ambulance services are established, and in WA, St John Ambulance (WA) agrees, to do.  I cannot see that the government would need to ‘take control’ of St John (WA) but that St John (WA) would willingly play its role in the emergency response.

I have previously reported on the dismissal of Mr Costello from Queensland Ambulance (see Dismissal of Queensland paramedic for unlawful drug use on duty confirmed (June 29, 2019).  This decision has now be reversed by the Industrial Court in Costello v State of Queensland (Department of Health, Queensland Ambulance Service) [2020] ICQ 003 (and I thank qas005597 for flagging that this decision was forthcoming).

The court set out the facts as follows:

1. On 2 June 2016, Jay Costello was employed by Queensland Ambulance Service as an Advanced Care Paramedic. He and two other officers were called out to assist an elderly woman who had fallen and broken her shoulder. In order to help her deal with the pain, she was administered a Penthrox inhaler, which is a non-opioid, pain relief inhaler commonly used in trauma settings. It is often called a Penthrox “whistle”.
2. The injured woman was admitted to hospital. Sometime after that, Mr Costello went to the toilet. He was gone for some time. His colleagues looked for him and found him in a stall, sitting on a toilet with his pants up and holding a Penthrox whistle. His colleagues both reported that the room smelt strongly of methoxyflurane, which is the major constituent of the Penthrox whistle. He was observed to have bloodshot eyes and seemed emotional. A nurse reported that she saw him stumble out of the toilet and observed that his eyes were bloodshot and he seemed quite upset. The Penthrox whistle was disposed of and Mr Costello was admitted to the hospital overnight for observation. A blood sample was taken but there was no evidence that it was ever tested.
3. On the following day, Mr Costello was suspended while a formal investigation process took place … His employment was later terminated on 31 October 2016.
4. Mr Costello sought reinstatement but was unsuccessful and now appeals that decision.

Grounds of appeal

The notice of appeal contains numerous grounds but, at the hearing, only three were pressed. They are:

(a)        That the Deputy President erred in law by finding, contrary to the evidence, that the appellant had been provided with transcripts of the investigator’s interviews at the time he was asked to show cause.

(b)       The Deputy President erred by finding, contrary to the evidence, that there was “no readily available” blood test that could have been undertaken at the relevant time to establish if methoxyflurane was present in the appellant’s blood.

(c)        The Deputy President failed to give weight to a direction in the respondent’s Drug Management Code of Practice concerning the rehabilitation options available for officers suspected of substance misuse.

In the first hearing Deputy President Bloomfield took comfort from the fact that ‘Mr Costello was provided with a copy of Mr Berry’s report, as well as the transcripts of all the interviews he conducted, at the time he was asked to show cause why disciplinary action should not be taken against him…’ and he did not raise matters raised by one witness, Mr Young, or make submissions on why those were relevant or what the Tribunal should make of those comments. It was accepted that this was an error (at [8]) ‘Mr Costello was not provided with those transcripts.’  It is not clear why he was not given those transcripts or how the Deputy President was led into error.

Regardless of how the error occurred, Martin J said (at [19] and [22]):

Where there is material (that is in the possession of the employer and is not the subject of legal professional privilege) that could be read in a way that might assist an employee going through a disciplinary process and that is not provided to that employee, then it cannot be said an opportunity has been given to respond to the “allegation about the conduct, capacity or performance”…

The finding made by the Deputy President was not supported by any evidence and, thus, was an error of law. Further, the Deputy President placed weight on the fact that Mr Costello had not raised “the matter of Mr Young’s comments, or anything which should be made of them …”.

At [23] Martin J said:

This ground concerns the submission that the respondent failed to undertake or arrange any test to determine whether there was methoxyflurane present in Mr Costello’s system on the night of the incident. Mr Hammond, the then-Assistant Commissioner of the QAS, agreed in his evidence that if a test for the presence of methoxyflurane was available, fairness would dictate that an officer suspected of drug abuse or misuse be given that test.

The Deputy President found (at [26]) that ‘there was no readily available test which could have been requested’ to establish whether or not there was methoxyflurane in Mr Costello’s body. According to Martin J (at )27]) that conclusion ‘was one which was able to be inferred from the evidence provided to the Commission’ so there was no error.

At [28]-[29] Martin J said:

The applicable drug management code of practice provides that officers suspected of substance misuse “… may be referred for drug rehabilitation which will be managed by their LASN [Local Ambulance Service Network] Manager (facilitated by the LASN Organisational Health Adviser or equivalent role) with medical input from the Director, Clinical Quality and Patient Safety and Executor Director, Medical Services when required.”

The ground of appeal here is that the Commission failed to give weight to the possibility of such a direction..

Martin J agreed that in the Industrial Relations Commission the Deputy President should have considered whether QAS should have considered a rehabilitative approach.  He said (at [33] ‘This [rehabilitative approach] was an issue which should have been taken into account when considering the fairness of the dismissal. The failure to consider that constitutes an error.’

Martin J (at [34]) ‘The appellant has succeeded in two of the three grounds advanced by him and the appeal is allowed’ but that did not resolve the matter.  Mr Costello wanted an order that the matter be sent back to the Industrial Relations Commission with an order that they redetermine the matter.

The Court did not make a final order resolving the matter, rather His Honour invited the parties to make further submissions on what should be the final resolution.  I will keep an eye out to see if the Court reports the final outcome of the matter- of course the parties may come to an agreement on the outcome and there may be no further judicial decision.

The Industrial Court was not deciding whether or not Mr Costello should have been dismissed, rather it was considering whether the Deputy President in the Industrial Relations Commissions had acted as required by law.

The finding was that the hearing in the Commission miscarried in part because the Deputy President believed that Mr Costello had received all the material collected by QAS. The Deputy President found that the original decision maker had not made an error because he did not address, and was not asked to address, matter in a statement by Mr Young. In the court it was conceded that Mr Costello had not received that material. That Mr Costello had not received that material meant that he had not had a proper chance to respond to the allegations. In short there was an error both at the initial level in not giving this material to Mr Costello and then an error on review when the Commission’s finding that the decision maker did not have to consider the material was made because of the erroneous belief that Mr Costello had received that material and had not addressed it in his submissions.

The other error was that the Commission, when considering whether the dismissal was unfair, should have given thought to whether QAS, in accordance with its own policy, should have considered taking a rehabilitative rather than punitive response.

What happens to Mr Costello and his career with QAS giving these findings remains to be determined.

I was asked a question

… relating to the ongoing COVID pandemic:

There have been reports that the UK are looking to call up recently retired doctors to return to medical practice to assist with the COVID response. There are also some reports that Departments of Health in Australia are contacting medical schools to discuss using students to expand the medical workforce beyond the usual student role. Can you discuss the implications of these sorts of responses in the context of professional registration and the National Law in Australia?

When I asked for more details of what my correspondent had in mind, I was told:

implications of the National Law for surge workforce responses and people in those responses. Does the national law allow retired doctors to return to service in an expeditious way? If students are going to be used in the workforce above the usual degree how does that cause any issues if they are or seen to be acting as doctors?

By ‘acting as’ I mean not that these students would claim to be doctors, but that usually a student doctor would ask a patient if they can be involved in that patient’s care, and patients can say ‘no’ and see a doctor instead. In the situation where students are made a temporary part of the workforce there may be less of a choice for patients to not engage with students. I hope I’ve made a sensible distinction.

If you think it’s interesting, I’d also be interested to hear your thoughts on what this would mean in terms of liability for anybody participating in a surge workforce – I assume that the state would take on the liability vicariously as part of the act of engaging with retired and/or student doctors to do such work?

Personally, I cannot see any significant issue. The Health Practitioner Regulation National law means people who are not registered cannot use the title ‘Medical Practitioner’; it’s not about ‘scope of practice’.  Asking medical students or retired practitioners to expand the workforce is not contrary to the law provided they are not described as ‘medical practitioners’.

To identify other issues, we would need much more detail about what these people are going to do.  They can be used to expand the workforce but that doesn’t mean working as independent practitioners. It can just mean having people in the area who know how to work in the sector so can be readily incorporated into the workforce and trusted to do whatever they are competent to do (and that will be different depending on how long ago they retired, where they are up to in their studies etc etc).  A hospital/health service may want to expand its workforce by calling on retired doctors and/or medical students, or retired nurses and/or nursing students, or volunteers (eg St John Ambulance volunteers) or volunteers off the street and training them. All of that does require risk assessment, in effect benefit v risk both to the patient and the person incorporated into the workforce, but it doesn’t raise issues under the Health Practitioner Regulation National Law provided they are not using protected titles, ie those who are doctors and nurses are distinguished from those who are not.

It may be that ‘usually a student doctor would ask a patient if they can be involved in that patient’s care, and patients can say ‘no’’ but these are not usual times or measures.  When you go to hospital you don’t get to nominate who will be your carers, you don’t get to say I want an RN not an EN etc.  You go to hospital for care, the hospital decides how that care is given.

As for liability, the hospital is responsible to ensure that you receive ‘reasonable care’ and any failure is a failure by the hospital, so the hospital is liable for everyone incorporated into the workforce, from doctor (Albrighton v RPA [1980] 2 NSWLR 542; Ellis v Wallsend District Hospital (1989 17 NSWLR 553) to volunteer in the canteen (Hollis v Vabu Pty Ltd [2001] HCA 44).

A paramedic asks:

Can a non-QAS Paramedic administer flu vaccine to patients in Queensland via standing order of his/her company’s Medical Director?

It would seem that most vaccines are listed in Schedule 4 of the Poisons Standard, that is they are prescription only medicine.  For example, the following vaccines are all listed in schedule 4: cholera, dengue, GnRH, haemophilus influenzae, hepatitis a and b, human papillomavirus, influenza and coryza, Japanese encephalitis, measles, meningococcal and meningococcal group b, mumps, pneumococcal, poliomyelitis, rabies, rubella, triple antigen, typhoid and varicella.

Queensland Health says ‘Under the Health (Drugs and Poisons) Regulation 1996 only certain medical professionals are able to administer vaccines.’

QAS paramedics are given authority to obtain, possess and administer scheduled drugs (rr 66, 174 and 174A and appendix 2A).  Without going into details of the qualifications required for the drugs, the listed drugs are: amiodarone, atropine, benztropine, box jellyfish antivenom, ceftriaxone, clopidogrel, enoxaparin, frusemide, haloperidol, heparin, hydrocortisone, ketamine, lignocaine, methoxyflurane, metoclopramide, midazolam, morphine, naloxone, nitrous oxide, promethazine, reteplase, salbutamol and tenecteplase.  I’m not a pharmacologist but I don’t think any of those drugs are immunisation drugs.  It follows that QAS paramedics are in no different position to any other registered paramedic so the answer here will apply to all paramedics whether they are employed by QAS or not.

Regulation 163 says:

To the extent necessary for conducting an immunisation program, an environmental health officer employed by a local government in the program is authorised to possess a vaccine for human use.

Regulation 175(4) says:

To the extent necessary to practise nursing under an immunisation program, an immunisation program nurse is authorised to—

(a) obtain a vaccine or other restricted drug; or

(b) administer a vaccine or other restricted drug under the immunisation program nurse DTP.

There is no similar regulation for paramedics, QAS employees or not.

For the purposes of the Health (Drugs and Poisons) Regulation 1996 (Qld) schedule 4 drugs are called ‘restricted drugs’ (Appendix 9). Medical practitioners are authorised to obtain, possess, administer, dispense or prescribe or supply a restricted drug to ‘the extent necessary to practise medicine’ and where the doctor is of the view that the drug is needed as for a ‘therapeutic use as part of [a] person’s medical treatment’ (r 161(1)).  Further, a doctor (r 161(1)(d)) may ‘give someone who may administer or supply a restricted drug an oral or written instruction to administer or supply the drug’. A written instruction can include ‘a standing order signed by a doctor or nurse practitioner and on which the date of the order is shown’.

No endorsement or authority is needed (r 183) (1) ‘to deliver a restricted drug to a person for whom it has been dispensed’ or is endorsement required to

… help another person (an “assisted person”) to take a restricted drug that has been supplied for the assisted person as a dispensed medicine, if—

(a) the assisted person asks for the carer’s help to take the dispensed medicine; and

(b) the carer helps the assisted person to take the dispensed medicine under the directions on the label attached to the dispensed medicine’s container.

What I don’t understand is this concept of a ‘standing order’ as if a doctor is entitled to authorise other people to possess, supply or administer a drug; in effect a belief that a doctor can delegate his or her authority under r 161 (relating to s4 drugs) to someone else; they cannot – see Doctors delegating authority to carry drugs (August 20, 2014).

Whilst ‘standing order’ is not defined, a doctor cannot authorise a person to possess a s4 drug ‘just in case’ nor can he or she authorise a person to administer the drug to someone that the delegated person (not the doctor) thinks should have it. Without examining the patient, or at least engaging in a consultation even if via phone or videoconference, the doctor cannot determine whether the drug is necessary for the care of that patient.

A doctor can examine a patient, determine that they need a drug and then give a standing order eg a doctor working in a care facility may determine that the nursing staff should administer a prescribed drug every 4 hours and give a standing order for that ongoing care.  That is not the same however of saying in some general sense – I authorise you to carry a vaccine (or any other drug) and if you find a patient that you diagnose, you can then give them the drug.

A service provider may have an endorsement (Health (Drugs and Poisons) Regulation 1996 (Qld) Part 5) to possess, supply and administer scheduled drugs and the authority may be in terms that it extends to anyone approved by the entity’s medical director. The power to delegate is then found in that endorsement, not some general power of doctors to authorise other people to carry drugs. Whether that endorsement extends to vaccinations would depend on the terms of the endorsement.

Can a non-QAS Paramedic administer flu vaccine to patients in Queensland via standing order of his/her company’s Medical Director?

They can if the doctor has examined the patient, determined that the person needs the vaccine ‘for a therapeutic use as part of the person’s medical treatment’ and has prescribed the medication. He or she can then authorise the paramedic to administer that medication and if the vaccine is required say in more than one dose over time, the doctor could give a standing order to authorise all those doses to be administered.

Can a doctor authorise a paramedic (QAS employee or not) to obtain vaccines and give them to patients that the doctor has not seen? No, and even if it were not illegal it would be foolish to authorise people to deliver medication to someone the doctor has not had a chance to consult with, or about.

Whether employees of a company can run a vaccination program with the approval of the company’s medical director would depend not on the fact that the medical director is a doctor, but on the terms of any endorsement issued under Part 5 of the Health (Drugs And Poisons) Regulation 1996 (Qld).

Just like the virus reaching the ACT a question was, I suppose, just a matter of time.  This question comes from a volunteer with NSW SES who asks about

… an SES Duty Officer asking questions of Residents to identify COVID-19 risks for them and us when managing a Request For Assistance.

The questions are similar to those being regularly asked as initial screening in medical centres and hospitals.

Are we permitted to ask questions about a Resident’s health/travel/etc. for the purposes of evaluating any biological risk to members or possibly posed by members to them?

Are we allowed to record that information in the SES job management system (Beacon)?

Are we allowed to refuse to attend a RFA should we determine that the potential risk to the health of our members is greater than the reported risk posed by the situation the Resident is asking for assistance with?

I’m specifically talking about Storm Response Jobs here, but if any other roles performed by NSW SES would have different answers, I’d be interested to understand that too.

The short answer is ‘no, I don’t think you can, or should, do any of those things’.

You could ask questions about the person’s travel etc but of course they’re under no obligation to answer them.

You could record that information on the SES job management system save that you would then be collecting and storing health information and, as a government agency, would be bound by the Health Records and Information Privacy Act 2002 (NSW), something NSW SES may not be familiar with or have the necessary processes to manage.

It is illegal to discriminate on the grounds of disability.  Disability includes ‘the presence in a person’s body of organisms causing or capable of causing disease or illness’ (Anti-Discrimination Act 1977 (NSW) s 4) though ‘Nothing in this Part renders unlawful discrimination against a person on the ground of disability if the disability concerned is an infectious disease and the discrimination is reasonably necessary to protect public health’ (s 49P).

It is also a defence if to provide services to a person would ‘impose unjustifiable hardship on the person who provides the goods or services.’  Accordingly, if would impose unjustifiable hardship on the SES the SES could refuse to provide the service; but that is not the same as saying that the unit can refuse to attend. If it was too hard for the unit, then the matter would have to be escalated and the SES would have to consider (and hopefully is considering) how it will continue to operate and provide its services to people suffering from, or quarantined because of, the covid-19 virus.

The covid-19 pandemic is a national emergency being managed by the Commonwealth. The Commonwealth has constitutional responsibility for quarantine (Australian Constitution s 51(ix)) and using powers under the Biosecurity Act 2015 (Cth).  That does not mean that the states and territories are merely agents of the Commonwealth, but one can see that like all emergencies there is a chain of authority.

As with all emergencies, we should be looking for one source of truth – in this case the Commonwealth Department of Health and with respect to state responses, the State Department of Health.  If a duty officer is asking questions about travel and health and then deciding ‘that the potential risk to the health of our members is greater than the reported risk posed by the situation’ one cannot know where he or she is getting the information to assess that risk. Are they basing their assessment on information provided by the Health Departments or what they read on the latest Facebook post or conspiracy page.

Further, the question of what is ‘reasonably necessary to protect public health’ is not a matter that an individual duty officer can determine but may be something that is decided by SES management in collaboration with NSW Health. Merely asserting that, in the duty officer’s view, ‘the potential risk to the health of our members is greater than the reported risk posed by the situation the Resident is’ facing is unlikely to satisfy the requirements of the Anti-Discrimination Act 1977 (NSW) s 49P.

The State Emergency Service is part of the NSW government and should be part of the whole of government response.  It is up to the SES command, in collaboration with government colleagues, to determine what the SES response is to the threat of the virus.  If individual duty officers start asking questions and individual units start determining how they will respond then there ceases to be a whole of government response.  It would be like an Incident Controller trying to determine the objectives of the response but each individual unit deciding to do it their own way and set their own priorities. If the government sets out how it is going to respond but individual officers, make their own choices there is no whole of government response and there is potential discrimination by the Crown.

The SES has a duty to ensure, so far as is practicable, the safety of its staff and volunteers (Work Health and Safety Act 2011 (NSW)) so should be considering what its policy will be in this crisis and providing relevant PPE and instructions.  If a member is concerned about the SES response, then he or she has the right and opportunity to raise those concerns through the consultation process as part of the Work Health and Safety process in place in the organisation.  And SES members are volunteers, if you think the SES response is not adequate you can always choose to make yourself ‘unavailable’ for the period of the public health emergency.

A unit controller asking questions about a person’s health or travel status would expose the SES to risk both in how that information was managed and in terms of what decisions were made on the basis of that decision. It is illegal to discriminate against a person when providing services on the basis of ‘the presence in a person’s body of organisms causing or capable of causing disease or illness’. What is a reasonably necessary response to the risk in order to protect public health is not something for a duty officer/unit controller can decide nor with respect could they reasonable determine whether responding would ‘impose unjustifiable hardship on the person who provides the goods or services’ (ie the SES).

Unless, and until, those steps are adopted as part of the SES covid-19 risk management process a unit controller or duty officer:

• should NOT ask questions of residents to identify COVID-19 risks;
• should NOT ask questions about a resident’s health/travel/etc. for the purposes of evaluating any biological risk to members;
• should NOT record that information in the SES job management system; and
• should NOT refuse to attend an RFA if they determine that the potential risk to the health of our members is greater than the reported risk posed by the situation the Resident is asking for assistance with.

A unit controller or duty officer should implement the SES policy on managing the risk and it follows that in due course (ie soon if not already) the SES should be publishing policy on how it wants members to respond and to protect themselves from risk.

A duty officer setting up their own response policy will defeat the idea of a unified command that we all hold dear and is likely to expose the SES to allegations of unlawful discrimination and the community and individuals in need to further risk of fear, unnecessary distress and harm.

Today’s correspondent says:

I know you have written blog posts on this before but I’m hoping you can give me a definitive answer on this. I am volunteering at a yoga retreat in NSW and I have become the default OHS person due to my background in firefighting/ first aid etc.

A discussion came up around if we are allowed to have drugs in our first aid kits here (commonly available pharmaceutical medication such as Panadol, nurofen, antihistamines, gastro stop and other drugs, available at the supermarket. (Also epi pen and Ventolin.)

Are we allowed to have these drugs in our first aid kits in NSW if they are administered by a qualified first aider?

And is there potential liability to the business, volunteers or staff we if were to do so?

I have indeed written on this issue before – see https://emergencylaw.wordpress.com/page/2/?s=scheduled+drugs.  In light of those earlier posts I’ll try to give this answer in fairly short dot points.

1. As a general rule you can do anything you like unless there is a law that says you cannot.
2. There is a law about drugs – see The last word on scheduled drugs? (September 29, 2019). As I said in that post ‘items listed in the poisons standard are restricted.  The level and type of restriction varies with the schedule, but all of the drugs are restricted.’
3. You cannot possess scheduled drugs (including an epi-pen or Ventolin) without an appropriate authority. What authorities there are vary from state to state.
4. If the drugs are not scheduled, you can put them in your first aid kit. Paracetamol (the active ingredient in Panadol) is for example listed in Schedule 2 but not when it is

… in tablets or capsules each containing 500 mg or less of paracetamol as the only therapeutically active constituent (other than caffeine, phenylephrine and/or guaifenesin or when combined with effervescent agents) when:

(A) packed in blister or strip packaging or in a container with a child-resistant closure,

(B) in a primary pack containing not more than 20 tablets or capsules,

(C) compliant with the requirements of the Required Advisory Statements for Medicine Labels,

(D) not labelled for the treatment of children 6 years of age or less, and

(E) not labelled for the treatment of children under 12 years of age when combined with caffeine, phenylephrine and/or guaifenesin.

5. As a general rule, if you can buy it in the supermarket it is not scheduled, and you can lawfully buy it and put it in your first aid kit.
6. If, on the other hand, the package says ‘Pharmacy Medicine’ (Schedule 2); Pharmacist Only Medicine (Schedule 3); Prescription Only Medicine (Schedule 4) or ‘Controlled Drug’ (Schedule 8) you should not have it in your first aid kit without an appropriate authority issued under your state/territory legislation.
7. The WorkSafe Australia First aid in the workplace: Model Code of Practice (July 2019) says at p. 31:

Medication including analgesics like paracetamol and aspirin should not be included in first aid kits because of their potential to cause adverse health effects in some people including pregnant women and people with medical conditions like asthma. The supply of these medications may also be controlled by drugs and poisons laws. Workers requiring prescribed and over-the-counter medications should carry their own medication for their personal use as necessary.

However, workplaces may consider including an asthma-relieving inhaler and a spacer to treat asthma attacks and epinephrine auto-injector for the treatment of anaphylaxis or severe allergies. These should be stored according to the manufacturers’ instructions and first aiders should be provided with appropriate training.

8. The Code of Practice is a guide to what is considered good practice but is not binding nor is it an authority. It does not authorise the possession of Ventolin or an epi-pen even if it recognises that ‘workplaces may consider including’ those items. Not only would first aiders require training they would require authority under state legislation.  Equally it may recommend that ‘analgesics like paracetamol and aspirin should not be included in first aid kits’ but that does not make it illegal to carry them nor does it deal with first aid kits in places other than workplaces or cases where on a risk assessment conducted in accordance with the Work Health and Safety Act it is determined that for whatever reason, the drugs should be included.
9. There is no ‘potential liability to the business, volunteers or staff’ if you stock non-scheduled medication and use them according to the instructions. If a person comes to a first aider and says  ‘I hit my head, can I have 2 pain killers?’ and then ½ hour later, with slurred speech and altered consciousness, asks for 2 more, it would be remiss to issue the drugs rather than consider that the patient has a more serious injury.  The liability (if any) would arise not because there were drugs in the first aid kit but because the first aider did not deal with the patient in a reasonable manner.

Mills Oakley, lawyers, identify some of the inquiries that are taking place following the 2019-2020 summer bushfires. No doubt there are more such as agency internal reviews and community reviews. It will be interesting to see if findings of the various enquiries are largely consistent, or inconsistent.

For all the details see Darren James, Black Summer National Bushfires Royal Commission proceeding alongside separate Federal and State Inquiries, Mills Oakley Lawyers (March 2020).

Today’s question again returns to advance care plans and directives

Many registered paramedics will end up having a discussion with carers, family and friends when they attend a patient either in an aged care facility or in their private residence, about the authority of an ‘Advanced Care Plan’. What are the legal obligations of the paramedic, when they attend a patient in either of these settings and the carers or family and friends request the paramedic to provide clinical care that is different or contradicts the authorised care plan?

That is, the Advanced Care Plan appears to be documented and authorised by the appropriate people, and appears to be recent. What clinical obligations does the paramedic bear, on behalf of the patient in these circumstances when they are being asked, advised or directed to do differently? It is understandable that if a patient appeared to have competency and capacity, and that you were clinically assessing were to ask you for some type of alternate clinical care that contradicted the Advanced Care Directive for themselves, that the paramedic may amend the treatment of the patient and assist with their wishes for care, or is it? What type of discussions would the paramedic have with the representatives of the caring facility, or the family or friends of a patient when discussing the authenticity and legal requirements of an Advanced Care Directive in commencing or withholding treatment?

It does depend on what state you are in.  For example in Victoria the Medical Treatment Planning and Decisions Act 2016 (Vic) s 53 says, emphasis added:

(1) Subject to subsection (2), a health practitioner may administer medical treatment (other than electroconvulsive treatment) or a medical research procedure to a person without consent under this Part or without consent or authorisation under Part 5 if the practitioner believes on reasonable grounds that the medical treatment or medical research procedure is necessary, as a matter of urgency to—

(a) save the person’s life; or

(b) prevent serious damage to the person’s health; or(c)

(c) prevent the person from suffering or continuing to suffer significant pain or distress.

(2) A health practitioner is not permitted to administer medical treatment or a medical research procedure to a person under subsection (1) if the practitioner is aware that the person has refused the particular medical treatment or procedure, whether by way of an instructional directive or a legally valid and informed refusal of treatment by or under another form of informed consent.

The term ‘health practitioner’ includes a registered paramedic as well as ‘an operational staff member within the meaning of the Ambulance Services Act 1986’ (s 3).

Other states, like New South Wales don’t have refusal of treatment legislation but at common law people can refuse treatment including treatment that is necessary to maintain their life (see https://emergencylaw.wordpress.com/?s=consent). In Collins v Wilcock [1984] 3 All ER 374 at p. 378 Lord Goff said:

The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery… “the least touching of another is anger is a battery.” The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3, p. 120:

“the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.”

The effect is that everybody is protected not only against physical injury but against any form of physical molestation.

If the need for consent for medical treatment means anything, it means that people can refuse treatment at the most important times of their life, and death. People can express wishes on what they wish others would do but it’s not their call.  If the patient in consultation with a medical practitioner has determined that treatment is overly-burdensome or futile and that has been recorded, it should be respected.  Anything less is to fail to treat the patient with dignity and as a end in themselves.  Remember that treatment of the incompetent is justified by the doctrine of necessity – In In Re F [1990] 2 AC 1 Lord Goff said:

The basic requirements, applicable in these cases of necessity, that, to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.

If the person has refused treatment and you ignore that because ‘the carers or family and friends request the paramedic to provide clinical care that is different or contradicts the authorised care plan’ you are then ‘acting in the best interests of the’ ‘carers or family and friends’ and not ‘in the best interests of the assisted person’.

To return to Victoria (s 51) says:

A health practitioner may refuse under this Part to comply with an instructional directive if the health practitioner believes on reasonable grounds that—

(a)     circumstances have changed since the person gave the advance care directive so that the practical effect of the instructional directive would no longer be consistent with the person’s preferences and values; and

(b)     the delay that would be caused by an application to VCAT under section 22 would result in a significant deterioration of the person’s condition.

That does cover the situation where the ‘patient appeared to have competency and capacity, and … were to ask you for some type of alternate clinical care that contradicted the Advanced Care Directive for themselves…’. It could also apply if ‘the carers or family and friends’ tell you that the person’s ‘circumstances have changed since the person gave the advance care directive’.

In the conversation the paramedic has to consider are ‘the carers or family and friends’ requesting alternative treatment because that is what they want or are they in fact communicating that circumstances have changed such that you can say “I believe and have grounds to be believe that there has been a relevant change in the patient’s circumstances.”  Choosing to ignore the directive because ‘I can point to what they said and that gets me out of this dilemma’ is not justified.  You have to hear what ‘the carers or family and friends’ are saying and ask

In light of what I have been told, do I believe that the person’s circumstances have changed so that the practical effect of the instructional directive would no longer be consistent with their preferences and values’ or am I just hearing that these people want a different outcome or wish their friend or family member had made a different decision?

That sort of test or question would also be applicable to a refusal in other states or territories and under common law.

Today’s correspondent works

… for a Patient Transport company in NSW and it’s been unclear where we stand in transporting involuntary mental health patients without an escort provided by the sending facility. I just want to know what the legal side of maintaining a schedule is and how that relates to patient transport.

I’m assuming the person is being sent from a mental health facility, has been examined by a medical practitioner and who involuntary detention and treatment has been authorised in accordance with the Mental Health Act 2007 (NSW) Chapter 3.  I assume that the person is being ‘transferred from the mental health facility to another mental health facility or another health facility’ (Mental Health Act 2007 (NSW) s 80).

Section 81 says:

(1) The persons listed below may take to or from a mental health facility or another health facility any person who is authorised by this Act to be taken, or transferred, to or from the facility:

(a) a member of staff of the NSW Health Service,

(b) an ambulance officer,

(c) a police officer,

(d) a person prescribed by the regulations.

(2) A person authorised by this Act to take a person to or from a mental health facility or other health facility may:

(a) use reasonable force in exercising functions under this section or any other provision of this Act applying this section, and

(b) restrain the person in any way that is reasonably necessary in the circumstances.

(3) A person may be sedated, by a person authorised by law to administer the sedative, for the purpose of being taken to or from a mental health facility or other health facility under this Act if it is necessary to do so to enable the person to be taken safely to or from the facility.

(4) A person authorised by this Act to take a person to or from a mental health facility or other health facility may carry out a frisk search or an ordinary search of the person, if the person reasonably suspects that the other person is carrying anything:

(a) that would present a danger to the person or any other person, or

(b) that could be used to assist the other person to escape from the person’s custody.

(5) The person may seize and detain a thing found in a search if it is a thing of a kind referred to in subsection (4) (a) or (b).

(6) In this section:

“frisk search” means:

(a) a search of a person conducted by quickly running the hands over the person’s outer clothing or by passing an electronic metal detection device over or in close proximity to the person’s outer clothing, or

(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person, including an examination conducted by passing an electronic metal detection device over or in close proximity to that thing.

“ordinary search” means a search of a person or of articles in the possession of the person that may include:

(a) requiring the person to remove only his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes, socks and hat, and

(b) an examination of those items.

The regulations expand the list of people authorised to transport a patient under s 81(1) to include ‘a person who provides a transport service approved by the Secretary for the purposes of that section is prescribed’ (Mental Health Regulation 2019 (NSW) r 45).

If my correspondent works for the NSW Health operated Patient Transport Service then he or she will be (I infer) ‘a member of staff of the NSW Health Service’ (s 81(1)(a)) and has all the authority required to transport the patient.  If they work for a private provider then they have authority if their employer has been ‘approved by the Secretary for the purposes of’ s 81.

Today’s question is:

How does the law relate to emergency service personnel witnessing/watching members of the public performing tasks instead of doing it themselves? Examples might include: SES watching members of the public cut trees on roads, members of a fire service watching a member of the public evacuate people from a burning building, members of a rescue service watching a member of the public wade through water to ‘rescue’ a person etc.

I’m thinking there would be two main areas:

1) Safety – What if the person injures themselves? Would the person still be a member of the public? or would the Emergency Service be responsible? (either through duty of care OR once they arrive, it’s now their “workplace”)

2) Liability – What if the person damages something? and/or someone else? (similar philosophy to above)

That question raises far too many scenarios to a complete answer; it all depends.

First the emergency services don’t have to do everything for everyone (see Coordinating firefighting with NSW RFS, FC and NPWS (February 29, 2020).  People complain about a lack of resilience in communities so it would be perverse to stop people doing what they are doing if they are doing a good job.  The SES may see a person on their own roof patching a whole and offer to assist but if the person says ‘no, I’ve got it’ the SES don’t have to step in.

Allowing people to continue may bring them within the compensation laws. The laws generally extend to anyone who places themselves under the control or direction of the emergency services.  If the SES or fire service commander says ‘you’re doing a great job – you keep doing that and we’ll do some other task’ that may be sufficient to bring the person ‘into’ the emergency service.  This is the classic ‘spontaneous volunteer’ where someone has stepped up out of need and may be bringing exactly the right skills to the task.

Equally if a person is tasked by the agency (even if the tasking is ‘you’re doing a great job, keep going’) then depending on the legislation in each state/territory that may also mean the agency is liable, or what is much more likely, that the volunteer and the agency is protected from liability for the actions of that spontaneous volunteer.

If the person is injured there could be liability on the agency if in fact the person was not doing a great job, or did not have the right skills, and the agency did not step in. There is generally no duty to rescue so there is no duty to stop people harming themselves but there may be a duty in particular cases.  In Stuart v Kirkland-Veenstra [2009] HCA 15, Crennan and Kiefel JJ said (at [127] & [129]):

The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm…

In principle a public authority exercising statutory powers should not be regarded by the common law any differently from a citizen. It should not be considered to have an obligation to act. But the position of a public authority is not the same as that of a citizen and the rule of equality is not regarded as wholly applicable. It has public functions and it has statutory powers which the citizen does not. Some powers might be effective to avert or minimise a risk of harm to particular persons or their property, but the statute might not oblige their use. The relevant concern of the common law is whether a public authority might nevertheless be considered to be under a duty of care which obliges it to exercise its powers in a particular way.

Where an agency established for, and with statutory power to manage the response to a flood, fire or other emergency turns up and simply observes those affected try to manage the response themselves, without stopping to think ‘are they doing a good job?’ ‘are they competent?’ etc could well find itself liable for its inaction.  So for example watching ‘a member of the public wade through water to ‘rescue’ a person’ could well be negligent for the flood rescue team equipped with a boat, flotation devices and where the person doing the rescue appears to be struggling.

Today’s question arises from the recent bushfire season. My correspondent, a NSW RFS firefighter says:

During the recent fire season, a number of fires we attended had NSW National Parks or NSW Forestry Corporation staff as Divisional Commanders Overseeing and coordinating NSW RFS volunteers in the fire ground often without a liaison between agencies. I would say that because incidents were being managed by an IMT, there was most likely liaisons at least in the operations section of the IMT but rarely fire ground which caused no end of angst.

As both NSW National Parks and Wildlife service and NSW Forestry Corporation would be considered land managers and NSW Rural Fire Service would be considered a combat agency, do either land managers have the authority to manage the operations of a fire (assuming it is not a hazard reduction) and to provide direction to NSW RFS volunteers when they fall outside of our rank structure and also most likely do not have the same powers delegated to officers under the Rural Fires Act.

In a perfect world, all agencies would be working towards a common goal and desired outcome, however often a difference of opinion on how to achieve that can be seen when dealing with land managers vs another combat agency.

This is further exacerbated when there is no one on the fire ground from within your rank structure to escalate concerns to meaning the only way to gain a result to go above the Divcoms head in order to raise issues or concerns via the chain of command.

I guess in a nutshell my questions are:

• Do land managers have any powers under any act to take control and manage a fire incident on their land (eg state forests or national parks)?
• Can the NSW Rural Fire Service Commissioner delegate that authority to a land manager, and if so would that only apply in a section 44 declaration? I would assume this to be yes and if so, do the land managers have the same powers that RFS officers have under the Rural Fires Act 1997 or when the Premier declares a state of emergency?
• Does a NSW Rural Fire Service volunteer (in particular officers) have to take direction from a member of another agency if they fundamentally disagree with tactics? (this could be combatted with a liaison).

The Rural Fire Service is the ‘combat agency’ for bushfires in New South Wales (State Emergency and Rescue Management Act 1989 (NSW; ‘SERM Act’) s 3; New South Wales State Emergency Management Plan (December 2018) Annexure 3). A ‘combat agency’ is ‘the agency primarily responsible for controlling the response to a particular emergency’ (SERM Act s 3). Control means ‘means the overall direction of the activities, agencies or individuals concerned’ (s 3). It follows that the RFS is responsible for setting the overall direction of fire fighting response but it does not follow that RFS brigades are the only agencies fighting fires or are necessarily in control at a particular fire. No-one needs legal authority to fight a fire (Stephens v Stephens (1970) 92 WN(NSW) 810)) or to put that another way, anyone can fight a fire.

The officer in charge of a rural fire brigade has statutory authority to exercise various emergency powers (Rural Fires Act 1989 (NSW) ss 22-26) including a power to remove people who is interfering with the work of the brigade (s 22A). The exercise of those powers is not mandatory, he or she ‘may’ (not ‘must’) exercise those powers. Further, in many cases, the use of emergency powers will not be required.

In today’s thinking governments want to build disaster resilient communities. The National Strategy for Disaster Resilience (COAG, 2011) says:

A disaster resilient community is one where:

• people understand the risks that may affect them and others in their community. They understand the risks assessed around Australia, particularly those in their local area. They have comprehensive local information about hazards and risks, including who is exposed and who is most vulnerable. They take action to prepare for disasters and are adaptive and flexible to respond appropriately during emergencies
• people have taken steps to anticipate disasters and to protect themselves their assets and their livelihoods, including their homes and possessions, cultural heritage and economic capital, therefore minimising physical, economic and social losses. They have committed the necessary resources and are capable of organising themselves before, during and after disasters which helps to restore social, institutional and economic activity
• people work together with local leaders using their knowledge and resources to prepare for and deal with disasters. They use personal and community strengths, and existing community networks and structures; a resilient community is enabled by strong social networks that offer support to individuals and families in a time of crisis
• people work in partnership with emergency services, their local authorities and other relevant organisations before, during and after emergencies. These relationships ensure community resilience activities are informed by local knowledge, can be undertaken safely, and complement the work of emergency service agencies …

If we believe that there can be resilient communities, and individuals, then respect has to be given to them and their choices. For example, when helping a farmer the brigade may turn up, think ‘this farmer has it pretty much under control’ They can say to the landowner, including National Parks or Forestry – ‘you’ve got this, call us if you need us’ (see Gardner v Northern Territory [2003] NTSC 113 discussed in my paper ‘A case study of tort liability for fire damage’ (2007) 22(1) Australian Journal of Emergency Management 44-48) or ‘you’ve got this, but we’ll lend you a couple of appliances and crew but we’ll work toward your priorities – how can we help?’

Insisting that the emergency services will come in, take over, set priorities and otherwise manage the response is to defeat the objective of shared responsibility and disaster resilience (and see Mick Keelty, A  Shared Responsibility: The  Report of the Perth  Hills Bushfire February  2011  Review (Government of Western Australia 2011) for a discussion on the tension between evacuation and shared responsibility). Agencies like the Rural Fire Service need to work with their communities (as noted in the last dot point above).

Planning is an essential part of preparing for emergencies. Each area should have a local emergency management plan (SERM Act ss 27-32) and one would hope that where an area includes a national park or state forest that those agencies are represented on the Local Emergency Management Committee.

There is a Bush Fire Coordinating Committee that includes a representative from the Forestry Corporation and representatives from the Office of Environment and Heritage (as it was) and a person nominated by the Minister of Environment. Although departmental names have changed since the RFS Act was written, there is a person who can represent NPWS on the Committee.

Further there is a ‘Bush Fire Management Committee for the whole of the area of any local authority for which a rural fire district is constituted’ (s 50). Those committees are to prepare (s 52):

(a) a plan of operations, and

(b) a bush fire risk management plan.

When exercising his or her powers under s 44, the Commissioner of the Rural Fire Service (s 44(3)):

… is not subject to the control and direction of the Bush Fire Co-ordinating Committee in exercising the Commissioner’s functions under this Division but must, in exercising those functions, take into consideration any relevant bush fire management plan and, in the case of managed land, any relevant plan of the authority responsible for the managed land of which the Commissioner is aware.

During a declared s 44 fire (s 45A)

The Commissioner may delegate the Commissioner’s functions under this Division (other than this power of delegation) to any person including an officer or member of a rural fire brigade, a person employed in Fire and Rescue NSW, a person employed in the Department of Industry [ie FCNSW] or a person employed in the Office of Environment and Heritage [ie NPWS].

Managed land is inter alia (s 100A) land:

(a) that is dedicated, or acquired for the purpose of dedication, under the Forestry Act 2012 or in respect of which the Forestry Corporation has obtained the benefit of a forestry right within the meaning of Division 4 of Part 6 of the Conveyancing Act 1919, or

(b) that is dedicated or reserved, or acquired for the purpose of dedication or reservation, under the National Parks and Wildlife Act 1974, or…

A fire control officer is appointed for each rural fire district (s 10). A fire control officer is

… responsible for the control and co-ordination of the activities of the Service in the rural fire district for which he or she is appointed as fire control officer.

He or she ‘has the right to use any fire fighting apparatus in the rural fire district other than fire fighting apparatus under the control of the authority responsible for managed land’ (s 38(2)(b)) and ‘must take or cause to be taken all necessary measures for suppressing fires in the rural fire district and protecting and saving life and property in case of fire;’ (s 38(2)(d)).  A fire control officer can only exercise those powers in s 38(2)(d):

… if the fire control officer (and any member of the Service assisting the fire control officer in the exercise of the function) complies with the conditions (if any) imposed on the exercise of the function specified in any relevant bush fire management plan or other relevant plan of the authority responsible for the managed land of which the fire control officer is aware.

A plan of management for land reserved as a national park must include provisions for ‘fire management’ (National Parks and Wildlife Act 1974 (NSW) s 72AA). It is a function of the Forestry Corporation (s 11(1)(f)) ‘subject to the Rural Fires Act 1997, to carry out measures on Crown-timber land for the protection from fire of timber and forest products on that land’.

Finally there is the NSW Bushfire Plan. That plan says, relevantly

22. There are two services responsible for fire suppression in NSW being the NSW RFS and FRNSW. These two agencies are supported by NPWS [National Parks and Wildlife Service] and FCNSW [Forestry Corporation New South Wales] known as fire-fighting authorities.

23. NSW RFS, FRNSW, NPWS and FCNSW maintain fire-fighting capability to meet anticipated needs, including trained personnel for fire-fighting and specialist roles, logistics and supply arrangements, fire-fighting equipment and qualified Incident Management personnel.

73. [A class one fire is defined as] ‘A bush fire under the control of the responsible fire authority*, whether or not incidental/low level assistance is provided by other agencies’. *’Responsible fire authority includes NSW RFS, FRNSW, NPWS and FCNSW’.

75. All personnel operating on a fire ground are subject to the direction of the IC, irrespective of their source agency. The IC is subject to the direction of the relevant fire service Commissioner through the established chain of command.

The National Parks and Wildlife Service (NPWS) and the Forestry Corporation (FCNSW) are landholders and like any landholders they have an interest in protecting their property from fire. They have the powers of a natural person as well as the powers and duties imposed on them by legislation.  That means they must have fire management plans, they can fight fires on their land and if we are going to give respect to concepts of resilient communities and shared responsibility they have to be able to set priorities on their land (eg saving that historic shed is very important, that grove of trees less so etc).

The legislation provides for extensive planning for bushfire fighting from local to statewide. NPWS and FCNSW are required to be involved in that planning.   The Commissioner acting under s 44 must have regard to the management plans of FCNSW and NPWS whereas a fire control officer ‘and any member of the Service assisting the fire control officer’ must comply with those plans.

The various plans may determine who is the incident controller at a fire. ‘All personnel operating on a fire ground are subject to the direction of the IC, irrespective of their source agency’.  The IC need not come from the ranks of the RFS or be the local Fire Control Officer

• Do land managers have any powers under any act to take control and manage a fire incident on their land (eg state forests or national parks)?

Yes, they have the power of occupier and the powers vested in them by the Forestry Act 2012 (NSW) or the National Parks and Wildlife Act 1974 (NSW). As occupier they can take control of the fire on their land as can anyone. The RFS may take over that effort but are not required to do so.  Unlike a famer, FCNSW and NPWS have the powers identified in the planning process in the state and local emergency management and bushfire plans. The point of those plans is to determine how fires will be managed and that can include appointing Forestry or NPWS staff as the IC.

• Can the NSW Rural Fire Service Commissioner delegate that authority to a land manager, and if so would that only apply in a section 44 declaration? I would assume this to be yes and if so, do the land managers have the same powers that RFS officers have under the Rural Fires Act 1997 or when the Premier declares a state of emergency?

Yes. During a s 44 fire the delegate can exercise the powers of the Commissioner.  A declaration of a state of emergency will not vest Forestry or NPWS staff with the powers of an RFS officer. During a declared state of emergency ‘the Minister may direct any government agency to do or refrain from doing any act, or to exercise or refrain from exercising any function’ (SERM Act s 36) so he or she could shift authority to FNCSW or NPWS.

• Does a NSW Rural Fire Service volunteer (in particular officers) have to take direction from a member of another agency if they fundamentally disagree with tactics? (this could be combatted with a liaison).

They do if that member is the IC or, in context, their decisions are being made in accordance with fire management plans for managed land. Even if the RFS members don’t ‘have’ to take direction, one should consider why that other agency wants to adopt the tactics they do. If we are talking about FCNSW or NPWS remember that their staff work in the forests and parks every day, they know the land and they know the priorities and their firefighting crews are also trained and experienced. It would be a ‘brave’ call (ala ‘Yes Minister’) to decide as the RFS to simply set aside their planning and experience and attempt to exercise control or worse, set off with two agencies fighting the same fire with different strategies in competition rather than cooperation.  I would suggest that the solution is ‘to go above the Divcoms head in order to raise issues or concerns via the chain of command.’