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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
Updated: 18 hours 1 min ago

Compensating volunteer ambulance officers in WA

8 April, 2018 - 17:28

Today’s question is:

Recently while on duty with St John Ambulance in WA myself and two fellow volunteers were transporting a patient between hospital and a residential care facility. When we arrived at the care facility there was a significant delay while suitable staff were located who were trained to operate the hoisting equipment that they needed to transfer the patient.

While we were waiting one fellow volunteer noted that they were in fact trained to use the hoist, as they also worked in a care facility outside of their volunteering with St John. They were unsure, however, if they were ‘covered’ by St John to use that skill while on duty because they had not been trained by SJA and were not sure if they were ‘authorised’ by SJA to use hoists.

Additionally, the second volunteer I was with noted that in their paid employment with St John as a transport officer they were in fact trained to use hoists by SJA, however they were also concerned that they were not ‘authorised’ in the present context. The concern was raised as to who would be ‘liable’ if an accidental injury occurred while using equipment or skills when St John had not provided training for or ‘authorised’ that equipment or skill.

Perversely, it seemed that we might actually be ‘safer’ transferring our patient using slide boards, rather than a hoist and after quite a long wait we were in fact about to slide the patient, however the care facility found the right staff to hoist the patient just before we did so.

In some other states and territories it seems that volunteer workers are covered by the same kind of schemes that are in place for paid staff who are injured at work. In WA, this seems to be different.

If we had hoisted the patient and a volunteer had been accidentally injured while doing so, would St John have been obliged to cover costs associated with an injury? Does it make a difference if we are trained (by SJA or otherwise) to hoist? Does it make a difference if we are not explicitly authorised to do so? If we are explicitly forbidden to do so?

Very much obliged if you can shed some light on these questions.

First let me note it’s perverse to think one is ‘safer’ not to use a hoist that one is trained to use, and risk injury but be covered for insurance.  Surely it’s better not to get hurt, than to get hurt but hope there’s a workers compensation policy in place.

Second my correspondent’s comment:

In some other states and territories it seems that volunteer workers are covered by the same kind of schemes that are in place for paid staff who are injured at work. In WA, this seems to be different.

Is not quite correct. To take NSW as an example, the Workplace Injury Management and Workers Compensation Act 1998 (NSW) Sch 1, cl 16 says volunteers with NSW Ambulance are deemed employees.  Volunteers with NSW RFS, NSW SES and others are covered for workers compensation by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).

It’s not that volunteer workers, for any agency, are covered by the same sort of compensation scheme that is in place for paid staff.  Rather volunteers for the state-run emergency services are covered by the same (or similar) schemes as the paid staff, but volunteers for other agencies eg a Lions Club, rely on the club’s own policy and insurance schemes.

(I do acknowledge that in every state other than WA and Victoria, there is the model Work Health and Safety legislation.  For that legislation a ‘worker’ includes a ‘volunteer’.  That means in those states a volunteer has to be considered alongside workers when implementing health and safety measures, but the Work Health and Safety laws are not the same as the workers compensation laws.  The fact that a person is a worker for the purposes of the Work Health and Safety Act 2011 (NSW) does not mean that person is also a worker for the purposes of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)).

To turn though, to the subject of the question that is the issue of compensation for St John (WA) volunteers.  By virtue of the Services Agreement Between State of Western Australia and St John Ambulance Western Australia Limited (1 July 2015 to 30 June 2018; cl 7.1(e)) St John is required to maintain:

Personal Accident insurance covering Service Staff engaged by the Provider on a voluntary basis for an amount equal to the current Prescribed Amount under the Workers’ Compensation and Injury Management Act 1981 (WA).

That clause doesn’t say that the insurance has to be in exactly the same terms as no fault Workers compensation only that insurance must cover the ‘prescribed amount’; that is $119 048 as at 30 June 2000 indexed in accordance with the Act (Workers’ Compensation And Injury Management Act 1981 (WA) s 5, definition of ‘prescribed amount’).  Whilst it may not specifically spell it out, the implication is that volunteers are to be insured as if they are employees.

I note that on the webpage offering information for potential regional volunteer ambulance officers, it says:

Volunteers will be informed of the Occupational Safety and Health requirements applicable to volunteers. Safety Injury and Support Services provide extensive information about their services and policies on the intranet.

I don’t have access to the intranet so can’t comment on what safety injury and support services are provided.

Discussion

Workers compensation is a no-fault scheme. One can be disqualified from benefits for ‘serious and wilful misconduct’ (Workers’ Compensation and Injury Management Act 1981 (WA) s 22) but that is not what is being described in the question.  The fact that the hoist was there, and two members were trained in its use, one by St John, would suggest that a prudent employee would use it rather than risk injury by manual handling.  The arrival of the care staff is not going to change the risk to the patient. And there is only one entity, St John (WA) so the fact that a volunteer was trained in the course of his employment with St John means he or she was trained by St John.  Playing semantics as to where the training comes from does nothing to advance either patient or volunteer safety.

Conclusion

Whilst every case depends on its facts it is my view impossible that St John, via the insurance policy it is required to maintain, would not be required to provide injury compensation and rehabilitation services to employees if they were injured in the circumstances described.

 

 

 

Categories: Researchers

Update on emergency service speed zones

8 April, 2018 - 16:20

In reply to my earlier post – No special speed zones when passing emergency service vehicles except in South Australia (January 4, 2017) I was asked:

I read that the law has changed in Victoria and SA and is about to change in WA. Can we have an update please?

Indeed the law has changed. From 1 July 2017 there has been a 40km/h speed limit when passing emergency vehicles in Victoria – see New speed limit when passing emergency vehicles in Victoria (June 20, 2017).    .

Western Australia also introduced a 40km/h speed limit with effect from 2 March 2018 (Road Traffic Code 2000 (WA) r 137A(4); see also WA Road Safety Commission Emergency and breakdown vehicles: Slow Down, Move Over).   The WA rule applies whenever there is a stationary incident response (not just an emergency services) vehicle that is ‘is displaying a flashing light other than a turn indicator light or hazard warning light’ (r 137A(1)).

It has been announced that the 40km/h rule will be introduced in both Tasmania (Melissa Mobbs, ‘Tasmanian drivers will be forced to slow down when passing emergency vehicles under new lawsThe Examiner (Online) 22 February 2018) and New South Wales (Troy Grant, Minister for Police and Emergency Services, Media release – New 40km hr rule to protect emergency service workers and volunteers, 8 April 2018). The NSW rule will come into effect on 1 September 2018.

The 40km/h road rule has not been introduced in Queensland, the Northern Territory or the Australian Capital Territory but it seems inevitable that it will be introduced at some time.

The law in South Australia remains as discussed in the original post, that is a 25km/h speed limit.

Categories: Researchers

Is there an obligation to call triple zero?

3 April, 2018 - 14:50

This question is prompted by a news story that came out last week – see Bellinda Kontominas and Lily Mayers ‘Hot air balloon company criticised by police for not calling triple-0 after crash that injured 9ABC News (Online) 30 March 2018.

The gist of the story is that a hot air balloon with 24 passengers and crew ‘crashed after hitting a tree while trying to land in the tourist town of Pokolbin’ (in New South Wales).  Nine people were taken to Cessnock Hospital by private vehicles.  No call was made to either NSW Ambulance or Police.

Inspector Rob Post, from Hunter Valley Police, said he was unsure what processes the company had in place in the event of a balloon crash, but he would have expected them to call triple-0…

He said police were not looking to lay any criminal charges in relation to the company’s failure to report the crash.

With respect to the injured, the story reports NSW Ambulance Inspector Luke Wiseman saying:

… nine people were taken to Cessnock hospital… injuries included suspected broken bones.

Two people with suspected spinal injuries were later transported to John Hunter Hospital in stable conditions for additional testing…

He said in circumstances where people were injured, it was important that emergency services be called so patients could be properly assessed and triaged.

Damian Crock, from the Professional Ballooning Association of Australia is quoted as saying:

“The pilot deemed that there was no need for emergency services to be called.”

“As a precautionary measure, three passengers were transported to Cessnock Hospital after the pilot had enquired into each passenger’s welfare,” he said…

“It’s certainly a regrettable incident and people have been injured, so we can definitely confirm that, but their injuries are not life threatening,” he said.

With respect to the number of patients, it appears nine attended hospital, but the pilot only inquired about three.  It may be that the pilot didn’t know that others were injured and that may be because they didn’t tell the pilot, or the pilot didn’t inquire.  We don’t know those details.

Assumptions

For the sake of this discussion I will assume:

  1. Given that two people ‘were later transported to John Hunter Hospital’ there were at least two serious injuries, but none were obviously life threatening; and
  2. The pilot did not appreciate the serious nature of those injuries.

Given those assumptions, the question I want to consider is: Was the failure to call triple zero illegal?  Is there any obligation to call triple zero?  If the answer to those questions is ‘no’ then it stands to reason that ‘police [are] not looking to lay any criminal charges in relation to the company’s failure to report the crash’ because there would have been no crime committed.

Is there an obligation to call triple zero?

The answer is clearly ‘no’; there is no legislation that says, in these circumstances, a triple zero call must be made.  We can take a broader view here.  The NSW SES are the combat agency for floods and storms, but if my property is affected by a flood or storm I don’t have to call them; I can sort it out myself.  Equally if there is a fire in my home and I put it out I don’t have to call the fire brigade even though Fire and Rescue NSW or the NSW RFS are responsible for providing firefighting services.  And if I want to drive someone to hospital rather than call an ambulance I can.

With respect to ambulance services, they encourage people not to call triple zero.  NSW Ambulance says ‘Save Triple Zero (000) for saving lives and only call in a medical emergency’.  It gives examples of when to call an ambulance such as ‘injury from a major car accident’ or ‘falling from a great height’.  Being a balloon hard landing is not the same as falling from a great height (they didn’t fall from the balloon) but in any event, accepting the advice from NSW on face value, it would have been appropriate to call triple zero for an ambulance, but that doesn’t create an obligation to do so.  In any case, someone has to decide that a person is injured, that is that the accident has caused a medical emergency. If we take (again on face value) the comment that ‘”The pilot [and presumably everyone one else who could have called triple zero] deemed that there was no need for emergency services to be called”’ then there can be no reason to call.  If we’re going to   ‘…only call [triple zero] in a medical emergency’ there can be no obligation to call, and people are in fact discouraged from calling, if they don’t think there is an emergency.

As I argued in a recent article that appeared in Response (a publication of Paramedics Australasia of which I’m a board member; see Michael Eburn and Ruth Townsend, ‘’Save OOO for emergencies’: A flawed approach to reducing demand for emergency ambulance services’ (2017) 44(4) Response 23-26 at p. 25):

Campaigns such as ‘Save 000 for emergencies’ seek to manage demand by encouraging people not to call for an ambulance unless they have accurately assessed that the situation is an emergency.  Campaigns like this are, however, asking the community that is made up of fallible and flawed human beings [and balloon pilots], to make the decision and to accept the risk that they are not in need of urgent care. Asking people not to call unless it is an emergency, and criticising them for getting the assessment wrong, is in our view neither helpful nor professional.

NSW Police say:

If you need police, fire or ambulance in an emergency call Triple Zero (000). Always call Triple Zero (000) in situations where a life is in danger, a crime is taking place, or in time critical situations.

It would appear that no-one believed a life was in danger or that it was a time critical situation.  And if it’s not time critical people are encouraged to ring the Police Assistance Line (131444).

There is an obligation to report motor vehicle accidents to police (Motor Accidents Act 1988 (NSW) s 42) but that’s not an obligation upon the driver but on the person who may be injured and seeks to make a compensation claim.  There is also a duty to provide particulars to police in some circumstances, including where a person is killed or injured (Road Rules 2014 (NSW) r 287). It does mean that if this had been a vehicle accident, rather than a balloon accident, then there would have been an obligation to report it to police but no obligation to call triple zero.

One might think there was some crime with respect to the operation of the balloon but even if that’s true, there is no obligation upon a person to ring triple zero to report that they may have committed a crime. And even reporting a crime should go through the Police Assistance line unless it’s ‘time critical’.

Negligence law

On the Facebook version of this blog, where I first posted a link to this story, one commentator wrote ‘I can’t believe they failed their duty of care like that’.  It may be the case that the failure to ring triple zero and arrange ambulance response was a breach of a duty of care but we can’t say that with certainty.  It rather depends on the situation as observed by the people there and the pilot.  The assessment that the injuries were not life threatening and that the resources of an ambulance was not required may have been reasonable, even if wrong.

Work Health and Safety Act 2011 (NSW)

I assume that the pilot was an employee, and this was therefore a workplace.  My aim here is to consider whether there was any legal obligation on the pilot to call triple zero rather than resolve every legal issue so I’m going to assume, without further discussion, that even though this was an aviation accident the Work Health and Safety Act 2011 (NSW) continues to apply.

Under the Work Health and Safety Act 2011 an event that causes a serious injury (which includes treatment for a spinal injury; Work Health and Safety Act 2011 (NSW) s 36) or a dangerous incident (which includes ‘the fall or release from a height of any plant, substance or thing (s 37) is a ‘notifiable incident’ (s 35).  The person conducting a business or undertaking must report a notifiable incident ‘immediately after becoming aware that a notifiable incident … has occurred’.  That duty may have imposed a duty on the balloon operator to notify SafeWork NSW but that is not the same as a duty to ring triple zero.

Further, s 39 says:

The person with management or control of a workplace at which a notifiable incident has occurred must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs.

It may well be therefore that an offence was committed by removing the balloon before a SafeWork inspector arrived, but again that is not the same as a duty to ring triple zero.

Under the Work Health and Safety Regulation 2017 (NSW) r 43 there is a duty to prepare, maintain and implement an emergency plan.  Emergency procedures are required to provide for

(i) an effective response to an emergency, and …

(iii) notifying emergency service organisations at the earliest opportunity, and

(iv) medical treatment and assistance, and …

Further ‘A person conducting a business or undertaking at a workplace must implement the emergency plan for the workplace in the event of an emergency’ (r 43(4)).

We don’t know, from the story, what the company’s emergency plan was or how they defined emergency.  It may be, however, that if the plan provided that, in these circumstances, the appropriate response was to call triple zero then there may have been an offence if they balloon pilot failed to implement the plan or if the balloon company didn’t have an adequate plan.

Transport Safety Investigation Act 2003 (Cth)

Under this legislation an accident involving a civil aircraft (‘VH’ registration) that causes ‘serious injury to: … (i)  a person on board the aircraft…’ is an immediately reportable event (Transport Safety Investigation Act 2003 (Cth) ss 3 and 18; Transport Safety Investigation Regulations 2003 (Cth) r 2.3).  As a result the pilot (and others associated with the balloon company; see Transport Safety Investigation Regulations 2003 (Cth) r 2.5 definition of ‘responsible person’) may have had an obligation to report the accident to the Australian Transport Safety Bureau (the ATSB) by telephone ‘as soon as is reasonably practicable…’ (Transport Safety Investigation Act 2003 (Cth) s 18 and Transport Safety Investigation Regulations 2003 (Cth) r 5.4) and with a full written report within 72 hours (s 19).

Even if there was an obligation to report this event to the ATSB but again that does not equate to an obligation to ring triple zero.

Conclusion

The stimulus for this question was the quote attributed to Inspector Rob Post, from Hunter Valley Police.

“He said police were not looking to lay any criminal charges in relation to the company’s failure to report the crash.”

The question I set out to answer was ‘Was there an obligation to call triple zero to report the crash?’  If the answer is ‘no’ then of course police can’t lay any criminal charges and it did beg the question of is there an obligation to call the emergency services?  (And let’s be clear, I’m not addressing whether the failure to call triple zero was a good idea, just whether it was unlawful).

It may be that it was negligent not to call for ambulance assistance but we don’t have enough information to draw any conclusion on that point.  Civil negligence is not a matter for the police or ‘charges’.

The clearest obligation to report an accident to police relates to motor vehicles.  Most (but not all) aircraft accidents must be reported to and primarily investigated by the ATSB.  The obligation to ring triple zero, if there was one, may arise under the Work Health and Safety Act 2011 (NSW).

What follows is that there is no obvious legal obligation to ring triple zero, even if like Inspector Post, you ‘would have expected them to call triple-0’.  An expectation does not give rise to a legal obligation.

Categories: Researchers

Legal authority for police to enter a burning house – is it required?

25 March, 2018 - 19:29

Today’s question relates to police as rescuers.  My correspondent says:

Police in NSW routinely respond to structure fires under lights and siren, often arriving before the fire service. When they do arrive, they often take action that, although well-meaning, can be very detrimental to the operations of the fire service. For example, there are numerous cases of police kicking in doors or breaking windows of houses with the intent of effecting rescue, however this type of uncontrolled ventilation can cause a catastrophic worsening of the fire situation inside the building. These actions are carried out without training, experience or protective clothing and can create a whole new level of complication for fire officers trying to manage the fire.

When questioned about this, police cite a section of the Police Act that empowers them to “protect life and property”.

Considering the risk to the occupants, subsequently arriving firefighters and the police officers themselves, and the fact that these incidents are occurring after a deliberate emergency response (a hazardous activity in itself), can reckless action be justified by a section in an Act of Parliament and do you think that this scenario is a reasonable application of the section cited?

No doubt the relevant section that they have in mind is section 6(2) of the Police Act 1990 (NSW). That section says “The NSW Police Force has the following functions: (a) to provide police services for New South Wales …”  Police services includes ‘the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way’ (s 6(3)).  I don’t think that section authorises any particular action.

But in this context so what? Who needs legal authority to enter a house to try and rescue someone in need?  The answer is ‘no-one’, I could do it, anyone could do it.  If legal authority is required, it’s not the Police Act but necessity.  In New Zealand, Tipping J said in Dehn v Attorney General [1988] 2 NZLR 564 (at p. 580):

A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm.

In the Kuru v State of New South Wales (2008) 236 CLR 1 Gleeson CJ, Gummow, Kirby And Hayne JJ said (at [40]):

The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire fighters, police and ambulance officers will often invoke application of that principle.

If the actions of the police are dangerous and not helpful, then the answer lies in taking it up with the Local Emergency Management Committee or getting FRNSW command to raise issues of training with the police.  The law is not the issue. Anyone, police or anyone else, can kick in the door to try and rescue someone from a burning building if they choose to do so.

Categories: Researchers

Will the law value the decisions of paid staff over volunteers?

24 March, 2018 - 15:36

Today’s question raises a scenario that’s hard to imagine, and has some misunderstanding, but the substance of the question is ‘regardless of the roles, will FRNSW be held responsible for decisions on the fire ground because their fire fighters are paid, and NSWRFS firefighters are not?’   Put that way the answer is ‘no’.  But let me turn to the question asked:

FRNSW turn up at a job within RFS area – RFS are the incident controller as it is their area- they say what happens and how to do, FRNSW then must do as requested by incident controller (RFS volunteer) and it results in the direction causing a death. Is the NSWFR, as paid professionals then liable for litigation as in the eyes of the law they are the professionals and should have known better.

And what would happen if the NSWFR officers refused to follow the direction as they feel it is not in the best interest of the situation, what action can or would be taken against them?

The first error is the assumption that the Incident Controller (IC) can not only direct FRNSW as to their task but also how to perform it.  AIIMS recognises a difference between command and control. The IC is in ‘control’ of the response so he or she may ‘task’ FRNSW but FRNSW remain in ‘command’ of their own troops and their own actions.  So, if FRNSW are asked to fight the fire burning in area A, it will be up to FRNSW to determine how they meet the controller’s objective.

In that light I simply can’t imagine a situation where a death, or any adverse outcome, can be solely attributed to a direction from the incident controller.  Taking the situation where FRNSW is asked to fight the fire burning in area A, how can that decision lead to a death? And a death of a bystander? A firefighter? Even if the decision means that property in area B is not protected it can’t be said that the decision ‘caused’ the death, the fire did.  So as noted at the start, the question itself is problematic.

What we can say is that people, and agencies, will be held responsible for the decisions and actions they are responsible for.  The IC, and in this context the RFS, will be responsible for the decisions made as IC.  The FRNSW firefighter will be responsible for the decisions they make.  If the question is ‘should FRNSW have been assigned to area A or area B?’ then that is a question to be asked of the IC.  If the question is ‘why did FRNSW do A instead of B?’ then that is a question for the FRNSW commander.

The courts, will in no way, say that FRNSW firefighters are responsible for overseeing, second guessing or somehow responsible for decisions that government policy implemented through legislation and then delegated decision making (so reflected in disaster plans, the adoption of AIIMS etc) has assigned to someone else. But of course if anyone perceives the IC has made an error, made a decision with incorrect information or assumptions, or hasn’t considered an appropriate alternative, that should be brought to the ICs attention.

But, as I said I infer the true question is ‘‘regardless of the roles, will FRNSW be held responsible for decisions on the fire ground because their fire fighters are paid, and NSWRFS firefighters are not?’   And the answer to that question is a categorical ‘no’.

As for the second question:

And what would happen if the FRNSW officers refused to follow the direction as they feel it is not in the best interest of the situation, what action can or would be taken against them?

If the FRNSW officers are tasked with a job but determine that they are not going to do it because it’s too dangerous, they need to communicate back to the IC.  Equally if they determine that another option would be better they also need to communicate with the IC.  Everyone has responsibilities so in context for example the FRNSW have responsibilities to do their own risk assessment as does the IC but the IC may not have the information that the crew on the ground have.  So there has to be communication.

As for a crew who simply decide to ignore the IC then the whole concept of a controlled response to the fire disappears. Instead of a coordinated response there becomes as many responses as there are crews on the ground. In that situation the management is really up to the commanders and ultimately the chief officers of the services involved. If the failure of the brigade to follow the ICs directions can actually be demonstrated to have caused loss or damage and someone seeks compensation (putting aside all the difficulties that would face) then liability would fall to their agency (in the context of this question, FRNSW).

Conclusion

As noted, the question asked didn’t really make sense but the substance of the question is ‘regardless of the roles, will FRNSW be held responsible for decisions on the fire ground because their fire fighters are paid, and NSWRFS firefighters are not?’   The answer to that question is ‘no’.

Categories: Researchers

Leaking government information and the Tathra fire controversy

24 March, 2018 - 12:01

Today’s question flows on from the disputes about the response to the Tathra bushfires.  My correspondent:

… noticed an article in the Daily Telegraph on 19th or 20th March 2018, where it was claimed that the NSW RFS refused assistance from FRNSW, they had a picture of the FR Call Centre log with the operator’s generic response highlighted when assistance is not required after they have asked.

My question is, would this not have to be obtained through a Freedom of Information request by the reporter or if it wasn’t and it was illegally leaked by a FR staff member, what would the consequence be for both the Telegraph or FRNSW, who I assume would have the responsibility for the procedures for private and confidential information security or using illegal information in their publication?

Since then they have also released voice recording of the calls made between RFS Duty officers and FR Call Centre operators which I again assume breaches other legislation as I don’t believe a staff member or agency would have given their permission to use the recordings. Who would be responsible for a matter such as this given the amount or media it has caused while using illegally obtained information?

The Daily Telegraph articles are generally behind a paywall so I can’t find the exact article.  In another article (Eryk Bagshaw ‘Rural Fire Service slams Tathra bushfire leak as ‘disgusting and disgraceful’Illawarra Mercury (Online) March 20 2018) says the call logs were ‘leaked’ rather than released under any application under the Government Information (Public Access) Act 2009 (NSW) (which replaces Freedom of Information legislation).  Let us assume, for the sake of the argument, that the material was leaked by a member of FRNSW staff.

Under the Fire Brigades Regulation 2014 (NSW) cl 22:

A firefighter must not disclose any information obtained in the firefighter’s capacity as a firefighter unless the disclosure is made:

(a) in the exercise of the firefighter’s functions, or

(b) about factual matters that are generally available to the public, or

(c) by an approved firefighter to media representatives concerning operations at a fire or other incident, or

(d) at the direction or with the permission of the Commissioner, or

(e) with other lawful excuse.

Let us also assume, for the sake of the argument, that the release of the information is a breach of r 22.   A breach of s 22 is not a criminal offence, but may subject the firefighter to disciplinary action (r 13).  A firefighter, as a government employee, may also be subject to obligations of confidentiality under the Government Sector Employment Act 2013 (NSW) and The Code of Ethics and Conduct for NSW government sector employees.  Let us further assume that the release of the information is a criminal offence.

The journalist

What follows from those assumptions is that the journalist has received information about a government agency (but not private information about an individual) that has been provided to him or her illegally.  What are the consequences of the Telegraph in publishing that material?  The answers are ‘none’.

The argument of journalists, and institutions like Wikileaks is that there is no offence in publishing this material even if the person who provides it commits an offence in leaking it.  The freedom of the press to publish material is essential for open government.  Consider the actions recently of the ABC that published details of cabinet documents that were found in a filing cabinet that was sold by a second hand furniture store in Canberra.  The ABC program, ‘Behind the News’, reported

Mr X took the files to the ABC, who read through them and broke some big stories, including the Australian Federal Police losing national security files, laws that were being debated behind closed doors, and important documents at Parliament House ending up in the wrong hands.

But the ABC decided some of the other files were too sensitive to tell us about. In fact, they were so top secret that ASIO, Australia’s National Security Agency delivered a safe to the ABC offices so the files could be protected. The release of these Cabinet Files has come at an interesting time, because there are new laws currently being proposed that could make this kind of reporting illegal. The proposal, by PM Malcolm Turnbull, is aimed at cracking down on foreign spies, but some journalists and lawyers say that could extend to the media too. They argue the journalists who published the Cabinet Files could’ve faced jail time if those laws were in force now.

After some serious negotiating, the files were eventually given back to their original owner, the Department of the Prime Minister and Cabinet.

There was no offence committed by the ABC in publishing the material.  Even if the changes discussed in that article, contained in the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 (Cth) are passed, it will be a defence (cl 122.5(6)):

… to a prosecution for an offence by a person … relating to the dealing with or holding of information that the person dealt with or held the information:

  • in the public interest (see subsection (7)); and
  • in the person’s capacity as a journalist engaged in fair and accurate reporting

The point of that discussion is not to say that these laws apply to this leak but to demonstrate that journalists are not prohibited from publishing confidential information that is leaked to them. That is considered a legitimate journalistic exercise and that is recognised by the Commonwealth that intends to retain that principle even in the attempt to tighten up information security laws.  There can be civil remedies for publication of confidential information ranging from an order for an injunction to stop the publication, actions for defamation and the like. The critical determination requires a balance between the public interest in knowing the information and a private interest in retaining the confidence (see Kathryn Ries, ‘Confidential Information and the Media’ (1999) 15 Queensland University of Technology Law Journal 126).  We don’t need to update that article and its references because we can see there is public interest in the discussion on the response to the Tathra fires, and the call log and audio recordings are not private and confidential information about a person. This sort of material would be released under the Government Information (Public Access) Act 2009 (NSW). So even if it has been released improperly, it would be public information in the event of the correct application, so we can infer, or perhaps assume, that the public interest in not disclosing it is low which creates an equally low threshold for a public interest in publishing it.

FRNSW

As for FRNSW there can’t be any implications either.  As the holder of personal or private information FRNSW, as with any government agency, will have obligations to secure that information and there may be implications if that information is not properly secured.

However, the information of a call log and the audio recording of the conversations would not be private information within the meaning of the Privacy and Personal Information Protection Act 1998 (NSW).  The information is information owned and about FRNSW.  Issues of the staff member’s consent to the use of the recording is irrelevant. If FRNSW wants to release recordings of its radio or telephone transmissions it doesn’t need the approval of each staff member.  It also means that if the information is illegally leaked FRNSW may have rights against the staff member who leaked it (Fire Brigades Regulation 2014 (NSW) cll 13 and 22) and could in some circumstances (but I suggest not these circumstances) have a remedy against the journalist or the paper (see again Kathryn Ries, ‘Confidential Information and the Media’ (1999) 15 Queensland University of Technology Law Journal 126).

Conclusion

The question implied a belief, not uncommon, that the law protects much more than it does.  Journalists regularly publish material that governments, corporations and individuals would prefer was not made public.  They do that in part to sell papers but also because it’s a fundamental role of a free press to hold governments, corporations and individuals to account. There may be remedies where the publication is simply for titillation or gossip but where there is a public interest in the publication that is not only permitted it is endorsed, even by government.

In the circumstances of the Tathra fire and the release of information from FRNSW there may be implications for the staff member that leaked the material, but there would be no legal implications for the journalist or the Daily Telegraph for publishing it or for FRNSW.

Categories: Researchers

Issues of privacy when the ambulance service is both service provider and employer

23 March, 2018 - 15:47

A Tasmanian Ambulance Officer was contacted by his Regional Manager (a qualified, but not current or active Paramedic), he said he’d seen a case report where the officer was a patient and as a result he wanted a medical certificate before that officer can work again. Is this a breach of patient confidentiality or possibly in breach of the Privacy Act?  He must have been alerted to it by another paramedic, so if he’s in breach are others too?

This question was outside my normal field so I thank my ANU colleague, Daniel Stewart for his input into this answer.

Personal Information Protection Act 2004 (Tas)

The privacy law in Tasmania is found in the Personal Information Protection Act 2004 (Tas).  In that Act (s 3) ‘basic personal information means the name, residential address, postal address, date of birth and gender of an individual’.   Health information means –

(a) personal information or opinion about –

(i) the physical, mental or psychological health at any time of an individual; or

(ii) a disability at any time of an individual; or

(iii) an individual’s expressed wishes about the future provision of health services to him or her; or

(iv) a health service provided, or to be provided, to an individual; or

(b) other personal information collected to provide, or in providing, a health service; or

(c) other personal information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances; or

(d) genetic information about an individual that is or may be predictive of the health at any time of the individual or any of his or her descendants –

other than prescribed information, a prescribed class of information or information contained in a prescribed class of documents.

We can infer that Ambulance Tasmania is a ‘personal information custodian’ being the custodian of the information collected by its paramedics in the course of their duties (s 3, definition of ‘personal information custodian’).

Where a paramedic completes a patient record, they collect and record ‘basic personal information’ and to the extent they record observations about the patient’s condition, form an opinion as to the person’s medical condition and makes a record of the treatment provided then the paramedic is creating and recording health information.

Schedule 1, cl 2(1) that says:

A personal information custodian must not use … personal information about an individual for a purpose other than the purpose for which it was collected …

It is permissible to release medical information obtained by paramedics to treating hospital staff as the purpose of collecting that information is to provide continuity of care and the patient would reasonably expect treating paramedics to communicate their observations and treatment to the hospital staff (Schedule 1, cl 2(1)(a)).

It is also permissible to release or use information for other purposes if that is authorised by the exceptions set out in Schedule 2.  That Schedule says it is not a breach of the privacy principles to ‘use or disclose personal information’ if that is necessary to “lessen or prevent – (i) a serious threat to an individual’s life, health, safety or welfare; or (ii) a serious threat to public health or public safety” (cl 2(1)(d)).

Finally, it is permissible to disclose personal information if:

(i) the personal information is to be used as employee information in relation to –

(i) the suitability of the individual for appointment; or

(ii) the suitability of the individual for employment held by the individual; or

(j) the personal information is employee information which is being transferred from one personal information custodian to another personal information custodian for use as employee information relating to the individual;

Employee information means, inter alia, “… personal information about an individual who is … an employee relating to – … (e) the suitability of the individual … for employment held by the individual…’ (s 3).

Discussion

The problem here is distinguishing between Ambulance Tasmania as service provider and Ambulance Tasmania as employer and asking whether there should be, or can be, an artificial wall between its two roles.

As a general rule we can say that a paramedic, and Ambulance Tasmania should not tell an employer when an employee has been treated by the Ambulance Service.  The information is not obtained for that purposes.  In some circumstances, the account for ambulance services may be sent to the employer which will, necessarily, identify that the employee was treated but that would be the extent of the information that can be disclosed.  But in this case the ambulance service is the patient’s employer and once the ambulance service has information relevant to their employee’s health and fitness can it ignore that?  Can it pretend it doesn’t know what it does in fact know?

My correspondent refers to ‘a case report where the officer was a patient’.  We are not told what sort of condition warranted the ambulance care.  It may have been a traumatic injury caused in a motor vehicle accident, at home or during a sporting match or it may have been a suicide attempt or treating the paramedic for drug overdose at the ambulance station.  Clearly the implications will be different.

The first step is Schedule 1, cl 2(1) that says the ‘personal information custodian must not use … personal information about an individual for a purpose other than the purpose for which it was collected …’   This implies the artificial wall.  Information collected by Ambulance Tasmania as service provider is collected for specific purposes. I suggest that the Ambulance Service collects information about its patients to provide a history and to record the care given to ensure continuity of care when the patient is delivered to further medical care, to ensure quality control and to allow for appropriate billing.   It does not collect information to report to a patient’s employer, even if that employer is Ambulance Tasmania.  Prima facie then, to ‘use’ the information obtained from the paramedic as patient when dealing with the paramedic as employee would appear to be a breach of privacy.

But there are exceptions.  If the information revealed that the paramedic was significantly impaired and posed a risk to the health and safety of others, then it can’t be a breach of privacy for the paramedic to inform his or her supervisors or for Ambulance Tasmania to use the information obtained as service provider in its capacity as employer.  Even if passing the information across the fictional barrier would in other circumstances be a breach of privacy, it is no breach if it is necessary to “lessen or prevent – (i) a serious threat to an individual’s life, health, safety or welfare; or (ii) a serious threat to public health or public safety” (Schedule 1, cl 2(1)(d)).   If the paramedic is for example regularly overdosing on scheduled drugs then he or she may pose a threat to patient’s and therefore disclosing that information across the service provider/employer barrier would be justified.

With respect to employee information Daniel says:

Employee information is treated differently in different jurisdictions. At the Commonwealth level public sector bodies, including the ANU, generally protect against collection and disclosure of employee information, especially relating to health information. Tasmania seems to have taken the approach of exempting employee information (which includes information on the ‘suitability of the individual for appointment or for employment held by the individual’ (s3 employee information) from certain privacy principles, so that it is not a breach to collect employee information from a third party, and there are no special restrictions on collection of employee information that includes sensitive (including health) information (see s 10). Disclosure or use of employee information is also an exception to the general principle that sensitive personal information can only be used for the purpose it was collected or a directly related secondary purpose (sch 1, 2(1)(i)).

I would infer that the reference to employee information is to say there is no breach of privacy if for example a potential employer seeks a reference from a former employer and the former employer reveals that the candidate was dismissed or the like.  But as Daniel says there doesn’t seem to be any restrictions in the Personal Information Protection Act 2004 (Tas).

Ambulance Tasmania owes its employees duties under both common law and under the Work Health and Safety Act 2012 (Tas) to provide a safe system of work and not aggravate injuries, whether they are originally caused at work or not.   Given that once Ambulance Tasmania knows of their employee’s injury or illness it may be incumbent upon them to ensure that the employee is certified fit to return to work or that appropriate adjustments are made.   Accordingly if Ambulance Tasmania becomes aware of a health issue that affects the employee’s ability to perform his or her tasks, then again passing that information from Ambulance Tasmania as service provider to Ambulance Tasmania as employer would not appear to breach the Act because it is employee information that relates to the ‘the suitability of the individual for employment held by the individual’.

How the regional manager received the information

This is, I think, largely irrelevant.  If the regional manager was required, as part of his or her duties, to review case sheets for quality assurance or other purposes, then reading the case sheet and seeing that the patient was also an employed paramedic would not be a breach of privacy as the case sheet was being read for one of the purposes that the information is recorded.

Whether the treating paramedic alerted the manager is also not an issue because once the information was obtained by the treating paramedic then it was information ‘known’ by Ambulance Tasmania.  If the paramedic telling the manager was an example of passing the information from service provider to employer then it is justified for the reasons discussed above.

Conclusion

This is a very tentative answer and it’s clearly a very complex issue.  A definitive answer could only be had from a court or perhaps the Ombudsman as the agency responsible for receiving complaints under the Act (s 18).

My tentative view, however, is that the circumstances described would not constitute a breach of the Personal Information Protection Act 2004 (Tas).

Categories: Researchers

Police liability for damage caused by high speed pursuit

22 March, 2018 - 22:33

Today’s correspondent

… was at a set of red traffic lights when a stolen vehicle crashed into the rear of my four-wheel drive at high speed. The NSW Highway Patrol was right behind. About 50 metres down the road the suspects jumped out of the car and were eventually apprehended. The

Stolen car was insured, I wasn’t. The suspects stole the car at 5.30am had been evading police all morning. The accident occurred at 12.30pm. Police, who did a great job, have their suspects but my family are without a vehicle. Damage has totalled $10000+.

We have been advised that if the DPP lodges a criminal compensation order on our behalf that would be the best course of action but getting the money from the accused is another problem as I would need his address to file a statement of claim, but police shouldn’t release this information.

Could police be accountable?

Before 8 February 2018, I would have been inclined to say that there was no prospect of pursuing police on this matter.

First courts are reluctant to impose liability on one person (in this scenario, the police) for the criminal conduct of another (in this scenario, the thief) (Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254).  Further the have been many cases that limits the duty of care that police owe to others with respect to how they perform their duties.  Police act for the benefit of the community and by the very nature of their tasks can cause harm to others eg by arresting people who are later found to be ‘not guilty’ or not arresting people who then proceed to commit offences. The leading case on this point is the UK case Hill v Chief Constable of West Yorkshire [1989] AC 53 where police did not owe a duty of care to a victim who was murdered by the “Yorkshire Ripper”.

In a newsletter (Duty of Care – UK decisions, May 2015) the Victorian Government Solicitor’s Office said:

Two recent judgments in the United Kingdom have declined to impose a duty of care on police officers to protect individuals from harm by third parties. In Michael and others v Chief Constable of South Wales Police and Chief Constable of Gwent Police [2015] UKSC 2 a majority of 5-2 of the Supreme Court held that the police do not generally owe a common law duty to exercise reasonable care to safeguard victims or potential victims of crime, except in cases where there has been a representation and reliance. In Robinson v Chief Constable of West Yorkshire Police [2014] EWCA Civ 15, the England and Wales Court of Appeal held that the police did not owe a common law duty of care to a bystander who was injured during the arrest of a drug dealer.

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4

So, what happened on 8 February?  On that day, the Supreme Court of the United Kingdom (the equivalent of the High Court of Australia) handed down its decision in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4.   In this case the 76-year-old plaintiff was injured (at [1]):

… when she was knocked over by a group of men who were struggling with one another. Two of the men were sturdily built police officers, and the third was a suspected drug dealer whom they were attempting to arrest. As they struggled, the men knocked into Mrs Robinson and they all fell to the ground, with Mrs Robinson underneath. She suffered injuries as a result.

In the Court of Appeal, Hallett LJ (with whom Arnold J and Sullivan LJ agreed) said this case was “a paradigm example of why the courts are loath to impose a duty towards individual members of the public on the police engaged in their core functions” ([16]), presumably because it would constrain police too much if when deciding if and when to arrest a drug dealer they had to think about their possibility liability to passers-by who might be affected by unpredictable, but foreseeable consequences. Hallett LJ also took the view (at [17]) that even if the police did owe a duty of care to Ms Robinson it was in fact the offender, who was struggling with police that caused her injuries, not the police officers.  One can see the analogy with the scenario posed by my correspondent.  The police are engaged in a pursuit of a stolen car and the need to arrest the offenders relates not only to their stealing of this car but the very risk to others that did eventuate.  It may restrain police too much if they have to consider potential liability to third parties and in any event the damage was caused by the offender, not the police.

The Supreme Court took a different view.  Lord Reed (with whom Lady Hale and Lord Hodge agreed) reviewed the English law on the liability of public authorities and police in general.   With respect to public authorities he said (at [32]-[35] (referenced omitted):

At common law, public authorities are generally subject to the same liabilities in tort as private individuals and bodies… Accordingly, if conduct would be tortious [ie negligent] if committed by a private person or body, it is generally equally tortious if committed by a public authority… That general principle is subject to the possibility that the common law or statute may provide otherwise, for example by authorising the conduct in question… It follows that public authorities are generally under a duty of care to avoid causing actionable harm in situations where a duty of care would arise under ordinary principles of the law of negligence, unless the law provides otherwise.

On the other hand, public authorities, like private individuals and bodies, are generally under no duty of care to prevent the occurrence of harm… “the common law does not generally impose liability for pure omissions”. This “omissions principle” has been helpfully summarised by Tofaris and Steel, “Negligence Liability for Omissions and the Police” (2016) 75 CLJ 128:

“In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A’s status creates an obligation to protect B from that danger.”

For readers of this blog that means that an agency, whether it’s a police force or a fire brigade, is not liable if it fails to protect a person from harm (hence explaining why fire brigades are generally not liable for failing to protect people from fire and why police were not liable for failing to prevent Mr Veenstra’s suicide in Stuart v Kirkland-Veenstra [2009] HCA 15 discussed often in posts on this blog).  That is because a government authority, like anyone, is not usually under a duty to prevent harm from circumstances not caused by them.  But an agency will be liable if it negligently causes harm in circumstances where anyone else would be liable, so the driver of a fire appliance or a police car will be liable if he or she negligently collides with another driver.  Causing harm is different to failing to prevent it.

Having done that general analysis, Lord Reed turned to police and concluded (at [69]) that there is no special immunity for police. The reason that they are not, and have not been, liable for failing to prevent harm

… is based on the application of a general and long-established principle that the common law imposes no liability to protect persons against harm caused by third parties…

The distinction between careless acts causing personal injury, for which the law generally imposes liability, and careless omissions to prevent acts (by other agencies) causing personal injury, for which the common law generally imposes no liability… is inherent in the nature of the tort of negligence… The central point is that the law of negligence generally imposes duties not to cause harm to other people or their property: it does not generally impose duties to provide them with benefits …

His Honour concluded (at [70]):

… it follows that there is no general rule that the police are not under any duty of care when discharging their function of preventing and investigating crime. They generally owe a duty of care when such a duty arises under ordinary principles of the law of negligence, unless statute or the common law provides otherwise. Applying those principles, they may be under a duty of care to protect an individual from a danger of injury which they have themselves created, including a danger of injury resulting from human agency… . Applying the same principles, however, the police are not normally under a duty of care to protect individuals from a danger of injury which they have not themselves created, including injury caused by the conduct of third parties…

Applying those principles to the case before him, Lord Reed found that the risk of the defendant resisting arrest was well known and it was why the first police officer waited for back-up before attempting to make the arrest.  It was therefore foreseeable that if an arrest was attempted on ‘a moderately busy shopping street in a town centre’ pedestrians ‘especially physically vulnerable pedestrians, such as a frail and elderly woman … might be knocked into and injured’ ([74]).

Finding a duty of care does not end the inquiry. The question then must be whether there had been a breach of duty.  The trial judge had found that the police were negligent.  The Court of Appeal had decided that they were not.  The Supreme Court recognised the need for caution in finding negligence by police acting in operational situations.  Lord Reed said (at [75]):

The Court of Appeal was correct to emphasise the importance of not imposing unrealistically demanding standards of care on police officers acting in the course of their operational duties. That is most obviously the case where critical decisions have to be made in stressful circumstances with little or no time for considered thought. This point has long been recognised. For example, in Marshall v Osmond, concerned with a police driver engaged in the pursuit of a suspect, Sir John Donaldson MR stated… that the officer’s duty was to exercise “such care and skill as is reasonable in all the circumstances”. He went on to state that those “were no doubt stressful circumstances”, and that although there was no doubt that the officer made an error of judgment, he was far from satisfied that the officer had been negligent…

Further, at times, taking ‘reasonable care’ may expose members of the public to risk (at [76], emphasis added):

… there may be circumstances which justify the taking of risks to the safety of members of the public which would not otherwise be justified. A duty of care is always a duty to take such care as is reasonable in the circumstances.

However, in this case the trial judge had considered all those issues and for reasons that need not be explored here had concluded the action of the arresting officers was not reasonable in the circumstances.  There being no error in the reasoning, it was not open to the Court of Appeal to reverse that decision.  The Supreme Court did not therefore conclude that the police were or were not negligent, only that the matter had been decided at trial and, in the absence of error, there was no reason to set aside the judge’s decision.

Lord Mance agreed that the police should be liable.  His reasoning was different but the difference need not be explored here.  Suffice to say he concluded (at [97]):

… we should now recognise the direct physical interface between the police and the public, in the course of an arrest placing an innocent passer-by or bystander at risk, as falling within a now established area of general police liability for positive negligent conduct which foreseeably and directly inflicts physical injury on the public…

The final judgement was from Lord Hughes. He disagreed that the line between when police owed a duty of care and when they did not could not be drawn by referring to whether or not their alleged negligence lay in either an action or omission.  There were sound policy reasons to provide police immunity (at [118] and [120] emphasis added):

The ultimate reason why there is no duty of care towards victims, or suspects or witnesses imposed on police officers engaged in the investigation and prevention of crime lies in the policy considerations … and, in the end, in the clear conclusion … that the greater public good requires the absence of any duty of care…

Thus whilst there remains a duty of care imposed on police officers not by positive action to occasion physical harm or damage to property which ought reasonably to be avoided, there is no duty of care towards victims, witnesses or suspects in the manner of the investigation of offences or the prevention of crime. That also means that there is no duty of care to protect individuals from harm caused by the criminal acts of third parties.

The case before him was however ‘one of positive act, namely arresting the suspect, which directly caused physical harm’ and therefore there was a duty of care owed. Given the trial judge’s findings of negligence it followed that the liability of police was established.

Discussion

It seems to me the parallel with my correspondent’s case is obvious. The police were attempting to arrest, and prevent the escape of the driver of the stolen vehicle just as the police in Robinson were attempting an arrest and prevent the escape of the drug dealer.  Had my correspondent been struck by a police car the question of a duty of care would not have been in issue.  As it was my correspondent was struck by the thief.

On one view the incident was akin to the struggle but that would be debatable.  The Court in Robinson did not have to consider what would have happened had the offender broken away from police and run into the pedestrian/plaintiff.

It follows that my correspondent could argue that this case is akin to Robinson, that it was foreseeable that by engaging in a pursuit other road users would be put at risk and the act of the pursuit was a positive action that created the risk to those road users, and that gave rise to a duty of care.

No doubt police would strenuously defend such a claim.  The argument would be, as suggested, that this case is NOT like Robinson in that it was not the police that caused the injury or damage but the thief.  In Robinson it was the police and the thief who collided with the victim but in my correspondent’s case it was just the car thief.   And even if there was a duty of care that does not mean there was negligence. That would require detailed examination of what happened, what decisions were made, whether police had complied with procedures etc.

My correspondent asked: ‘Could police be accountable?’ The answer is ‘Given Robinson’s case there could be an argument so it’s possible, but establishing liability would be difficult and no doubt vigorously defended’.

Compensation

My correspondent’s advice on compensation is wrong.  They say:

We have been advised that if the DPP lodges a criminal compensation order on our behalf that would be the best course of action but getting the money from the accused is another problem as I would need his address to file a statement of claim, but police shouldn’t release this information.

If the DPP lodges an application for compensation for loss (Victims Rights and Support Act 2013 (NSW) ss 96-98) then one doesn’t need to file a statement of claim.  A statement of claim is asking the court to determine the legal issues and make the order for compensation sought. If the sentencing court makes that order then the result has been obtained. If the compensation is not paid, the order can be entered as a judgement of the court (s 101) and enforced accordingly.  The issue is therefore not about getting the person’s address but enforcing the debt.  A judgment is worthless if the person does not have the means to pay, and most offenders don’t have the means to pay.

A lesson in insurance

If you can’t afford to wear the loss, you can’t afford to be uninsured. Even if you are sure that you will only have an accident in circumstances that are not your fault, you will still wear the loss if the other driver cannot afford to pay the damages.

And if you are the driver at fault you will be liable for damages caused.  The advice here that you are not worth suing if you don’t have the means to pay is not the end of the matter.  If the other car is insured, and the insurance company pays out, they may seek to recover from you and if they can’t they may sell the debt to a debt collector.  And I’ve seen people’s lives ruined by the stress of being pursued by debt collectors even when there is no possibility to pay.

And if someone claims you were at fault and you think you were not, you can fight it in court, or you can claim on your insurance and let the insurance companies sort it out.

Conclusion

This has been a long post and a bit different to one’s usually on this blog.  It appears here because the police were involved in emergency driving so it is relevant to this blog.  It was also an opportunity to explore the reasoning in a recent case that may also have implications for fire and other emergency services.

The case, Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 confirmed the principle that agencies like police, and by extension, fire brigades, do not owe a duty to protect people from harm that is not of their making.  For fire brigades that is consistent with earlier findings when people have sued the brigades for not saving their homes and property and have lost.  Whether it is said there is no duty because of some overriding duty to the public or the application of general principles, the outcome is the same.

For my correspondent the decision opens the door to argue the police are liable in this accident but no doubt that claim would be strongly defended.  It is not for me to give advice on the merits of the case as I don’t know the details.  The best that can be said is that it may be possible to argue that the police are liable, but more information would be needed. My correspondent should see a solicitor.

And if you can’t afford to wear the loss, you can’t afford to be uninsured.

Categories: Researchers

“Abandonment” – and why Universities shouldn’t scare their paramedic students with nonsense

21 March, 2018 - 14:02

Today’s correspondent is a student:

… studying a Diploma in Paramedical Science and have just read about “abandonment”.

A PowerPoint presentation the Uni has sent us on legal responsibilities advises that “You must always transfer care of a patient to a professional of equal or better or better training to avoid charges of abandonment”.

I have never heard of this term before, but I have had a couple of overseas paramedics argue the point on abandonment. And I was like…So if that’s who turns up what do you do?  For example, I have been talking to some fellow students who have advised it is illegal for anyone other than ACT ambulance to transport patients in the ACT. Further, I used to work in Regional Western Australia as an industrial Para/medic, the state Ambulance service there [St John Ambulance Australia (WA)] is staffed by volunteers. As they are the only recognised Emergency transport Service provided by the state, I previously have felt comfortable handing a patient over to them, now with the words professional and higher training, I am concerned I might be opening myself up for a liability.

This got me thinking: how do the rules work if a care giver is required to hand a patient over and the attending retrieval team aren’t qualified to the same skill level? Is there any specific direction In Australia on this?

The concept of abandonment has come up on this blog before. In an earlier post (Physical restraint of patients by paramedics (February 14, 2014)) I said:

Abandonment is not a term that I am familiar with in Australian law but I have heard of it in US law (see Curt Varone, Fire Law Blog: Abandonment Issue Raised in Asiana Crash Case) but even there it does not sound like a well-accepted principle.

In Varone’s blog he says:

Abandonment occurs when a medical provider who has assumed care and control of a patient in need of medical attention either stops providing care leaving the patient unattended or leaves the patient under the care of someone with lesser qualifications WITHOUT LEGAL EXCUSE OR JUSTIFICATION. While some authorities identify abandonment as an intentional tort, most courts that have dealt with the subject view it as a breach of the standard of care under a negligence theory.

If I refer to an Australian torts textbook (Harold Luntz et. al., Torts: Cases and Commentary (7th ed, Lexis/Nexis, 2013)) and an Australian medical text (J.A Devereux Australian Medical Law (3rd ed, Routledge, 2007)) the term ‘abandonment’ does not appear in the index of either book.  If I go to Austlii, I can search the case law from all Australian jurisdictions and the search “tort of abandonment” produces no results.   The use of the word ‘charges’ implies criminal law but there is no relevant crime of ‘abandonment’.

One only needs to think of it, as my correspondent has, to show why the idea of a tort (or crime) of abandonment described as “You must always transfer care of a patient to a professional of equal or better or better training to avoid charges of abandonment” has to be nonsense.

Think of my correspondent’s example of an intensive care paramedic on a mine site who calls St John Ambulance (WA) to respond and transport a patient to hospital.  If the mine paramedic can’t hand over the patient to St John, but equally can’t leave the mine site, then no-one is going anywhere.

Or imagine a rapid response intensive care paramedic (ICP) who responds to a triple zero call and finds, on arrival, a person fractured leg.  They don’t have life threatening injuries so don’t need intensive care intervention but they need pain relief and transport to hospital. The ICP has to be able to hand over to paramedics with lower level skills, skills adequate for this patient’s needs but not the same as the ICP but not if the description of the tort (or crime) described in the university’s PowerPoints is correct.

Or a doctor who is treating a patient in the surgery and determines that the patient needs transport to hospital.  Maybe the doctor has ‘equal or better training’ than the paramedics but can he or she hand over the patient’s care to the paramedics.  Clearly they must if the patient is actually going to be transported to hospital.

If we accept that the tort exists, and it is as Curt Varone has described it, then the issue is ‘without legal justification or excuse’ and of course there’s a legal justification to hand on patients to the agency that is created (in the case of state ambulance services) or contracted (as in WA and the NT) to provide ambulance services.   In an unrelated case, Zangari and St John Ambulance Service [2010] WASAT 6, the WA tribunal said this about the interaction between St John (WA) and a medical practitioner:

… on arrival, the ambulance officers are entitled, if not required, to take charge of the situation … they have the primary conduct of patient care… The medical practitioner takes a step back once an ambulance arrives, allowing the ambulance officers to attend to the patient and provide what is needed… The patient becomes SJA’s patient and for the purposes of the particular incident is no longer the medical practitioner’s patient, regardless of the physical location of the patient…

The role of the medical practitioner is to provide patient and other pertinent information and medical or other assistance if required, by the ambulance officers. It would be good practice if the medical practitioner does what they can to facilitate patient diagnosis and care by the ambulance officers. It would certainly be pertinent and helpful for a doctor present at the scene to identify themselves as such, particularly if they are the patient’s treating doctor. There is no stated policy document or procedure (of which we are aware) that requires ambulance officers to seek out or engage the assistance of a medical practitioner if they are called to provide assistance at a doctor’s surgery (as was the case here), or indeed at any place where a medical practitioner is present. It might be common sense to do so, but it is a discretion exercisable by the ambulance officers based on their appraisal of the situation they are attending and on the needs of the patient, and on the ability of the patient to provide the required information.

The same must be true if the person providing care before the arrival of St John is an ICP.  But if the tort of ‘abandonment’, as described by my correspondent and allegedly quoting a University PowerPoint, existed the relationship would be quite different and the doctor couldn’t ‘transfer care’ to the paramedics (assuming the paramedics are not ‘a professional of equal or better or better training’ a matter of some controversy) or else the doctor would risk ‘charges of abandonment’. (For a more detailed discussion of that case, see Step aside – I’m a doctor (October 17, 2014)).

If the principle, as stated by my correspondent were correct, everyone responding to an emergency would need to carry their CV and spend some time at the scene comparing them  (one can think of a gendered parallel where people may be said to be comparing the size of something other than their CV, a parallel I’ll leave to your imagination).

A better view is to see the issue as a question of whether or not the decision making is reasonable in all the circumstances, or as Varone says a question of ‘a breach of the standard of care under a negligence theory’; see also my discussion in Paramedics leaving patients in casualty (January 24, 2015).

If the question is simply one of negligence then issues of duty of care, and standard of care arise.  Remember no-one ‘owns’ the patient.  The issue must always be what is in the patient’s best interests or who is best able to provide the care that the person needs.

The off duty ICP who goes to assist a person injured in a West Australian shopping centre can ‘hand over’ the patient care to the on duty St John volunteers because the ICP isn’t under a duty to provide care and the first place and taking into account all of the circumstances, it would be reasonable to do so as the transport of the patient is their task. Equally a doctor that stops to assist can and must hand over the care to the on duty paramedics.  Equally a paramedic in the ACT or NSW will hand over care to other paramedics who may be less qualified if that is reasonable in the circumstances.  And sometimes people will be left in the care of their family or others who will look after them.

Conclusion

It only takes 10 minutes to think about the implications and realise that a claim “You must always transfer care of a patient to a professional of equal or better or better training to avoid charges of abandonment” is nonsense. There is no ‘specific direction In Australia on this’ because it’s never arisen.  There is, in Australia, no relevant crime of ‘abandonment’.  Nor is there a tort of abandonment.  Whether it is reasonable to leave a patient in the care of others depends on all the circumstances.

It should go without saying that it would be better if universities teaching paramedical science degrees did not communicate information that is clearly wrong.

 

Categories: Researchers

RFS historic appliances and registration

19 March, 2018 - 20:45

Another question about registration exemption for RFS vehicles.  This question relates to heritage vehicles. RFS Heritage is a Committee that is “Preserving Yesterday’s RFS History for Tomorrow’s Generations”.  My correspondent has noted that RFS Heritage has vehicles and

… they’re using them on the road (a few recent videos on a cruise with them all in convoy) to various events. They don’t display any other historical registration plates and only the “heritage” signage on the front/rear where a Brigade name would usually appear in order to enable the exemption. Thus, I’m curious as to how it could enjoy RFS registration exemption provisions as it’s not operational nor attached to a brigade.

It may be that RFS Heritage has been created as a brigade but that is only part of the issue.  As noted in my earlier post (NSW RFS appliances don’t need to be registered (March 6, 2018)) to enjoy the exemption the vehicle must be attached to a brigade it must also be used for an approved purpose. Those purposes include

  • being “used to convey persons or equipment to or from the work of preventing, mitigating or suppressing fires in rural fire districts (including clearing fire breaks or removing inflammable material)” (Road Transport (Vehicle Registration) Regulation 2017 (NSW) Schedule 1, cl 12(b)); or
  • other functions of the NSW Rural Fire Service that the Commissioner of the NSW Rural Fire Service or a fire control officer within the meaning of the Rural Fires Act 1997 may approve for the purposes of the exemption (cl 12(c)(v)).

It may be that the Commissioner has approved the use of the vehicles as protecting the heritage of the RFS is an important part of the administration of the RFS as is the value of heritage vehicles in recruiting.

If however the vehicle is not attached to a brigade and is not being used for one of the purposes listed in cl 12 then it cannot enjoy the exemption and would need to be registered or have some other exemption, if it is to be driven on the road.

 

Categories: Researchers

FRNSW responding to a s 44 fire.

19 March, 2018 - 20:16

A correspondent says:

Recently we had a large bush fire burning in our area, the local NSWRFS team were under S44. We then had a scrub fire in our area (FRNSW) and had assistance from the local NSWRFS at the job. One of the group officers stated they were in charge due to the S44. I don’t understand how that works, when they were responded in to FRNSW area. I thought that in FRNSW area the fire brigades act would overrule the Rural Fires Act.

The Rural Fires Act 1987 (NSW) s 44 says:

(1) The Commissioner is to take charge of bush fire fighting operations and bush fire prevention measures and to take such measures as the Commissioner considers necessary to control or suppress any bush fire in any part of the State if, in the opinion of the Commissioner:

(a) a bush fire has assumed or is likely to assume such proportions as to be incapable of control or suppression by the fire fighting authority or authorities in whose area or locality it is burning, or

(b) the prevailing conditions are conducive to the outbreak of a bush fire likely to assume such proportions, or

(c) a bush fire is not being effectively controlled or suppressed by the fire fighting authority or authorities in whose area or locality it is burning, or

(d) a bush fire is burning in a place that is not the responsibility of any fire fighting authority.

(2) The Commissioner may delegate the Commissioner’s functions under this Division (other than this power of delegation) to 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, Skills and Regional Development, a person employed in the Office of Environment and Heritage or any other person.

Section 44 falls within Part 3 of the Act. Part 3 is headed “Co-Ordinated Bush Fire Fighting”.

With respect to the scenario painted by my correspondent it’s impossible to say whether the scrub fire fell within the s 44 declaration without seeing the declaration and identifying the area where it applied. If it applied to a particular fire, the subsequent scrub fire may have been a different incident and outside the s 44. On the other hand if the declaration applied across the local government area then any bush fire in that area would be caught by the s 44.  It’s impossible to say what the extent of the s 44 declaration is without seeing the declaration.

What one can say, in general terms, is that where a s 44 declaration is made ‘The Commissioner is to take charge of bush fire fighting operations…’  In the normal course of business, the RFS is responsible for providing fire services within a rural fire district (Rural Fires Act 1997 (NSW) s 9) whilst Fire and Rescue NSW is responsible for providing fire services in a fire district (Fire Brigades Act 1989 (NSW) s 6).  When, however, Part 3 of the RFS Act is activated, that is during a s 44 incident, the scope of operations for the RFS is extended ‘throughout the State’ (s 9(4)).  The whole point is to ensure coordinated firefighting and to allow for the appointment of an incident controller who is best qualified to manage the incident without regard to where the fire is burning or whose ‘area’ the fire is in.

In short when a s 44 declaration is made, the Rural Fires Act overrules the Fire Brigades Act, not the other way ‘round (at least with respect to bush fires as opposed to structural fires).

Conclusion

Assuming that the scrub fire that my correspondent attended was covered by the terms of the s 44 declaration, then it follows that subject to any delegation from the RFS Commissioner it would be the RFS that was in charge of the response, assisted by FRNSW.

Categories: Researchers

Obstructing paramedics

12 March, 2018 - 14:11

Today’s question is:

It is my understanding that in most of Australia it would be an offence to prevent an Ambulance Officer from doing their job on the basis of ‘obstructing a public officer’ being a crime. Is this correct?

In WA, as you are clearly aware, the Ambulance Service is not provided by the government itself, but rather by St John Ambulance WA under some agreement or contract. Are there provisions that give SJA officers in WA similar protections to those that public officers have?

The problem with the question is the underlying premise is wrong.  There is not some general offence of ‘obstructing a public officer’ at least not one in every state.  It so happens that obstructing a public officer is an offence in WA (Criminal Code Act 1913 (WA) s 172) but as noted a WA paramedic is not a ‘public officer’ (Criminal Code Act 1913 (WA) s 1, definition of ‘public officer’).

The reason it is an offence to obstruct a paramedic in NSW is not because a NSW paramedic is a public officer, but because the Health Services Act 1997 (NSW) s 67J ‘Obstruction of and violence against ambulance officers’ says it is; in Queensland it’s an offence to ‘wilfully  obstruct  or hinder any person acting under the authority of this Act’ because of the Ambulance Service Act 1991 (Qld) s 46; in Tasmania the relevant offence is in the Ambulance Service Act 1982 (Tas) s 39B.  There is no specific offence of ‘obstruct ambulance officer’ in either the Ambulance Services Act 1986 (Vic) or the Health Care Act 2008 (SA).  Neither the Northern Territory nor Western Australia have ambulance services legislation.

Conclusion

It is not the case that obstructing an ambulance officer is an example of some generic offence of ‘obstructing a public officer’. It is an offence because the ambulance service legislation in New South Wales, Queensland and Tasmania says it is.

Whether obstructing an ambulance officer in WA is an offence would depend on the circumstances and the general criminal law (eg it is an offence to assault a paramedic as it is an offence to assault anyone – Criminal Code Act 1913 (WA) s 223) but there is no specific offence of ‘obstruct paramedic’ in WA and as my correspondent has noted, the Western Australian offence of ‘obstructing a public officer’ won’t apply as paramedics employed by St John Ambulance (WA) are not ‘public officers’.

Categories: Researchers

Drug use by Ambulance Victoria paramedics

12 March, 2018 - 13:46

Two related stories have come out regarding drug use by Ambulance Paramedics.  The first is the report by Victoria’s Independent Broad-based Anti-corruption Commission (IBAC) ‘into allegations that Ambulance Victoria (AV) paramedics engaged in serious corrupt conduct, namely the theft, trafficking and use of drugs of dependence, and misappropriation of AV equipment’ (Operation Tone: Special report concerning drug use and associated corrupt conduct involving Ambulance Victoria paramedics (Independent Broad-based Anti-corruption Commission, September 2017), p. 5).

No doubt related to that is news that Ambulance Victoria was fined $400 000 for failing to ensure a safe workplace (‘Ambulance Victoria fined following paramedic’s death’, WorkSafe Victoria News, March 9 2018).

The court was told Ambulance Victoria had exposed the paramedic and volunteer officers at the station to health and safety risks by failing to minimise the potential for illicit access to morphine and fentanyl.

Operation Tone

During the IBAC investigation (p. 7):

Twenty-two paramedics were investigated… They included ALS level paramedics, clinical instructors and graduates. Operation Tone found that several line managers were aware of widespread practices such as the misappropriation of AV equipment for personal use, but were not directly involved.

During the course of the investigation (p. 5):

… one paramedic was terminated and eight paramedics resigned while under investigation. Six paramedics retained their employment with a formal warning; of these, five were relocated to different regions for varying periods, were enrolled in an ethics counselling course, and precluded from development opportunities for 12 months…

Further (p. 11):

Around the time of – and during – IBAC’s investigation, there were two further instances of misappropriation of fentanyl. One AV paramedic, who was alleged to have stolen fentanyl, died in October 2015 and fentanyl was subsequently found to have been involved. Separately, another paramedic selfreported that they had stolen fentanyl. The paramedic was subsequently dismissed and later died from a suspected drug overdose, however it is not known whether fentanyl was involved.

The Commission found evidence of:

  • Misappropriation and use of AV drugs of dependence (pp. 11-13);
  • Use and trafficking of drugs of Dependence (pp. 13-15);
  • Unauthorised cannulation by paramedics (pp. 15-16); and
  • Misappropriation of AV equipment (p. 16).

The Commission recognised the complexity of the situation facing AV.  It said (at p. 25):

The possibility of misappropriation will always be an issue for AV. IBAC recognises it is a delicate balance in empowering paramedics to make life-saving, timecritical decisions within the context of a sound risk management framework.

Even so there were ways that AV could further secure the supply of drugs and reduce opportunities for misappropriation. The IBAC recommended (p. 30):

That AV conduct a comprehensive review of the use of illicit drugs and misuse of drugs of dependence by AV employees, as well as the development and implementation of a more robust framework to prevent and detect such drug use. The review should consider, among other things:

  • the development and communication of a clear policy on the use of illicit drugs and misuse of drugs of dependence, and the consequences of such use by AV employees, with reference to contemporary best practice
  • the adequacy of the current drug testing regime and how it can be improved (eg by conducting random testing of a minimum percentage of the workforce)
  • the adequacy of current drug controls, including drug disposal processes
  • improving training and communication to operational employees on relevant policies, including drug handling policies and procedures, and use of AV equipment for personal use
  • ensuring mechanisms are in place to encourage employees to report suspected misconduct or corrupt conduct including illicit drug use, misuse of drugs of dependence and misappropriation of equipment
  • strengthening recruitment processes and policies to more effectively identify and manage risks
  • providing appropriate welfare and support arrangements to employees who appear to be using illicit drugs and/or drugs of dependence.

AV is to provide IBAC with a progress report by 30 March 2018 and a final report by 28 September 2018 on the implementation of this recommendation.

The recommendations that AV both ensure ‘mechanisms are in place to encourage employees to report suspected misconduct or corrupt conduct including illicit drug use’ and, at the same time provide ‘appropriate welfare and support arrangements to employees who appear to be using illicit drugs and/or drugs of dependence’ highlight the competing demands on any organisation but particularly one that exposes its staff to the sorts of experience that are inherent in ambulance work. On the one hand they need to monitor their staff and act decisively, almost punitively, when they discover that their staff are misappropriating, or worse, dealing in scheduled drugs but equally they owe a duty to their staff to support them by on the one hand having procedures to limit the ability of staff to access means to harm themselves, but to also recognise and assist with the inevitable harm that working as a paramedic causes.

Failing to ensure that staff couldn’t access drugs and that procedures weren’t in place to allow them to identify and hopefully support, not just sack, paramedics who were using drugs would appear to be the basis of the prosecution by WorkSafe Victoria.

The impact of registration

Having outlined the event, I want to consider what impact paramedic registration may have on this matter or events like it in the future.  IBAC identified forthcoming paramedic registration as an issue (p. 24). It said:

Under the [National Registration and Accreditation Scheme] NRAS, national boards and [the Australian Health Practitioner Regulatory Authority] AHPRA work together to ensure that practitioners are appropriately qualified and competent to practise a registered health profession…

In relation to nurses, AHPRA works closely with that profession’s national board to conduct random urine drug screens and tri-monthly hair tests for those who have an identified substance-related impairment. A former paramedic who is now a nurse, is subject to that process and advised IBAC they ‘…had restrictions that I couldn’t work casually and that I had to inform the organisation I was working for of all my conditions and that they had to provide a three monthly report detailing how I’m progressing’.

Inclusion in the NRAS adds another layer of complexity around drug testing for AV. AV will need to establish how its drug testing arrangements will complement that administered by the national regulator.

The consequence of the IBAC review was that one paramedic was sacked and six resigned.  Six remained employed but with conditions on their employment.  The problem for others is that we don’t know who those paramedics are.  There may be informal ‘back channels’ between ambulance services to stop those 7 former AV paramedics getting employed elsewhere but the community don’t know that.  And should their careers be terminated? They have extensive skills that are of value to the community, a community that has spent a great deal of taxpayers money training them.  The community may be better served if they could continue to use those skills for the public benefit.  As for those paramedics still employed by AV again we don’t know who they are and a patient, or new employer, may not be aware of the restrictions on their practice. And finally, the ultimate decider of what conditions or restrictions to apply is Ambulance Victoria, but as noted, Ambulance Victoria has multiple interests here – protecting its own reputation and legal standing; protecting community confidence; ensuring high quality patient care and also supporting its staff.  As an agency facing prosecution AV may want to be seen to take severe measures as that may go to reduce its penalty but is that best for staff?

Professional registration may change this. First the paramedics found to have done the wrong thing can expect to face an inquiry by the National Board.   The Board may refer them to a Health Panel or a Performance and Professional Standards Panel.  These panels, made up of three members including at least one registered paramedic.  Unlike a court, the panel hearings are not open to the public.   Where a panel determines that the paramedic ‘has an impairment, or … has behaved in a way that constitutes unsatisfactory professional performance or unprofessional conduct’ then it may suspend their right to practice or allow them to continue to practice subject to conditions (Health Practitioner Regulation National Law cll. 181-192).  Once conditions are imposed they are recorded on the register so anyone can identify the conditions applying to any paramedic (s 225).

The value of allowing someone to practice is that it retains their skills for the community.  And if someone has an impairment, even one that manifests itself in drug taking, removing their identity (“I am a paramedic”) and their ability to earn an income is unlikely to assist them to overcome the issues that has led to their drug taking or otherwise deal with their impairment.

Where the tribunal thinks that the matter warrants more significant penalties, in particular that the evidence may warrant the paramedic being ‘struck off’, the matter can be referred to the ‘responsible tribunal’ (s 190).  In Victoria the responsible tribunal is the Victorian Civil and Administrative Tribunal (VCAT); Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) s 6)).  The tribunal can determine that a registered paramedic is to be struck off the register or to be allowed to practice subject to conditions Health Practitioner Regulation National Law cll. 193-198).

Where a person is struck off, every potential employer will be able to identify that they were struck off, and why.  If a person thinks that result is too harsh, they will be able to see why the Tribunal was of the view that it was the appropriate remedy. Alternatively, if that is not the result people will be able to see why.

By virtue of a national registration scheme and published reasons for decisions, paramedics who find themselves in the same position will be able to find an indication of what the likely consequence will be.  And that will apply across jurisdictions. The ACT Civil and Administrative Tribunal (ACAT) will be able to see how VCAT has dealt with like cases and one can expect, or at least argue, for a similar result. That will see paramedics treated the same rather than being subject only to their employer’s determinations.

Before a Tribunal (and a panel), a paramedic will be entitled to ‘natural justice’ which means they’ll be able to put material before the Tribunal to explain their position, what they’ve done to address their drug taking etc and to make submissions as to the response the Tribunal should make. This may or may not happen with their employer but is guaranteed before the Tribunal.

And the employer has to look to their own interests the way a panel or the Tribunal does not. The employer that sits in judgment of its staff is also considering its own best interests.  For the panel or the Tribunal, the issue will be an independent assessment of the community risk.

Conclusion

The release of the IBAC Report and the prosecution of Ambulance Victoria reveals that AV is expected to manage the risk to staff and the community and like many companies and individuals, it faces criminal prosecution if it fails to do so.

For paramedics however having AV as both the employer and regulator of their practice may give rise to a perceived conflict of interest.  With professional registration, whilst employers will still be able to hire and fire staff, it will the  Health or Performance and Professional Standards Panels and/or the relevant Tribunal that will determine whether a registered paramedic is to be allowed to remain on the register or subject to conditions on their practice.  Once that has been determined the information will mean that paramedics who have been struck off cannot obtain employment elsewhere whilst those that have been found to have an impairment may be better assisted to recover with the promise of being able to return to their career.

Whether that will lead to better outcomes for paramedics remains to be seen but at least it will be more transparent than current arrangements so should maintain community confidence and also allow employers to leave determinations to others.  This will make decisions to retain impaired paramedics easier to justify to the court of public opinion if an independent tribunal, that includes paramedic representatives, has determined that the paramedic should be allowed to continue to practice.

Categories: Researchers

Performing an Emergency tracheotomy (or life mimics art?)

11 March, 2018 - 17:44

A correspondent writes with details of a news story from New Zealand.  They say it:

… got me thinking about life saving interventions and scope of practice.

You can view the article here: http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12009987

It relates to a midwife performing an emergency tracheotomy utilising a Stanley knife whilst off duty. I do not imagine even whilst on duty the scope of practice of the midwife would include such an intervention. She mentions reading about the skill in a book, but no specific training.

I am a paramedic working for one of the state services and have spent time working in the UK. As a paramedic currently, I am not trained to undertake such a skill, generally reserved for an intensive care paramedic or doctor.

If I was to undertake this intervention it would be exceeding my scope of practice and I have received no specific training on how to undertake such an intervention.

My conundrum is this:

If I was on shift and did such an intervention I may be reprimanded, especially if the outcome was poor

If I was off duty and performed it on a member of the public, I could be congratulated as a hero

I feel as if I would have more protection as a member of public with some medical knowledge as opposed to my role whilst on duty as a paramedic.

I think your conclusions are basically correct.  Let me, for the sake of the argument, assumes this happened in Victoria.  In Victoria the Wrongs Act 1958 (Vic) s 31B(2) says:

A good samaritan is not liable in any civil proceeding for anything done, or not done, by him or her in good faith—  (a) in providing assistance, advice or care at the scene of the emergency or accident …

Was this Act done ‘in good faith’?  That term is not defined.   To quote from an earlier post (Good Samaritan legislation and scope of practice (March 27, 2015)), and noting the irony that my example was a person performing a tracheostomy) I said:

The key is ‘good faith’. One could argue that undertaking action that you know you are not trained is not ‘good faith’ but I don’t believe that would be the outcome. The key case on good faith is Mid Density Developments Pty Limited v Rockdale Municipal Council [1993] FCA 408. This case involved a question of whether the council acted in good faith when giving advice in relation to a properties flood risk. In the course of their judgment Gummow, Hill and Drummond JJ said (at [24]):

His Honour found that the statutory concept of “good faith” in the performance of the functions in question, included two criteria. The first was that the act be done bona fide and not maliciously or to achieve an ulterior purpose. The second was that there be “a genuine attempt to perform the function correctly, that is to say that the function should not be performed without caring whether or not it be properly performed”.

With resect to the section in question they went on to say (at [34]) ‘ The statutory concept of “good faith” with which the legislation in this case is concerned calls for more than honest ineptitude. There must be a real attempt by the authority to answer the request for information at least by recourse to the materials available to the authority’.

Applying that reasoning to the good Samaritan provisions requires that the intervener is acting ‘not maliciously or to achieve an ulterior purpose’ so they’re acting to assist the injured person, not to steal their wallet or do them harm and it’s a genuine attempt not to harm the person, ie to do the right thing. So a person who is confident in the use of oxygen and who genuinely believes that oxygen is warranted in the best interest and to avert harm to the patient is acting in good faith when they administer that oxygen; or use the person’s epi-pen or help them with their ventolin, or do CPR or use an automatic defibrillator. The person who says ‘I always wanted to do a tracheostomy using a Swiss army knife and a pen (as in M*A*S*H Season 5 Episode 8, ‘Mulcahy’s War’) [hence my comment that life mimics art] and now I can because I can’t be sued’ is not acting in good faith.

It should be noted that whether or not one has a ticket or qualification to do something in no way determines whether or not one is negligent. A person who is unlicensed may be a perfectly safe and competent driver; a person with a licence may be a menace. Whether or not one holds a licence or certificate does not determine whether or not they are negligent in any particular case. There is no law that says one needs any particular authority to use oxygen. In a negligence action the question would be ‘was the use of oxygen reasonable?’ and with the good Samaritan provision, was it done ‘in good faith?’

The midwife in this story did not perform the procedure because she saw the chance to do something she always wanted to do, she did it because she had training, she identified the seriousness of the situation – the reality is he “… was a goner so there was nothing to lose.”  She was a good Samaritan so in Victoria (and in every Australian state) she would be protected.

But does she need those protections? In this case, no as she wasn’t negligent, and she didn’t cause any harm. It was a good result all ‘round so the ‘good Samaritan’ protections are irrelevant.  Even if he’d died, we can infer that without intervention he would have died.  Had she attempted this procedure and he died, then she hasn’t made the outcome any worse. In the absence of damage there’s no liability so again there is no issue and the ‘good Samaritan’ protections are irrelevant.

What about the on-duty paramedic?  He or she is not a good Samaritan as they are at work with the expectation of getting paid; they are there because it’s their job to be there.  Performing work outside their skills and training may lead to a reprimand, but that’s got nothing to do with the law and something to do with their employer.  From a legal perspective, again if there is a good outcome what’s the issue?  If there’s a poor outcome, that was inevitable in any event.

Paramedics have moved from automatons – condition A, do procedure B – to health professionals. Protocols have been replaced with Guidelines and on the job training with tertiary education to consider the ethics of practice and to allow paramedics the flexibility to think ‘if procedure B isn’t working, what other options might I have?’   The law would be no harder on the paramedic in this scenario than on the off-duty midwife.  The employer’s attitude is a matter for the employer and hopefully, the paramedic’s union.  I would expect however that if there’s a good result the paramedic is also a hero and if the media picks up on that, the employer will have some difficulty giving him or her a hard time.

Remember too, that the treatment of the unconscious is justified by necessity (In Re F [1990] 2 AC 1).

… 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.

I would not be acting reasonably if I attempted that procedure, but a paramedic (or a midwife or a nurse or a doctor) may do. The reason I wouldn’t attempt such a procedure is that it is so far outside of my skill set and experience that any attempt by me would be no more than ‘honest ineptitude’, but a qualified health professional, with experience in dealing with bodies and, to put it crudely, experience with actually taking a knife and cutting another person and have fingers, if not hands inside another person, may well think that whilst this is beyond the norm it’s not so foreign to what I’m used to that ‘I can do it’.   As the midwife in this story said ‘”I didn’t find it frightening – it was just the next thing that had to happen if we were going to keep him with us.”

A paramedic, on or off duty, will no doubt be aware that the procedure is extreme, “… it should only be used as an absolute last resort – even by doctors”, they “certainly wouldn’t recommend it because “a lot can go wrong” but “”When everything else has been tried and the person is going to die for want of an airway – the person is on death’s door and has lost their pulse” and “There [is] absolutely no other choice” then a reasonable paramedic may well think “it’s this or it’s certain death so I’ll give it a go”.   That doesn’t mean that they were negligent or that the action was not anything other than that which “a reasonable person [with equivalent skill and experience] would in all the circumstance take, acting in the best interests of the assisted person.”

Conclusion

One doesn’t want to encourage reckless behaviour but, in some circumstances,, when it’s a choice of life or death – do nothing the person dies, do something and it may help – then the law encourages action.  That is the very purpose behind the good Samaritan provisions and they would apply to anyone including the off-duty midwife and paramedic. When at work those protections don’t apply but they’re not really relevant. If the outcome is good, the outcome is good; if the outcome is bad it was going to be bad anyway.

 

Categories: Researchers

Frequently asked questions

11 March, 2018 - 14:58

This blog has been around since 2009 so it’s no surprise that questions recur.  It’s ok to ask questions on subjects that have already been discussed because the answers do vary from jurisdiction to jurisdiction and over time and the facts or circumstances may be different. But for those looking for a shortcut, here’s a list of frequently asked questions and a link that will search the blog to bring up relevant prior posts.  Have a look at those, but if your question is still unanswered, feel free to send me an email at

michael.eburn(at)anu.edu.au

(but remember to use ‘@’ instead of ‘(at)’.

 

 

 

 

 

 

 

 

 

 

Further each post is assigned one or more categories, so you may find what you are looking for by looking for posts by category:

  1. After action review
  2. Ambulance
  3. Blogroll (about this blog)
  4. Communication
  5. Criminal law
  6. Disciplinary matters
  7. Driving and Road Rules
  8. Fire
  9. First aid
  10. Flood
  11. Health Professional Registration
  12. Insurance and NDRRA
  13. International response
  14. Legislation and plans
  15. Litigation
  16. Negligence
  17. OHS (or WHS since 2011)
  18. Paramedics
  19. Rescue
  20. SES
  21. Storm
  22. Trainer and training
  23. Volunteer compensation

 

Categories: Researchers

Buy, sell or swap uniform items?

10 March, 2018 - 22:56

Today’s correspondent wants to know about collecting emergency service uniform and memorabilia,

… what authority can/do collectors need? Obviously, the miss use of uniforms is a concern. The reason I ask is I am with the VRA and admin of their page and an autistic teenager has been hassling us for uniform items. Also of concern is that he appears to have a FRNSW Commissioner helmet and epaulettes. What advice can you give please?

The reference to VRA and FRNSW implies (and I’ll infer) that my correspondent is from NSW.

With respect to a collector, the State Emergency and Rescue Management Act 1989 (NSW) says, relevantly:

(2) A person who:

(a) uses or displays emergency services organisation insignia, or

(b) impersonates an emergency services organisation officer,

with the intention to deceive is guilty of an offence.

Maximum penalty: 50 penalty units.

(2A) A person who:

(a) impersonates an emergency services organisation officer with the intention to deceive and purports to exercise a function of such an officer, or

(b) impersonates an emergency services organisation officer with the intention to deceive in order to facilitate the commission of an offence,

is guilty of an offence.

Maximum penalty: 100 penalty units.

(3) A person is not guilty of an offence under this section if:

(a) the person’s conduct is authorised by the relevant emergency services organisation, or

(b) the person establishes that the conduct is for the purposes of a public entertainment, or

(c) the person establishes that the person has a reasonable excuse.

(4) In this section:

“emergency services organisation insignia” means:

(a) any items (being uniforms, insignia, emblems, logos, devices, accoutrements and other things) that are generally recognised as pertaining to an emergency services organisation (other than the NSW Police Force) or as being used by an emergency services organisation officer, or

(b) any parts of any such items, or

(c) any reasonable imitation of any such items or parts, or

(d) any thing or class of thing prescribed by the regulations as being within this definition (whether or not it may already be within this definition),

but does not include any thing or class of thing prescribed by the regulations as being outside this definition.

“emergency services organisation officer” includes an employee, member, volunteer or any other person who exercises functions on behalf of an emergency services organisation (other than the NSW Police Force).

There are no things ‘prescribed by the regulations’ as being in, or out, of the definition of “emergency services organisation insignia”.

The collector

For the collector of emergency services uniforms, an offence is only committed if he or she uses the uniform or insignia to impersonate an emergency services officer (ss 63B(2) and (2A)) with an intent to deceive.  Merely having the items is not an offence, so a collector can choose to collect shoulder patches, uniforms, hats etc whatever he or she likes.   And note that there are defences set out in s 63B(3) so wearing a uniform because a person is an actor and playing a role is not an offence.

The person who sells or swaps uniform items

Of more interest is s 63B(1) that says:

 A person who manufactures or sells emergency services organisation insignia is guilty of an offence.

Maximum penalty: 50 penalty units.

Putting aside ‘manufacture’ the offence is committed by selling insignia.  A member who, if asked, sells any part of his or her uniform to a collector, or a shop such as an op-shop that sells an emergency service uniform, commits an offence.  Sell is defined to mean:

… sell, exchange or let on hire, and includes:

(a) offer, expose, possess, send, forward or deliver for sale, exchange or hire, or

(b) cause, suffer or allow any of the above.

Merely giving away items so giving a gift to a collector is not selling, exchanging or letting on hire so that would not be caught by s 63B(1).  If a person gives their uniform in exchange for money that is a sale; if they give it in exchange for a non-money benefit (eg swapping shoulder patches with an officer from another service) then that is ‘exchange’ and would be included as part of the extended definition of ‘sell’.  The defences in s 3 can still apply, so there is a defence if the ‘sale’ is ‘authorised by the relevant emergency services organisation’, or it is accepted that there is a ‘reasonable excuse’. That may apply if for example a contingent from an Australian service is deployed or training with colleagues from an overseas service and memorabilia is exchanged to display on the walls or each service or the like.  But, relevant to the question I was asked, it is worth noting that the sale or exchange of uniform items may be an offence.

The ‘Nemo dat’ rule

There is another issue when it comes to uniforms and that is the question of property – ie who owns them. I would anticipate that it would be accepted that uniform items issued by a service remains the property of that service.  There is legal rule that, because we can, we lawyers say in latin, it is Nemo dat quod non habet (or the ‘Nemo dat’ rule).  The Oxford Online Reference says ‘[Latin: no one can give what he has not got] The basic rule that a person who does not own property (e.g. a thief) cannot confer it on another …’  Or, in English, you cannot give better title than you have got.

If a member of the emergency services has been issued with some uniform or uniform items that remain the property of their service, they can’t pass ownership to someone else.  If they do give the items to another person, the items remain the property of the emergency service and they can seek to get those items back.  The person who receives the items in good faith (eg they swamp them thinking the person giving them has the right to do so) may not be guilty of any crime, but they still don’t own the uniform items as the person giving them had no property to transfer – Nemo dat!

Larceny by a bailee

The member who gives away their uniform or uniform items may be guilty of an offence such as ‘larceny [or stealing] by a bailee’ (Crimes Act 1900 (NSW) s 125).  A bailee is someone who has been entrusted with someone else’s property and they are guilty of stealing that property if they treat it, and dispose of it, as if it where their own.

Larceny by a bailee won’t be relevant where the uniform items or items with uniform insignia (bags, hats, off-duty shirts etc) are items that the members buy for their own use.  These belong to the member so there is no issue of being a ‘bailee’, but all of the discussion above about selling or exchanging items with emergency service insignia continues to apply.  So how do companies justify selling bags and shirts with the logos on them? Presumably they have some permission or endorsement from the service involved and hopefully only sell those items to members of those services.

Conclusion

The answer to the question asked is that people don’t need any special authority to collect emergency service memorabilia, they just must not use the memorabilia to deceive anyone or to impersonate an emergency service officer.  The restrictions are not on the collector but the people who might sell or swap emergency service insignia.  People who have been issued with uniforms must not sell or swap those items and if they do, and if the items were issued to them but remain the property of the service, the person who takes them does not then become the owner.

 

 

 

Categories: Researchers

NSW Paramedics authority to carry drugs – NSW Ambulance and private providers

10 March, 2018 - 18:14

Today’s question returns to the issue of the authority to carry scheduled drugs.  My correspondent says the question:

… has come up serval times in my career.  Who can carry and administer restricted medication (S8’s)? In NSW Ambulance Qualified Paramedics and above receive a letter as part of the Certificate to Practice. This letter is issued by NSW Ambulance and outlines which restricted medications you can carry. Under what authority is this authorisation given? Outside of NSW Ambulance who can authorise Paramedics to carry and administer restricted medications. I have been told recently by an Event Paramedic that the company’s Doctor authorises them to have and administer S8’s. How does this fit with any legal requirement?

NSW Ambulance

Carrying scheduled drugs is an offence without a relevant authority.  For NSW Ambulance the authority is found in Poisons and Therapeutic Goods Act 1916 (NSW) and the Poisons and Therapeutic Goods Regulation 2008 (NSW).  Regulation 129 says ‘Each person specified in Appendix C is authorised to possess and use the substances specified…’  Clause 7 of Appendix C says:

A person:

(a) who is employed in the Ambulance Service of NSW as an ambulance officer or as an air ambulance flight nurse, and

(b) who is approved for the time being by the Director-General for the purposes of this clause,

is authorised to possess and use any Schedule 2, 3 or 4 substance that is approved by the Director-General for use by such persons in the carrying out of emergency medical treatment.

With respect to Schedule 8 drugs r 101 says:

(1) The following persons are authorised to have possession of, and to supply, drugs of addiction [ie Schedule 8 drugs]:…

(g) a person:

(i)        who is employed in the Ambulance Service of NSW as an ambulance officer or as an air ambulance flight nurse, and

(ii)       who is approved for the time being by the Director-General for the purposes of this clause.

(The office of Director-General has been retitled the Secretary of the Ministry of Health (Government Sector Employment Act 2013 (NSW); Statute Law (Miscellaneous Provisions) Act 2014 (NSW); Administrative Arrangements Order 2014 (NSW) cl 7; Health Legislation Amendment Act 2016 (NSW); Health Administration Act 1982 (NSW) s 8)).

Therefore, the authority to allow ambulance officers to carry scheduled drugs lies with the Secretary. The Secretary, in turn, can delegate that power (Interpretation Act 1987 (NSW) s 49).  I don’t know but would infer that the power may have been delegated to the Chief Executive of the Ambulance Service of NSW or some other officer holder within the Ambulance Service. Whoever holds the delegation (if anyone) can then approve the use of scheduled drugs by appropriately trained paramedics within New South Wales Ambulance.

Private providers

There are no provisions akin r 101 or cl 7 of Appendix C for the private providers. However r 170 says:

(1) The Director-General may issue authorities for the purposes of the Act and this Regulation…

(4) An authority may be issued to a particular person (by means of an instrument in writing given to the person) or to a specified class of persons (by means of an instrument published in a manner approved by the Director-General).

The Director-General (or his or her delegate) can issue authorities to people to use scheduled drugs.  He or she may have delegated that authority to a person within the Department or an office holder such as the Medical Director of a private ambulance service.  If that is the case then that person, ‘the company’s Doctor’, may have the authority to authorise paramedics to carry and use drugs.

Alternatively, the Secretary may have given an authority to ABC Ambulance that says, in effect, ‘Persons approved by the Medical Director of ABC …’ That would be an authority ‘to a specified class of persons’ ie the class of persons approved by the Medical Director.  Exactly how it’s been done I can’t say but the authority does exist, and one assumes it has been properly done.

What is important to note is that a doctor can’t authorise people to carry drugs just because they are a doctor – they have to have some specific authority or delegation under the Poisons and Therapeutic Goods legislation.  See:

 

 

Categories: Researchers

Revisiting the status of volunteer rural fire brigades in Queensland. 

9 March, 2018 - 09:56

Today’s post again revisits the vexed question of the status of volunteer rural fire brigades, again in Queensland.  See also:

As noted today’s correspondent is from Queensland. They say:

A survey is presently being carried out through a series of meetings around the state, to address concerns that rise primarily from the effects of the unincorporated status of rural brigades as community service providers.  Our brigade has been part of this process, and we have attempted to clarify the areas of our concern.

The rural firefighters I have spoken with have become volunteers to serve their communities.  None have sought to join a state authority.  Our brigade has and wishes to continue to offer a range of community services that lie outside those covered by the Fire and Emergency Services Act.

They then go on to pose some questions;

Our brigade has been concerned that members might become personally liable when engaged in activities that might be argued are not under the direction of QFES.  The following hypothetical seems all too possible:

Brigade members are controlling parking at the local showgrounds market; an activity that earns a significant income from ‘gold coin’ donations.  The road outside the showgrounds is the only connection between the north and south of the Mountain, and a roundabout gives access to the showgrounds.

The queue of incoming vehicles stops moving and fills back to the roundabout.  Traffic is gridlocked.

The senior brigade officer on site tasks a firefighter with directing traffic to keep the roundabout clear.  This instruction is given under an understanding previously agreed with the local police sergeant.

There is a traffic accident in the melee at the roundabout, with property damage and a person hospitalised.

The ensuing enquiry establishes that the understanding with the police was a verbal one, but with the previous police sergeant.  The new sergeant had not given such a direction.  The firefighter has no accreditation from the Department of Transport and Main Roads as a traffic controller and has received no training in traffic control.  Brigade members are accused of negligence.

  1. When the situation slides like this, from one in which the chain of responsibility is clear, to one in which it has become less so, can the volunteer expect the support of QFES?
  2. Must RFBs fall back on the volunteer provisions of the Civil Liabilities Act?
  3. Would you expect that they would be required to defend themselves in court?
  4. If so, what support might they expect from QFES?

Another scenario:

A storm cell has brought down many trees across the Mountain.  The first officer calls brigade members to the station and sends chainsaw crews out on patrol with instructions to assess, report, and begin clearing fallen vegetation.  This deployment is called in to Firecom as community support.

Later, when a team of SES volunteers arrives at one of the sites, their controller announces that they will be taking over the work.

There are no directives in the rural fire brigade manual covering this type of spontaneous response to extreme weather events of short duration.  (These events develop and are over before any activation of the QFES Severe Weather Alert system.)

  1. In responding as described above, is the brigade acting within the remit of QFES, or have they moved into uncharted waters?
  2. How is the RFB to respond to the SES controller?

The sense of unease expressed above extends to the issue of equipment bought by the brigade with brigade-raised funds.  We would like to have clear ownership of these assets, with the ability to buy and sell, and to also to engage contractors, to employ staff, etc., etc.

In 2013 your advice was that rural fire brigades in Queensland should become incorporated associations.  That option was the elephant in the room.  However, I’ve been following the paper trail on the matter of whether our brigade might incorporate, and it seems to me that incorporation isn’t an option.

The commissioner has effective control of any rural fire brigade by virtue of sections of the Fire and Emergency Services Act 1990, s 79 – 82. 

In the Association Incorporations Act 1981, s 5, I read, “(1) An association is not eligible for incorporation under this Act if the association – (d) is provided for in a special Act that— (iii) specially regulates its affairs”.

It seems to me that, being unincorporated associations operating under the provisions of the Fire and Emergency Services Act, RFBs in Queensland are disqualified from becoming incorporated associations.  Certainly, the writer of the following QFES directive agrees with that interpretation:

D1.6 Rural Fire Brigade Manual Effective Date: September 2017

Social Clubs

What I Need to Know and Why

  • This procedure outlines the requirements and restrictions which apply to rural fire brigades in regards to social clubs and conducting social activities.
  • Rural fire brigades operate within a written set of Queensland Fire and Emergency Services (QFES) endorsed Brigade Management Rules and are able to conduct social activities under existing structures and procedures. Therefore, brigades cannot become incorporated under the Association Incorporations Act 1981.

I have not been able to find this critical information elsewhere and find it curious that it’s tucked away here.  My impression is that the directive was produced in response to an attempt by an RFB to better manage ‘social activities’ through incorporation.

  1. Would you now agree that RFBs in Queensland cannot become incorporated associations?
  2. If so, could a trust, formed by supporters and independent of QFES, satisfy the desire to responsibly manage the brigade’s community service activities, to raise and control funds, to purchase and maintain ownership of certain assets, to employ staff, hold public liability insurance, etc.?

I’ve also been provided with extract from the Rural Fire Brigade Manual in particular

  • D1.3 Legal Matters: What I Need to Know and Why (Effective Date: September 2017); and
  • D1.3.1 Protection from Liability (Effective Date: September 2017); and

The answers are really set out in those documents but I’ll add some comments.

Incorporation

The comment ‘In 2013 your advice was that rural fire brigades in Queensland should become incorporated associations’ came as a bit of a surprise.  First let me again note that this blog is not advice given to anyone in particular, it is a discussion forum based on necessarily incomplete information.  But it does appear I did say ‘They should seek to have brigades incorporated, ideally under the Associations Incorporation Act…’ (see A further review of the Malone Inquiry into the Queensland Rural Fire Brigades (June 11, 2013)).  Having written about this issue in subsequent posts I now depart from that opinion.

First, I had not previously noted the details of the Association Incorporations Act 1981 (Qld) s 5(1)(d) that is

An association is not eligible for incorporation under this Act if the association—

(d) is provided for in a special Act that—

(iii) specially regulates its affairs

As noted in earlier posts, in particular Status of Queensland Rural Fire Brigades (September 10, 2014) the Commissioner has extensive control over brigades. It is possible that the Commissioner could impose obligations or require Brigades to have rules that are inconsistent with the Associations Incorporation Act.  I would infer that is why s 5(1)(d)(iii) is there.  To stop Associations being stuck between conflicting obligations. Where there is a specific Act (in this case the Fire and Emergency Services Act 1990 (Qld)) that regulates the Associations affairs, it should not be incorporated, and therefore regulated by the Associations Incorporation Act.  So I would now agree that RFBs in Queensland cannot become incorporated associations under the Associations Incorporation Act.

The functions of an RFS brigade

The functions of a Queensland Rural Fire Brigade are ‘fire fighting and fire prevention and such other functions as the commissioner may direct’ (Fire and Emergency Services Act 1990 (Qld) s 82).  (Note that the functions of the SES include ‘to perform activities to raise the profile of the SES or raise funds to support the SES in the performance of its other functions’.  There is no similar function for RFS brigades Fire and Emergency Services Act 1990 (Qld) s 130).

Let me consider the scenarios remembering that the legal outcome in any matter depends entirely on the facts.  This hypothetical discussion is not an advice on any particular event either that has happened or that might have happened.

With the first scenario I have to ask ‘why would you do that?’  The money may be nice, but the fire brigade could perhaps earn money by doing plumbing, or electrical work, or running a child care centre, but presumably someone would say ‘that’s not our function; it’s not what we’re trained to do; that takes a skill set we don’t have; we really shouldn’t do it’.

With respect to the traffic control we all know that people who do perform traffic control duties for a living get specific training whether they are contracted traffic controllers at an accident site or police.  It’s one thing to close a road, or even stand at a road side and warn people – there’s an accident down there – it’s another to start controlling traffic at a non-emergency.  If traffic control was required why haven’t the market organisers engaged a traffic control company.   If the ‘senior brigade officer on site tasks a firefighter with directing traffic to keep the roundabout clear’ what on earth would make anyone think that was a good idea or that the firefighter had a clue what to do?

But even so why would anyone sue the firefighter? First the obligation is on the driver’s not to crash into each other.  The cars are likely to be insured. The first if not the only rule of civil litigation is ‘sue the defendant with money’.  All courts can award is money damages and only money will pay the bills.  The volunteer won’t have money. So the other defendants will be the driver at fault, the market organiser, the police or the QFES long before anyone looks to the volunteer.

As noted the volunteer will be able to point to the Civil Liability Act 2002 (Qld) but only if they are doing community work but not if the member was ‘acting outside scope of activities or contrary to instructions’.  To the extent that the RFS has endorsed the activity in question, either expressly or by implication by knowingly allow it to continue (perhaps it’s done every year) then the member is doing community work for the RFS. The member is not there as Jo(e) Citizen, they are there as the Rural Fire Brigade as evidenced by their uniform.  It’s the Fire Brigade that is conducting the activities and it is the fire brigade, under the ultimate direction of the Commissioner that is liable. On the other hand, if the Commissioner has given an express direction not to do the task then the members would be on a frolic of their own but even then, the State could be liable for not ensuring it’s directions are complied with.

The issue is not whether the volunteer has the support of QFES, it’s whether the plaintiff can establish that the brigade, under the control of the Commissioner, was negligent.  Then the plaintiff sues the State of Queensland and there’s no doubt that was a volunteer from the state of Queensland that was there.  There could be all sorts of arguments about what is a ‘purpose’ under the Act and whether a person was acting in accordance with instructions etc.  Those can’t be addressed hypothetically, they depend on the facts of each event.

In any event I don’t expect a volunteer would ever be required to defend themselves in court because no-one would sue them.

As for the storm response, I can’t say whether the RFS brigade is ‘acting within the remit of QFES’. Storm response isn’t an obvious function of the RFS but the functions include ‘such other functions as the commissioner may direct’ and I don’t know what directions the Commissioner has given with respect to being first responders pending the arrival of other agencies.   Neither the Fire and Emergency Services Act 1990 (Qld) nor the Queensland State Disaster Management Plan (Reviewed September 2016) specifically says that the SES is the combat agency for the response to storms, so the response of the RFS really depends on the local emergency management arrangements and what has been put in place for that local government area.  Traditionally (and in other states) one would expect the SES to take control of the response to storms but in Queensland it is very much a matter of what is provided for in the local emergency management arrangements.

The functions of an SES unit.

I note that the functions of an SES unit are whatever ‘the commissioner considers appropriate for the unit’ taking into account ‘the needs of the community in the relevant area’.  It would seem if you want to be a member of an agency of ‘community service providers’ it may be better to join the SES rather than the RFS which has much more specific functions.

The real issue

This is a very long list of questions and a long answer – but I see that the real issue is this:

The rural firefighters I have spoken with have become volunteers to serve their communities.  None have sought to join a state authority.  Our brigade has and wishes to continue to offer a range of community services that lie outside those covered by the Fire and Emergency Services Act.

The problem is they’ve joined a fire brigade not the Lions Club or some other community service organisation.  The function of the brigades, why they are there and why they are established is to provide ‘fire fighting and fire prevention and such other functions as the commissioner may direct’.  It is not up to the brigade to decide that their function is whatever community service they wish to provide or for the members to wish that the brigade was something it is not.

The members could incorporate as the Kickatinalong Rural Fire Brigade Social Club Inc to raise money for the Christmas party or to buy equipment, but that incorporated entity is not the brigade.  The brigade is established when a ‘group of persons’ applies ‘to the commissioner for registration as a rural fire brigade’ and that application is accepted.  If that same group of persons then form an association that is associated under the Associations Incorporations Act the incorporated association is not the same as the brigade, it’s a separate legal entity.   The members of the incorporated Association may, by coincidence, also be members of the local RFS brigade, but the incorporated Association is not the brigade and exercises no powers under, and gains no authority from, the Fire and Emergency Services Act.

And a fire brigade can’t (or shouldn’t) say ‘we’re a fire brigade, we’re a bunch of well-intentioned community members so we can do anything that seems like a good idea (such as directing traffic, or providing first aid services (see Can NSW SES provide event first aid services? (November 13, 2016))’.  And the issue isn’t ‘we’ll be sued and QFES won’t support us’ but those services actually require skill and knowledge that is not part of what a fire brigade can or should do.  And if you want to do those things, do a proper risk assessment to get the skills required.

If members are nervous that they ‘might become personally liable when engaged in activities that might be argued are not under the direction of QFES’ or are not a function of an RFS brigade, then don’t do them.   If you want to do those things then create the ‘Kickatinalong Community Support Group Inc’ and do those things with whatever protection the members think they may gain (remembering that a plaintiff will sue the incorporated association if they think they have the money, but exactly the same issues arise, – what if the volunteer is sued personally? Will the Incorporated Association support them? Etc). The Kickatinalong Community Support Group Inc has as much authority to do the traffic control at the local show as the fire brigade and if it’s the same members, then it also has the same training and experience (which is, apparently, none at all).

The questions – and the answers

The questions I was asked were:

  1. When the situation slides like this, from one in which the chain of responsibility is clear, to one in which it has become less so, can the volunteer expect the support of QFES? It depends on the instructions given from the Commissioner. If that sort of practice has been common and endorsed by the first officer etc then yes.  If there is a specific direction from the Commissioner ‘you are not to do this task’ then no.
  2. Must RFBs fall back on the volunteer provisions of the Civil Liabilities Act? Yes but that’s always true.
  3. Would you expect that they would be required to defend themselves in court? No because I would not expect anyone would ever seek to sue the volunteer, that would be sending good money after bad.
  4. If so, what support might they expect from QFES?  That depends on whether you are acting contrary to an express instruction or not.

 

  1. In responding as described above, is the brigade acting within the remit of QFES, or have they moved into uncharted waters? Refer to the local emergency management plan and if it’s not clear, raise it with the local emergency management group.
  2. How is the RFB to respond to the SES controller? Refer to the local emergency management plan and if it’s not clear, raise it with the local emergency management group.

 

  1. Would you now agree that RFBs in Queensland cannot become incorporated associations? Yes, I do now agree that RFBs in Queensland cannot become incorporated associations
  2. If so, could a trust, formed by supporters and independent of QFES, satisfy the desire to responsibly manage the brigade’s community service activities, to raise and control funds, to purchase and maintain ownership of certain assets, to employ staff, hold public liability insurance, etc.? A trust becomes very complex and I make no comment on it.  The members could form an incorporated Association to provide activities that are beyond the remit of the RFS but the Association would not be an RFS brigade within the meaning of the Fire and Emergency Services Act 1990 and no doubt would need a different name and couldn’t use the logos and other indicia of the RFS. It would have none of the legal protection offered by the Act or QFES.
Conclusion

Our brigade has and wishes to continue to offer a range of community services that lie outside those covered by the Fire and Emergency Services Act.

Will members be liable? Almost certainly not.  In any event they are holding themselves out as the RFS and that’s what anyone’s going to see. If the Commissioner wants to stop that activity he or she needs to ensure that directions are passed down to that effect but even if members are breaching those directions, then the QFES/State will be liable for not ensuring that the directions were complied with.

But if you want to ‘offer a range of community services that lie outside those covered by the Fire and Emergency Services Act’ then the Act is irrelevant.  You can’t (again recognising that every case would turn on its own facts) decide that QFES provides community services that are outside its function – just doing it doesn’t make it so.  And it may be that the state can and might say ‘what you were doing was not being done for any purpose under the Act and therefore you were not performing any function under the Act, you just happened to have our uniform on’.  No doubt the purposes of the Act will be read widely and doing things like training and activities to bring cohesion to the brigade and community engagement can all be seen as a purpose under the Act as they improve the ability to fight fires.  How the QFES will see any particular event depends on what directions have been given, from the Commissioner down to the first officer, and the particular facts of each case.  The issue, I infer, isn’t corporate status, it’s that members want to do things that are outside the Act but want to enjoy the protections offered by the Act.

Incorporation won’t help because the incorporated association won’t be the brigade. If members want to provide those services outside the control of QFES they can’t incorporate their brigade, but they can create a new non-government organisation. That organisation can do what it likes including buying equipment. If it donates that equipment to the RFS then the equipment is owned by the State.  If it loans equipment it may retain ownership but whether the RFS would accept the equipment on that basis is another matter.

Like it or not, fire brigades under the FES Act are established to fight fires and they are funded by the Commissioner (s 84) and local government levies (s 128A) for that purpose.  It is no doubt very good for brigades to provide community services to engage with the community, build support and help build resilience to disasters caused by all hazards.  I can’t comment on what the Commissioner has said about the functions of the brigades and their role in community engagement and community support.  But at the end of the day brigades are under the direction and control of the Commissioner. The Members may not want to have joined a state agency, but that is indeed what they’ve joined.

Advice

My advice is read the Rural Fire Brigade Manual in particular

  • D1.3 Legal Matters: What I Need to Know and Why (Effective Date: September 2017); and
  • D1.3.1 Protection from Liability (Effective Date: September 2017); and

The answers are set out in those documents.   No-one is going to give, in advance a carte-blanche guarantee that QFES or the State will wear any liability for anything you do in uniform because the capacity of humans to do really stupid things knows no bounds.  So if you want to do the local traffic control for the show, and you’re not sure whether that will be accepted as acting for the purposes of the Act (see s 129); then ask up the chain of command for approval.

 

 

Categories: Researchers

NSW RFS appliances don’t need to be registered

6 March, 2018 - 16:34

Today’s correspondent

… found out recently that NSW RFS trucks are not registered at all, not even displaying number plates. This perplexed me quite a bit. Can’t seem to see if you have addressed it before, but curious about where and more so, why, this occurs?

It’s true, NSW RFS trucks aren’t required to be registered. Part 2 of the Road Transport (Vehicle Registration) Regulation 2017 (NSW) Schedule 1 lists a number of vehicles that are ‘not subject to registration provisions’. These include

  • vehicles on tow trucks;
  • vehicles used for work on farms;
  • vehicles using roads or road related areas to a limited extent in context of primary production;
  • certain trailers used for roadmaking and other public works;
  • golf and green keeping vehicles;
  • vehicles temporarily in new south wales [so you don’t have to register your car in NSW if you are visiting from Victoria];
  • vehicles registered under the interstate road Transport Act 1985 (Cth);
  • trailers towed by motor vehicles registered in Victoria;
  • vehicles used in connection with police work;
  • lawn mowers;
  • power-assisted pedal cycles;
  • vehicles used by certain disabled persons;
  • vehicles being driven to registration and associated places; and
  • vehicles that are being inspected.

Also included in that list is ‘Vehicles Used to Fight Rural Fires’ (cl 12).  To benefit from the exemption the vehicle must be:

(a) is attached to a rural fire brigade formed under the Rural Fires Act 1997 and has painted on it, or securely affixed to it, a sign clearly identifying the rural fire brigade to which it is attached, and

(b) is used to convey persons or equipment to or from the work of preventing, mitigating or suppressing fires in rural fire districts (including clearing fire breaks or removing inflammable material), and

(c) is travelling on the road or road related area for the purpose referred to in paragraph (b) or any of the following purposes:

(i) to attend a fire, incident or other emergency in accordance with the Rural Fires Act 1997,

(ii) to assist other emergency services organisations (within the meaning of the State Emergency and Rescue Management Act 1989) at incidents and at emergencies under the control of those organisations,

(iii) to convey persons or equipment for the purpose of training those persons in relation to any of the purposes referred to in this paragraph,

(iv) for a purpose necessary or incidental to the service or repair of the vehicle,

(v) to perform any other functions of the NSW Rural Fire Service that the Commissioner of the NSW Rural Fire Service or a fire control officer within the meaning of the Rural Fires Act 1997 may approve for the purposes of the exemption.

I can’t say ‘why’ this is the rule.

CTP Insurance

All vehicles must be insured under the Motor Accidents Compensation Act 1999 (NSW).  You have to prove that you have paid for your compulsory third party insurance (green slip) when you register your car.  What happens when the vehicle is not registered?

There is a scheme called the ‘Nominal Defendant’. The Nominal Defendant is funded by contributions for all the licensed CTP insurers.  It provides a fund, and someone to sue, if a person injured in a motor vehicle accident can’t identify the driver at fault or if the vehicle that was at fault was unregistered and/or uninsured (ss 31-41).

If you drive your car unregistered and/or uninsured and you injure someone, that person can recover from the nominal defendant, and the nominal defendant can then try to recover from you (s 39). But that does not put the RFS driver at risk. Although the RFS driver is driving an unregistered vehicle, s 39(3) says:

The Nominal Defendant is not entitled to recover any amount under this section from the owner or driver of a motor vehicle which, at the relevant time, was not required to be registered or was exempt from registration or, if required to be registered, was not required to be insured under this Act.

In other words because an RFS appliance is not required to be registered, the nominal defendant has to pay any damages under the Motor Accidents Compensation Act 1999 (NSW) but it cannot recover that amount from either the driver or the owner.

 

Categories: Researchers

Coroner’s review of response by ACT Ambulance

2 March, 2018 - 10:42

In my dealing with emergency services many people report a fear of the coroner (see Eburn, M. and Dovers, S., ‘Australian wildfire litigation’ (2012) 21(5) International Journal of Wildland Fire 488-497).  The argument ‘we’ll you have to explain that to the coroner’ is the ultimate threat when person A wants person B, or the organisation, to change a policy or procedure.  No doubt appearing before a coroner and having one’s decisions reviewed does not appear in anyone’s list of ‘top 100 fun things to do’ and preparing for a hearing that may involve several days in court and many more hours of putting together documents and submissions takes up significant resources; but even where there are poor outcomes it does not follow that the service or members will be subject to criticism.  In my earlier post, Coronial inquest into death of NSWFR firefighter (2 March 2018) I review an inquest and inquiry into the response to a fire that lead to the death of a firefighter.

In Inquest Into The Death Of Elfriede Adele Tremethick [2018] ACTCD 3 (27 February 2018) the inquest was held in the Coroners Court of the Australian Capital Territory and involved a review of the response by ACT Ambulance.

Ms Tremethick was an 85 year old woman with a prior history of congestive heart failure.  On 21 October 2016 she fell down a short ramp at home.  She did not have a prior history of falls.  She suffered a lacerated forearm with a possible fracture.  The ACT Ambulance Service (“ACTAS”) attended ([1]).

On arrival, Ms Tremethick was ‘conscious, alert and responsive, and she was lying face down at the bottom of the ramp with her legs elevated’. Treating paramedics administered methoxyflurane for pain relief. Ms Tremethick ([2]-[3]):

…became non-compliant and said she had difficulty breathing.  Ms Tremethick was sat upright on the stretcher but she developed fulminant pulmonary oedema and gastric regurgitation, and she was administered high flow oxygen. At the time Ms Tremethick aspirated, the paramedics held a discussion as to whether she should have been intubated, and a decision appears to have been made not do to so given the circumstances.

Shortly after this Ms Tremethick lost consciousness and stopped breathing and became pulseless.  The paramedics commenced cardio-pulmonary resuscitation and manual ventilation, but despite ongoing treatment and emergency transport to Calvary Hospital Ms Tremethick was unable to be revived in the ambulance and she was formally declared life extinct at Calvary Hospital.

The cause of death (at [4]) was ‘asphyxia caused by inhaled vomitus, with left ventricular hypertrophy being a condition which contributed to death without being directly related to the actual cause’.

The decision not to intubate was controversial.  The coroner wanted to review ‘the appropriateness of the treatment provided to Ms Tremethick by ACT Ambulance Officers’.  Copies of the ACTAS records were obtained and reviewed, at the Coroner’s request, by Professor Johan Duflou, a consulting forensic pathologist ([5]).

The professor’s opinion ([5]) was that Ms Tremethick’s position, ‘lying face down at the bottom of the ramp with her legs elevated’, would have aggravated her underlying heart condition

… as a result of increased venous return.  Additionally, such a position could be expected to hamper unaided breathing.  Ms Tremethick’s cardiac function probably deteriorated while in that position, arguably with the contributory effect of pain and stress as a result of the fall and injury sustained, and she had an acute exacerbation of congestive heart failure with the development of acute pulmonary oedema.  Possibly the concurrent administration of methoxyflurane could have contributed to Ms Tremethick’s deteriorating cardiorespiratory function at this time.  On identification of Ms Tremethick’s deterioration, she was appropriately sat upright, but likely by this time she was in extremis, and she regurgitated and aspirated gastric contents while having a cardiorespiratory arrest…

The reason for Ms Tremethick’s sudden deterioration was in the form of a sudden exacerbation of her congestive heart failure with development of acute pulmonary oedema, with regurgitation and aspiration occurring in the immediate perimortem period as an agonal phenomenon, and not as a primary event.

There were issues with respect to the treatment offered but both Professor Duflou and the Coroner thought that the issues identified by ACTAS (at [6]), relating to documentation, initial assessment, communication between the paramedics, the decision not to intubate and the decision to continue with response driving after CPR had been terminated, did not contribute to Ms Tremethick’s death.

ACTAS (like NSWFR in the earlier case under discussion) reported to the Coroner steps it had taken in response to Ms Tremethick’s death. At [9]:

Specific steps taken to address the system and process issues arising from this incident were as follows:

a. Key topics arising from Ms Tremethick’s death were covered during the Paramedic clinical in-service training program in 2017, including revision of cardiac arrest management, teamwork and communication processes when multiple officers are on scene, review of advanced airway management, and an advanced airway management simulation exercise.

b. ACTAS’s policy around termination of resuscitation and management of deceased persons is being reviewed and is in the process of being updated. Relevant to Ms Tremethick’s case, the policy will reinforce current practice as to the circumstances under which paramedics should cease resuscitation and that urgent transport to an Emergency Department is not warranted after a patient has died.

c. A systemic review of airway management practices is underway for consideration by the ACTAS Clinical Advisory Committee in March 2018. Relevant to Ms Tremethick’s case, the draft document reiterates the importance of placing an advanced airway in patients in cardiac arrest.

The Coroner noted (at [11]) ‘that while on the facts of this case the decision not to intubate Ms Tremethick probably made no difference to her outcome, it is foreseeable that in other cases such a decision could directly affect the outcome for a patient’ but there was no need for a formal public hearing given the response that had been implemented by ACTAS.

With respect to the paramedics that attended, the Coroner said (at [7]) ‘While the aspects of suboptimal care identified by Professor Duflou and ACTAS are generally of concern, I accept the opinion of Professor Duflou that it is unlikely that these contributed to Ms Tremethick’s death.  In those circumstances, I make no comments adverse to ACTAS, or the paramedics who attended on Ms Tremethick on the day of her death’.

Commentary

‘No comments adverse…’ is not a glowing commendation (such as that seen in the inquiry into the Cobar fire (Coronial inquest into death of NSWFR firefighter (2 March 2018)) but equally it’s not the consequences people often fear from a coroner.  A coroner can’t determine issues of legal rights, they can’t determine that someone was, or was not negligent or that someone is, or is not, guilty of a criminal offence.  A coroner can’t make orders to adjust people’s legal rights.  Only a court of law can do those things.

This coroner reviewed the material.  There were issues of concern in the treatment provided but these were identified and are being addressed.  Again the value of the inquiry is to reassure the public and the family of the deceased that these matters have been identified and are being addressed rather than leave people to suspect a ‘white wash’ or agencies investigating themselves.  Whether or not there’s a better process to achieve that outcome is a different matter  (see Eburn, M. & Dovers, S. Discussion paper: Learning for emergency services, looking for a new approach (Bushfire and Natural Hazards CRC, 2016); or for the ‘executive summary’ Eburn, M and Dovers, S ‘Reviewing high-risk and high-consequence decisions: finding a safer way’ (2017) 32(4) Australian Journal of Emergency Management 26-29).

 

 

 

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