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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: 15 hours 46 min ago

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).

 

 

 

Categories: Researchers

Coroner’s inquest into death of NSWFR firefighter

2 March, 2018 - 10:38

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 as this post, and the next – Coroner’s review of response by ACT Ambulance (2 March 2018) – can show.

The Inquest into the death of Daniel Howard and Inquiry into the fire at the Occidental Hotel, Cobar (16 February 2018) looked into the response to a fire in Cobar where Daniel Howard, a retained firefighter with NSW Fire and Rescue died whilst fighting the fire at the 135 year old Occidental Hotel in Cobar, in country NSW.  Cobar is 300km from the ‘closest large town’ of Dubbo ([16]).

What happened?

On 17 August 2014 an accidental fire ([71]) broke out in the Occidental Hotel.  It was discovered at about 7.35am by a person driving past the hotel.  He alerted the publican who evacuated the residential guests while the person who first observed the fire attempted to fight the fire with the fire hose.  A call was made to triple zero at 7.48am.  The fire brigade, with two appliances, arrived on scene at 7.57am ([29]-[34]).

Fire fighting in Cobar is provided by NSW Fire and Rescue using retained (or part time) firefighters.  Retained firefighters ‘are “on call” rather than working regular shifts. They only attend the station when responding or returning from incidents, attending drills or training or when they are performing other authorised duties such as checking equipment or doing administrative work’ ([17]).  At the time there were 14 retained firefighters in Cobar ([19]).  ‘[T]there had not been a structural fire of the magnitude of this incident for over ten years’ (18]).  It follows that all the firefighters including the Deputy Captain who was acting as Incident Controller (IC) for the first time, were part time firefighter with limited experience.

During the course of firefighting operations, the IC worked with officers from NSW Ambulance, NSW SES, NSW Police and Cobar Shire to try and manage traffic and bystanders. The IC was also required to observe the conduct of firefighting operations that were taking place around the hotel.  NSW Fire and Rescue firefighting was supported by firefighters with the NSW Rural Fire Service.

At [63]-[64] the coroner reported that Mr Howard:

… was standing at the front of the building on the right hand side and directing his hose into the wall section which had been burnt out. Daniel was about two to three metres from the front of the building and was under the awning.

Fire Fighter Fugar states that the supports of the awning were engulfed in flames and he believed there was a risk of the awning collapsing. After about a minute or two he decided to say something, however the awning started to fall before he could. Fire Fighter Fugar yelled “Howey!” Daniel turned around and looked up at the awning as it fell. Daniel dropped the hose and started to run in the direction of Fire Fighter Fugar. Fire Fighter Fugar saw a large section of the front wall start to fall towards him and he started to run back towards Marshall Street.

The wall fell on firefighter Howard and he died as a result of the injuries he suffered ([67]).

Was an inquest mandatory?

A Senior Coroner must hold an inquiry where a person dies ‘in custody or as a result of police operations’ (Coroners Act 2009 (NSW) ss 23 and 27).  The Deputy State Coroner queried whether this death occurring during a ‘police operation’.  The police (at [6] argued that it was not a police operation.  They said:

… that the incident was a “combat agency response by the legislatively appointed agency, being Fire and Rescue, New South Wales. NSW police officers present were merely members of an assist agency at the legislative direction of the Officer in Charge (NSW Fire and Rescue)”.

It is my view that this argument has to be correct and is consistent with the system established by the State Emergency and Rescue Management Act 1989 (NSW) and the NSW Emergency Management Arrangements.  The idea that the police are in charge of everything, whenever there is a police officer present is not part of the law or the arrangements.

In any event the Coroner did not decide whether she was required to hold an inquest or just should hold an inquest.  She said

Practically little turns on the issue [of whether or not this death occurring during a police operation]. The concerns raised in relation to the manner and circumstances of Daniel’s death were sufficient in themselves to call for a close examination of what occurred and to require an inquest.

The outcome of the inquiry (into the fire) and inquest (into Mr Howard’s death)

The Coroner identified a number of issues that were to be explored in the inquest and inquiry. These were:

  • The nature and adequacy of the training provided to retained fire fighters by FRNSW;
  • Whether there was adequate control of the fire scene by [the IC] … given his level of training and supervision?
  • Should [the IC] … have appointed a safety officer?
  • The adequacy of the communication between FRNSW fire fighters on the scene and elsewhere;
  • The adequacy and timeliness of the Rural Fire Service response to the fire;
  • The adequacy and timeliness of the response of the NSW Police Force to the fire and its subsequent investigation;
  • The availability and effectiveness of the Cobar Shire Council fire hydrants; and
  • The prompt identification of “next of kin” and appointment of a support person.

For the details, readers can go to the actual decision.  In summary the Coroner made no adverse comments and was full of praise for all involved in the firefighting effort.  She did make some recommendations to government and NSWFR regarding their response.

  • The nature and adequacy of the training provided to retained fire fighters by FRNSW; and
  • Whether there was adequate control of the fire scene by [the IC] … given his level of training and supervision?

With respect to the response by NSWFR including training and the actions of the IC it was acknowledged that the retained firefighters had limited training and even less experience with structural fires. ‘It became clear that a lack of knowledge about the possibility of structural collapse was evident across the board’ ([74]).  The Coroner said, at [84]:

Following an analysis of the events at the Occidental Hotel, there was clear recognition on the part of FRNSW that the organisation needed to grapple with improving the training for fire fighters in relation to structural collapse. Evidence at the inquest demonstrated that there is still a great deal of work to do in this regard. It appeared that there was still a limited understanding about how fire duration and conditions can affect structural integrity.

The IC had limited experience and this was his first time as IC as the Captain was not in Cobar on this day.  The Coroner said (at [87]-[88]):

In my view he performed the role of incident controller with great care and skill, given the difficult circumstances that confronted him and his general lack of experience. I do not intend to review in detail all of his actions and decisions. It is sufficient to record that he assumed control of the scene quickly and attended to a very wide variety of tasks, which included calling for additional assistance from a variety of sources; evacuating residents and others nearby; organising the power to be isolated and verbally ordering an electrical exclusion zone; establishing a control centre; correctly identifying a number of risks, such as that posed by the LPG cylinders; liaising with other agencies that could assist in crowd control and with road blocks and dealing with a number of operational issues, such as that posed by the fire hydrants. He remained calm in the face of a huge fire, with only limited resources under his control. Not all the fire fighters had radios and his focus was necessarily extended over a fairly large geographical area.

To his credit, [the IC] … quickly and correctly identified that the fire must be fought in a defensive manner. He did his best to ensure the safety of his men. I note that there was no criticism of him from any fire fighter, either from his own team or from the RFS who had been present on the day. I offer no criticism of him, but it appears that he could have been better supported and better trained by the organisation he worked for.

An Incident Cause Assessment Methodology (ICAM) report had recommended that NSWFR develop further training for those likely to take on an IC role (Captains, Deputy Captains and Senior Firefighters) and NSWFR reported that this had been acted on and further training was being delivered ([89]).

The Coroner did make some further recommendations. She recommended (at [123]-[125]):

That FRNSW provides a copy of these coronial findings to their Education and Training Unit and requests that consideration is given to using the facts of this tragedy as a case study in the training of RFFs in relation to both structural collapse and incident control, in accordance with the new policies which have been developed.

That FRNSW develop a mentoring program between PFFs and RFFs to support and encourage professional development of RFFs, particularly at the level of Captain and Deputy Captain.

That FRNSW review organisational capability statements every 12 months (including local critical risks) with a view to identifying gaps in essential knowledge so that appropriate evaluation and training programs can be effectively implemented.

  • Should [the IC] … have appointed a safety officer?

With respect to the appointment of a safety officer the Coroner said ([95]-[96]):

I have carefully considered the issue of whether [the IC]… should have appointed a safety officer and reviewed the expert and other evidence in this regard. In my view he was faced with a difficult situation. He did not have the resources to comfortably take one fire fighter out of active duty. In any event it appears that while he had heard of a safety officer, he had limited knowledge or training about how such a role would work in practice. He did not know exactly when a safety officer should be appointed and he did not consider doing it on 17 August 2014. In all the circumstances, I do not offer any criticism of [the IC] … in this regard. While it is clear that RFFs could benefit from further training in relation to the benefits of appointing a safety officer, it is also clear that in rural and remote areas the lack of resources may mean it is not always possible.

It is also important to note that the presence of a safety officer does not necessarily guarantee a safer environment for fire fighters. Counsel for the family conceded that even if one had been appointed on that day, given the lack of knowledge in the Cobar Brigade in relation to structural collapse, it may not have averted the tragedy which subsequently ensued.

  • The adequacy of the communication between FRNSW fire fighters on the scene and elsewhere;

The Coroner noted the difficulties of maintaining communication between the fireground and the Duty Commander who was travelling from Dubbo to Cobar.  The difficulty in maintaining phone communication in rural NSW is well known. The Coroner noted those difficulties and noted, with approval, a recommendation from the ICAM report to develop ‘proposed Intelligence Cells Situation room to provide expert advice and Incident Management Team support for retained fire fighters at significant incidents…’ ([102]).

  • The adequacy and timeliness of the Rural Fire Service response to the fire;

The Coroner said (at [104]):

The Court has carefully considered the adequacy of the response by the Rural Fire Service to the events at the Occidental Hotel. There appear to be no issues that require detailed discussion. Captain … liaised appropriately with [the IC] … and offered any support he could.

  • The adequacy and timeliness of the response of the NSW Police Force to the fire and its subsequent investigation;

The findings here will be of interest to readers of this blog and those concerned that reflective comments made during post event reviews may be used against those that make them.

In this matter the family of the deceased firefighter were concerned with the investigating officer could not interview firefighters on the day of the fire and that statements by firefighters were prepared with the assistance of lawyers who claimed the benefit of legal professional privilege (LPP).  In the Evidence Act 1995 (NSW) the privilege is referred to as Client Legal Privilege.  The rule is that documents and information prepared ‘for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice’ cannot be adduced in evidence (ss 118, 119).  There are also rules to limit the ability of investigators to access privileged information.  The rationale for the privilege is that the legal system would simply fail if people couldn’t honestly, and without fear, give information to their lawyers in order to get advice.  If lawyers can’t get the information they can’t give proper advice.  In court if people haven’t got proper advice cases won’t be run on their merits – successful defences won’t be put; hopeless one’s will.  But you can’t short circuit the process by allowing claimants (whether the Crown in criminal cases or a plaintiff in civil cases) to simply subpoena the defendant lawyer’s files to see what the defendant has said.  So privilege is an essential feature of the legal system.

Many might be concerned of the process and believe that it is intended to frustrate an inquiry, but that is not the case. It’s intended to allow people to get advice from a lawyer who understands the role and the process and so assist the court by ensuring that ethical and legal obligations are met.  The finding that I think will interest readers of this blog is the coroner’s finding that there was nothing untoward or problematic with this approach. At [106] she said:

Statements for coronial matters are frequently prepared by lawyers for hospitals and other agencies and in that respect the practise is not unheard of. There was nothing before me to suggest that any of the statements taken did not reflect the opinion of the witness who gave it and I was satisfied that while the practise is somewhat unusual in relation to a fire, it did not compromise the reliability of the evidence before me.

  • The availability and effectiveness of the Cobar Shire Council fire hydrants;

‘Fire fighters experienced a number of issues on the day with respect to Cobar Shire fire hydrants. These included the fact that some fire hydrants were not working properly at the time of the fire’ ([108]).  Evidence (at [111] was that with the appointment of a new General Manager, Cobar Shire had taken

… significant steps including directing the establishment of a fire hydrant maintenance program for all hydrants under Council’s responsibility; facilitating the establishment of proper lines of communication in relation to local hydrants between FRNSW and Council; ordering a public works survey to record and analyse the state of the Cobar Council Water Pipe System to ensure that all works, repairs and flows are understood and maintained; recruiting a Sewer and Water Manager who will, among other duties, regularly review the maintenance program. [The General Manager’s] … professional response to the issues arising from this inquest was commendable.

The Coroner did note that the State Government had a state wide program to provide electronic spatial data on the location of fire hydrants which is supplied to FRNSW.  Mobile data terminals provided to fire fighters are given updated information on a quarterly basis ([112]).  The Coroner did note that some councils (not Cobar) were not providing the data required.  The Coroner did therefore make a formal recommendation (at [123]).

That FRNSW provide a copy of these coronial findings to the Emergency Information Coordination Unit, Spatial Services NSW, with a view to encouraging all relevant parties to assist in obtaining up-to-date spatial information across New South Wales immediately and to facilitate the ongoing update of such information on a quarterly basis.

  • The prompt identification of “next of kin” and appointment of a support person.

The final and perhaps most important review involved the approach of FRNSW in identifying then notifying and supporting a firefighter’s next of kin. It came out in evidence that Mr Howard’s mother heard about his death from a third person, not NSWFR. At [113] the Coroner said:

This caused her great pain and affected her ability to visit the hospital where he died in a timely manner. Ms Howard also believes that she was left “out of the loop” in subsequent communications with FRNSW, the Coroner’s Court and other authorities after Daniel’s death.

NSWFR did not have an explanation for their failure to properly notify Mrs Howard, nor could they point to changes that had been made.  Accordingly, the Coroner made a formal recommendation (at [127]). She recommended:

That FRNSW audit its internal policies to ensure that the timely notification of the official next of kin occurs in tragedies of this kind and considers instituting a system where a support person is appointed to the next-of-kin where a casualty occurs.

Commentary

The inquiry

… heard oral evidence over six days in both Cobar and Sydney, and received extensive documentary material including over 80 witness statements. The court also received reports, photographs and recordings. A view of the site was conducted …

That, no doubt, represents a significant effort by all the agencies involved (Fire and Rescue, Rural Fire Service, SES, Ambulance, Police and Cobar Shire) and one might question the value given there was no doubt as to the identity of the deceased or the cause of his death.

But the response did raise issues.  The value of a Coroner’s inquest/inquiry is that it focuses the attention of the service to both review their own conduct and to come up with recommendations or responses that they can explain to the coroner.  The conduct, in open court, ensures that everyone with an interest is heard and that there can be no suggestion that decisions are made ‘behind closed doors’ or that agencies are left to review themselves without being accountable for events that lead to death or loss.

As noted the process may be traumatic and expensive but it doesn’t necessarily lead to adverse findings.  The Coroner made some recommendations to advance community and firefighter protection but she was not critical of anyone involved.   Rather than summarise the Coroner’s conclusion, it is best to set them out in the Deputy State Coroner’s own words (at [128]-[133]):

In conclusion, I offer my sincere condolences to all of those affected by Daniel’s tragic death. In particular I express my sorrow for the fire fighters he worked with. A number of those men gave evidence before me and their grief and respect for Daniel was palpable in the court room. I thank them for their contribution to fire fighting and I honour the strength of those who continued to work, even after knowing that their colleague was seriously injured or dying.

I express optimism by the positive approach taken by those representing FRNSW in relation to the issues raised in this inquest. I note that Assistant Commissioner Mark McGuiggan was present throughout the entire proceedings and I respect the open attitude taken to the opportunities for improvement as they emerged. It is also pleasing that the new General Manager of Cobar Shire Council took responsibility for some of the shortcomings that existed with Council infrastructure at the time of Daniel’s death and that since his appointment has worked to make meaningful improvements in this regard.

Finally, special mention must be made of Daniel’s mother, Genevieve. She attended each day of the inquest to make certain no wrongful criticism was made of her son. These findings make it clear that none is warranted. Daniel worked courageously in extremely difficult circumstances, his significant contribution was recognised by the Assistant Commissioner before me.

Ms Howard’s anger at how she was informed of Daniel’s death is understandable and I hope that further reflection on the issue by FRNSW will mean that these systems are continually improved. In the age of social media, prompt contact with the next of kin is increasingly crucial.

Daniel’s mother was also fighting for improvements in training and support for retained fire fighters, such as her son. In my view her voice has been heard by FRNSW.

Once again, I offer Ms Howard my sincere condolences for the heartbreaking loss of her son in these tragic circumstances. I cannot help but to admire the strength she has shown in facing such adversity.

Categories: Researchers

Do firefighters need a working with children check in NSW?

1 March, 2018 - 14:48

NSW Ambulance paramedics are taking industrial action over demands that they pay $80 to obtain a ‘working with children’ clearance (see ‘Paramedics giving free rides in protest against paying for Working With Children ChecksABC News (Online), 1 March 2018).  This news story says:

Ambulance officers are furious that police and firefighters are exempt from paying the $80 fee for their checks, while paramedics are forced to pay from their own pockets.

It goes onto say ‘The Working With Children Check has been phased in since 2013 for all NSW Government agencies’

I make no comment on whether paramedics should pay the $80 or whether it should be waived or payed by the Ambulance Service, but I do want to question some of those claims because a correspondent has written and asked why is it that

… paramedics in NSW are being required to get ‘working with children checks’ but firefighters, who regularly go to school events for education sessions etc, are not. Is it the different nature of the work each discipline does?’

Being exempt from the need to get a check is different from being exempt from the need to pay for one.

‘A worker must not engage in child-related work unless … the worker holds a working with children check clearance…’; Child Protection (Working With Children) Act 2012 (NSW) s 8.  Child-related work includes work that is ‘the provision of health care in wards of hospitals where children are treated and the direct provision of other child health services’ and which is declared, in the regulations, to be ‘child-related work’ (Child Protection (Working With Children) Act 2012 (NSW) s 6).   The Child Protection (Working With Children) Regulation 2013 (NSW) r 6 says a health practitioner is anyone who provides a health service to children and that a health service includes ambulance services.  So anyone who provides ambulance services to children (ie a paramedic) is engaged in child-related work and must have a ‘a working with children check clearance’.

A clearance for volunteers is free.  For everyone else it costs $80 (Child Protection (Working With Children) Regulation 2013 (NSW) r 17(1)). There are however some further exemptions.  The Child Protection (Working With Children) Regulation 2013 (NSW) r 17(3) says:

The following persons are exempt from the requirement to pay an application fee for a clearance:

(a) authorised carers referred to in section 137 (1) (b) or (c) of the Children and Young Persons (Care and Protection) Act 1998 or an adult person referred to in section 10 (1) of the Act,

(b) a person undertaking practical training as part of an educational or vocational course,

(c) potential adoptive parents.

Those exemptions do not apply to either firefighters, police or paramedics.

It may be that firefighters don’t have to pay for a check because NSW Fire and Rescue pay for it for them?  If that’s true then it’s an industrial issue.  If the Fire Brigade Employees Union can compel FRNSW to pay the bill it just means they have achieved what the ambulance union is trying to achieve.  There is however nothing about working with children checks in the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017.  FRNSW could offer to pay outside the award but that seems unlikely.

Maybe firefighters just don’t need one?  The article says ‘‘The Working With Children Check has been phased in since 2013 for all NSW Government agencies’ but there are a list of people who work with children who do not need a check. On class of exempt NSW government agency staff is police.  Regulation 20 of the Child Protection (Working With Children) Regulation 2013 (NSW) says:

The following workers engaged in child-related work (and employers of those workers in that capacity) are exempt from the Act …:

(h)          a police officer or a member of the Australian Federal Police when working in his or her capacity as a police officer,

Other people, including people who enter schools are also exempt. In particular a person who

(b) … works for a period of not more than a total of 5 working days in a calendar year, if the work involves minimal direct contact with children or is supervised when children are present…

(o) a visiting speaker, adjudicator, performer, assessor or other similar visitor at a school or other place where child-related work is carried out if the work of the person at that place is for a one-off occasion and is carried out in the presence of one or more other adults.

If a firefighter’s only working with children is in the context of school presentations and they spend less than 5 days a year in the schools, or they do ‘one off’ visits in the presence of the teachers then they don’t need a clearance.

There is nothing in the Act or its regulations to suggest that the actual work of firefighting is child-related work.

It appears from the legislation that neither police nor firefighters need a working with clearance check, not that they are exempt the fees or that the government (or NSWFB or NSW Police) pays the fees for them.  Further the union is quoted by the ABC as saying ‘police and firefighters are exempt exempt from paying the $80 fee for their checks’ whereas police are expressly exempt from the need for such a check (Child Protection (Working With Children) Regulation 2013 (NSW) r 20(h)).  If the union is wrong about the need for police to obtain a check, they may also be wrong about the need for firefighters to obtain a check.

My correspondent, the spouse of a firefighter wonder’s why their partner doesn’t need to get a check, not why he or she doesn’t need to pay for it.  Looking just at the legislation it certainly does seem consistent with the legislation that firefighters don’t need a check; not that they don’t have to pay for it.  On that of course my correspondent may be wrong. It may well be that there’s work done by firefighters (but perhaps not all firefighters and not my correspondent’s spouse) that is child-related work and it may be that the government or NSWFB have agreed to pay those fees on their behalf, but I confess to feeling that this is unlikely.

If that’s true it puts the ambulance industrial action in a different light.  The claim that ‘it’s not fair that firefighters, police and paramedics ALL need a check but only paramedics have to pay’ is quite different to the claim that ‘it’s not fair that we need a check when firefighters and police don’t’.

 

 

Categories: Researchers

Acting in self defence

26 February, 2018 - 14:48

Today’s question (actually the 3rd for today and the 5th in two days) is:

With seemingly increasing violence levels against emergency workers, what are the rights of a person to defend themselves?

In Zecevic v DPP [1987] HCA 26 the High Court of Australia (Wilson, Dawson and Toohey JJ with whom Mason CJ, Brennan and Gaudron JJ agreed) said:

The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.

The critical issue is that any action is taken in the belief that it is necessary in self-defence.  Once you add a bit of retribution or punishment an action ceases to be self-defence.

And don’t forget the world isn’t really as shown on TV.  On TV a person acts in self-defence, the police arrive and identify the ‘good guy’ and the ‘bad guy’ (and no doubt the ‘good guy’ is the member of the emergency services) accepts their word for what happened, arrests the bad guy and everyone goes to the pub.  In reality police arrive with an open mind, ask for your version of the events, asks the other person for their version, looks for independent corroboration, consider the injuries everyone’s got etc.  That may mean having to go to police stations (perhaps in the back of a police vehicle), giving statements, calling lawyers, being fingerprinted and released on bail etc.  After some time a court may well accept that it was self-defence (or more accurately that the Crown can’t prove that it was not self-defence) and you are acquitted. That is not evidence of the system going wrong, it’s evidence that the police do not (and should not) simply accept the word of people we like to think are the ‘good guys’, that the system is complex and particularly where question arise as to what was a ‘reasonable’ response it is often best left to the community (via the jury or magistrate) to determine in open court, what that means in all the circumstances. It’s not simply a matter of saying ‘it was self-defence’ and expecting the police to leave it at that (though of course they may if the evidence is all one way).

Regardless of the process the law does say that a person, whether it’s Jo(e) Citizen, a paramedic or a police officer can use the force that they believe they need to in order to protect themselves or someone else. The level of force that is reasonable will depend on all the circumstances including the nature of the threat and what they believe may be the outcome if they do nothing.  But often discretion is the better part of valour – and to quote a friend of mine who said I can use this ‘It’s better to eat a shit sandwich for 5 minutes; than eat a t-bone through a straw for 6 months’.  Resorting to force, if there is an alternative such as withdrawing and waiting for backup, may simply escalate the matter and make it much worse.  And if you’re going to get into fights, you can’t treat the patient or fight the fire.

For more detailed discussion on self-defence see Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police – Part 3 (October 6, 2015).

 

Categories: Researchers

First aid treatment of a minor

26 February, 2018 - 14:13

Today’s questions are:

  1. Can a minor consent to treatment, when a parent is not available to give consent on the minor’s behalf?; and
  2. Can a minor consent to treatment, when a parent declines treatment on his/her behalf?

I think I have answered those in earlier posts – see

The details are in those posts. The short answers are:

  1. Yes, a minor can consent if he or she is ‘Gillick competent’ that is the has ‘a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’ (Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112). The critical question is not his or her age, but her understanding which will be different for different children but also different depending on the complexity of the issues at stake. A child may be able to consent to the application of a band-aid, but not to the administration of sutures etc.  Where a child does not have the capacity to consent, and there is no one ‘in loco parentis’ to consent for him or her, then the doctrine of necessity applies and justifies whatever treatment that ‘a reasonable person would in all the circumstance [give], acting in the best interests of the assisted person’ (see The doctrine of necessity – Explained (January 31, 2017)).
  2. Yes, that was the issue in Gillick’s case where the court said that once the child met the standard of competency, he or she could give consent and that was sufficient. In New South Wales the Minors Property and Contracts Act 1970 (NSW) s 49 provides that a child over 14 (provided they are competent) can give consent, and the parents of a child under the age of 16 can give consent. Where a child is between those ages then the consent of either is sufficient.  So a 15 year old can consent to treatment which can then be given (assuming the child is Gillick competent) even if the parents object.  Equally the treatment that the parent’s consent to can be given even if the child objects. (It would not be an assault to touch the child in those circumstance but I don’t address the question of whether treatment that the child doesn’t want is therapeutic and putting aside ethical question of whether such treatment is appropriate or in the best interests of the child).
Categories: Researchers

Audio recording by Ambulance Tasmania

26 February, 2018 - 12:46

Today’s correspondent comes from Tasmania. The question and issues can be linked to the earlier post – Dash cams and NSW SES (February 25, 2018) – but this time it’s not a dash cam doing the recording but a defibrillator!

My correspondent says:

I work for Ambulance Tasmania and they have just decided to go with the Zoll monitor defibrillator.

I just found out (by accident) there is a feature on there that records audio as soon as the monitor is switched on. Many staff are not aware of this and we are certainly not asking patients if they consent to having the interaction with us recorded. The Paramedic doing the Zoll training told me it isn’t a problem because management are only going to use the recordings to audit cardiac arrest cases.

I don’t care when or how they say they will use the recording, in my mind, the issue is, it exists and it is currently being obtained without staff or patient consent.

I’m very uncomfortable with this and do not want to be recording patients without their consent. There is also no policy associated with this so I don’t see anything stopping police demanding recordings every time we go into homes of people they are investigating. Then there is the issue that if we ask a patient if they consent to being recorded and they decline, we literally cannot turn the monitor on.

I feel outraged that I will be recorded without my consent and also that I am effectively being asked to record patients without their consent.

Any advice?

I’m not sure which model Ambulance Tasmania have decided to purchase, but the Administrator’s Guide for the ‘Fully Automatic AED Plus’ says:

If installed and configured, the Fully Automatic AED Plus contains an audio recording option that records and stores 20 minutes of continuous audio and clinical event data during a rescue. (The unit records and stores at least 7 hours of clinical event data if the audio recording option is disabled.) The recorded audio data is synchronized to the clinical event data.

It’s not clear to me why one wants that data. When handing over a patient who’s been in cardiac arrest I can understand why the medical team would want any recording of the patient’s heart rhythm and the impact of the defibrillator but for clinical purposes, who is ever going to want to listen to 20 minutes of audio?

Putting that aside, the device is recording information so let us consider the law.

The patient Listening Devices Act 1991 (Tas)

In Tasmania, a listening device is ‘any instrument, apparatus, equipment or device capable of being used to record or listen to a private conversation simultaneously with its taking place’ (Listening Devices Act 1991 (Tas) s 3)).  That the AED can record ‘20 minutes of continuous audio’ would mean that it is a ‘listening device’.  A private conversation (s 3) is:

… any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only –

(a) by themselves; or

(b) by themselves and by some other person who has the consent, express or implied, of all those persons to do so;

It is unlawful (s 5) to use:

… a listening device –

(a) to record or listen to a private conversation to which the person is not a party; or

(b) to record a private conversation to which the person is a party.

It is not an offence if the recording of the private conversation by means of a listening device was unintentional (s 5(2)(d)).

The penalty for unlawfully recording or listening to a private conversation via a listening device is, for an individual a fine of up to 40 penalty units or imprisonment for 2 years or both, and for a corporation the maximum penalty is a fine of 500 penalty units (s 12). The current value of a penalty unit in Tasmania is $159 (Department of Justice, Value of Indexed Amounts in Legislation: Penalty Units and Other Penalties Act 1987).  So the maximum fine for an individual is 40*$159=$6360. For a corporation it’s 500*$159=$79500.

One can imagine that during a cardiac arrest the conversation is not ‘private’ within the meaning of the Act. If the patient is in cardiac arrest they are not taking part in a conversation.  The paramedics are probably talking to each other about the situation at hand and what they are doing and going to do.  They are not discussing their private lives and whilst they may prefer not to be overhead one couldn’t infer that the conversation was private as defined by s 3, particularly if they are in a public place.  (To return to my earlier post, Dash cams and NSW SES (February 25, 2018), one might assume also that there are not private conversations in an SES truck, but there may be. People returning from a job may well be having a conversation that they intend is to be heard only by the people in the truck, so it is very likely that a dash cam could, unintentionally, record a private conversation).

Presumably, however, a cardiac monitor may be put on people who are not in cardiac arrest and they may say something. One can imagine a patient in an ambulance saying something private to the paramedic, whether it’s an admission of something, a reflection on their life, who knows. And this may be recorded by the defibrillator.  The intention may be to record clinically relevant data so this recording may be unintentional so it may not be an offence under s 5, but that is not the end of the matter.

Section 10 says:

(1)  A person who has been a party to a private conversation and has used, or caused to be used, a listening device to record the conversation (whether in contravention of section 5 or not), shall not subsequently communicate or publish to any other person any record of the conversation made, directly or indirectly, by the use of the device.

(2)  Subsection (1) does not apply where the communication or publication –

(a) is made to another party to the private conversation or with the consent, express or implied, of all of the principal parties to the conversation; or

(b) is made in the course of legal proceedings; or

(c) is not more than is reasonably necessary for the protection of the lawful interests of the person making the communication or publication; or

(d) is made to a person who has, or is, on reasonable grounds, by the person making the communication or publication, believed to have, such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made; or

(e) is made by a person who used the listening device to record the private conversation pursuant to a warrant granted under Part 4 or pursuant to an authority granted by or under the Telecommunications (Interception) Act 1979 of the Commonwealth or any other law of the Commonwealth.

Let us assume that, facing a near death crisis, a patient makes an admission to the paramedic that she has regretted remaining in her marriage for the last 10 years.  That is communicated in the ambulance with the obvious expectation that it is private.  She would not want her partner to know this.  So, what happens with the data?  From what I gather from the Zoll brochure’s it could be (perhaps should or even must be) downloaded and form part of the patient’s record.

Tasmania Ambulance and the paramedic has ‘used, or caused to be used, a listening device to record the conversation’. Let us assume that it is not an offence contrary to s 5 but even so neither Ambulance Tasmania nor the paramedic may ‘subsequently communicate or publish to any other person any record of the conversation’ in which case the audio file can’t be given to the hospital team as part of the patient record. Most of the exceptions under s 10(2), above, can’t apply. Section 10(2)(c) doesn’t apply because it’s not made ‘for the protection of the lawful interests’ of Ambulance Tasmania or the paramedic.

Section 10(2)(d) might apply if the treating team have ‘such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made’ but the reality is that they have no interest in that communication. They may want to know what signs and symptoms the patient had and what treatment they received but her admissions as to the state of her marriage are irrelevant to them.

And at some point, the partner as a person responsible for her care, or as the beneficiary of her estate, or as an appointed guardian or in some other capacity may well get access to that medical record and be given details, and hear a conversation, that was clearly not intended to be heard by the partner.  It would seem that handing over the recording where it involves a ‘private’ conversation between the patient and the paramedic that is not clinically relevant would be an offence under the Listening Devices Act 1991 (Tas).

Personal Information Protection Act 2004 (Tas)

Basic personal information means ‘the name, residential address, postal address, date of birth and gender of an individual’.  Health information is:

(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;

The information contained in the ambulance clinical record will be ‘personal information … about … a health service provided … to an individual’.   That would include the details of the patient’s cardiac condition as well as the discussion between those providing the health service, that is the paramedic(s) and others at the scene.  It would appear then that the audio recording would form part of the patient’s health information.

The Personal information protection principles (s 16 and Schedule 1) say

Collection

  1. A personal information custodian must not collect personal information unless the information is necessary for one or more of its functions or activities.
  2. A personal information custodian must collect personal information only by lawful means…

With respect to details of a personal conversation (as in my example above) there is no reason to record that sort of conversation for the purposes of Ambulance Tasmania or patient care.  And as noted the use of the listening device may be illegal.

With respect to use and disclosure the Personal information protection principles go onto say:

(1) A personal information custodian must not use or disclose personal information about an individual for a purpose other than the purpose for which it was collected unless –

(a) both of the following apply:

(i) that purpose is related to the primary purpose and, if the personal information is sensitive information, that information is directly related to the primary purpose;

(ii) the individual would reasonably expect the personal information custodian to use or disclose the information for that purpose; or

Further disclosure can be justified where it ‘is necessary to lessen or prevent – (i) a serious threat to an individual’s life, health, safety or welfare…’ (cl 2(1)(d)).

Ambulance services collect and record personal information about the patient including their name and address, a relevant history, details of treatment administered etc all the time. Collecting that information is part of the health care delivery and handing it on to the hospital medical team is directly related to the purpose for which it was obtained and recorded and a person would, I think, reasonably expect a paramedic to hand that data over to the hospital so in that sense making the material available, particularly if there is no private conversation recorded, would not be an issue.

One of the issues in the discussion about SES and dash cams was the need to maintain the data. Equally in Tasmania ‘A personal information custodian must take reasonable steps to protect the personal information it holds from misuse, loss, unauthorised access, modification or disclosure.’  Just as Ambulance Tasmania will need a way to secure its patient records it will also need to ensure that it can store the recordings made by the defibrillator.  And they will need to maintain that data for as long as they maintain other patient records.

The paramedics

The paramedics may indeed be engaged in a private conversation in the presence of the patient.  Whether they are reflecting on their own conduct, or the patient, or the ambulance service itself, they may well be having a conversation in the expectation that no-one else will hear it.  (And I note that may not be professional if one should always assume the patient can hear, but regardless it may well happen).

In that case their own private conversation has been recorded by a listening device.  It is not an offence to record a private conversation if ‘all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used’.  If the paramedics are aware that their conversation could be, or is being, recorded then one might infer that they consented (ie that they have given their ‘implied consent’). But my correspondent says that they aren’t being told that the defibrillators are capable of audio recording.  As my correspondent says:

I … found out (by accident) there is a feature on there that records audio as soon as the monitor is switched on. Many staff are not aware of this …

In that case neither they nor their patients can give consent nor could their consent be implied.

Tasmania does not appear to have an equivalent to the Workplace Surveillance Act 2005 (NSW).

The police

It’s true that the police could seek access to the recording in the same way they could seek access to a clinical record where that is relevant to their investigation (eg search warrant or subpoena). There are limits on the use that can be made of a recording that has been made contrary to the Listening Devices Act 1991 (Tas) ss 13-15 but even if the material can’t be used in evidence, it doesn’t mean it can’t inform police and be an important part of their inquiry, and that recorded may be harmful to the interests of those recorded.

Conclusion

The use of audio recording features on a defibrillator is problematic. It raises issues on how the recording is to be stored and protected.

More importantly the device is a ‘listening device’ and the use of a listening device to record a private conversation is unlawful. I would suggest the discussion that is limited to the clinical procedures is not a private conversation for the purposes of the Listening Devices Act but if the paramedics and/or the patient are unaware that they are being recorded they may well have a private conversation, that is a conversation that they do not intend, and would not want, anyone else to hear.  To record that without consent is an offence. Equally it is an offence to pass that information on which may be problematic when handing the patient onto hospital or other services.

One solution may be to make sure every paramedic is aware of the audio recording feature and put a sign on the device, and in the ambulance saying, in effect ‘Warning: Your conversation may be recorded’.

Categories: Researchers

Australian Emergency Law rated #3 of the top 25 Australian law blogs!

26 February, 2018 - 10:29

Feedspot has kindly noted this blog as # 3 of the top 25 Australian law blogs, using search and social metrics. According to their website the blogs are ranked based on following criteria:

  • Google reputation and Google search ranking
  • Influence and popularity on Facebook, twitter and other social media sites
  • Quality and consistency of posts.
  • Feedspot’s editorial team and expert review

The #1 nominated blog is the excellent Melbourne Law School “Opinions on High” discussion of Australian High Court decisions.

Whatever their method of calculation I thank them for the vote of confidence.

Categories: Researchers

Dash cams and NSW SES

25 February, 2018 - 08:54

A member of NSW SES has sent me a copy of Fleet Bulletin – 3/2018 relating to Dash Camera Audio/Visual Recording Devices.   The Bulletin directs all units remove dash cams from their vehicles.  It says:

This action is required due to the responsibilities of NSW SES members and the NSW SES as a service under the Privacy and Personal Information Protection Act 1999 [sic] (NSW) (Privacy Act) and Government Information (Public Access) Act (GIPA Act) [sic].

Key issues under these acts include

  • The need for there to be a clear purpose for the use of Dash Cams and the relationship to the functions of NSW SES,
  • The requirement that the use of the recording device not intrude to an unreasonable extent on the privacy of individuals,
  • The requirement for prominent signage that notifies individuals of the reason, legislative authority and agency disclosure relevant to the dash cam footage.
  • The requirement for the service to provide community access to information about how NSW SES capture footage and the potential for third parties to access footage, including with respect to the GIPA Act and in relation to subpoenas and statutory notices.
  • The need for the service to store the data and safeguard areas where dash cam footage is viewed, retained, stored and overwritten and the implementation of standards for the disposal of data and auditing of same.
The issue

Today’s correspondent says:

I’m concerned about this as my Volunteers no longer have protection from others drivers with what actually happened/who’s at fault. I’m especially concerned regarding response driving as having a dash cam is just a little more reassurance.

It also provides a training tool afterwards.

NSW Police Force vehicles use dam cams and don’t have signage on the vehicle. Why would the SES be any different?

Really, can we use dash cams? At a unit/volunteer level what should/must be regarding notification/disclosure to the public, storage (or simply overwriting old footage unless needed) etc?

The rules

The Office of the NSW State Emergency Service is an Executive agency of the NSW government (Government Sector Employment Act 2013 (NSW) Sch 1).  The State Emergency Service is a fundamental part of government. It follows that the SES is bound by the Privacy and Personal Information Protection Act 1998 (NSW) (the Privacy Act) and the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act).

The Privacy Act says (s 8)

A public sector agency must not collect personal information unless:

(a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and

(b) the collection of the information is reasonably necessary for that purpose.

Section 10 says:

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following:

(a)       the fact that the information is being collected,

(b)       the purposes for which the information is being collected,

(c)        the intended recipients of the information,

(d)       whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided,

(e)       the existence of any right of access to, and correction of, the information,

(f)        the name and address of the agency that is collecting the information and the agency that is to hold the information.

Personal information means ‘information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion’.

Under the Workplace Surveillance Act 2005 (NSW) an employee includes a volunteer (s 3, definition of ‘employee’). The cabin of the SES truck is therefore a workplace for the purposes of that Act.  Surveillance of an employee (s 3) means:

… surveillance of an employee by any of the following means:

(a) “camera surveillance”, which is surveillance by means of a camera that monitors or records visual images of activities on premises or in any other place …

(c) “tracking surveillance”, which is surveillance by means of an electronic device the primary purpose of which is to monitor or record geographical location or movement (such as a Global Positioning System tracking device).

Before conducting surveillance an employer must notify employees that they are to be subject to surveillance and the use that will be made of the data that is obtained (s 10).  Notices are not required where there is camera surveillance ‘at a workplace of the employer that is not a usual workplace of the employee’.  Where there is camera surveillance (s 11):

(a) cameras used for the surveillance (or camera casings or other equipment that would generally indicate the presence of a camera) are clearly visible in the place where the surveillance is taking place, and

(b) signs notifying people that they may be under surveillance in that place are clearly visible at each entrance to that place.

The Surveillance Devices Act 2007 (NSW) s 7 says:

A person must not knowingly install, use or cause to be used or maintain a listening device:

(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b) to record a private conversation to which the person is a party.

But that prohibition does not apply to the ‘unintentional hearing of a private conversation by means of a listening device’ or ‘all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used’.

With respect to optical surveillance devices, the Act says (s 8)

A person must not knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves:

(a) entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or

(b) interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object.

Under the Government Information (Public Access) Act 2009 (NSW) s 4 ‘”government information” means information contained in a record held by an agency’.  This Act says there is a presumed right to be able to access government information unless there are overriding interests why access should not be granted (s 5). IT doesn’t say anything about record keeping or how long records should be kept for.   I will assume, without establishing it, that the Office of the NSW State Emergency Service and the State Emergency Service are agencies for the purposes of this Act.

Finally, the State Records Act 1998 (NSW) s 3 defines a state record as ‘any record made and kept, or received and kept, by any person in the course of the exercise of official functions in a public office, or for any purpose of a public office, or for the use of a public office, whether before or after the commencement of this section.’

Application of the rules to the issue

A dash cam, as I understand it, can do two things. It can record video and sound. When properly installed it is facing forward and recording video of what is happening outside of the vehicle.  It has a loop recording function so as the memory fills it overwrites earlier images.   When there is an accident or sudden stop the dash cam can, either automatically or by operator action, protect those images so they are not overwritten.

At the same time the dash cam records sound. That will include road sound that comes into the vehicle as well the sound of people in the vehicle, so it can record conversations.  The sound recording feature can be turned off.

The first question then is, is the dash cam recording ‘personal information’?  With respect to its video recording function I suggest not.  As noted elsewhere on this blog there is no right to privacy and a person is free to photograph whatever they can see (see Photographing a rescue scene (November 11, 2016)).  By filming the traffic and events outside the vehicle, events that are public, there is no breach of the privacy act.  Even if you enter private property and the film continues that is not, in my opinion, recording ‘personal information’

Recording conversations in the vehicle is another matter (see Taking photos, recording sound (February 23, 2015)).  The conversations themselves may or may not contain personal information, it depends on the subject under discussion.

Even if the intention is to have the dash cam operate to provide ‘protection from others drivers with what actually happened/who’s at fault’ there is no doubt that it does form surveillance of the driver.  One might think the accident will always be the other driver’s fault but that is not the case.  The dash cam may well record (as may GPS tracking) that it was the SES driver at fault.  That’s not a bad thing.  The State is meant to be a model litigant. If it turns out the SES driver is at fault then the State won’t put the other side to protracted litigation. If the state was at fault then the state needs to pay for the damages as does anyone. Any evidence that establishes what happens is good, regardless where the ultimate conclusion falls.  But even so it is, no doubt, a form of surveillance of the conduct of the driver and does, therefore, constitute ‘workplace surveillance’ with all the obligations for notice that this brings.

With respect to the use of the dash cam as an optical surveillance device, a dash cam mounted on the windscreen is a camera that is clearly visible.  Where it has been installed with the knowledge of the unit controller or the person (if any) responsible for maintaining the vehicle it will have been installed with the express or implied permission of the person having lawful control of the vehicle.  As for its role as a listening device it is not intended or put there to record private conversations and, further, if everyone knows it’s there then the people in the vehicle may be taken to have given implied consent to the recording.

The GIPA Act does say that there is a right to access a government record. That would suggest that if someone wanted to view the recording from a dash cam, they would have a right to do so, but only if that recording still exists.  The State Records Act requires agency to take appropriate care to keep and store their records, but not for ever.  The implementation guide to the new Standard on Records Management says (at p. 18):

Organisations should implement policy, business rules and procedures to ensure that records and information are kept for as long as they are required …

Without going into the details (in part because the links to further ‘Key guidance for implementing this requirement’ don’t work, which is not a good look for a State Archives Office that is trying to set the standard for the digital storage of government records) we can say that this does not require records to be kept forever.  Even if a recording on a dash cam is a state record, it may be something that is only required to be kept until it is over recorded given that nothing happened during that time.

It could be argued that recording the driving of the vehicle is not a record made for ‘the exercise of official functions in a public office, or for any purpose of a public office, or for the use of a public office’ and so it is not a State Record.  If that is true, however, it would run into difficulties as it would mean the recording is not made ‘for a lawful purpose that is directly related to a function or activity of the agency’ (Privacy Act 1998 (NSW) s 8).  But again that’s only relevant if what’s being recorded and ‘collected’ is personal information.

Conclusion on the SES directive

Fundamentally the SES directive is correct though I would suggest it’s a very cautious or conservative approach.  It is the case that the use of dash cams in SES vehicles does raise issues under the legislation listed above.  Much of that could probably be dealt with by turning off the audio record feature and putting a sign in the cabin that says ‘Warning: Conversations in this truck may be recorded’ (just in case the audio feature gets turned on, again.)

That does not however deal with issues of how the recording is to be dealt wth and how it is to be stored and accessed and those are important considerations. It would be incumbent on the SES to actually consider how long recordings should be kept for and ensure people are trained to know how to turn off the audio recording, how to set the protection to ensure video that needs to be kept is kept and then provide adequate storage for that video.  If you are keeping video of an accident no doubt it may be required to be produced under subpoena or other legal process so it does need to be retained and be locatable.

The question of do we really have to worry about all that at volunteer/unit level forgets that units are not independent agencies, they are part and parcel of the government agency that is the State Emergency Service (see How autonomous are NSW Rural Fire Brigades? (February 25, 2015)). As part of the government units have to comply in the same way the local branch of any state agency has to comply with laws governing that agency or state agencies in general.

Why don’t police have to comply with these rules?

The answer to that is because they have special rules. The Surveillance Devices Act 2007 (NSW) s 50A provide for the use of body-worn video by police officers. The Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) Part 8A (ss 108A-108H) deals with the use of police in car video equipment.  It deals with many of the issues raised here; they include giving the authority to record private conversations (s 108C and 108D ‘Person to be informed that conversation will be recorded’) included that they can be recorded without the person’s consent (s 108D(3)).  The use of police recording devices ‘does not constitute the use of a listening device for the purposes of the Surveillance Devices Act 2007’ (s 108F) and so all the provisions set out in the Surveillance Devices Act with respect to notice and consent etc do not apply.   Recordings made by police must be retained for 2 years.

My correspondent asked:

NSW Police Force vehicles use dam cams and don’t have signage on the vehicle. Why would the SES be any different?

The Answer is because the police have the benefit of the Surveillance Devices Act 2007 (NSW) s 50A and the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Part 8A, and the SES does not.

A possible alternative

One alternative, that may produce a different conclusion, is if the driver, rather than the unit, owned the dash cam.  Whilst the driver is volunteering for the SES and is in an SES truck and is therefore representing and part of the SES he or she is still entitled to keep their own records.  If I keep a diary of what I did it remains my diary even if I keep a record of what happened when I was volunteering.  If it is the driver that owns the dash cam there can’t be an issue of ‘workplace surveillance’ as it is not the workplace that is conducting the surveillance. He or she is recording information about him or herself and their driving.  If there are any private conversations recorded that is not intentional and further, given the driver is there and party to the conversations that is not an offence nor is using the device to record in order to protect his or her legal rights should an accident occur (Privacy Act 1998 (NSW) s 7(3)(b)).  And again that issue could be largely resolved by turning off the audio recording feature.

It may be. therefore, that if the driver owns the dash cam and sets it up before driving and does so with the intention of having his or her own record of their driving, that may well avoid most of these issues.   However, as a member of the SES one is required ‘to comply with, the procedures or instructions of the State Emergency Service’ (State Emergency Service Act 1989 (NSW) s 18A).  Accordingly if the Commissioner directs that members are not to use dash-cams in SES trucks a member who fails to comply may be subject to disciplinary action.

Conclusion

The directive from the SES does seem like an over-the-top reaction to what is surely a good idea. Dash cams are cheap, easy to operate and really useful to resolve issues should a motor vehicle accident or near miss occur – whether they are resolved in favour of the SES or not.  As a general rule a private citizen can do anything unless there is a law that says they can’t; a government can’t do anything unless there’s a law that says it can.

I can put a dash cam in my car as I’m not a state agency. I’m not required to comply with the Privacy and Personal Information Protection Act 1998 (NSW), the Government Information (Public Access) Act 2009 (NSW), the State Records Act 1998 (NSW) etc. Equally my car is not a workplace so I don’t have to worry about workplace surveillance.  The Surveillance Devices Act does apply to me but if I’m in the car I’m recording a conversation to which I’m a part (though in truth, I’ve turned off the audio recording on my dash cam for that reason, I don’t want to record those conversations and if there is an accident, I don’t want to reveal to the other side what was being said in case it was private).   In any event I would suggest that any recording of the conversation is ‘unintentional’, the intention being to record the video of the event and the audio immediately before and after the collision, if there is one.

And that brings me back to my earlier point as to this being a conservative approach. I think there could be arguments that these devices are not recording personal information and to the extent that they do that is unintentional, so they do no breach the Privacy Act.  Agencies produce much data that is lost, note book scribbles, phone messages etc.  Not everything that is produced is a ‘state record’ so not keeping recording where nothing happens does not, arguably, offend the State Records Act.

The use of a dash cam would be workplace surveillance but that is OK where the camera is obvious and it’s not the person’s regular workplace.  That provision means if you have video surveillance and today someone who works in office A is asked to go to office B you don’t have to give all the notice as it’s obvious when you see the camera that surveillance is happening.  Members who work out of a truck could be given notice but also, arguably, it’s not their regular place of work as that is the headquarters or even outside the truck.  That might be stretching the imagination but then it’s all about risk management.  How likely is that the regulator of the Workplace Surveillance Act is going to get concerned about the SES using a dash cam?  If everyone’s happy about it and it’s used to prove the other driver was at fault, not very likely at all. If, on the other hand, the SES driver is being prosecuted and the Crown is relying on evidence in the video tape, the driver may well make complaints about surveillance that he or she was not warned about. IT may not go anywhere but it may muddy the waters.

As for data storage and record keeping that is relevant as there at least needs to be consideration of what use is made of the video and when and how and for how long it is to be stored.

What I mean by a conservative approach is, as I say, about risk management. One might think the risk of anyone being concerned about alleged breaches of the legislation listed above is very slight.   And one can think of arguments to suggest that most of those provisions don’t apply.  A person might think that for the benefit, they’ll run the risk that no-one will care and if they do they can argue that they didn’t break the law. That’s fine for a private individual and we all do it all the time, we weigh up the benefit of our action against the risk of the consequences and no doubt some chose to break the law, or come very close, because they think the benefit is worth the risk.

An example of that type of approach may be for an individual to buy their own dash cam and install it when they are driving in order to have their own recording to protect their own interests should that be an issue. There are arguments that this would remove most of those issues but those arguments are not necessarily correct – the driver is in SES uniform and driving an SES vehicle – he or she is the SES so it may be determined, if it were ever challenged, that the documents are still owned by the SES.  And for that reason the SES may still want to direct that a dash cam is not to be used.

A conservative response, and perhaps one to be expected from a government agency that is not meant to ‘sail close to the wind’ is to say that no risk of being in breach is permissible. Clearly the use of dash cams does raise issues of privacy and whether the collection of private information by the camera is justified and permitted under the Privacy Act.  It is workplace surveillance (given s 3) so signage is required to ensure compliance with the Surveillance Devices Act and the Workplace Surveillance Act. If one is going to produce this sort of recording where the clear intention is to have it for legal proceedings, consideration does have to be given to storage and how it is made accessible.  The SES does have to consider the implementation of standards for the disposal of data and auditing of same.  It may be that all of that can and should be managed, but until it is, there is a risk and perhaps a risk that can’t properly be identified because consideration of all those issues has not been completed.  The SES response may be the ‘conservative’ response but it’s not wrong at least when the dash cams are owned by the unit rather than the driver of the vehicle.  The Commissioner, on behalf of the SES is the one charged with managing that response and if he chooses to take the ‘no risk’ response then that is within the ambit of his office.

And the answer to the question ‘why can the police do it?’ is because the police (and the government) have thought about those issues and passed special legislation to allow them to use their body worn and camera mounted video equipment.  That legislation applies to the police, it does not apply to the SES.  ‘Why would the SES be any different?’ Because policing is a very different business to what the SES does.

Categories: Researchers

Paramedic Service levels in WA

22 February, 2018 - 19:41

A Paramedic

… works in a large regional city in Western Australia –  population >30,000. We work under the Volunteer/Paramedic module where volunteers are tiered into level 1 and level 2 with in house training, not accredited qualifications. They are signed off and permitted to then form an ambulance crew with a Paramedic.

Are there restraints around how busy areas are (jobs completed per year) and the appropriateness of utilizing volunteers instead of full career staff?

There is no general legal principle that would set a minimum service level. (And consider the number of volunteer fire and ambulance companies in the United States including major cities. If there was a common law rule that could be applied to limit those services I’m sure it would have been found and used there).

In Western Australia, a person could not sue the government for failing to provide what they thought was a higher level of service.  Service levels could always be improved but services have to be delivered with the resources that are available – see Civil Liability Act 2002 (WA) s 5W.

The only relevant industrial agreement that I can find online is the St John Ambulance Australia (Western Australia) Inc Ambulance Officers’/Paramedics Enterprise Agreement 2011-2014. I assume that even though it was meant to end in 2014, it still governs employment in WA.  If it doesn’t I’m sure someone will let me know.

The 2014 Agreement only says this with respect to volunteers:

18.17   A Country Training Skills Allowance, as set out in Appendix 2, will be paid to qualified Ambulance Paramedics working in country locations, who provide ambulance tutoring/training skills to volunteers whilst working together as a paid/volunteer crew.

26        Where employees are required to work with volunteers, St John Ambulance will, as soon as practicable, ensure that volunteers receive volunteer driver training.

At the Broome and Headland Sub Centres ([34.1] and [35.1]):

(c)        Employees on standby shall:…

(iii)      be available to immediately commence work if volunteer Ambulance Officers are not available for that period.

(g)       Employees are required to support, work with and encourage the recruitment and training of volunteer Ambulance Officers. Employees are required to conduct up to a total of 42 hours of training per calendar year, in consultation with CPHC payment of these hours are accounted for in accordance with clause 34.3(g) (Broome/Hedland Allowance).

(j)        If additional ambulances are required they will be staffed by available off duty employees when volunteer Ambulance Officers are not available. Payments of these additional hours are accounted for in accordance with clause 34.3(g) (Broome/Hedland Allowance).

And at Headland ([35.1(h)])

If additional ambulances are required they will be staffed by available off duty employees when volunteer Ambulance Officers are not available. Payments of these additional hours are accounted for in accordance with clause 35.3(g)

And at [35.2]:

(a) Employees will work a roster that will be determined by agreement between those employee’s employed in the Sub-Centre, subject to the following:…

(ii)       1 employee and 1 volunteer Ambulance Officer will comprise a standard crew;

(iii)      when a volunteer Ambulance Officer is not available a second employee must be on stand-by; …

That is there is nothing in the Enterprise Agreement to say that stations with a certain workload must be staffed only by employed paramedics.

The other source of an obligation may be in the agreement between St John Ambulance (WA) and the Western Australia government, but I do not have access to that agreement so can’t comment on what it may, or may not, say.

In the absence of the agreement between WA and St John Ambulance, there are no restraints around how busy areas are staffed, and the appropriateness of utilizing volunteers instead of full career staff.

 

 

 

Categories: Researchers

Should a NSW RFS brigade retain its incorporated status?

16 February, 2018 - 16:25

Today’s correspondent comes from NSW RFS.  The question relates (again) to the status of volunteer brigades see:

Today’s question says:

The RFS have just released the new 2018 model brigade constitution. They, to their credit have gone through a very comprehensive process in delivering a model to brigades that standardizes but also maintains some flexibility for brigades to personalize their process’s. More importantly it is up to date with current legislation etc.

Our brigade is one of the older, formerly community, then council based “Bush Fire Units”. In the early 2000’s when our current constitution model was released, there were concerns within the brigade around liability, to itself and to its members. At that time the then brigade members made a decision to become an Incorporated Association in what they hoped would then give them additional protection under the Associations Act as I understand it.

I believe a number of brigades had done so at that time.

The previous model constitution allowed brigades in the past to apply additional clauses/rules  etc (subject to approval of course and within the spirit of the constitution etc) and as such, clauses were added to ours to ensure we were compliant with the Association Act, specifically around the requirement of wording on the subject of liability. The new model allows us to modify brigade rules to a certain extent (eg, voting methods etc) but does not allow for any alteration or addition to its body for any of these other such amendments. As such we believe we would not be fully compliant with the “Associations” model. The service has encouraged us to revoke our incorporation as all liability for the brigade and its members are now covered under the NSW Rural Fire Act. Many/most brigades have long before done this.

Finally to my question, is there any advantage or in fact disadvantage in us remaining as an incorporated entity?

The new constitution is available online as Service Standard 2.1.2 Brigade Constitution.

An incorporated entity under the Associations Incorporation Act 2009 (NSW) is a legal entity, separate from its members, that can enter contracts and sue and be sued (s 19).  An incorporated entity must have rules that comply with the requirements of the Act and must meet management and financial obligations under the Act.

A brigade of the NSW Rural Fire Service is established by a ‘local authority’ (but for all practicable purposes, that is the Commissioner of the RFS – see Rural Fires Act 1997 (NSW) s 15 and Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades, [1.2])).   A brigade is not a separate legal entity and is subject to the direction and control of the Commissioner.   The Rural Fires Regulation 2013 (NSW) r 4 says that ‘The constitution for a rural fire brigade is to be in a form approved by the responsible authority…’ (ie the Commissioner).

In short, a group of people who get together and form an associated entity called the Kickatingalong Bushfire Brigade Inc. have created an entity that is different from the Kickatingalong Bushfire Brigade established by the Commissioner of the Rural Fire Service.  The Kickatingalong Bushfire Brigade Inc. is not a brigade created by or under the Rural Fires Act 1997 (NSW).  Its members and the managers are not acting pursuant to the RFS Act in their management of the Brigade.  Under what authority they are acting on the fire ground could well be open to question.

In short there is every advantage in giving up one’s incorporated status.  If you are afraid of legal liablity it’s better that any plaintiff sue the Crown in Right of NSW and look to the NSW Treasury Managed fund rather than sue the Kickatingalong Bushfire Brigade Inc. and hope they have insurance.  In terms of management of the Brigade the captain etc are subject to the direction of the Commissioner but a management committee of the Kickatingalong Bushfire Brigade Inc. has obligations that they must personally meet under the Associations Incorporation Act.

I’m not usually this strong but here goes – you’re completely mad to try to retain incorporated status under the Associations Incorporations Act.  You are just making life complex, creating two Acts to comply with and putting any protection you have as members of the RFS at risk.  If actions can be attributed to the Kickatingalong Bushfire Brigade Inc then it will be the managers of the incorporated entity that have to deal with it rather than simply say ‘we’re servants and agents of the RFS, Mr Commissioner, it’s your problem’ (whatever the problem is).

Categories: Researchers

Paramedic registration and changing the terms of employment

16 February, 2018 - 13:13

A NSW paramedic writes:

With the imminent start of registration for the paramedic profession will ambulance state awards needs to be updated to reflect this new registration board requirements to maintain employment.

The current NSW ambulance Award has no specific requirements to obtaining and maintaining employment as a paramedic to being registered.

If an individual does not apply for registration then the current award would not be breached and so the employment of that officer must continue without registration.

Yet at the same time use of the term paramedic and employment in that role would presumably be in breach of some other award or standard under which the registration board has been created.

If the ambulance award needs to be updated to cover a requirement to obtain and maintain registration this would take time as any change to the award must be negotiated and approved by the relevant unions, employers and industrial bodies.

No such negotiation has yet apparently started, which raises the question what happens when registration comes into effect.

It’s true that the Operational Ambulance Officers (State) Award (NSW) does not deal with registration.  It says (p. 4) that a person is a paramedic if they are:

… an employee who has successfully completed the necessary and relevant training and work experience as determined by the Service to become a Paramedic and who is appointed to an approved Paramedic position. Provided that such an employee shall be required to undertake and successfully complete further instruction/in-service courses necessary for the maintenance of their clinical certificate to practice and the reissue of their clinical certificate to practice every three (3) years.

In Queensland (Ambulance Service Employees Award – State 2016 (Qld), p. 44) a paramedic is:

(a) … an employee [of QAS] who provides a high standard of pre-hospital emergency patient care and the provision of ambulance transport services for members of the community.

(b) A Paramedic must possess at least a Certificate IV in Basic Emergency Care or Associate Diploma of Applied Science (Ambulance) with no additional skills or qualifications or recognised equivalent (as determined by the QAS Commissioner) at the Paramedic P1 skill level.

Once registration comes into effect only a person who is registered with the Paramedicine Board as a paramedic will be able to use that title. Just that one example makes it clear that these awards will have to change to reflect the changing nature of what it is to be a paramedic.

The use of the term ‘paramedic’ by someone who is not registered will be an offence under the Health Practitioner Regulation National Law (see Is ‘Doctor’ a protected title? (February 14, 2018)) but the National Law does not set details of scope of practice or the like so there is no offence to practice paramedicine, or nursing, or as a medical practitioner – only an offence to use a protected title.  So a person who is currently employed as a paramedic but who, for whatever reason does not register, could keep doing what they are doing, they just couldn’t call themselves ‘a paramedic’.  So the use of the ‘term’ is a breach of the national law, not an award.  But continuing in the role will lead to interesting industrial issues because, no doubt, the Ambulance Service will need (or want) to amend the award to say that a paramedic must be a registered paramedic but where does that leave a person who’s been performing their job under the current award, but who doesn’t want to register?

I can’t say what will happen when registration comes into effect, but it is something ambulance services should certainly be discussion with their employees.

 

Categories: Researchers

Recording emergency phone calls

15 February, 2018 - 15:59

Today’s correspondent wants to know why emergency call centres are not required to notify callers that phone calls are being recorded.  My correspondent says:

Under the Privacy Act 1988, an organisation must declare at the beginning of the conversation if this call is to be recorded or monitored. They can do it by a simple announcement or by interjecting a tone signal every 30 sec. into the call.

Some emergency command or security dispatch centres are excluded from this requirement. This is understandable during a crisis situation as we may not have the time to listen to the announcement and “opt out”.

However, during regular operations they are still not required to advise that the call may be (or as a matter of fact, is) recorded.

I am interested on which piece of legislation, such command / dispatch centres, can seek exclusion from the Privacy Act. Secondly, is there a publicly available list of all companies who obtained such exclusion?

The Privacy Act 1988 (Cth) is not the Act that requires people to be advised that a telephone call is being recorded.  That obligation arises under the Telecommunications (Interception and Access) Act 1979 (Cth) s 6.  That section says (emphasis added):

For the purposes of this Act, but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.

By telling a person that their call is being recorded and giving the person to hang up, or opt out, is to avoid the prohibition on telecommunication interception.

Emergency services are however exempt.  The Act says

(2A)       An emergency service facility is premises that are declared by the Minister, by written instrument, to be an emergency service facility.

(2B)        The Minister may declare premises to be an emergency service facility if the Minister is satisfied that the premises are operated by:

(a)          a police force or service of the Commonwealth, of a State or of the Australian Capital Territory; or

(b)          a fire service of a State or of the Australian Capital Territory; or

(c)           an ambulance service of a State or of the Australian Capital Territory; or

(d)          a service for despatching, or referring matters for the attention of, a force or service referred to in paragraph (a), (b) or (c);

to enable that force or service, or another force or service, to deal with a request for assistance in an emergency.

(2F)  If a person who is lawfully engaged in duties relating to the receiving and handling of communications to or from an emergency service facility listens to or records a communication passing over a telecommunications system to or from the emergency service facility, the listening or recording does not, for the purposes of this Act, constitute an interception of the communication.

With respect to the Northern Territory the definitions section (s 5) says that for the purpose of this Act, ‘State includes the Northern Territory’ so the references to ‘a State’ in s 6 includes the Northern Territory.

Further

(4)            If:

(a)          a person makes a call to a publicly-listed ASIO number; and

(b)          another person who is lawfully engaged in duties relating to the receiving and handling of communications to that number listens to or records a communication passing over a telecommunications system in the course of that call;

the listening or recording does not, for the purposes of this Act, constitute the interception of the communication.

Details of declarations made under the Act can be found at https://www.legislation.gov.au/Browse/Results/ByTitle/LegislativeInstruments/InForce/Te/0/0/principal.  For example the Telecommunications (Interception and Access) (Emergency Service Facilities — Australian Capital Territory) Instrument 2015 declares that the Australian Federal Police at Barton, Belconnen, Greenway, Hume, Majura is an emergency service facility whilst the ACT Emergency Services Agency and Airservices Australia – Aviation Rescue and Fire Fighting Service are ‘Service[s] for despatching, or referring matters for the attention of, a force or service’.  See also:

(See also The Telecommunications (Interception and Access) Act 1979; Annual Report 2015–16 , p. 30).

The section does appear to exclude the various state and territory emergency services.  In some states the State Emergency Service is part of a bigger fire and emergency service (eg Queensland) or call taking may be coordinated within a central agency such as ACT’s Emergency Services Agency or Victoria’s Emergency Services Telecommunications Authority. Those combined call taking centres can be declared an emergency service facility as they are a facility described in s 6(2B)(d).

But what of say NSW SES where calls are received at a dedicated state headquarters? The NSW SES has also been declared to be an emergency service facility as a ‘Service for despatching, or referring matters for the attention of, a force or service’ – Telecommunications (Interception and Access) (Emergency Services Facilities — New South Wales) Instrument 2015.

What follows is that subject to a declaration under s 6(2D) calls to the emergency services may be recorded without prior notification to the person making the call.

Categories: Researchers

Is ‘Doctor’ a protected title?

14 February, 2018 - 14:29

This question comes from a paramedic with SA Ambulance but it’s not a paramedic or a SA question, but it’s relevant given forthcoming registration of paramedicine.  Today’s correspondent says:

I noticed one of our staff members uses the title Dr. (Holding a PhD). I have a PhD from an overseas university with no affiliation with Australian universities. Am I legally entitled to preface with Dr…. (PhD)?

As noted in earlier posts (see The use of protected titles by students and others (January 30, 2018)) it is an offence to use a title that is protected under the Health Practitioner Regulation National Law. For medical practitioners the only protected title is indeed, “medical practitioner”.  The term ‘Doctor’ is not a protected title indeed because it used by people other than medical practitioners. Dentists, vets (http://www.vsb.qld.gov.au/policygeneral.html#title) and, of course, the holders of doctoral degrees, PhD, SJD etc.

The use of the term Doctor (or title Dr), even by medical pracitioners is an honorific and use of the title is really governed by convention alone.  The only limit is one should not use the title in a way to mislead or deceive others, so if you use the title in circumstances where you hope to obtain a benefit or other advantage, or improve your standing or credibility by making people believe you are something you are not, then you may be committing an offence (eg under Fair Trading law about not engaging in misleading and deceptive conduct in trade or commerce; or criminal law with respect to obtaining a benefit by deception).

If you got your PhD by buying it from a US mail order company perhaps not, but if you hold a PhD from a genuine overseas (or Australian) university you are absolutely entitled to call yourself ‘doctor’.

Categories: Researchers

A new blog

14 February, 2018 - 13:13

I’ve decided to expand my blogging interests so I’ve started a blog on Caravan and Motorhome law.  If, when you’re not working or volunteering for the emergency services, you want to head off in your caravan, campervan or motorhome, come here to ask the legal questions.  See https://campinglaw.wordpress.com/

 

Categories: Researchers

Issuing naloxone to Victorian drug outreach workers

9 February, 2018 - 15:22

Today’s question comes from:

… an organization that promotes drug policy frameworks that are based on evidence and promote human dignity.

One of our main areas of work is assisting drug services and other organisations to develop and roll-out Narcan/naloxone programs.  Naloxone is a medicine that temporarily reverses an opioid overdose.

One thing we would like to see is drug outreach workers carrying naloxone so they can administer it if they encounter someone experiencing an overdose. However, there is a lot of anxiety about whether they would be covered by Victoria’s Good Samaritan laws (the Wrongs Act 1958) and so many of our stakeholders are reluctant to have their outreach workers carry naloxone kits. Given there has not been a test case, the Department of Health and Human Services in Victoria is being very cagey about this and is refusing to offer advice or clarification.

I came across your blog post on Good Samaritan laws in Australia and was wondering what your take on it would be? While we have told services it is unlikely that an outreach worker would not be covered in these circumstances, the uncertainty (and anxiety) remains.

Naloxone is ‘is a drug that can reverse opioid overdose. It … can be injected intravenously (into a vein) or intramuscularly (into a muscle)’ (see Alcohol and Drug Foundation, Naloxone, February 9, 2018). Further naloxone is now listed as in Schedule 3 of the Australian Poisons Standard (February 2018), that is it is anyone can buy it from a pharmacist in order to be able to treat opioid overdose.

The relevant provision is the Wrongs Act 1958 (Vic) s 31B. It says:

(1)       A good samaritan is an individual who provides assistance, advice or care to another person in relation to an emergency or accident in circumstances in which—

(a) he or she expects no money or other financial reward for providing the assistance, advice or care; and

(b) as a result of the emergency or accident the person to whom, or in relation to whom, the assistance, advice or care is provided is at risk of death or injury, is injured, is apparently at risk of death or injury, or is apparently injured.

(2)       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; or

(b) in providing advice by telephone or by another means of communication to a person at the scene of the emergency or accident.

(3)       …

(4)       …

There have been amendments to deal with the use of naloxone in other jurisdictions, but these do not appear to have been put in place in Victoria.  For example, in the ACT a good Samaritan does not, normally, enjoy the benefit of the Civil Law (Wrongs) Act 2002 (ACT) s 5 if his or her ‘capacity to exercise appropriate care and skill was, at the relevant time, significantly impaired by a recreational drug’ (see s 5(2)(b)).  That exclusion does not, however, apply:

…  if a good samaritan administers the drug known as naloxone, honestly and without recklessness, to a person apparently suffering from an overdose of an opioid drug for the purpose of resuscitating the person,

even if they were, at the time, impaired by a recreational drug.  The point of that provision is to encourage people who are themselves affected by a drug to use naloxone to resuscitate their friends and fellow drug takers should that be required (and for a commentary see Excluding good Samaritan protection for the intoxicated (March 17, 2016)).

That Victoria does not have an equivalent to the Civil Law (Wrongs) Act 2002 (ACT) s 5(3) is interesting, but not relevant as I don’t infer from my correspondent that drug outreach workers are themselves affected by drugs.

Are they a good Samaritan?

The question becomes: if a drug outreach worker finds someone affected by drugs and goes to assist them, are they are a good Samaritan?  Let me assume that the person suffering the drug overdose is ‘at risk of death’ without assistance so the criteria in the Wrongs Act 1958 (Vic) s 31B(1)(b) is met.  Let me also assume that the outreach workers are employees not volunteers. As employees they are expected to get paid for their work but are they being paid for ‘for providing the assistance, advice or care’?  I don’t actually have a duty statement so I’m guessing here.

My guess is that they are not.  North Richmond Community Health in Victoria recently advertised for a person to fill the role of Alcohol and Drug (AOD) Outreach Worker (the ad is still on the web, but it says it’s now closed). The worker’s

… responsibilities will include (but will not be limited to):

  • Engaging at-risk marginalised people who use alcohol and other drugs;
  • Provision of an outreach case work service;
  • Assessing and monitoring clients at risk of overdose and/or who manifest other signs of high level or risky substance use;
  • Developing and providing culturally appropriate educational and training resources, tailored to the needs of groups and individuals;
  • Employing a range of strategies to deliver harm reduction messages that address safer drug use;
  • Implementing an effective NSP to reduce / prevent the spread of blood borne viruses such as HIV, hepatitis B & C and sexually transmissible infections (STIs);
  • Provision of a needle/syringe retrieval service and monitoring the area around the NSP for inappropriate drug use and discarded equipment; and
  • Routinely collecting data and providing reports as required.

The job is not to provide supervision of those injecting and to be available to provide first aid.  That an outreach worker will be called upon to assist is foreseeable but that doesn’t necessarily make it part of the job they are being paid for.  What I have in mind is the outreach worker who goes to visit a client and finds them suffering an apparent overdose, rather than a worker who is called and asked to come because there’s been an overdose.

It would be different, I suggest, if the worker were at say a supervised injecting room because there they are there, and being paid, to not only provide supervision but I suggest to actually make it safe (that being the point of a supervised injecting room).  In that case if they provide first aid (whether or not that includes naloxone) they are not acting as ‘good Samaritan’s’ but rather performing an essential part of the job.

Why does it matter?

The bigger question is why do the services care about whether or not the workers are good Samaritans for the purposes of the Wrongs Act?  I’d be more concerned about an outreach service not issuing naloxone to workers.  Presumably it’s foreseeable that an outreach worker will go to a person’s home where the client is likely to be affected by the drug, when the worker finds them there may be no one else to help and there is a pre-existing client relationship. The outreach worker and the service will have a duty to do something; they can’t just walk away from their drug affected client. Further, the organisation that employs the worker has a duty both to the worker and the client. It is foreseeable that to issue naloxone to the worker will allow them to provide immediate care to the patient then it may be that a ‘reasonable’ organisation would do that. Failure to ensure that the worker has the necessary tools, in this case an over the counter drug, to do his or her job may be negligent.  A client may have more luck suing a service that failed to equip its staff with the necessary tools to deal with a foreseeable emergency than suing one that did give them those tools.

Further under WHS legislation an employer has a duty to ensure a safe workplace. Part of that duty is to provide first aid in the workplace (see WorkSafe Victoria ‘Compliance Code: First Aid in the Workplace (1st ed, September 2008)).  No doubt the outreach workers have a first aid kit in any car they are required to drive to work, it begs the question of why doesn’t it have naloxone given the nature of their work?

And if the worker is a supervisor at a supervised injecting room failure to ensure naloxone was available on site would, in my view, be clear evidence of negligence.

Conclusion

Without specific duty statements it’s impossible to be definitive but I would infer that an outreach worker who does provide assistance in an emergency with his or her client is a ‘good Samaritan’ as it’s not specifically part of their job to provide emergency care even though it is foreseeable that they may be called upon to do so.  I think that would be different if they were say, working in a supervisory capacity in a safe injecting room.

The bigger question is what are they scared of and why do they think they need the protection of the Wrongs Act?   Further if they are not good Samaritans, and so don’t benefit from that protection, then given the risk of finding their patients with an overdose it would be easier to argue that there is negligence (by the employer) in not issuing naloxone and that risk is likely to be higher than training the staff in how to use it and putting it in their work kits.

Again it’s one of those questions where I ask ‘what do people think is going to go wrong?’ And how can it be better not to give lifesaving equipment because of a fear of liability when the risk of liability for trying to save someone’s life is less than the risk of saying ‘I could have helped my client (not a stranger) but I didn’t want to because I’m afraid of the law’? That’s not acting ‘in good faith’.

In simple terms – either they are good Samaritans in which case let them carry naloxone; or they’re not in which case issue naloxone so they can meet their duty to their vulnerable clients in circumstances where it is foreseeable that they may find their client suffering an overdose or it’s act now or watch them die whilst waiting for the ambulance.

Categories: Researchers

Rescuer injured when responding to an aircraft accident

4 February, 2018 - 22:25

Today’s correspondent not only asked the question, but did most of the research to find the answer! The issue relates to the right of a rescuer to compensation for injuries (both physical and mental) when coming to the aid of those involved in an aircraft accident.

Relevantly, for this discussion, the flight is intra-state that is the aircraft left from and was intended to arrive at an airport all within one state. The rescuer pulled both the pilot and the student pilot from the wreck and performed CPR on one.  During the course of the CPR he injured his shoulder and suffered psychological injuries rendering him now unfit for work.

My initial reaction was:

I can’t see that an aircraft crash is any different to a motor vehicle accident – see “Cop sues offender’s family” (May 22, 2013) and Death of a good Samaritan (June 17, 2012).  The issue is more complex if you are seeking compensation for ‘nervous shock’ rather than physical injuries but not a degree of complexity that should pose a problem for experienced personal injuries lawyers, see Rescuers and nervous shock or mental illness; Wicks and Sheehan v SRA (June 17, 2010).  There are issues to do with the level of loss or impairment suffered by you but again that should not be an issue of too much complexity.

My correspondent, however, refers me to the Damage by Aircraft Act 1999 (Cth) and the Wrongs Act 1958 (Vic) s 31.  The Damage by Aircraft Act 1999 (Cth) s 10(1) says that the Act applies

… if a person or property on, in or under land or water suffers personal injury, loss of life, material loss, damage or destruction caused by:

(a)       an impact with an aircraft that is in flight, or that was in flight immediately before the impact happened; or

(b)        an impact with part of an aircraft that was damaged or destroyed while in flight; or

(c)        an impact with a person, animal or thing that dropped or fell from an aircraft in flight; or

(d)       something that is a result of an impact of a kind mentioned in paragraph (a), (b) or (c).

In ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28 (5 August 2009) French CJ, Gummow, Heydon, Crennan and Bell JJ had to consider liability for an aircraft accident.  In that accident an aircraft operated by ACQ Pty Ltd brought down a power line. Electrical technicians attended to deal with the downed power line.  The plaintiff

…  entered the field before the conductor was isolated in order to see what damage had been caused and assess what repair work might be required… The conductor, being thin, was difficult to see against the overcast sky. The plaintiff approached the conductor, about 65m from his truck, by crossing through lines of plants in a slightly diagonal direction. The plaintiff then stumbled or fell in the muddy conditions and came within 60mm of the conductor. An electric arc between the conductor and the plaintiff took place, injuring him badly.

The appeal dealt with the question of what was meant by s 10(1)(d)- was the plaintiff’s electrocution ‘something that is a result of an impact of a kind mentioned in paragraph (a), (b) or (c)’.   The New South Wales Court of Appeal held that ‘… the “something” which caused the plaintiff’s personal injuries was the creation of a danger to persons who got close to the conductor’ ([8]).

In the High Court of Australia (at ([10]):

The appellants … submitted that the legislation did not provide a universal comprehensive scheme to award damages to every person who sustained an injury that was in some way connected to the impact of an aircraft, part of an aircraft, or something which fell from an aircraft whilst in flight. In particular they submitted that “something that is a result of an impact” of those kinds should be construed as being a thing (for example, a fire or a collapse of a building) which “has an immediate (or reasonably immediate) temporal, geographical and relational connection with an impact.”

The appellants argued (at [11])  that the words ‘on, in or under land or water’ used in s 10:

… did “not obviously include” persons brought to the scene by reason of the impact (including those who came to rectify or repair the state of affairs created by the impact). Thus, the words required plaintiffs to be at a place on, in or under land or water which was linked with the impact at the time of the impact.

The appellants (at [15]) conceded that if a plane exploded on landing

… thus setting alight structures nearby and causing death or injury to a plaintiff whose house is burned down. They conceded that a fire fighter who was summoned to fight the fire and who was injured by it would be within s 10(1)(d), even if the scene of the fire was some distance from the fire station. That concession was correct because, as the appellants accepted, there was no reason not to conclude that the fire fighter’s injury was caused by “something” that was a result of an impact between the aircraft and the ground, namely the fire. The appellants, however, distinguished that case from the present one:

“There is the world of difference between a rescuer who is answering the call of either nature or society to save another person … from peril, on the one hand, and on the other hand, a person who comes to a scene of evident danger precisely because the danger is evident and because of their skills, experience and position, occupation, in order to repair or rectify that dangerous position where there is no peril to another person … requiring the risks to be undertaken in order to answer the calls of nature or social duty.”

The court rejected the purported distinction. If the fire fighter was protected so was the linesman who had come to deal with the downed powerline.  At [17] the High Court said ‘The words “on, in or under land or water” serve to distinguish those accidents to which s 10(1) applies from accidents in the air, to which other legal regimes apply.’

It follows, and further it was not challenged in ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook that providing rescue to those in a plane crash would be ‘something’ that is the result of the aircraft impact (s 10(1)(d)).

A person who has the benefit of s 10(1) can recover damages without proof of ‘intention, negligence or other cause of action’ rather it is deemed that ‘the injury, loss, damage or destruction had been caused by the wilful act, negligence or default of the defendant or defendants’ (s 11). Section 10(1) doesn’t apply where a person suffers ‘mental injury … unless the person… suffers other personal injury, material loss, damage or destruction caused by such a thing’ (s 10(1A)).

The problem is that this Act cannot apply to all aircraft.  My correspondent says ‘aviation Is a federal power’. Given the Australian Constitution came into effect on 1 January 1901, it had to be written before then and indeed the Constitution was written during a number of conventions held in the 1890’s.  Writing in the 1890’s no-one would have thought to give the Commonwealth the power to make laws with respect to aviation.  The Commonwealth does however have the power to make laws with respect to interstate and international trade and commerce (Australian Constitution s 51(1)) so the Commonwealth can make laws with respect to air travel that crosses state or national borders.  The limited power of the Commonwealth is shown in the Damage by Aircraft Act 1999 (Cth) s 9 which says that the Act only applies to:

(a)       Commonwealth aircraft;

(b)       aircraft owned by a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution);

(c)        aircraft (including foreign aircraft) engaged in:

(i)        international air navigation; or

(ii)       air navigation in relation to trade and commerce with other countries and among the States; or

(iii)      air navigation conducted by a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution); or

(iv)       air navigation to or from, or within, the Territories; or

(v)        landing at, or taking off from, a place acquired by the Commonwealth for public purposes.

(Note that by virtue of the Australian Constitution s 122 and the Damage by Aircraft Act 1999 (Cth) s 10(1)(c)(iv) the Damage by Aircraft Act 1999 applies in the Northern and Australian Capital Territories.)

What follows that an aircraft that is taking off and landing within one state (not Territory), and even more importantly from the same airport eg an aircraft that is doing circuits for flight training, will not meet these definitions other than, possibly, s 9(b) where the aircraft is being operated by ‘a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution’). (For a discussion on what is a ‘trading corporation’ see United Firefighters Union of Australia (‘UFU’) v Country Fire Authority (‘CFA’) [2014] FCA 17 (31 January 2014) (February 12, 2014)).

If that’s correct, then a person injured by a private aircraft operated solely within a state cannot benefit from the Commonwealth Act.  To fill that gap, state legislatures have passed matching legislation. In Victoria, the Wrongs Act 1958 (Vic) s 31(1) says:

Where material loss or damage is caused to any person or property on land or water by or by a person in or by an article or person falling from an aircraft while in flight taking off or landing then … damages in respect of the loss or damage shall be recoverable from the owner of the aircraft without proof of negligence or intention or other cause of action as if the loss or damage had been caused by the wilful act neglect or default of the owner.

(The legislation is in the same terms in the other jurisdictions – see Air Navigation Act 1937 (Qld); Civil Liability Act 1936 (SA), s 61; Civil Liability Act 2002 (NSW), s 73; Damage by Aircraft Act 1963 (Tas); Damage by Aircraft Act 1964 (WA), s 5(1)).

As with the Commonwealth legislation, the injured plaintiff doesn’t have to prove a lack of reasonable care.  In this case of course the injury was caused during the rescue of the persons from the wreckage of the aircraft rather than from say the impact of the aircraft with the ground or the person on the ground.

This section is very similar to the Commonwealth provision discussed above but it does not have the ‘catch all’ reference to ‘something that is the result’ of the impact.  On the other hand the section doesn’t use the word ‘impact’.  In her article, Pam Stewart (‘Drone danger: Remedies for damage by civilian remotely piloted aircraft to persons or property on the ground in Australia’ (2016) 23 Torts Law Journal 290) says:

‘Not all State provisions contain that form of words [ie “something that is the result of an impact of a kind mentioned”]. In NSW, Tasmania, Victoria and Western Australia, the strict liability provision does not depend on an ‘impact’ and does not refer to “something that is a result of an impact” with an aircraft.

The question then, if the aircraft involved is a private aircraft involved in intra-state flight, is whether the injury was caused by an aircraft while in flight taking off or landing, by a person in an aircraft or by an article or person falling from an aircraft.

The NSW Court of Appeal when deciding Mr Cook’s case said that the question of whether the collision with the powerline caused his injuries (see ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28 at [25]) was:

… a question of fact to be answered by reference to commonsense and experience, and one into which considerations of policy and value judgments necessarily enter. When causation is so regarded, the law has no difficulty in recognising that there can be multiple causes of the one damage.

Without specific authority one can infer that the Victorian Act (is intended to create, along with the Commonwealth legislation, a scheme of strict liability for damage caused by aircraft to those on the ground or water below the aircraft (that is this legislation does not apply to persons travelling in the aircraft – see Leith v Medhurst [1991] 2 VR 362).  It follows that even given the slight differences between the Damage by Aircraft Act 1999 (Cth) s 10 and the Wrongs Act 1958 (Vic) s 31 a rescuer who immediately comes upon the scene and is injured trying to affect the rescue will enjoy the benefit of either provision.  They will rely on the state Act if the aircraft is a private aircraft operating within and the Commonwealth Act in other cases.

Conclusion

A person injured effecting a rescue at the scene of an aircraft accident or at a place of damage caused by the accident and where the aircraft is involved in interstate travel or operated by ‘a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution)’, has the right to recover damages from the owner or operator of the aircraft without the need to prove negligence particularly.

Where the aircraft is an aircraft owned by an individual or an entity that is not a foreign, trading or financial corporation operating solely within one state (but not Territory) then the position is not so clear, but I would suggest that the intention is to extend similar protection to those injured by an aircraft impact and that the link between a rescuer and the accident is sufficiently close to extend the strict liability regime.

 

 

Categories: Researchers

Is it legal to photocopy a ‘section 20’?

4 February, 2018 - 16:57

This is one of many questions relating to the Mental Health Act 2007 (NSW) s 20.  See:

To repeat, s 20(1) says:

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

Compare s 20 with s 19(1). That section says (emphasis added):

A person may be taken to and detained in a declared mental health facility on the basis of a certificate about the person’s condition issued by a medical practitioner or accredited person. The certificate is to be in the form set out in Part 1 of Schedule 1.

There is a prescribed certificate for s 19 because a doctor fills it out, it is passed to others and those others (hospital, ambulance officers, police etc) can detain the person on the basis of that certificate.

There is no form prescribed for s 20 – ie there is no form set out in the Act or its regulations.  Section 20 authorises ambulance officers, to take action. Ambulance officers no doubt keep patient care records in order to record their observations that justified their detention and like any clinical record, to pass on to those involved in treatment to ensure continuity of care.  The ambulance service has created a form for that purpose.  In that sense the document is a ‘legal document’ (whatever that means – see What is a ‘legal document’? (February 23, 2017)).  But a document that is produced by the ambulance service and completed as a clinical record is not the same as a medical certificate completed under s 19 and which must be in the form set out in the Act.

Once at a mental health facility the patient may be detained on the basis that the person was brought to the facility by paramedics who in turn relied on s 20 (see Mental Health Act 2007 (NSW) s 18(1)(b)). To that end the record kept by the paramedics will go on the patient’s file both to demonstrate that the condition for ongoing detention has been met (s 18(1)(b)) and to ensure the patients ongoing care.  The document itself is evidence of the fact that the person was detained by paramedics and the observations that they made to justify their decision.  It does not have some special legal status, so, the question are photocopies of the clinical record ‘legal’ is not really relevant or even meaningful.  The document is what it is, a record of the paramedic’s observations; a photocopy is just another copy.  A copy can be used in evidence to proof the contents of the original (Evidence Act 1995 (NSW) s 48) so if the hospital ever had to prove that the patient was transported to hospital by ambulance, that the paramedics had relied on s 20 and had given details of their observations, then yes, the copy is ‘legal’.

Categories: Researchers