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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.
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Australian commentary on the case involving Dr Hadiza Bawa-Garba

4 February, 2018 - 15:49

There is Australian commentary on the case involving Dr Hadiza Bawa-Garba.  See Esther Han ‘Australian doctors ‘disturbed’ by manslaughter conviction against Dr Hadiza Bawa-Garba’ The Age (Online) (February 1, 2018). See also my earlier post on this case, Professional discipline after serious criminal conviction – lessons from the UK (January 29, 2018).  There are however things that are problematic in the article in The Age.

First, a doctor is quoted as saying ‘Generally, criminal convictions have been against those with criminal intent, or who were unethical or doing something illegal, whereas this case is different, and it’s truly disturbing.’  That’s simply wrong.  Offences such as murder require a proof that the accused intended to kill.  And one can be guilty of manslaughter by an unlawful and dangerous act; but there has always been offences that do not require either an intent or illegal conduct.  Manslaughter by criminal negligence along with dangerous driving and negligent driving are examples of those sort of offences.  This doctor just doesn’t know the law. but that doesn’t make the law knew or unknowable.

As for the question ‘”How on earth was the doctor convicted of manslaughter? We don’t understand it…’ The issue was determined by a jury. A jury represents the community standard. Placing the matter before a jury of 12 reassures the community that it is not the profession protecting its own. Rather it is asking the community whether or not the defendants conduct was so far below the standard of care expected from a reasonable practitioner as to warrant criminal punishment.  As the High Court said ‘Full respect had to be given by the Tribunal to the jury’s verdict: that Dr. Bawa-Garba’s failures that day were not simply honest errors or mere negligence, but were truly exceptionally bad.’  hat is the jury heard the evidence about the systemic failings and the contribution of those failings to this outcome but nonetheless they determined that Dr Bawa-Garba’s mistakes were not ‘mere mistakes with terrible consequences. The degree of error, applying the legal test, was that her own failings were, in the circumstances, “truly exceptionally bad” …’

The problem is that this was not a lessons learning process; this was a criminal process. Further some commentary has blamed the General Medical Council (the GMC) or ‘the system’, for example ‘it was “inconceivable” that a system designed to support patients and doctors would wholly and excessively lay the blame on a doctor for its failures.’  But the Criminal Justice system is not designed to support patients and doctors, it is there to determine whether or not there has been a breach of the criminal law.

In my study with the US Forest Service they acknowledged that whilst they could adopt a no-fault fact-finding inquiry, they couldn’t determine what others such as the police or Crown Prosecution Service (in the UK; the Director of Public Prosecutions in Australia) might do. Equally here this outcome is not a function of the hospital or medical lessons learned process.  If it is true that ‘prosecutors used sections of Dr Bawa-Garba personal appraisals – required in the UK for learning and reflection – as evidence against her’ (something that is not discussed in the decisions of the Court of Appeal or the High Court) that is problematic. I do not that in the inquest into the Sydney Lindt Café siege, the coroner accepted that documents and reflections produced by police in after action review should not be admissible, and there are provisions in Australian evidence law to limit the use of the sort of documents referred to here, but without more detail one can’t know what the implications here would be.

The problem with building a learning culture that aims to be no fault etc is that it must at times run into conflict with the criminal law that has its own objectives.  Whilst most judges would say that part of the aim of the criminal law is to identify fault and then communicate via the finding and punishment both what legal wrong was done and to warn others not to do it, it is the case that it is not a ‘learning system’. Whilst reform of the criminal law may be in order it’s a long way to go from the work currently being done on reforming the way agencies and those that claim to be a no-fault tribunal (the Royal Commission and the Coroner) go about their business.

Categories: Researchers

More on DNR tattoos

30 January, 2018 - 19:33

I have previously written on this subject – see:

The subject has now been considered in an interesting discussion on the ABC’s Health Report – (‘Do-not-resuscitate tattoos: What’s a doctor to do?’, Radio National, Monday 29 January 2018).

There is an interesting discussion there about the role of these tattoos and whether medical practitioners’ can, or should, or will honour them.   One of the commentators, Professor Ian Olver, Oncologist and bioethicist at the University of South Australia, says:

Under, say, common law, the doctor would be expected to satisfy themselves about three things. One is was the patient competent when they issued whatever instruction about treatment, but a DNR? Was it an informed choice, that they weren’t coerced and they had all the information necessary? And particularly, and perhaps the most difficult one, did it apply to the situation that the patient is now in? Was that what they meant by it?

I agree that these three elements are essential for a valid refusal.  A doctor who was assisting a patient to execute an advanced care directive would need to be satisfied those criteria were met, but I don’t agree that a doctor, faced with a refusal, has to satisfy him or herself that the criteria were met when the decision was made.  In Malette v Shulman (1990) 67 DLR (4th) 321, Dr Shulman was faced with a critically ill patient who carried a card saying she did not want a blood transfusion under any circumstances, based on her religious faith.  Counsel for the doctor argued that

…  it could properly be doubted whether the card constituted a valid statement of Mrs. Malette’s wishes in this emergency because it was unknown, for instance, whether she knew the card was still in her purse; whether she was still a Jehovah’s Witness or how devout a Jehovah’s Witness she was; what information she had about the risks associated with the refusal of blood transfusion when she signed the card; or whether, if she were conscious, she would refuse blood transfusions after the doctor had an opportunity to advise her of the risks associated with the refusal.

Robins JA said:

With deference to Mr. Royce’s exceedingly able argument on behalf of the appellant, I am unable to accept the conclusions advocated by him. I do not agree, as his argument would have it, that the Jehovah’s Witness card can be no more than a meaningless piece of paper. I share the trial judge’s view that, in the circumstances of this case, the instructions in the Jehovah’s Witness card imposed a valid restriction on the emergency treatment that could be provided to Mrs. Malette and precluded blood transfusions.

Just as the card was not a meaningless piece of paper, neither would a tattoo be meaningless, though as discussed below, the meaning may not be clear.

To return to Mrs. Malette and her card, Robins JA found that she had:

… chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes, that she does not consent to blood transfusion…

Further, in respecting those wishes, and withholding the treatment that had been refused:

The doctor cannot be held to have violated either his legal duty or professional responsibility towards the patient or the patient’s dependants when he honours the Jehovah’s Witness card and respects the patient’s right to control her own body in accordance with the dictates of her conscience. The onus is clearly on the patient. When members of the Jehovah’s Witness faith choose to carry cards intended to notify doctors and other providers of health care that they reject blood transfusions in an emergency, they must accept the consequences of their decision. Neither they nor their dependants can later be heard to say that the card did not reflect their true wishes. If harmful consequences ensue, the responsibility for those consequences is entirely theirs and not the doctor’s.

For the patient who has DNR tattooed on their chest as ‘a joke, [because] he’d lost a bet with his medical buddies and because he lost it while drunk he had to have DNR tattooed across his chest and he just did it’ then it is that person who carries the risk that their tattoo will be honoured with inevitable consequences.

In the absence of any reason to suggest that the wishes, however expressed, do not represent the patient’s wishes, there is I suggest no need for the treating doctor to consider whether or not, at the time that the decision was made, whether the patient was informed or competent.

As the Health Report demonstrates, the meaning of a particular tattoo may not be clear. Does ‘DNR’ mean ‘do not resuscitate’ or is it the person’s initials?  If it does mean ‘do not resuscitate’ does that mean ‘do not perform Cardio-pulmonary resuscitation’ or does it mean do not:

… put him on intravenous fluid … [give] medication to increase his blood pressure, …[give] antibiotics, and … put him on a bi-level positive airway pressure. It’s a pretty tight mask on the face that helps to ventilate for the patient. It’s one procedure short of putting the tube down the throat, which a lot of people consider full resuscitative effort. So you might call it resuscitation-light while we start to figure out what to do[?]

A tattoo that says ‘Do not perform Cardio-pulmonary resuscitation under any circumstances’ is much less ambiguous than ‘DNR’.

There is legislation in some, but not all, Australian jurisdictions that create a more formal means for making advance care directives but these Acts apply along side, and not instead of the common law rules.  They are an alternative means but they do not deny pre-existing common law rights to refuse treatment. A DNR tattoo may be useful in drawing the health care team’s attention to the idea that there may be a more formal declaration. A person may not carry their Advanced Care Directive in their pocket but the DNR tattoo would alert the team that it may exist.  As Dr Greg Holt, Assistant Professor of Pulmonary Critical Care Medicine at the University of Miami says about his care of a patient with a DNR tattoo:

Part of me says what it really did is cause more confusion than clarity. Because our first initial impression was, whoa, is this real, is this not real, and made us really contemplate the veracity of it and really push to find this person’s documentation at home. But then you have to think this is what the man really wanted, so in fact it actually really did work because I don’t know if someone would have gone through his house trying to find the ‘do not resuscitate’ document if he didn’t have such a tattoo. And so I think it was both good and bad at the same time. It caused a bunch of confusion, but in the end we abided by the man’s wishes.

It should be noted that in that case the team had decided to abide by the tattoo even before the formal documentation was found.  As he says:

… our ethics consultation came down, they evaluated the case, goes through everything we have on the patient. And he comes to the conclusion that it is most likely that this is his true wishes to withhold life-sustaining therapy. And so using all the available evidence that we have on this patient at that point, we’re going to honour his DNR tattoo, and the man died probably about I’d say 24 hours after he presented to the emergency room.

… Probably about four to six hours after the ethics consult has told us that we should probably abide by the DNR tattoo, our social worker tracks down who this person is, I think through their fingerprints. They track him down to his home, they find that he has this legal form in Florida that states that he wanted to be ‘do not resuscitate’. It corroborated perfectly our ethics consult and we all felt better from that.

In other words finding the formal documentation made them feel better about the decision that they had already made, it did not determine what the decision was.

Possible legal consequences

The Health Report does not detail possible legal consequences but I’m going to suggest there are four.

  1. Resuscitation is applied, and the patient dies anyway. If it’s found that the tattoo did not reflect the patient’s wishes there’s no problem. There was no valid refusal so emergency care was applied as permitted by the doctrine of necessity – see The doctrine of necessity – Explained (January 31, 2017). If the tattoo does represent the patient’s wishes then the treatment was a battery. Battery is ‘actionable per se’ that means you can sue for battery, and win, without having to prove actual damage. The unlawful interference is damage enough. But without actual damages any award of damages, ie any award of money, is likely to be small. And where the patient has died there is no ability to compensate him or her so any award is a windfall to the beneficiaries of the estate.  Whilst an action in battery may be possible (ignoring a myriad of defences that could be raised) it is unlikely and the damages (if any) would be minimal.
  2. Resuscitation is not applied and the patient dies. As noted in Malette v Shulman ‘The onus is clearly on the patient … they must accept the consequences of their decision. Neither they nor their dependants can later be heard to say that the [tattoo] did not reflect their true wishes.’
  3. Resuscitation is applied, and the patient makes a full recovery. Again there could, at least in theory, be an action for battery but it seems unlikely. In Malette v Shulman, Mr Malette did receive Canadian $20 000 in damages for the battery but in that case the violation of her religious beliefs and the doctrine of her church had consequences that extended beyond the treatment.  If a person does not want to be resuscitated because of the fear of the outcome, rather than a religious conviction (and I don’t know of any church that objects to resuscitation per se) then the fact that they survive would again make any damages award nominal, at best.
  4. Resuscitation is applied, and the patient survives but with significant disability. This may be the very outcome that they didn’t want. And now they (or their family) face a life that they don’t chose with costs both financial and otherwise.  As Jill Elliot says:

They’ve got no right to tell me, when I’m unconscious, whether I should live or die. I’m a lonely old lady now, why the hell would I want anybody dictating my life.

But if you refuse to honour the person’s decision that is what you are doing – dictating their life.  In this blog and in the absence of specific facts one can’t canvass the various defences that would be available, but if we accept that the tattoo did reflect the patient’s wishes then the battery (ie treatment contrary to their wishes) has led to a significant and on-going loss and the damages awarded could be very high.

There is no doubt these decisions would be very complex and difficult, and also rare.  As Dr Holt says of his reaction to seeing a DNR tattoo on his patient:

My first reaction to this was, wow. I thought this was an urban legend. We have always joked around about it in medicine. After somebody has a cardiac arrest, somebody will always say, ‘Boy, I never want this to happen to me, I’m going to tattoo DNR on my chest.’ But you never thought you’d see one, and now I’m looking at one.

As noted in In Re F [1990] 2 AC 1, treatment of the unconscious cannot ‘be justified when it is contrary to the known wishes of the assisted person’.  The critical issue is ‘known’ wishes. As noted the tattoo certainly gives evidence that the person has expressed wishes but, as also noted above, tattoos (and other directions) may be ambiguous.  In that case the actions demonstrated by Dr Holt – ‘buy some time’ – would appear appropriate, or at least it was in that case.

Conclusion

A DNR tattoo cannot be ignored. A person has a right to refuse treatment, even lifesaving treatment, and to communicate that wish in any way that is capable of communicating that wish. A formal advanced care directive is one way, but so is a card or I would suggest, a tattoo.

Whether a tattoo has to be honoured on its face will depend on all the circumstances including the terms of the tattoo.  Where it is unambiguous – ‘Do not peform Cardio-pulmonary resuscitation under any circumstances’ – it would seem appropriate to honour it.  Where it is ambiguous – ‘DNR’ – then it may be appropriate to take action to ‘buy time’ but the team is put on notice that further inquiries are required.

In a blog discussing general principles I can’t give advice on what is to be done in a particular case, other than to say, in any case, one cannot infer that the tattoo is the equivalent to ‘meaningless piece of paper’, meaningless ink.  It has some meaning and it would be incumbent on the medical team to enquire as to what that meaning, if it is not clear, is.

 

 

 

 

 

Categories: Researchers

The use of protected titles by students and others

30 January, 2018 - 17:25

Today’s question relates to the use of protected titles.  Whilst this question relates to nurses, it will also be relevant to paramedics. Once registered under the Health Practitioner Regulation National Law the title of ‘paramedic’ will, like the title of ‘nurse’ be a protected title.

The question is:

Given that the word nurse is a protected title under law and may be taken as someone who is registered with AHPRA. What would be the legal standing of an assistant in nursing who is not eligible for registration under AHPRA identifying themselves as a nurse? I ask as we have student nurses (RN etc) working as AINs in acute hospitals and nursing homes etc and identifying themselves as nurses. Could they be placing future registration at risk by identifying themselves as “nurse”?

As with most questions the answer depends on the context. The word ‘Nurse’ is both a noun ‘a person trained to care for the sick or infirm, especially in a hospital’ and a verb ‘give medical and other attention to (a sick person)’ (Oxford Dictionaries Online).  A person can nurse another without being ‘a nurse’.  One might imagine that in a nursing home or other place a person may describe the person who is providing nursing type care as a nurse without distinguishing the various categories of nurse that there may be.  And a person may chose not to correct that or may identify that they are ‘nursing’ Mr Jones or say ‘I’m one of your mum’s nurses’ in order not to confuse matters where the people they are talking to are not aware of all the different categories of people involved.  If a person is not trying to pass themselves off as something they are not, are not trying to obtain any advantage or mislead anyone then I can imagine the health regulators may not see that as an issue.

But let us turn to the letter of the law.  The Health Practitioner Regulation National Law is set out as a schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) and is then adopted, with some local variation, in each state and territory to create the national scheme.   To answer this question I’ll refer to the national law as adopted in Queensland, that is the Health Practitioner Regulation National Law (Queensland) but the answer will be the same nationwide.

The Health Practitioner Regulation National Law does not define scope of practice nor does it make it an offence to practice one of the registered professions without being registered.  There is not clear definition therefore of what it is to be, or practice as, a nurse or a medical practitioner or in due course, a paramedic. What it does do is make it an offence to adopt or use any of the protected titles.  Section 113(1) says:

A person must not knowingly or recklessly—

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

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

Note, consistent with my opening comments, the offence is committed not so much by the use of the title, in this case ‘nurse’, but the use of the title ‘in a way that could be reasonably expected to induce a belief [that] the person is registered under this Law…’ as a health professional. For an individual the maximum penalty (at least in Queensland) is a fine of $30 000.

With respect to nurses, the protected titles are ‘nurse, registered nurse, nurse practitioner, enrolled nurse, midwife, midwife practitioner’ (s 113).

A person may be registered as a student health professional (ss 86-93).  There is nothing in the National Law about the title for students’ but I would suggest someone who described themselves as a ‘student nurse’ is not adopting the title ‘nurse’ in a way that would mislead anyone into thinking they are registered as a nurse.  And of course, a registered student nurse is registered in the profession of nursing, albeit as a student.  Accordingly, although there is no specific mention of the title ‘student nurse’ it seems that the use of that title by a registered student of nursing is unproblematic.

When considering whether or not a person should be registered as a health professional, the relevant Board must determine whether or not ‘the individual is a suitable person to hold general registration in the health profession’ (s 52).  Section 55(1) says:

A National Board may decide an individual is not a suitable person to hold general registration in a health profession if—

(a) …

(b) having regard to the individual’s criminal history to the extent that is relevant to the individual’s practice of the profession, the individual is not, in the Board’s opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or …

(h) in the Board’s opinion, the individual is for any other reason—

i. not a fit and proper person for general registration in the profession; or

ii. unable to practise the profession competently and safely.

If the Board is satisfied that the person has been using a protected title and holding themselves out as a registered health professional or at least acting in a way that is likely to mislead others, then even without conviction the Board may determine that this indicates that the person is ‘not a fit and proper person for general registration’ (s 52(1)(h)).  Where the person has been charged with and convicted of an offence contrary to s 113 then a finding that the person is not a fit and proper person is even more likely (s 52(1)(b)).

Conclusion

It is illegal to use the term ‘nurse’ ‘in a way that could be reasonably expected to induce a belief the person is registered under this Law’.  Where a student nurse is practicing, in any capacity, to describe themselves as a ‘nurse’ may well induce a belief that are registered as a nurse (and not as a student of nursing).   The aim behind the legislation is that anyone who is not eligible for general registration as a nurse should not, indeed must not, use the title ‘nurse’.  Anyone who does could well be asking for trouble if they later seek registration as a nurse and that practice is brought to the attention of the Board.

The same answer will apply if, in the future, a person uses the title ‘paramedic’ without being registered as a paramedic and who subsequently does apply for registration in that profession.

Categories: Researchers

Professional discipline after serious criminal conviction – lessons from the UK

29 January, 2018 - 18:52

A correspondent has brought an English case to my attention and says:

Although it relates to the UK and to a doctor it could have salient lessons for paramedics when they become registered… it raises some good debating points around organisational vs personal responsibility.

The story is set out in the link. below:

http://www.pulsetoday.co.uk/your-practice/regulation/gmc/bawa-garba-timeline-of-a-case-that-has-rocked-medicine/20036044.article#.WmviGZLcmTA.twitter

The gist of the story is that Dr Hadiza Bawa-Garba was ‘convicted of manslaughter on the grounds of gross negligence’ and given a 24-month suspended sentence. She was also suspended from practice as a medical practitioner for 12 months.  The General Medical Council (the GMC) appealed to the High Court which upheld the appeal and ordered that Dr Bawa-Garba be struck off the medical register.  (Note that in the UK the High Court might be considered akin to an Australian Supreme Court. In Australia the Supreme courts hear trials of serious cases and hear appeals from lower courts. To confuse things, there is an appeal from an Australian Supreme Court to the High Court of Australia. In the UK there is an appeal from the High Court to the UK Supreme Court).

In trying to understand if this decision has implications for Australian paramedics, we need to consider what is meant by negligent manslaughter and what implications a similar result may have for paramedics when they are registered under the Health Practitioner National Law.

Under Australian common law there are two categories of manslaughter. Voluntary manslaughter where the accused intended to kill the deceased but can take advantage of one of the partial defences – provocation or diminished responsibility (there may be slight variations in the name in the jurisdictions).  Involuntary manslaughter is where the accused kills the deceased without intending to kill. Rather the death was due to an unlawful and dangerous act or criminal negligence.

In Nydam v R [1977] VR 430 the Victorian Supreme Court said:

In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.

In Wilson v R (1992) 174 CLR 313 the High Court of Australia said that ‘For manslaughter by criminal negligence, the test is “a high risk that death or grievous bodily harm would follow”.’

The problem with the test for criminal negligence, ie ‘circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised … that the doing of the act merited criminal punishment’ is that there is no clear definition of when that arises. It is a question for the jury. One might object that this does not give certainty nor guidance to allow people to know, in advance what the law requires. On the other hand, for those that complain about the judicial system, it is a test that allows the jury, as representatives of the community, to determine whether or not conduct in the circumstances is so gross as to warrant punishment.

There is a difference between negligence that leads to an order for compensation and criminal negligence.  The diagram below may help:

If we consider the relevant conduct, in Dr Bawa-Garba’s case, conduct as a medical practitioner or for this discussion, conduct of a paramedic there is the standard of the ‘reasonable’ practitioner.  The ‘reasonable’ practitioner is not necessarily the best so there is conduct above and beyond the reasonable standard, but the minimum expected is ‘reasonable’ performance, as shown by green line above.  Where a person fails to perform at that reasonable standard and causes damage to a person to whom they owed a duty of care then that would be the tort (or wrong) of negligence. The negligent practitioner would be liable to pay compensation for that loss but as noted in earlier posts, where the person is an employee, it is their employer that is liable.  Also, one can insure against liability to pay damages in tort so it is very rare that the defendant pays damages for negligence. It is either their own, or their employer’s insurer, that pays.

Where conduct amounts to gross negligence (the red line, above) the negligence moves to the criminal sphere.  At this point there is no vicarious liability (your employer can’t go to gaol on your behalf) nor can one insure against the risk (your insurance broker won’t go to gaol on your behalf, either).  In criminal negligence the Crown must prove the case beyond a reasonable doubt and the sentence imposed by the Court is intended to punish and deter the offender, and others.  It is not an order to pay compensation to any one that is injured.

For those interested, you can read the decision of the UK Court of Appeal – Bawa-Garba v R [2016] EWCA Crim 1841 – that upheld her conviction of manslaughter.  The facts of that case aren’t however vital for this discussion. For Australian paramedics what needs to be considered is there some conduct that a paramedic could engage in that is so far below the standard to be expected of the reasonable paramedic to warrant criminal punishment?  One can imagine giving the wrong drugs, asking the spinal injury patient to walk or the like. I’ll leave to clinicians reading this blog to consider what might meet that threshold test of conduct that involves ‘such a great falling short of the standard of care which a reasonable [paramedic] would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment’.  It is likely to be conduct that you think ‘no-one would do that’ but that is of course the point. The conduct that everyone thinks ‘no-one would do that’ is the type of conduct that is criminally negligent when someone does.

The first conclusion is, therefore, that although it’s hard to imagine the circumstances where it would arise it is indeed theoretically possible that in the right circumstances, a paramedic could be guilty of manslaughter by criminal negligence (as may anyone).

So what does it mean if a paramedic is convicted of this offence and what difference will registration make?  One can assume that a paramedic was convicted of manslaughter by criminal negligence he or she would be likely to lose his or her job as a paramedic.  I can’t imagine that an ambulance service could defend retaining the employment of a paramedic who had been found, beyond reasonable doubt, to have contributed to a patient’s death due to gross negligence. One can also, I think reasonably, assume that a paramedic convicted of that offence would have difficulty finding ongoing employment with another ambulance service given that conviction.

What different will registration make?  Under the Health Practitioner National Law ‘unprofessional conduct’ includes ‘the conviction of the practitioner for an offence … the nature of which may affect the practitioner’s suitability to continue to practise the profession’ (s 5).  Conviction of negligent manslaughter would fit that definition. Professional misconduct is ‘unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience’ (s 5). By definition, criminal negligence requires conduct substantially below the standard expected of a reasonable health practitioner and relevantly in this context, a reasonable paramedic.

A paramedic convicted of manslaughter by gross negligence could also expect to be subject to disciplinary proceedings (s 243) and, like Dr Bawa-Garba, could expect to be suspended or struck off.  However, there are advantages for everyone.

In the absence of registration, a paramedic convicted for example in Queensland may lose his or her job with QAS but may get a job with Tasmania Ambulance as Tasmania Ambulance may not be aware of that conviction. There is no central place where that conviction is recorded. That may be unlikely if the paramedic needs to apply for a police check, but it is possible.  If the prosecution is known, the paramedic could expect to never work as a paramedic again.

With registration then, to continue my example, Tasmania Ambulance could verify that the paramedic has been suspended or struck off by checking the paramedic’s registration so there would be less risk of the paramedic slipping through the cracks in the process.  For the paramedic, if they are suspended they know when they will be able to return to their profession. Even if they are ‘struck off’ it is not necessarily forever.   In due course the paramedic (like Dr Bawa-Garba) could apply again to be registered if he or she could show that there has been a sufficient time and circumstances that would satisfy the relevant board that the person is not a risk to the community and in all the circumstances, can show that they are again a fit and proper person to be registered. Once registered by the relevant Board, one would anticipate that an employer could look beyond the earlier conviction given the Board has determined that the person is again fit to practice. That is not to say that would be an easy process or that a person could re-register, but at least it is an option.

The impact of the jury’s decision

There is one issue in Dr Bawa-Garba’s case that I think my correspondent particularly wants me to address. The issue is the role of institutional or system contribution to the outcome. There were systemic failings and Dr Bawa-Garda argued that these were the cause of the poor outcome but this was rejected by the jury as shown by their decision to convict her.

On the question of the appropriate professional penalty, Counsel for the GMC said (General Medical Council v Dr Bawa-Garba [2018] EWHC 76 (Admin), at [26]) ‘the Tribunal had in effect allowed evidence of systemic failings to undermine Dr. Bawa-Garba’s personal culpability, and to do so even though those failings had been before the Crown Court which convicted her…’  That is when determining to suspend her, the Tribunal accepted arguments that the jury had rejected.

Mr Justice Ouseley concluded that the Tribunal had made an error and that Dr Bawa-Garba must be struck off the register of medical practitioners. He said (at [38]):

Full respect had to be given by the Tribunal to the jury’s verdict: that Dr. Bawa-Garba’s failures that day were not simply honest errors or mere negligence, but were truly exceptionally bad. This is no mere emotive phrase as one witness, Dr. Barry, before the Tribunal appeared to suggest, nor were her mistakes mere mistakes with terrible consequences. The degree of error, applying the legal test, was that her own failings were, in the circumstances, “truly exceptionally bad” failings. The crucial issue on sanction, in such a case, is whether any sanction short of erasure can maintain public confidence in the profession and maintain its proper professional standards and conduct. We consider that Mr Hare is right that the Tribunal’s approach did not respect the true force of the jury’s verdict nor did it give it the weight required when considering the need to maintain public confidence in the profession and proper standards.

And later (at [41]):

… a fair reading, shows that the Tribunal did not respect the verdict of the jury as it should have. In fact, it reached its own and less severe view of the degree of Dr. Bawa-Garba’s personal culpability. It did so as a result of considering the systemic failings or failings of others and personal mitigation which had already been considered by the jury; and then came to its own, albeit unstated, view that she was less culpable than the verdict of the jury established. The correct approach, however, enjoined by R34 of the Rules, is that the certificate of conviction is conclusive not just of the fact of conviction (disputed identity apart); it is the basis of the jury’s conviction which must also be treated as conclusive, in line with what the Rule states about Tribunal findings. Mr Larkin did not dispute that the Tribunal had to approach systemic failings or the failings of others on the basis that, notwithstanding such failures, the failures which were Dr. Bawa-Garba’s personal responsibility were “truly exceptionally bad”, and those are summarised in the judgment of the CACD. Although Mr Larkin is right that such factors may reduce her culpability, they cannot reduce it below a level of personal culpability which was “truly exceptionally bad”. The Tribunal had to recognise the gravity of the nature of the failings, (not just their consequences), and that the jury convicted Dr Bawa-Garba, notwithstanding those systemic factors and the failings of others, and the personal mitigation it considered. The jury’s verdict therefore had to be the basis upon which the Tribunal reached its decision on sanction.

The implication of this part of the decision is not directly applicable to Australian paramedics. The extent to which a tribunal in Australia could make decisions that might be inconsistent with a jury’s verdict will eventually depend on the rules promulgated by the relevant board.  One can expect however that where, in disciplinary proceedings, it is alleged that the paramedic’s conviction is what constitutes unprofessional conduct/professional misconduct then it would have to be the case that it is the facts as found by the jury that are relevant in determining whether that conviction does or does not demonstrate unprofessional conduct or professional misconduct.  If the ‘prosecution’ is relying on the conviction the Tribunal would have to look at the conviction and facts as found by the jury. It could not dismiss the case on the basis that the Tribunal would not have convicted the practitioner. It is the conviction, and therefore the facts that form the basis of that conviction, that constitute unprofessional conduct so it can’t be open to the Tribunal to find that the facts established by the jury are not the facts to determine the professional sanction.

Conclusion

My conclusions are:

  1. A paramedic could be convicted of manslaughter by criminal negligence but I can’t really imagine an appropriate example where that may arise.
  2. Whether there is registration or not, a paramedic would expect to lose their ability to practice as a paramedic. At least with registration the fact that the paramedic has been ‘struck off’ could be verified by any potential employer and so ensure that the person can’t slip through and get another job in another jurisdiction. Further it may open to the door to a return to practice if, after a sufficient time, the paramedic can convince the Board that he or she is again a fit and proper person to practice.
  3. Where a person is convicted and professional disciplinary action is commenced on the basis of that conviction, the relevant decision maker would have to make a decision consistent with the conviction and could not find or base the decision on a view of the facts that is inconsistent with that verdict. The exact reasoning in General Medical Council v Dr Bawa-Garba [2018] EWHC 76 (Admin) would not apply in Australia as it is an English case and the rules of Paramedicine Board are not going to be exactly the same as the Sanctions Guidance issued by the GMC but the general principle will still apply where the conviction is the basis of the complaint of professional misconduct. The decision maker will have to accept the facts are as determined by the jury.

 

Categories: Researchers

Complete the pre-shift check, or respond to an emergency call?

25 January, 2018 - 19:02

Today’s question comes from a paramedic. The state doesn’t matter as the answer will be the same across Australia.

Recently my Ambulance service issued a Work Instruction regarding “Commencement of Shift”. The Instruction includes the (very reasonable) direction that all paramedics are to complete a “Mandatory” pre-shift check of equipment, communications devices and the vehicle itself.

The Instruction then states that the crew may be tasked to a job even if the “mandatory” check has not been completed.

In the event of a serious incident occurring (to either patient or staff) following a crew being dispatched after explicitly being instructed to not complete a pre-shift check, what grounds do you think the workers would have to defend themselves?

Let me draw you a hypothetical scenario.

Upon arrival at work, a paramedic receives a phone call from a dispatcher.  They are instructed to immediately get into an ambulance and drive to an urgent job. The paramedic protests that the mandatory pre-shift vehicle check has not been completed and that they are unprepared to commence work. The dispatcher invokes the instruction then states that the crew may be tasked to a job even if the “mandatory” check has not been completed. The paramedic is fearful of the repercussions of acting against policy, so they get in the car and go.

Part of the mandatory pre-shift check involves the paramedic letting the dispatch team know which portable radio they are carrying. The portable radio has a duress button which can be pressed if the paramedic should require urgent police assistance.

At the job, the paramedic is confronted with a violent and intoxicated patient. The situation escalates, and the paramedic is assaulted. The paramedic has activated the duress button, but the dispatcher does not know who is carrying that particular radio or where the radio is located, so they are unable to send police to the scene. The paramedic receives significant injuries and the patient flees the scene.

In the subsequent police investigation, the paramedic makes a claim of negligence against the dispatcher, alleging breaches of the WHS Act and Regulations. The dispatcher defends their actions as being in line with the policy of the employer and blames the paramedic for not leaving the scene earlier. The paramedic also makes a report of a notifiable incident to SafeWork.

In this situation, do you think a claim of negligence against the dispatcher would be successful? Would this be a criminal or a civil matter? And would the safety regulator investigate what is already a police matter?

Separating legal issues

We lawyers like to put things into pigeon holes. There are different legal boxes and the issues are different in each. Negligence is a common law (ie comes from judge made law). Work Health and Safety law is all based on statute and is enforced by criminal law.  Each cause of action has its own elements and legal issues.

In an action for negligence a plaintiff (the person doing the suing) has to prove that the defendant owed the plaintiff a duty of care, failed to act reasonably to meet that duty and that, in turn, caused the plaintiff’s damage.  It may be relevant to plead a breach of the Work Health and Safety Act but a civil court hearing an action in negligence cannot determine whether or not someone has committed a criminal offence. The statement ‘the paramedic makes a claim of negligence against the dispatcher, alleging breaches of the WHS Act and Regulations’ suggests some confusion and we’ll deal with the issues separately ie 1) an allegation of negligence and 2) an allegation of breach of the WHS legislation, but they are not the same issue.

Police do not investigate negligence, they investigate crime. If, in a ‘subsequent police investigation, the paramedic makes a claim of negligence’ the police would suggest that is not their concern (unless the negligence is so extreme as to amount to gross criminal negligence).  Again, the statement ‘in the subsequent police investigation, the paramedic makes a claim of negligence’ again suggests a confusion of the legal rubric.  The police are looking for evidence of a crime, not negligence.

Claim of negligence against the dispatcher

The first question I’m asked is ‘In this situation, do you think a claim of negligence against the dispatcher would be successful?’ My answer is there is no chance, whatsoever, that a claim against the dispatcher would succeed.

The dispatcher is, like the paramedic, an employee of the ambulance service or some other agency (eg the Emergency Services Telecommunications Authority in Victoria).  As has been noted on this blog before, the doctrine of vicarious liability says that an employer is liable for any negligence of an employee (see Vicarious liability for the actions of fire wardens (March 5, 2016)). If there is any negligence then it will be the dispatcher’s employer, not the dispatcher that will be liable.

But where is the negligence? The ambulance service says that the crew can be despatched before the check is complete. What’s the alternative? First the crew that’s coming off duty, could be despatched on overtime but that too carries risks for that crew who may have had a busy shift.  Alternatively, there is a 10-minute period at the start of each shift when the ambulance service simply can’t respond to a triple zero call.

Some things do require shift checks – eg making sure that all the scheduled drugs are accounted for and the ambulance is stocked. Other things may not require a check every shift but asking crews to do that ensures that faults are located as soon as possible and also builds in a redundancy. For example, let’s assume that it’s part of the list to check the oil (I don’t know if it is, but let’s assume it is).  It probably doesn’t matter if the oil isn’t checked every day. Perhaps it could be checked once a week. But if it was listed as a weekly check and it was missed it will be another week before it is next checked. If it’s on the shift check list and it’s missed, then it will be checked next shift – building in a redundancy into the system.

In determining whether there has been negligence (assuming there is a duty of care) a court considers how a reasonable defendant may respond to the risk. In doing that the court considers:

… the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities (Wyong Shire v Shirt (1980) 146 CLR 40, 48).

In determining the policy response, the ambulance service has to consider risks to crews coming off shift, crews starting their shift and the patients who need an emergency service. None automatically trumps the other, all have to be considered.  The risk to the patient of saying ‘we’ll be there in 10 minutes’ seems much greater than the risk to the crew from any potential risk.  Even the risk of the hypothetical scenario suggested by my correspondent is much lower (ie it’s not likely to happen and remember the defendant has to make decisions not knowing what’s going to happen so the defendant has to ask how likely is that something like the situation described will occur) than the risk to a person who calls triple zero but does not receive a timely response.

Then there is the question of did any breach actually cause any damage. It’s impossible to say that the failure to complete the check list is the cause of the damage.  In the example given it’s the conduct of the patient that causes the paramedics injury. The High Court has been reluctant to impose liability in negligence on person A for the criminal conduct of B (Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61).  Even if the patient is ‘not guilty’ of an offence it is still the patient’s conduct, not the failure to complete a check list, that caused the injury.

There could be no success as the requirement to respond if called upon, even if the check list has not been completed, seems axiomatically reasonable.

But if we assume that is not the case, the dispatcher is not negligent.  He or she is as bound by the policy as the paramedic. If the paramedic is ‘is fearful of the repercussions of acting against policy, so they get in the car and go’ one would or could infer that the dispatcher is also ‘fearful of the repercussions of acting against policy’. If there is negligence by the dispatcher, then his or her decision is the same as the paramedic so there would be negligence there too (but there isn’t).

So, an action against the dispatcher won’t succeed:

  1. Because it is the employer not the individual that would be liable for any negligence (if any);
  2. It is difficult to see how the policy is anything other than reasonable.
  3. The dispatcher is as bound by the policy as the paramedic, if there is negligence (and I can’t see how there is) then it must be the service as the owner of the policy that is negligent.
Work Health and Safety

The ambulance service is the primary duty holder. I haven’t identified a jurisdiction but for this discussion I’ll assume the model 2011 Act applies (as it does in each jurisdiction other than WA and Victoria).  Under the Work Health and Safety Act 2011 s 19, the person conducting a business or undertaking has to ensure a safe workplace. Paramedics could be made safe from violent patients if the employer refused to send them to any job, but that would not be an effective or ‘reasonable’ response.

In determining what is reasonably practicable a court or person conducting a business or undertaking has to consider (s 18):

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

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

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

(i) the hazard or the risk, and

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

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

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

Again, the ambulance service has to consider the potential risk to those coming on shift who have to complete the checklist and the crew ending their shift, and patients, if the crew who are on station but who have not completed the checklist are not available for a response.  Whilst I don’t know what’s on the daily list I would suggest that the risk of injury etc of not doing it, when compared to the risk of delaying a response would suggest that it is not unreasonable to allow crews to be despatched.

Would this be a criminal or a civil matter?

I can’t see how the ambulance service or the dispatcher has committed any criminal offence.

And would the safety regulator investigate what is already a police matter?

Again it’s important to remember different legal boxes have their own rules, elements and processes. The police would be investigating general criminal matters, given the scenario there focus is likely to be on whether there is evidence to support a prosecution of the patient.

The industrial/safety issue is another reason. There is nothing to stop the work safety regulator conducting an investigation into whether there have been breaches of WHS law at the same time, and independently of police.

I would suggest, however, in the scenario given, neither the police nor the work safety regulator would be concerned about the checklist.

Conclusion

I was asked

In this situation, do you think a claim of negligence against the dispatcher would be successful?

No, I think a claim of negligence against the dispatcher would stand no chance of success.

Would this be a criminal or a civil matter?

The action of the patient would be a criminal matter.  An allegation of negligence is a civil matter, but I can’t see any negligence. An action by the safety regulator under WHS legislation would be criminal in nature but again I can’t see that anyone would think there has been a criminal offence here.

And would the safety regulator investigate what is already a police matter?

Safety investigators run concurrent investigations all the time.

Categories: Researchers

Can a private hospital refuse to treat a patient?

24 January, 2018 - 16:56

Today’s question comes from an academic in a Victorian nursing program. Part of their class work involves a discussion on:

… the difference between private and public hospitals in Australia.

When looking at the issue, I came across a comment from the US that said that in the US, Private hospitals can refuse treatment whereas public hospitals cannot.

Is this the case in Australia?

I know that Private hospitals want payment up front, I’m not sure however what would happen if a patient was not able to make that payment (presumably it would be determined by the severity of the patient’s condition, and how this would be determined, I’m not sure – is life-threatening enough?).  In my experience AV always ask if a patient is privately insured before transport to a Private facility and also advise that there is an upfront cost.  If they are not prepared to pay, AV has suggested that they go to a Public hospital instead.  I’ve also heard of an ED doctor tell a patient to leave the Private hospital and had refused to treat them.  Are you able to let me know the legal position?

It stands to reason that private hospitals can refuse to treat patients. They are a business and are entitled to decide who they contract with. Provided they service isn’t refused on grounds that are unlawful under anti-discrimination legislation a private hospital is free to decide who it will accept as a patient.  They can refuse treatment if you can’t pay, but not on the grounds of gender, race etc.

In light of the content of this blog and the specifics of the question I infer that the real question is can they refuse to assist a person in an emergency.  That is a slightly different issue.

In Victoria public hospital service principles are established by agreement between the State and the Federal Governments (Health Services Act 1988 (Vic) s 17AA).  Let us assume that the principles established ensure that a public hospital must treat all persons that arrive at the hospital including emergency patients even if they do not have an emergency department. In that case the expected care may be limited but they couldn’t simply shut the door and say ‘we don’t treat emergency cases’.

The Minister may enter into an agreement with a private hospital for that hospital to provide ‘health services to public hospital patients’ (Health Services Act 1988 (Vic) s 69B).  A private hospital or day procedure centre may be specifically licensed to provide emergency health care services (Health Services (Private Hospitals and Day Procedure Centres) Regulations 2013 (Vic) rr 6 and 7).  If a private hospital is licensed to provide emergency services and has an agreement with the state government to provide those services to public hospital patients then, whilst it might depend on the specific terms of the agreement, one can infer that the hospital could not refuse to treat any emergency patient that arrived at the hospital. (For an example of that sort of public/private arrangement to deliver public emergency health care in the Australian Capital Territory, see the Calvary Public Hospital in Bruce, ACT).

What of other private hospitals.  Not all private hospitals provide or have the capacity to provide emergency services, or other specialised health services. It must be the case that they can refuse to provide treatment to a person who needs treatment that the hospital cannot offer.

There are no regulations in the Health Services (Private Hospitals and Day Procedure Centres) Regulations 2013 (Vic) that says a private hospital must provide treatment to emergency patients that arrive.  There is no equivalent, at least in Victoria, to the Emergency Medical Treatment & Labor Act 1986 (USA).   Under that Act a hospital that operates an Emergency Department within the United States must examine a person who requests emergency care to determine if there is an emergency and must provide treatment or stabilise the person and transfer them to another hospital.  But note that is limited to hospitals that operate an emergency department, not ones that do not.

The critical issue in Australia is going to be the obligation upon a medical practitioner.  In Lowns v Woods (1996) AustTortsReps ¶81-376 (Kirby P and Cole JA; Mahoney JA dissenting) a doctor was found negligent for not providing emergency care when asked to assist with a patient who was nearby. The finding that there is a duty will be even easier if the doctor is at work at a hospital and the patient has been brought to that hospital.  That does not mean the doctor has to provide the full range of emergency medical services, but he or she could not simply wash their hands and say ‘this is a private hospital and this patient has no insurance’.

By the same reasoning one would also argue that the hospital, particularly if it operated an emergency department, would also owe a duty to assist a person who arrived at their door seeking help, but what that duty would require would depend on all the circumstances.

The matter is made even more clear by the Good medical practice: a code of conduct for doctors in Australia (17 March 2014) published by the Medical Board of Australia.   That document says (at [2.5]):

Treating patients in emergencies requires doctors to consider a range of issues, in addition to the patient’s best care. Good medical practice involves offering assistance in an emergency that takes account of your own safety, your skills, the availability of other options and the impact on any other patients under your care; and continuing to provide that assistance until your services are no longer required.

Doctors have an independent professional obligation to those that require their services that exist above and despite any edict from their employer.  What follows is that if a doctor is at a private hospital and is aware that a person needs emergency assistance, that doctor is required, subject to all the considerations listed in [2.5] to offer ‘assistance … and continu[e] to provide that assistance until … no longer required’.

The assistance provided may be quite minimal and amount to not much more than first aid and calling an ambulance to have the person treated by paramedics and transferred to a public hospital, but the patient can’t be ignored. That’s true even if the hospital management say ‘we don’t provide an emergency service’.

Conclusion

What follows is that private hospitals must be able to refuse treatment to people. They are a private business and can determine their business model and who they accept as a patient and who they do not (subject to anti-discrimination legislation at both state and commonwealth level).

They don’t have to treat people who insist on being treated but who cannot pay for their services. For those people there is the public health network and Australia’s comprehensive health insurance scheme, Medicare.

Private hospitals don’t have to treat people who need services that they do not provide.

Although the hospitals are not compelled to provide public emergency health services, a doctor at the hospital will have professional obligations to assist at a medical emergency that occurs in the hospital so that might involve a patient, a visitor or someone who comes to the door and asks for help.

A doctor and the hospital would also have a common law duty to assist a person who needed emergency medical care at the hospital but what that might involve would be limited by all the circumstances.

If AV (Ambulance Victoria) was treating an emergency patient I fail to see why they would take a patient to a private hospital. If they did and if the hospital operated an emergency department, there would no doubt be some obligation upon the hospital and staff to provide assistance but that would not extend to having to admit the patient and provide ongoing care.  It may be no more than to assist to stabilise the patient pending their transfer to a public hospital.  If the hospital did not operate an emergency department even less could be expected.

If the hospital operated a public emergency unit, in particular if it had entered into an agreement with the government to provide public hospital services then it would have to accept a patient on the same terms as any public hospital and emergency health services are provided free in Australian public hospitals.

Categories: Researchers

New Death and Disability Award for FRNSW Firefighters

21 January, 2018 - 12:49

On 19 January 2018 a Full Bench of the Industrial Relations Commission (NSW) made a new award relating to Death and Disability for firefighters employed by Fire and Rescue NSW (‘FRNSW’) Re Fire and Rescue NSW Firefighting Staff (Death and Disability) Award 2017 [2018] NSWIRComm 1003.

These matters are usually determined by agreement rather than a determination of a three member bench. What made this one different was a provision that, in the argument of FRNSW, would have put it in breach of the Occupational Health and Safety Act 2011 (NSW) (see [7]).

The previous award provided that where a question of a firefighter’s fitness for duty arose, a firefighter would obtain a medical clearance from their own ‘nominated medical practitioner’. That practitioner would forward the report to an ‘independent occupational physician nominated by FRNSW’. The independent occupational physician would review the report and advise FRNSW that the firefighter was fit for duty, fit for duty ‘with specified requirements or restrictions’, temporarily unfit for duty as a firefighter but fit to perform alternative duties, temporarily unfit to perform any duties or ‘permanently unfit to perform the firefighter’s ordinary duties’ [12].  No other information would be given to FRNSW.

FRNSW said without detailed information about a firefighter who was assessed as either unfit for duty, or fit for duty but subject to restrictions, it could not take steps to ensure a safe workplace for that firefighter ([7]). It wanted a clause that said, in effect, where a firefighter was assessed as ‘unfit by the independent occupational physician (“IOP”), either temporarily or permanently, the IOP is to also supply FRNSW with all related medical information’ ([13]).  At [14] the Tribunal said:

The position adopted by the FBEU [Fire Brigade Employees’ Union of New South Wales] was that the firefighter’s nominated medical practitioner would review and discuss the firefighter’s health and fitness check, together with the results, with the firefighter and advise FRNSW that the firefighter had attended and completed their required health check. No other information would be provided to FRNSW.

In support of its position, FRNSW relied on the evidence of a ‘an occupational physician employed by FRNSW’ ([15]).  The FBEU relied on ‘the “Ethical Guidelines for Occupational and Environmental Physicians” prepared by the Royal Australasian and [sic] College of Physicians which emphasised the need to protect the confidentiality of information about the health status of employees’ ([16]).

The result (at [17]) was that the Full Bench inserted the following clause into the award (underlining provided in the judgement):

The independent occupational physician will provide no other information or advice to FRNSW concerning the firefighter’s health and fitness without the firefighter’s consent apart from such information regarding the specified requirements or restrictions as, in the professional opinion of the independent occupational physician, is necessary for the safe management of the firefighter. If the firefighter disagrees with the independent occupational physician’s advice to FRNSW, then it will be open to the firefighter to seek a determination of their fitness for duty under Clause 8.

That it is up to the IOP to determine what information should be given to FRNSW may, no doubt, lead to disagreement something which the Tribunal noted.  They said (at [18]):

In the view of the Full Bench the addition of these words … appropriately, at least at this stage, balances the right to privacy on the part of employees and the employer’s need for information to meet its responsibilities to ensure the safety and welfare of its employees at work. As information is gathered in the operation of these provisions there may be a need to adjust the balance, but that consideration will be undertaken in the light of practical experience rather than theoretical possibilities.

It will be possible for the parties to return to seek an amendment to the award if, ‘in the light of practical experience’ the balance between the needs of FRNSW and firefighters has not been appropriately made.

 

 

 

 

Categories: Researchers

Claim for compensation by Queensland Volunteer Coast Guard member

16 January, 2018 - 11:39

A correspondent has drawn my attention to a story appearing in the Brisbane Courier Mail headed ‘Coast Guard volunteer sues Queensland for $750,000’.  The Courier Mail article is behind a pay wall but you can find the story in other news outlets – see:

The headline may be correct but is phrased in pejorative terms. I can imagine some would be outraged by the claim that a volunteer is ‘suing’ and for that some of money but the headline would be equally accurate if it said ‘Volunteer injured during rescue seeks compensation for his losses’; and most people would probably think that a volunteer who is injured in the course of his or her duties should be compensated for their losses as an employee would be.  In New South Wales, for example, the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) extends the workers compensation scheme to emergency service volunteers even though they are not employees.

Workers compensation is ‘no fault’ that is an injured worker does not have to prove negligence, merely that their injury occurred as a result of their work.   That does not meant they don’t sometimes have to ‘sue’.  Courts are a dispute resolution forum, so where a person claims compensation the other side may deny that claim. The defendant or respondent may argue that the accident or injury does not fall within the scheme, that the injuries are not as bad as the claimant alleges, that the treatment claimed is not necessary or the like.  Where the parties can’t agree then someone has to resolve that issue and across the countries there are various tribunals and ultimately courts that do that.  Where a claimant ‘sues’ it may not mean that they are being greedy and seeking something extra (though it is often presented that way), they are instead asking a court do what courts are there to do – that is determine the facts; apply the law to those facts and making a binding order that adjusts each parties rights and obligations.

Historically rights to compensation depended on the common law of negligence.  In some jurisdictions that right has been replaced entirely by statutory schemes, the most comprehensive example of that is in New Zealand where all accident compensation is governed by statute and there is no longer a right to sue in negligence (Accident Compensation Act 2001 (NZ)).  In most Australian states one can still bring a ‘common law’ action if various thresholds regarding the seriousness of the injury are met.

When bringing this story to my attention my correspondent said ‘It might be worth following this one to see what tortious duty is alleged to have been breached, and the outcome in due course. Interesting that the State has been joined.’  Indeed it will be worth following it and considering who the defendants are.

The website for the Australian Volunteer Coast Guard says ‘The Australian Volunteer Coast Guard is an organisation composed entirely of volunteers. Formed in 1961, its aim is to promote safety in the operation of small craft’.  It does not say under what legislation, and therefore what State, the Coast Guard is incorporated or whether there is a separate incorporated entity in each state and territory.

I’ve previously discussed compensation for Queensland SES volunteers – Workers compensation for Queensland SES volunteers (August 23, 2017).  As noted there the, Commissioner of QFES is required to enter into a contract with WorkCover Queensland to provide workers compensation for SES volunteers (Fire and Emergency Services Act 1990 (Qld) s 154C).  Because the Australian Volunteer Coast Guard is not established by an Act of Parliament there is no similar obligation upon the Coast Guard.   The Workers’ Compensation and Rehabilitation Act 2003 (Qld) says ‘WorkCover may enter into a contract of insurance for this subdivision with a church, non-profit charitable organisation or benevolent institution (“institution”)’ (s 18) or a ‘non-profit organisation’ (s 19).  The Coast Guard might be considered a ‘benevolent institution’ and/or a ‘non-profit organisation’ so they may have insurance with WorkCover or they may have their own insurance to protect volunteers. The Workers’ Compensation and Rehabilitation Act 2003 (Qld) retains rights for workers to seek common law damages in particular cases.

If the claimant in this case is seeking common law damages from either the Coast Guard, or Queensland (presumably on the basis of alleged negligence by police) then as my correspondent has noted, he or she will have to show that there was some common law negligence by one or both agencies.  What is alleged is not known at this stage.

As noted by my correspondent, if this matter proceeds to trial it will be interesting to see what is alleged and how the court resolves the issues.  It should be remembered however that most cases settle and if it does, we may never know the details of the legal cause of action.

Categories: Researchers

Towing an improperly loaded trailer in NSW emergency services

11 January, 2018 - 10:29

Today’s question was inspired by a youtube video demonstrating what happens if a trailer is not properly loaded – see https://www.youtube.com/watch?v=5rH-g7LDHeI. The question for this come from a NSW SES member’s discussion page and is this:

If a towed emergency services trailer becomes unstable because of the loading pattern:

  1. Is it solely the responsibility of the driver?
  2. Or if the designated driver has not been trained or tested as competent to load trailer so it does not become unstable; is the agency also liable?
  3. What might represent adequate training or a test of sufficient competence?

The answer depends on what type of legal issue you are considering.

Civil liability

That is the liability to pay damages for injury caused by an accident.  If the accident involves personal injury or death, then it is the vehicles Compulsory Third Party (CTP) insurer that will meet the cost.  For government vehicles that will probably be the Treasury Managed Fund established to meet government liabilities. In the case of vehicles that aren’t required to be registered (some NSW RFS vehicles) it will be the ‘nominal defendant’, an insurance scheme established by the Motor Accidents Compensation Act 1999 (NSW) to meet the needs of people injured by the drivers of uninsured or unregistered vehicles or where the vehicle at fault cannot be identified.    The CTP policy (Motor Accidents Compensation Act 1999 (NSW) s 10):

… insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle.

The vehicle includes any trailer (s 3, definition of ‘motor vehicle’).

If the question is referring to liability to pay for damage done to any person injured as a result, the claimant would probably claim against both the driver and the owner (ie the agency) but the practical result is that it is the CTP insurer that is liable and they have no right to recover against the owner or driver. That is the point of insurance, to shift the loss so regardless of whose name appears on any claim, the liability lies with the CTP insurer.

If the accident causes damage to property, then the agency as both the owner of the vehicle and the manager of the volunteer or employed worker will be liable.  An employer is vicariously liable for any negligence by an employee.  With respect to volunteers, the Civil Liability Act 2002 (NSW) s 61 says:

A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work:

(a) organised by a community organisation, or

(b) as an office holder of a community organisation.

It follows that it will be the agency (or again, the Treasury Managed Fund) that will be liable for any damage done to any other vehicle or indeed to the agency vehicle.

Criminal law

It is the ultimate responsibility of the driver to ensure that the vehicle is safe but that does not mean that any accident will necessarily lead to liability.  Consider the case of the Victorian firefighter who was convicted of dangerous driving causing death –  Suspended jail sentence for firefighter involved in a fatal accident (October 24, 2009).  In that case the driver was not exceeding the speed limit but, according to the sentencing judge, because he ‘knew the truck was top-heavy when filled with water, was driving it ‘‘just too fast’’.

The driver of a vehicle towing a poorly loaded trailer may be guilty of offences such as negligent driving or dangerous driving if he or she knows that the load is unsafe in the circumstances (as that DSE driver did) or if a reasonable person in the driver’s position would have known. In deciding whether or not the driver had committed any of those offences their level of training and instruction would be taken into account as well as the question of who loaded the trailer. A driver is less likely to be negligent if the agency provides a ‘standard’ trailer, a ‘standard’ kit list for the trailer and packing instructions in order to ensure that a member who goes to a trailer owned by another unit will know what is in there and where to find it.  The driver may well, reasonably, think that way the trailer is packed is packed has taken into account load requirements.  Where the trailer is packed by the unit, or the driver, the issues will be different.

A reasonable driver who is going to tow a trailer would take steps to ensure that he or she understands the risks and how to manage the vehicle and its load. The fact that a licensed driver is allowed to tow a trailer without any training or endorsement does not deny that a ‘reasonable driver’ (that hypothetical reasonable person of legal fiction) would not do so without informing him or herself as to what that requires.

In short, where there is a criminal offence there is no vicarious liability for that offence so if police allege an offence has been committed by the driver, it is the driver that is liable. That’s not an issue of the agency ‘leaving the member out to dry’ or the like.  The issue of criminal liability is a matter for police and ultimately the court.   The extent to which the agency’s training and processes are relevant would depend on the offence charged.

See also Driving overweight vehicles in the NSW emergency services (February 8, 2016).

Work Health and Safety

The Work Health and Safety laws impose an obligation on a person conducting a business or undertaking (a PCBU) to take steps, including training and the provision of information, to ensure a safe workplace (Work health and Safety Act 2011 (NSW) s 19; Work Health and Safety Regulation 2017 (NSW) r 39 ‘Provision of information, training and instruction’).  The obligation extends to protect all workers, which includes volunteers (s 7).

If an agency allows members to drive and tow trailers without giving instruction on how to load the trailers, the towing capacity of the vehicle (Road Rules 2014 (NSW) r 294-2 Towing by vehicles under 4.5 tonnes) and some instruction to ensure the driver is competent to tow the vehicle then that may represent a breach of the agencies duties under the WHS Act.

The volunteer or employee also has an obligation to ‘take reasonable care for his or her own health and safety’ and ‘comply … with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act’.  What is ‘reasonable’ will depend on what instruction and training (if any) has been given and any directives from the agency regarding trailers and their loads. In the absence of any information or training, the failure to ensure a safe workplace would belong to the PCBU.

What might represent adequate training or a test of sufficient competence is not something I can answer.  The answer to that question depends on a risk assessment taking into account (Work health and Safety Act 2011 (NSW) s18):

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

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

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

(i) the hazard or the risk, and

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

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

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

The whole focus of the WHS Act is not to prescribe what has to be done, but to impose obligations upon the PCBU to consider the risks in their undertaking and to tailor risk control measures that are applicable to that undertaking.

Conclusion

If a towed emergency services trailer becomes unstable because of the loading pattern is it solely the responsibility of the driver?  The simple answer is ‘no; it’s not the sole responsibility of the driver’.

The more complex answer is that the agency for which that member volunteers or works also has obligations.  Everyone is responsible for their own decisions. The agency is responsible, or accountable, for the decisions it made when selecting trailers, providing training and information etc. The driver is responsible for the decisions he or she made whilst driving and for the decisions he or she made about the load.  What they could or should have done will depend on what they knew or should have known.  That in turn will also be affected by the training and instructions offered (if any).  How responsibility will be allocated in particular circumstances will depend on what happened and what if anyone knew of the risks.   Remember that in the case of the Victorian firefighter referred to above, he knew ‘the truck was top-heavy when filled with water’.  The outcome may have been different if he did not know that.

For a related post, see also: Maximum speed when responding with a trailer in tow, in NSW (January 16, 2017)


Categories: Researchers

Taking photos by non-rescue emergency personnel at the scene of a NSW rescue

9 January, 2018 - 11:52

The first question of 2018 deals with the application of New South Wales State Rescue Board policies to agencies that attend a rescue but are not accredited rescue units, in particular NSW Rural Fire Service brigades that attend motor vehicle accidents to provide fire protection rather than rescue.  My correspondent says:

In early December 2017, it appears … [a] Regional Emergency Management Officer (REMO) from the NSW Police has sent out to at least the NSW RFS, but also it would appear other agencies, the following;

“Colleagues,

Just a reminder please to ensure that all your Units/Stations/Brigades who have accredited Rescue Units or resources that attend Rescue Jobs are meeting with the State Rescue Board Policy regarding photos taken at Rescues and subsequently posting them on Facebook Sites or Internet pages.

Annex B – Taking of Photographic Images at and from a Rescue Incident states

“B.01 – The taking of photographic images or film at a rescue incident can result in considerable undue stress to those people involved as well as their friends and relatives. In addition the taking and use of such images may be in breach of the Privacy and Personal Information Protection Act 1998 or the Occupational Health and Safety Act 2000.”

It further enhances this around the Public Display of Images by stating

“B.08 The Board considers that it is not acceptable to publicly display any images of dead or injured people. The only exceptions are when such images are presented in court or with the written permission of the NSW Police Force Commissioner.

B.09 Public display includes:

1. publication in State Rescue Board or Emergency Service Organisations books, manuals, journals, videos, or other publications that can or could be accessible to the public;

2. publication in external publications such as newspapers, journals or conference papers;

3. use of images on display stands at events;

4. images displayed in premises used by Board accredited rescue units including notice boards, lockers, etc;

5. images on internet sites; and

6. any other use where the images would be accessible by the public. “

I do not want for any of your workforce to be compromised or have official action taken against them for breach of this policy.

Regards

However, it seems that the REMO has conveniently forgotten to include

 “B.02 Members of accredited rescue units are to comply with the directions of this policy in relation to the taking of photographic images or film at a rescue incident.”

which of course would mean that the REMO’s statement “that all your Units / Stations / Brigades who have accredited Rescue Units or resources that attend Rescue Jobs are meeting with the State Rescue Board Policy regarding photos taken at Rescues” is in fact not correct in respect of the (non SRB accredited) “resources that attend Rescue Jobs”, a typical example being the RFS attending to provide fire protection.

Now, I’m not advancing any argument that non accredited units should in principle act any differently to SRB accredited units with regard to images and the publication of the same (although I contend the relevant policy in those circumstances is the RFS Service Standard 1.4.5 Social Media which you can find here; https://www.rfs.nsw.gov.au/__data/assets/pdf_file/0007/8827/SS-1.4.5-Social-Media.pdf.

I’m also aware of the powers of NSW Police Officers to seize any still or video images of an incident scene as potential evidence.

I’m purely interested in the legal aspect of the REMO’s email and the applicability to non SRB rescue RFS units (currently all brigades except Mungindi RFB).

Therefore my questions are;

(1) Can a REMO lawfully interpret the SRB Rescue Policy with respect to Annex B which specifically states only “Members of accredited rescue units are to comply with the directions of this policy in relation to the taking of photographic images or film at a rescue incident” as having a wider application than the policy explicitly states to include non SRB accredited units (“or resources that attend Rescue Jobs”)?

(2) What sort of ‘official action’ could a REMO under State Rescue Policy take against a member of a non SRB accredited RFS brigade?

(3) Could the NSW RFS legally use Annex B of the State Rescue Policy as opposed to state NSW RFS policy (SS1.4.5 etc) in any disciplinary action against a member of a non SRB accredited unit?

(4) Are there any other issues in connection with this you think of relevance?

The law and policy framework

The State Emergency and Rescue Management Act 1989 (NSW) (‘the SERM Act’)

When first enacted, s 26 said:

(1) The State Emergency Service is to provide executive support facilities for each District Emergency Management Committee and District Emergency Operations Controller in its area.

(2) The principal executive officer is to be known as the District Emergency Management Officer.

In 1995 the reference to the State Emergency Service was removed and instead it was the Police that were to provide the executive support and the District Emergency Management Officer (State Emergency Legislation Amendment Act 1995 (NSW), Sch 1 [13] [14]).  In 2012 the word ‘District’ was replaced by the word ‘Region’ and s 26(2), that is the definition of District Emergency Management Officer was repealed (Emergency Legislation Amendment Act 2012 (NSW), Sch 3 [12] [16] [24]).  Today s 26 says ‘The NSW Police Force is to provide executive support facilities for each Regional Emergency Management Committee and Regional Emergency Operations Controller in the region concerned’ but there is no specific title of Region Emergency Management Officer or REMO.

Today there is still reference to the office of REMO in the NSW State Emergency Arrangements.  Frequently Asked Questions on the Regional Emergency Management Planning Guideline say:

Who is responsible for the overall completion of the Regional EMPLANs?

The SERM Act 1989 requires the NSW Police Force to provide ‘executive support’ to the REMC and Regional Emergency Operations Controller (REOCON). This role is known as the Regional Emergency Management Officer (REMO). Within this planning process, the REMO is responsible for facilitating and collating the Regional EMPLAN for endorsement.

(See also the multiple references to the REMO in the Regional Emergency Management Planning Guideline, 2016).

It is not explained in the Minister’s second reading speech (NSW, Parliamentary Debates, Legislative Council, 22 August 2012, pp. 14161-2 (Michael Gallacher, Minister for Police and Emergency Services)) why the title was removed from the Act but we can infer (given that there a number of people who hold the office of REMO) that the position continues as an administrative position. The deletion of s 26(2) didn’t abolish the position or the role, it just removed the statutory requirement to use the title ‘Region Emergency Management Officer’ but that title does still remain and the REMOs continues to provide administrative support to the relevant Regional Emergency Management Committee (s 22) and the Regional Emergency Operations Controller (s 24).

The SERM Act 1989 (NSW) also creates the State Rescue Board (SRB) and provides for the accreditation of rescue units.   It is a function of the SRB to produce relevant policies ‘to promote the provision of comprehensive, balanced and co-ordinated rescue services throughout the State’ (s 48).

The establishment of Regional and Local Rescue Committees is provided for in s 48A.  Section 48A(4) says: ‘Rescue committees are to assist the State Rescue Board in the exercise of its functions within the region or local government area concerned.’

Finally, s 49 says:

(1) The agency which manages or controls any accredited rescue unit is required to implement (in accordance with law) the decisions of the SRB under this Part in connection with rescue operations carried out by that rescue unit.

(2) Except as provided by subsection (1), nothing in this Part affects the exercise by such an agency of its functions or the exercise of the management functions of the chief executive of the agency.

State Rescue Policy

The New South Wales State Rescue Policy (v 3.5, 13 December 2015) can be found at https://www.emergency.nsw.gov.au/Documents/publications/policies/State-Rescue-Policy.pdf.  Clause 5.08 says:

The Chairperson of each Regional Rescue Committee has the services of the Regional Emergency Management Officer (DEMO) to assist them with rescue matters; provide operational assistance; support Local Rescue Committees; and provide executive support to the Regional Rescue Committee.

Like other aspects of the Rescue Policy this appears to be out of date.  The fact that they have retained the DEMO (rather than REMO) acronym suggests that this clause is a holdover from before the 2012 amendments but as noted above, the office of REMO continues even if the title is no longer provided for in legislation.

Clause 1.55 of the policy says:

The Board’s policy in relation to the taking and use of photographic images by State Rescue Board registered rescue operators at any rescue incident is specified at Annex B.

Annex B (pp. 30-32) sets out the policy on Taking of Photographic Images at and from a Rescue Incident.   As my correspondent has noted, clause B.02 says:

Members of accredited rescue units are to comply with the directions of this policy in relation to the taking of photographic images or film at a rescue incident.

The conclusion so far

What this allows us to conclude is:

  1. The SRB is responsible for developing policies relevant to rescue and they have created the policy on Taking of Photographic Images at and from a Rescue Incident.
  2. Agencies which control accredited rescue units are required to comply with SRB policy ‘connection with rescue operations carried out by that rescue unit’.
  3. The REMO is to assist the Regional Rescue Committee in meeting its tasks.

By inference then it is appropriate for the REMO to remind agencies that operate accredited rescue units ‘to ensure that all your Units/Stations/Brigades who have accredited Rescue Units … are meeting with the State Rescue Board Policy regarding photos taken at Rescues and subsequently posting them on Facebook Sites or Internet pages’.

The controversial issue is whether that advice extends to ‘resources that attend Rescue Jobs’ eg NSW RFS units that are not accredited rescue units and who attend in order to provide fire protection.

Discussion

The obligation to comply with SRB policy is directed to the agency that operates an accredited rescue unit (which now includes the RFS) rather than particular rescue squads but the obligation to implement Board policy is only ‘in connection with rescue operations carried out by that rescue unit’ (s 49(1)). Further that obligation does not affect ‘the exercise by such an agency of its functions’.

It is a function of the NSW Rural Fire Service (‘the RFS’) ‘to provide rural fire services for New South Wales’ (Rural Fires Act 1997 (NSW) s 9(1)(a) and see s 9(4) for the definition of ‘rural fire services’).  An RFS appliance that attends an accident to provide fire protection is exercising a function under s 9(1)(a) and to that extent s 49(1) of the SERM Act and the obligation to comply with SRB policy would not apply.

On the other hand, the RFS may be called to assist in a rescue, eg to provide resources and labour that are not related to fire protection.  Assisting other emergency services is also a function of the RFS (Rural Fires Act 1997 (NSW) s 9(1)(b)). Where an RFS brigade is attending to assist the accredited rescue unit, rather than to provide fire protection, then it is appropriate to consider that they are acting under the control of the rescue unit. The obligation is upon the rescue unit to ensure that the SRB policy is applied so if the rescue squad became aware that someone they had asked to assist was taking photos or, later, displaying photos, then it would be incumbent on the squad, and ultimately the agency that operates the squad, to take steps to stop that behaviour.  Where the RFS is assisting a rescue squad (noting that they do not provide fire protection to assist a rescue squad) then the rescue squad has an obligation to ensure the policy is applied.  No doubt that would be made easier if, as suggested by the REMO, operators who might be called to assist are reminded of the terms of the policy.

Conclusions

I think the issue is really what is meant by ‘resources that attend Rescue Jobs’ and what is a rescue job.  A motor vehicle accident involves many ‘jobs’. There is the job of the paramedics to provide emergency medical care, the job of the fire brigade to provide fire protection, the job of police to coordinate the rescue, manage traffic and conduct investigations and the job of the rescue squad to effect the rescue.  I would suggest that an RFS unit that is attending the scene to provide fire protection is not attending a rescue job, even if a rescue is taking place.  The SRB policy won’t apply in those circumstances but the RFS service standard will.

On the other hand, the RFS may attend to assist the rescue squad, eg to provide labour to help carry a person out of the danger area. In that case they are attending a rescue job.

A way to see the difference may be to consider issues of ‘command’ and ‘control’.    When providing fire protection the RFS are not subject to direction from the rescue squad, they can stand-by with their fire hoses at the ready, but the rescue occurs independently of them. They are in ‘control’ of the fire operations if not the whole scene.  On the other hand when RFS members roll up their sleeves and are subject to direction by the rescue squad – hold this, go there, do that – then they are attending the rescue job.  They are not directly bound by the SRB policy but the rescue squad is, so it would be incumbent on the rescue squad commander to stop an RFS member taking photos and also to take it up with an RFS commander if there is a discovered breach of the policy with respect to images that are taken.

Let me then go to the specific questions:

1. Can a REMO lawfully interpret the SRB Rescue Policy with respect to Annex B which specifically states only “Members of accredited rescue units are to comply with the directions of this policy in relation to the taking of photographic images or film at a rescue incident” as having a wider application than the policy explicitly states to include non SRB accredited units (“or resources that attend Rescue Jobs”)?

I think the REMO can if one takes a narrow view of what it is to attend a ‘rescue job’. Just because a rescue is taking place does not make it a ‘rescue job’ but if the crew are involved in the rescue, not merely being ‘near’ the rescue whilst performing their statutory function of fire protection then that does seem an appropriate extension.  But in that case the obligation is upon the rescue squad and the agency that operates the squad to ensure that those that are assisting in the rescue are not stopping to take photos.

What the REMO is doing, I suggest, is asking agencies to remind their staff that this does exist and to ask them to comply to assist the rescue squads in their task.

2. What sort of ‘official action’ could a REMO under State Rescue Policy take against a member of a non SRB accredited RFS brigade?

The REMO is an administrative officer.  He or she have no official ‘power’.  The REMO may bring an alleged breach to the attention of the relevant agencies but the resolution would be up to them and ultimately the SRB.  No doubt if there was an issue the rescue agency would take it up with their colleagues in the other agency for example if the rescue squad was operated by the SES and they asked RFS members to assist, the issue would be between the SES and the RFS and no doubt it would be dealt with by relevant officers in each agency rather than ‘official’ action by the REMO or the SRB.  The issue is not one of ‘official action’ between state operated emergency services but rather cooperation.  The non-accredited member can’t be stripped of accreditation as a rescue operator but that is hardly to the point.

The REMO doesn’t however say ‘I do not want for any of your workforce to be compromised or have official action taken against them, BY ME, for breach of this policy.’  The reference to office action could include action taken by the member’s own agency, which leads to the next question.

3. Could the NSW RFS legally use Annex B of the State Rescue Policy as opposed to state NSW RFS policy (SS1.4.5 etc) in any disciplinary action against a member of a non SRB accredited unit?

I don’t think they could directly, as a member of the RFS who is not a member of a rescue squad is not directly bound by the policy and certainly not if they are providing fire protection.  But whether they are providing fire protection only, or actually assisting the rescue squad, taking photos of the rescue and posting them on boards or on social media is likely to breach the RFS Service Standard, in particular it may:

a. bring the NSW RFS into disrepute [particularly where it embarrasses another agency by suggesting the rescue squad has failed to ensure that those assisting do not take inappropriate photos];

b. could reasonably be found to breach the NSW RFS Code of Conduct and Ethics;

c. are not consistent with the NSW RFS Organisational Values;

d. depicts the NSW RFS in an unprofessional light;…

g. portrays content of a confidential or sensitive nature such as serious or critical injury, fatalities or incidents that are under investigation;

h. could reasonably be found to cause distress to members of the community …

If I was advising the RFS and they were seeking to discipline a member for breach of the SRB Policy, I would indeed recommend that they phrased the alleged breach as a breach of the RFS Service Standard, but the fact that it was contrary to the SRB policy, particularly if that policy has, as suggested by the REMO been brought to their attention, would be part of the case to demonstrate that the conduct did indeed breach that Service Standard.

4. Are there any other issues in connection with this you think of relevance?

I think I have addressed them in the discussion of what it might mean to attend a ‘rescue job’.

 

 

 


Categories: Researchers

Welcome back and best wishes for 2018

7 January, 2018 - 15:58

Welcome back to readers of Australian Emergency law. It’s been a long hot summer so far and with record temperatures set in Sydney today, that is likely to continue. This blog will continue to report on developments in the law relating to emergency management and the emergency services.

Here’s some things that have happened or been reported in the last month:

  1. On 8 September 2017 I reported, via FaceBook, on a plea by two women convicted of bashing a paramedic that they be spared gaol time (see https://www.9news.com.au/national/2017/09/07/13/55/bashed-vic-ambo-still-can-t-return-to-work). On 11 December 2017, it was reported that they had been sentenced to gaol for eight and six months respectively.  They have now appealed those sentences and are on bail pending determination of that appeal – see https://www.3aw.com.au/drunk-mothers-who-viciously-bashed-a-paramedic-given-jail-time/.  I will try to report on the outcome of the appeal when a result is handed down.
  2. On 14 December it was reported that a Queensland coroner has referred police to the DPP for possible prosecution for failing to providing assistance to a person who was unconscious in a Gold Coast apartment – see http://mobile.abc.net.au/news/2017-12-14/police-may-face-charges-for-failing-to-help-unconscious-student/9258952?pfmredir=sm&sf176293019=1.   This outcome is not inconsistent with earlier posts, based around the decision in Stuart v Kirkland-Veenstra. Although there is no general duty to rescue, that is different in a situation where police have entered premises and de facto detained those inside (consider whether this person would have been allowed to leave if he’d woken up and tried to do so). In those circumstances and where the person is apparently unconscious there would be no inconsistency in finding that police did owe a duty of care.  Whether or not these police were negligent, and whether or not that negligence was of such a degree as to warrant criminal punishment, remains to be seen.
  3. On 18 December the Volunteer Fire Fighters Association (NSW) issued a ‘Safety Bulletin’ headed ‘NSW RFS Volunteers at Risk of Prosecution without Support or Assistance’ – see http://volunteerfirefighters.org.au/nsw-rfs-volunteers-risk-prosecution-without-support-assistance. The gist of the story is that a volunteer was prosecuted for a traffic offence.  Unfortunately the statement gives no details on what the driver did or the charges that he or she was convicted of.  The statement says ‘The VFFA is deeply concerned that this case sets a precedent; Volunteer Firefighters can be subject to prosecution if salaried staff, without question or any internal investigation, call the NSW Police to report alleged actions of a Volunteer Firefighter based on hearsay…’  It’s not the RFS staff that determine whether or not someone is subject to prosecution, it’s the police and they make that decision on the basis of admissible evidence (even if they have obtained inadmissible information along the way which may cause their inquiries to move in a particular direction).  Given the police in this case must have formed the view that there was sufficient evidence to warrant a prosecution, and given the court was satisfied that the case was proved ‘beyond reasonable doubt’ it is unclear what the issue is. More detail from the VFFA would be required before anyone could take any lesson from this matter.
  4. On 19 December the ABC delivered a story on ‘Filming an emergency on your phone or camera? Know your rights before you press record’ (ABC Radio Brisbane, Hailey Renault) – see http://www.abc.net.au/news/2017-12-19/what-you-need-to-know-about-filming-an-emergency/9267910?sf176717959=1. I was interviewed for that story and my comments are included.  As noted in some FaceBook comments on the story, there is a duty to rescue in the Northern Territory (see https://emergencylaw.wordpress.com/2016/10/31/nt-police-officer-gaoled-for-failing-to-render-assistance/ ). It’s true that this section doesn’t get a comment here but it is impossible to give a detailed analysis in a short interview where the journalistthen writes the story.  My reference to ‘no duty to rescue’ was making reference to the Australian common law.
  5. Finally a big shout out to Darren and the crew of HEST Paramedical

who were ‘on duty’ at the 2017-18 Woodford Folk Festival and who provided outstanding care for one of my party who suffered a debilitating injury. Effective immediate care with compassionate follow-up care until we could get our party member on a plane home was much appreciated.

And now we turn to 2018 and I look forward to your questions and comments as we continue to explore aspects of Australian Emergency Law.

 

 


Categories: Researchers

Annual leave

11 December, 2017 - 10:50

Australian Emergency Law is taking leave until 8 January 2018. During that time I don’t expect to post any updates or answer questions or comments.  Have a great, and safe, Christmas and New Year.

Regards

Michael Eburn.


Categories: Researchers

Lawful discrimination in ACT Fire and Rescue

4 December, 2017 - 18:10

In 2016 ACT Fire and Rescue (ACTFR) commenced a rare recruitment campaign. They wanted to employ 16 new fire fighters and made the decision that, if possible, at least 8 of those new positions would be offered to women.  All the candidates had to pass the same physical fitness and other tests for recruitment.  At the end of the campaign employment was offered to 4 women, and 12 men.

One person, Mr Macca, believed that he was disadvantaged in the process and brought proceedings alleging unlawful discrimination contrary to the Discrimination Act 1991 (ACT).  The matter was heard in the ACT Civil and Administrative Tribunal – Macca v ACT represented by the Emergency Services Agency [2017] ACAT 101 (4 December 2017).

The Emergency Services Agency (the ESA) did not deny that the campaign, with the stated aim of reserving 8 of the 16 positions for woman, constituted discrimination on the grounds of sex under the Discrimination Act (see [25]).  The ESA’s argument was that the discrimination was permitted by s 27. That section says that it is not unlawful

… to do an act if a purpose of the act is—

(a) to ensure that members of a relevant class of people have equal opportunities with other people; or

(b) to give members of a relevant class of people access to facilities, services or opportunities to meet the special needs they have as members of the relevant class.

In essence, section 27 allows ‘positive’ discrimination and that is what ESA said was the purpose of the quota.  The issue was one of ‘equality’ v ‘equity’ as summed up in the famous (and I apologise, very American) picture, below:

(http://interactioninstitute.org/)

The applicant, Mr Macca argued that there was equality in firefighting recruiting as women were entitled to apply and everyone had to pass the same tests.   As Senior Member Robinson said (at [20]-[21]):

Key to the applicant’s position is his particular definition of ‘equal opportunity’. Further to this, the applicant also made the following observation about the nature of ‘equal opportunity’ in his final submissions:

The applicant contends that the use of the equal opportunity policy by ACT Fire and rescue in the 2016 recruitment campaign was done in a discriminatory fashion, and the equal opportunity actually already existed prior to this recruitment campaign, i.e. Female applicants were already considered on an equal footing with male applicants, but simply had a low success rate in achieving a position as a firefighter, despite the equal opportunity to apply, equal testing protocols employed for both male and female applicants.

All recruitment procedures prior to this one in 2016 were based on merit, and not on any political manoeuvring.

In other words, the applicant contends that ‘equal opportunity’ means treating all applicants the same. In the applicant’s submission, because male and female candidates were subject to the same testing and processes prior to the 2016 campaign, there was no need for a ‘special measure’ to ensure equality of opportunity, because it already existed.

In other words he was looking for ‘equality’ (as shown in the picture above).

The respondent (the ESA) on the other hand, argued that their plan was to overcome more general ‘inequity’ in firefighting given the low number of women in the service.  At [28] Senior Member Robinson said:

The respondent does not dispute the applicant’s contention that female applicants already had, prior to the 2016 Campaign, the kind of formal ‘equality’ contended for by the applicant. However, the respondent contends that the Discrimination Act calls for a much broader definition of equality:

…in the employment context, the pursuit of equality of opportunity under s 27 permits the provision of advances to women that are intended to address disadvantages or barriers that have resulted in women being underrepresented in a particular profession, such as firefighting.

It is not so much about ensuring applicants in this round were on an equal footing, but that women in firefighting were able to overcome historical barriers that meant women as a class were underrepresented in the ACTFR service.

The Tribunal (at [37]-[41]) made it clear that it’s job was not to decide whether the policy choice was a good policy choice or not. At [40] it was said:

In exercising its role under the Discrimination Act, the Tribunal does not act as some kind of de facto ‘house of review’ or policy decider, oversighting the decisions of the Government or its agencies, searching for errors, or ‘unfairness’ or assessing or substituting other outcomes the Tribunal may think are preferable. In considering whether an act amounts to unlawful discrimination, the Tribunal does not need to consider whether the act was good or bad policy, the best available option, or even at all effective. It does not consider whether something is, objectively or subjectively, ‘fair’. Indeed, the Tribunal would be in error were it to approach a complaint referred to it such a way.

The tribunal then had to consider what sort of conduct s 27 was intended to allow. The applicant (at [49]) argue ‘for a definition of ‘equality’ that equates “ensuring that members of a relevant class have equal opportunities with other people” with ensuring that everyone starts from the same place and is treated exactly the same …’ ie the notion of ‘equality’ above, everyone gets the same size box.

The ESA on the other hand, argued (at [50})

… that equality of opportunity “must permit something more than formal equality.” Equality, the respondent contends, must allow for processes and procedures that “address underlying substantive inequalities that persist despite formal equality.” This kind of equality is commonly called ‘substantive equality’. Proponents of substantive equality contend that persons of relevant classes may need to be treated differently so that they can, in the end, enjoy their human rights equally.

Giving women a priority may advantage women in this recruiting round but is intended to benefit the class of women in firefighting and to allow the ACTFR to overcome low representation of women within its ranks.   The Tribunal said (at [53] and [60]):

I accept the respondent’s arguments about the kind of ‘equality’ it is intended to facilitate. The purpose of the provision is clearly, on its face, to permit the enactment of a ‘special measures’ to address the ‘special needs’ of persons with relevant protected attributes. I agree with the respondent that in order for this provision to have work to do, and to not be devoid of meaning or effect, it must mean more than the elimination of formal discrimination. It must permit the implementation of some ‘special’ measure.

… the concept of ‘equality of opportunity’ in the Discrimination Act encompasses more than mere formal equality, and that section 27 is designed to permit processes to remove or address disadvantages or barriers – that is, that it permits special measures intended to achieve substantive equality.

Having decided that the Act allowed an ‘affirmative action program’ ([57]) the question became ([64]): ‘did the decision-maker [ie the Chief Officer] implement the Target and the 2016 campaign processes in the belief that they were capable of ensuring women had equal opportunities to be firefighters?’

In evidence the Chief Officer noted, amongst other things (see [34]):

(e)       There was no “hard target” that reserved eight places for women – female applicants had to pass the same standards as male candidates.

(f)        Gender diversity in this ACTFR has historically been “extremely poor”. As at 2015 women represented 2% of career firefighters in the ACTFR, which was the lowest in any of the agencies comprising the Emergency Services Agency. It was also the lowest rate of representation of women among the major Australian urban firefighting services.

(g)       That said, all urban firefighting units have struggled “for a long time” to attract female recruits.

(h)       One of the difficulties in recruiting women in the past has been the perception amongst both genders that firefighting was not a realistic option for women, in part because the physical strength required…

(l)        ACTFR does not recruit often, so the opportunities to address gender imbalance are “relatively rare.” When recruitment programs run, very few women apply – during the last round in 2012 only 6.5% of applicants were female. None were found suitable for employment…

(p)       Although the Program did not ultimately achieve its target of offering eight positions to suitable female applicants he considered the initiative to be a success in the effort to improve gender diversity in the organisation and reduce the barriers traditionally faced by women. He noted that 25% of new recruits were women, compared to 0% in 2012, and around three times as many women relative to men applied in the latest round, compared to 2012.

The Tribunal accepted the unchallenged evidence from the Chief Officer.  At [67] the Tribunal said:

I accept that Mr Brown, and the relevant executives within the ACTFR and the ACT Government, considered it a desirable thing to increase diversity within ACTFR. I accept that Mr Brown thought the Target and the procedures adopted for the 2016 Campaign would assist to do so.

Conclusion

The tribunal found that the adoption of an informal and ‘soft’ quota, that is an intention to offer 8 of the 16 positions to women provided that they passed the physical tests for recruitment, was permitted under the Discrimination Act even if it did discriminate against male applicants.  The policy did not achieve its aim in that only 4, not 8 women were recruited but that did not detract from the aim of the policy and the objective to adopt special measures to increase the number of women within ACTFR was lawful.

POSTSCRIPT

Having read the comments on this post (particularly on FaceBook) it is worth making the point that there is no evidence that the 4 women who were recruited in 2016 were selected on the basis of their gender. To put that another way, there is no evidence that there were up to 4 men who might have been ‘better’ candidates and who ‘but for’ the informal quota would have been appointed ahead of the female candidates.

The applicant, Mr Macca argued that he had been discriminated against but there was no evidence that he was even an applicant for appointment as a firefighter. At [16] the Tribunal said: “The applicant claims to have been a participant in the 2016 Campaign. Other than his correspondence and unsigned submissions, he has provided no probative evidence of this… Nonetheless, for the purpose of dealing with what the applicant calls the “merits” of his application, I will assume that he is male, that he was an applicant, and that he was unsuccessful.”


Categories: Researchers

A new publication

4 December, 2017 - 16:53

I’m pleased to report that my latest publication is now available.  My colleague Geoff Cary, Associate Professor within the Fenner School of Environment and Society at the ANU, and I have co-authored a paper entitled ‘You own the fuel, but who owns the fire?’  It currently appears as a peer-reviewed and edited version before inclusion in a printed issue of the International Journal of Wildland Fire.  You can download a free copy of the article from the IJWF Online Early webpage.

This paper is a development of a paper that we presented at the 2016 AFAC Conference in Brisbane (Eburn, M. and Cary, G., You own the fuel, but who owns the fire?, 1 September 2016).   Following feedback from that conference we further developed the paper and the ideas in it.  The abstract for the published paper now says:

In this paper, we argue that the statement ‘Whoever owns the fuel owns the fire’ implies a duty on landowners to manage fuel on their land to reduce the likelihood of bushfires, however started, from spreading to neighbouring properties. However, the notion ‘Whoever owns the fuel owns the fire’ has not been analysed from a legal perspective. This paper reviews Australian law to identify who is legally responsible for fire that starts on privately owned land. We argue that the correct interpretation of existing Australian law is: ‘Whoever owns the ignition owns the fire’ – that is, liability to pay for losses caused by bushfire has always fallen on those that intentionally start a fire, not on the owner of the fuel that sustains the fire. That legal conclusion could have dramatic implications for fire management policies. It will be shown that liability for starting a prescribed burn is clear-cut whereas liability for allowing accumulated fuel loads to contribute to the spread of fire is almost unheard of. As a result, we argue that the law is pushing landowners in a direction away from the policy direction adopted by all Australian governments. After identifying the current legal position, we recommend changes to align the law with the national policy direction.

We hope that the paper will me a significant contribution to the policy debate around hazard reduction burns and the development of ‘shared responsibility’ for hazard management.


Categories: Researchers

First aid on a cruise ship

4 December, 2017 - 16:40

Today’s question raises issues of admiralty law rather than emergency law. My answer will therefore be incomplete and confirm my correspondent’s own conclusion ‘that these things are “complicated”’.  The answers below are much more ‘gut feeling’ than my usual answers and reflect more the sort of questions a lawyer would need to consider and research in detail if  a case arose – they are more ‘issue spotting’ rather than issue resolution.

My correspondent is:

… an Intensive Care Paramedic with NSWA, and recently I was on holidays on a cruise ship with my family. Shortly after leaving Sydney via the heads, we were walking through one of the restaurants when I came across a teenage female on her side, having a generalised convulsive (tonic-clonic) seizure…   After checking ABCs and taking a history, I had concluded that this was a seizure and that the patient had not had one before. I did some basic observations … The patient had a good radial pulse, and reasonable respiratory effort…

At this stage one of the cruise ship staff came over and wanted to start CPR. I told him it wasn’t necessary and to please get the ships doctor and medical team. I further identified who I was but my credentials were never checked, and interestingly I was never asked for my room number or any identification.

A short time later, another member of staff came along, who was obviously part of the medical team (nurse maybe?). I again identified who I was and asked if the nurse would like a handover. She said no and told me to remove myself from the area as my presence was not wanted or something to that effect…

For your information the, ship was …  registered in Malta. The incident occurred in Australian waters (within sight of land and just outside the heads)…

This case did raise some questions though;

  • Does the Civil Liabilities Act still apply on a cruise ship in Australian and NSW waters?
  • Common sense prevailed here, but what would have happened if the first staff member insisted on starting CPR? Would the provisions in the law to stop paramedics being obstructed in the course of their duty come into play here?
  • Does registration make a difference when it comes into force?

I have tried to get some answer via research, but most of the literature I have read, even around criminal matters seems to conclude that these things are “complicated” and that competing jurisdictions come into play.

At the time my thought was “Aussie paramedic, in Aussie waters, and an Aussie patient – no worries!” But thinking about it later it might be more complex than that.

This is an issue where the choice of laws (or ‘conflict of laws’) comes into play. The jurisdictions that could be relevant would be New South Wales (if the ship was still within 3 nautical miles of the shore, it’s in NSW waters, see Meaning of ‘marine’ and ‘land’ rescue in NSW (June 18, 2012)); the country in which the ship is registered (Malta), the country where the company that actually operates the cruise (which is probably different to the company that actually owns the boat) is based and then there would be any conditions set out on the ticket that may identify which law applies to the contract between passengers and the cruise company.

It can’t be that the relevant law is necessarily the law of the port of last departure. If that were the case the industrial standards on the ship would change with each port.   If someone died on the boat, the NSW Coroner would have jurisdiction as the death would be related to the state and whilst the boat is within state waters, the body is also within the coroner’s jurisdiction.  Equally criminal law would appear to be the state’s law whilst the ship is in port, it would be less clear once the ship has sailed and certainly once it’s sailed into international waters.  In that case it might be the criminal law of the next port that the ship sails to that is relevant as it would be the police from that port that would have to come on board to investigate the matter.

What that means is that if someone wanted to sue, the relevant law may be who they want to sue. If the patient described in this story wanted to sue the cruise companies staff they would probably be bound by the terms of the ticket and sue in whatever country the ticket said governed the terms of the contract.  If they sued over the conduct of the ship’s company (who may be different to the cruise company staff) then the issue would be where are they employed. If the allegation was about the state of the ship itself, then the relevant jurisdiction may be the country of registration.  If they wanted to sue the paramedic, my correspondent, they could not doubt chose the jurisdiction that they thought would be most favourable.

The very poor answers to the questions asked are:

  • Does the Civil Liabilities Act still apply on a cruise ship in Australian and NSW waters?

It would if the potential plaintiff brought any legal action in a NSW court, but I’m not sure that is what they would have to do.

  • Common sense prevailed here, but what would have happened if the first staff member insisted on starting CPR? Would the provisions in the law to stop paramedics being obstructed in the course of their duty come into play here?

That begs the question of whether a paramedic on holiday provided that care is acting in the ‘course of their duties’.  That would be the case if the paramedic flew to the ship to take part in a medical evacuation of a patient because in that case they represent a NSW Agency performing its statutory role. In that case (and without being able to quote authority) I think it would be much more certain that if there was an allegation made about the paramedic the relevant law would be NSW law. The paramedic who is despatched to the ship is authorised and acting under NSW law.  The passenger on the boat, even if he or she is a paramedic, is not exercising any NSW authority at that time.

  • Does registration make a difference when it comes into force?

Not that I can see.


Categories: Researchers

Doctors carrying drugs in Victoria

2 December, 2017 - 15:20

Today’s question comes from a Victorian based private event and other first aid/medical services provider.  My correspondent has:

… read your posts about doctors not being permitted to authorise the use of scheduled medications for paramedics use and similar topics.

I am wondering if you could clarify about the purchase and storage of scheduled medications by doctors for patients [see note 1, below].

The context is that we deploy medical teams to remote sites, normally in a public event setting. The teams include Doctors and nurses. Let’s assume that we don’t have a health services permit. The information included here – https://www2.health.vic.gov.au/public-health/drugs-and-poisons/medical-practitioners-medicines-control/managing-drug-dependency/medicines-storage-in-gp-clinics [see note 2, below] – states that the we can purchase, store and administer s4 and s8 medications as long as the medications are only accessible by doctors. The article states this includes PBS drug bag items and pharmaceutical samples but it doesn’t clarify if it is limited to these items.

I am seeking clarification if a Doctor can purchase quantities of s4 and s8 medications for the purpose of storing them and having them on standby to administer to patients that they will encounter when they are deployed to remote sites. Once again, assuming that we don’t have a health services permit and assuming that only doctors will have access to the medications. I am also referring to medications which are not in the PBS Drug bag list.

If the answer is ‘yes’ under what authority and by what means would they make the purchase (eg we already know it’s illegal for a doctor to write a script in their own name to obtain the medications so how would they obtain these heavily controlled substances to keep on standby).

I assume the question would be a similar logistical problem that clinics without health services permits would face.

Notes

  1. I assume that the post ‘about doctors not being permitted to authorise the use of scheduled medications for paramedics’ was Doctors delegating authority to carry drugs (August 20, 2014)).
  2. The web page my correspondent has referred to (above) discusses the Drugs, Poisons and Controlled Substances Regulations 2006 (Vic). The 2017 regulations came into force on 23 May 2017.  Without checking every statement in the web page, the 2017 regulations do appear to be substantially the same as the 2006 regulations described on that page.

Discussion

Section 13 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) says:

any registered medical practitioner … is hereby authorized to obtain and have in his possession and to use, sell or supply any poison or controlled substance (other than a Schedule 1 poison) or drug of dependence in the lawful practice of his profession as a registered medical practitioner …

Despite the gendered language (‘his possession’) this applies to all medical practitioners, not just men – Interpretation of Legislation Act 1984 (Vic) s 37.

A medical practitioner may also supply a scheduled drug to a person for the purpose of providing medical treatment to that person (Drugs, Poisons and Controlled Substances Regulations 2017 (Vic) r 36)).

The medical practitioner in possession of schedule 4 drugs must kept ‘locked and secured’ and is only opened when the medical practitioner or another person authorised to possess the drugs (eg a nurse) is present (Drugs, Poisons and Controlled Substances Regulations 2017 (Vic) r 73 ‘General security requirement—Schedule 4 poisons’).  Schedule 8 poisons must also be secured under more stringent conditions (rr 74 and 75).

A registered medical practitioner can therefore, be in possession of, and supply schedule 4 and 8 drugs without the need for a ‘health services permit’.

The questions asked

I was asked:

  1. Can a Doctor purchase quantities of s4 and s8 medications for the purpose of storing them and having them on standby to administer to patients that they will encounter when they are deployed to remote sites. Once again, assuming that we don’t have a health services permit and assuming that only doctors will have access to the medications. I am also referring to medications which are not in the PBS Drug bag list.

Answer: Yes.  The doctor can carry any s4 and s8 drugs that are necessary ‘in the lawful practice of his profession as a registered medical practitioner’.

  1. If the answer is ‘yes’ under what authority and by what means would they make the purchase (eg we already know it’s illegal for a doctor to write a script in their own name to obtain the medications so how would they obtain these heavily controlled substances to keep on standby).

Answer: The authority comes from section 13 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).  A doctor can’t write a prescription to obtain drugs in order to treat themselves (Drugs, Poisons and Controlled Substances Regulations 2017 (Vic) r 17) but that is not to the point. The point of a prescription is to allow another person ie a pharmacist to supply a drug to a person who needs it for their care and that in turn allows that person to be in possession of the drugs that are prescribed for his or her treatment.

To answer this question, however, requires advice from a pharmacist but it would appear to me that a doctor could simply buy schedule 4 and 8 drugs from a licensed wholesale or retail drug supplier (ie a pharmacist).  No doubt there are forms to be completed to ensure that the supply is recorded and that the purchaser is a medical practitioner so, as I say, the details would come from a pharmacist.

Disclaimer

As noted my correspondent comes from ‘a Victorian based private event and other first aid/medical services provider’ and wants to know the answers for the no-doubt commercial activities of that supplier.  This blog is a source of general information and discussion, not legal advice. A business that is operating in this field cannot rely on this blog for advice on the requirements for their actual practice. For advice that can be relied on my correspondent needs to get, and pay for, local legal advice or approach the Department of Health

 

 

 

 

 

 


Categories: Researchers

Private fire appliances and the CFA

2 December, 2017 - 14:23

A correspondent has sent a link to a YouTube video where the CFA discusses the valuable role played by private fire appliances. You can see the video here – https://www.youtube.com/watch?v=2F_eGkXzwL8.

My correspondent:

Was curious on the legal implications- their privately owned by CFA vols. Is there issues for insurance, liability, road-worthiness, etc? I gather from the video, that the use of these is endorsed by the CFA. I wonder if they have MOU’s or similar in place.

I can’t see much in the way of legal implications or issues.  The vehicles need to be registered if they are going to be driven off private property.  If they are registered they will carry compulsory third party insurance. This ensures that the driver or owner is not personally liable for any injuries received from the use of the vehicle (Road Safety Act 1986 (Vic) and Transport Accident Act 1986 (Vic)).

If they are registered they will also have met whatever roadworthy tests or conditions are applied to those vehicles given their age, size etc.

In terms of damage that may be done to property in the event of a collision then there would be an issue if the vehicle is not insured.

Section 92 of the Country Fire Authority Act 1958 (Vic) provides extensive immunity to members of the CFA. From the video, it would appear that the people responding in these private vehicles are indeed members of the CFA acting under the direction of the CFA. There is no reason to think that s 92 would not apply just because they are driving private, rather than CFA owned appliance.  (And for a discussion on private appliances and the road rules, see Red/blue lights on CFA Slip on unit revisited (May 21, 2014)).

A CFA incident controller would have to consider the safety of the vehicles when considering where to despatch them. Using these vehicles may be riskier than a modern appliance with heat shields and defensive sprinklers but risk assessment is always a balancing act. One can take into account the benefit to be gained (without private appliances response rates would be slower and there would be fewer appliances to assist with the fire which in turn might increase the risk of the fire doing more damage) and consider what the risk is. With local landowners using their own appliances on land they are familiar with and with CFA training the risks can be mitigated.  The IC does have to consider risk but that is necessarily true in all cases.  The IC has to deploy the appropriate equipment to deal with the task at hand

The CFA, like most Australian firefighting services, grew out of a self-help response. Farmers and locals saw the need for fire brigades so they created their own. Eventually these were brought together under the umbrella of an organisation like the CFA to standardise their equipment and practices and to facilitate training.  But farmers and private landowners will still be first responders and will still set about trying to extinguish fires on their land, or their neighbours land. To that end no doubt they will buy and have firefighting equipment that also serves other useful purposes on the land.

An organisation like the CFA can try to pretend that they are ‘in control’ and that only the CFA can fight fires, and that one can only use the latest high-tech equipment but such a belief would simply not reflect reality.  Alternatively, organisations like the CFA can, and clearly do, recognise that people are able to provide services for their own protection and it’s better to work with them.  In short the CFA could refuse to allow private appliances on the fire ground because of fear of ‘the legal implications’ but that won’t stop those appliances being there, nor would it stop locals choosing to fight the fire rather than calling the CFA (see Self help firefighting in Victoria (August 30, 2014) and Neighbours helping neighbours during a Victorian bushfire and the powers of the CFA (November 28, 2014)).

Conclusion

Without someone raising specific issues I can’t see any significant legal issues or at least any that can’t be managed by the procedures set out in the video, which talk about training, communications, operating guidelines and checklist for the use of the units.  As the video acknowledges, the use of the appliances does bring risks but with appropriate planning the benefits outweigh the risks.  I have no reason to doubt that conclusion.

 

 


Categories: Researchers

NSW Police owed no duty of care to the family of fatal accident victim

1 December, 2017 - 13:46

That is the essence of the finding in Skillen v State of New South Wales; Fuller v State of New South Wales; Fuller-Wilson v State of New South Wales [2017] NSWDC 342 (28 November 2017).

Keith Arthur Wilson was killed in motor vehicle accident on 18 June 2013.  His body was severely burned in the accident.  Police attended and took control of the accident site and arranged for Mr Wilson’s body to be removed from the accident scene by government contractors.

On 14 February 2014 (8 months after the accident) Mr Wilson’s wife, along with two other Wilson family members, attended the accident scene.  There they discovered ‘part of a foot and ankle and clothing containing the deceased’s melted remains…’ As a result of discovering the remains and clothing at the scene, that the Plaintiffs suffered psychological harm.  They sued the state of New South Wales as the appropriate defendant when claims allege negligence by police (a claim against NSW Ambulance was discontinued).

The plaintiff that the police had taken control of the site by virtue of provisions of the Coroners Act 2009 (NSW) (see Body recovery, the police and the SES in NSW (December 29, 2012)) and the State Emergency and Rescue Management Act 1989 (NSW).  The plaintiff’s argued that failing to ensure that all of Mr Wilson’s remains were collected from the accident site, the police failed to take reasonable steps to protect them from the foreseeable risk of psychological injury.

The essential elements of any negligence action are that the defendant owes the plaintiff a duty of care, fails to exercise reasonable care and that as a result the plaintiff suffers a compensable injury. The defendant, ie New South Wales, argued that the plaintiff’s claim revealed no cause of action, that is the case as pleaded was doomed to fail, and that therefore the court should dismiss the claim without trial.  Hatzistergos DCJ agreed (“DCJ” means ‘District Court Judge’).

Whether or not a defendant owes a plaintiff a duty of care is a complex legal question. That it is foreseeable that the actions of the defendant may cause harm to the plaintiff is a necessary element but it is not sufficient, on it’s own, to show that a legal duty of care exists.  In Caltex Refineries (Qld) v Stavar [2009] NSWCA 258, Allsop P reviewed the law to come up with a list of ‘salient features’ that may be relevant in deciding whether a duty of care exists.  That list went from paragraph (a) to (q), ie 17 separate issues. And it was conceded that the list wasn’t complete, there may be more! (For the list and a more detailed discussion, see Distributing warnings via Facebook and potential legal liability (November 16, 2014)).

There are many cases that recognise police do not owe a duty of care to individuals, starting with Hill v Chief Constable of West Yorkshire [1989] AC 53 where police were not liable for failing to detain a suspect who later killed a family member of the plaintiffs.  This case has been approved in Australia: Sullivan v Moody [2001] HCA 59, Cran v State of New South Wales and Another [2004] NSWCA 92 and Australian Capital Territory v Crowley [2012] ACTCA 52 (and see No liability for police shooting (February 13, 2013)).  Police are given wide discretion as to how to undertake their many tasks, how to allocate resources, how to set priorities etc and that would be constrained if they owed a duty of care to individuals.  If police diverted resources to investigate a crime that had a higher priority, then the victim of the lower ‘priority’ crime could sue etc. These results would impose too many constraints on the decision of police.  Further police detect and investigate crimes (and deaths) for the public good not necessarily for the benefit of the victims of those crimes. Police can and do prosecute crimes where the victim doesn’t want them to, and they investigate deaths, like Mr Wilson’s to assist the coroner in his or her functions.  The public nature of policing does not suggest that their action (or inaction) should give rise to private rights to sue.  (I note here that this is similar reasoning that has led to findings that fire brigades don’t owe a duty of care to individuals as their actions are for the public good – see for example ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires (November 3, 2014) and No liability for Yarnell (Arizona, USA) fire (April 3, 2017)).

At [41]-[42] the judge said:

In my view … the law ordinarily would not subject police conducting investigations or exercising powers in the public interest to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting obligations… [Further] unless extraordinary circumstances or a special relationship of control or assumption of responsibility has been created, courts will not impose a duty in negligence on the police in the investigation and prosecution of crimes for various policy reasons.

Although the police were in control of the accident scene they did not control the accident nor had they taken control as they would if they had arrested someone. Police do owe a duty of care to a person in their custody but that was not the sort of control that was being exercised here (see [45]).  The judge went on to say (at [53]-[55] and [58]-[59]):

It can be accepted that police were acting in their public duty in going to the site with a view to protecting passers-by from the danger of the scene. It can also be accepted that as part of the coronial investigation scene order the police exercised functions that include seize and detain all or part of a thing that might provide evidence and taking possession of the remains and property of the deceased.  The statutory premise for these functions involved the exercise of discretion. No argument was presented that the terms, scope or purpose of the statutory regime erected or facilitated a relationship that in all the circumstances displayed sufficient characteristics answering the criteria of intervention by the tort of negligence. In the case of the function of collecting the remains and property of the deceased it was for the purposes of the coronial investigation. The width of the class of persons for whose benefit those duties were exercised (being the public at large) is a factor against recognition of a duty of care specific to the Plaintiffs.

There is no allegation that the police controlled the scene at the time the Plaintiffs visited the scene some eight months later.

The police had not created the risk of harm and did nothing that increased the risk…

Nor did police assume any responsibility towards the Plaintiffs as individuals…

The case in my view is far removed from the kind of relationship which could invoke an implied assumption or undertaking of responsibility found in cases such as solicitor and client; teacher and pupil; and, banker and customer.

To reiterate, the police were performing their functions, including body recovery, for the public good, not for a private right and that suggested that here was no duty owed to individuals that would allow them to sue.

Another issue is the plaintiff’s vulnerability to harm. The plaintiffs were more likely to suffer psychological injury by finding their loved one’s remains than a stranger, but with respect to the police, if they owed a duty to the plaintiffs they would owe a duty to everyone who might stop at that scene. ‘[T]here was nothing in the relationship between the Plaintiffs and the police that place them in any different position to that of other members of the public who subsequently attended the scene’ ([63]).  Courts are reluctant to find a duty of care that would be owed to the world at large.

Police only have the resources they have. It is not possible to sue a public authority for the decisions it makes in how to allocate resources (Civil Liability Act 2002 (NSW) s 42).  The plaintiffs alleged that the police were under a duty to ensure complete body collection in order to protect them from injury.  Hatzistergos DCJ said (at [64]):

I accept that the police were responding to an emergency requiring them to assist in the coordination of the scene of the accident, investigate the circumstances of the accident including speaking to the driver of the other vehicle, identify the deceased and control surrounding traffic. All of those functions need to be considered in determining whether a duty of care arises; not just the function of preserving and collecting evidence at the scene being the matter to which the proceedings relate

Further (at [65]):

Police officers are charged with the primary responsibility of detecting and preventing crime such as to improve the general welfare of all members of society. When the NSW police attended the scene of the accident in the present case, their task was not only to remove the body from the scene, but to investigate the circumstances of the accident (including whether the driver of the other vehicle or the deceased was at fault as well as the identity of the deceased) and manage the emergency created by the accident… To impose the duty contended for which would require the NSW police officers attending the scene to devote additional resources in scanning the area to make sure that all the debris at the scene of the accident was removed would divert police from their statutory duties and obligations as defined in s 6 of the Police Act and set out above as well as their common law duty to enforce the criminal law.

That is police would be forced to divert resources to clearing the scene and not on other tasks such as the investigation of the cause of the accident. It is not for a court considering the law of negligence to dictate priorities to police in the conduct of their investigations and public safety duties.

His Honour concluded (at [68]):

I am satisfied that … the case pleaded is such that it is not reasonably arguable that a duty of care was owed by police to the Plaintiffs.

Accordingly the case was dismissed without trial.

Other cases.

There have been other cases with similar results relating to emergency response rather than criminal investigation.

In State of NSW v Tyszyk [2008] NSWCA 107 Campell JA found that NSW Police did not owe a duty of care to a person who was injured when a down pipe fell on him, even thought police had been responded to the scene because of concerns of safety.

In NSW v Brown [2003] NSWCA 21 a van containing an adult woman and her four children left the road and collided with a power pole. The woman was thrown from the vehicle and became unconscious. Rescuers safely removed the three eldest children and the mother was taken to hospital. However, despite inspecting the interior the police did not discover a 7 weeks old baby who had not been secured in a baby capsule and was lying injured and unconscious under the rear seat. When the police became aware that there was a missing child they contacted the tow truck driver who searched the van and found the baby.  As a result of finding the injured baby the driver suffered a psychiatric illness and sued the police for negligence. On appeal Handley JA (with whom Giles and Hodgson JJA) agreed) said (at [22]):

In my judgment the Judge erred in law in holding that the police had a statutory duty “as well as a commonsense duty to locate all persons who are injured in motor vehicle accidents”. There was no statutory duty and the common law duty was not absolute.

Discussion

To dismiss a case without trial is unusual and it may be that the plaintiffs will seek to appeal that decision to the Supreme Court.  The district court is not a superior court on the judicial hierarchy and the decision does not set a precedent in the way the decision of a Court of Appeal or the High Court does (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)) but even so rescuers may find the decisions reassuring – confirming again that the courts do recognize the complexity of emergency response and that emergency services operate primarily for the public good.

 

 

 

 

 

 

 

 


Categories: Researchers

What should be in a reference?

1 December, 2017 - 12:18

Many people in the emergency services will seek to rely on their service to demonstrate their standing or skills.  Leaders may be asked to write a reference in order to support applications and, in some cases, to support a member who is appearing before court.

The issue of a person’s ‘good credit’ can arise in two circumstances in criminal cases. A defendant may want to raise his or her good standing to argue ‘I’m not the person who would commit this sort of offence – and the jury (or judge) may have a doubt or be more inclined to believe me if they know the sort of person I am’.  This is a dangerous tactic as raising credit as a defence does allow the prosecution to explore all of one’s background and bring up otherwise irrelevant material.  But in some cases it is appropriate.

The more common recourse to a person’s credit and standing is when they are being sentenced, having entered a plea of guilty or having been found guilty after a trial. Then the argument is that the person’s good standing may demonstrate that this offence is out of character and they are unlikely to offend again, and when balancing the offending against their previous good conduct, a sentence toward the more lenient end of the scale is warranted.

But what should be in a reference?  Whether a person want’s a reference in order to show  that they should get a licence or some other authority, or they want to put it before a court, it is important that the reference does not read like it’s been written to help a person get a job. It has to refer to the reason it has been written and address the issues of concern. Where the person has a criminal past that is most important and was an issue discovered by a former NSW firefighter in Ashford v Roads and Maritime Services [2017] NSWCATOD 170.

Mr Ashford applied for an authority ‘to drive public passenger transport vehicles’ – in particular a bus.  In 2008 Mr Ashford had been convicted of a number of drug related offences and sentenced to 2 and ½ years imprisonment, with a non-parole period of 12 months.  Upon his release from prison he appeared to be an exemplary citizen and served as NSW Fire and Rescue retained firefighter for 5 years.

The Roads and Maritime Services (RMS) declined to issue a public transport authority on the basis of Mr Ashford’s criminal history. The RMS determined that Mr Ashford did not meet the tests for the issue of a public transport authority as required by the Passenger Transport Act 1990 (NSW).  In particular the RMS said that Mr Ashford was:

  1. Not a fit and proper person to hold a public transport authority; and
  2. Not of good repute.

Mr Ashford appealed, first through the RMS’ internal processes and then to the NSW Civil and Administrative Tribunal.  In making his appeals he tendered a number of reference that spoke to his good character.  This included a reference from the NSWF&R Station Commander who attested to Mr Ashford’s exemplary service as a firefighter.  Unfortunately none of the reference spoke to the fact that Mr Ashord was applying for a public transport authority and none of them made mention of his prior criminal history.

With respect to being a ‘fit and proper’ person, the Tribunal said that the fact of a prior conviction does not necessarily mean that a person is not a fit and proper person to hold a licence.  The issue of what makes a person ‘fit and proper’ does not lend itself to precise definition.

Senior Member Robertson said (at [19]):

… In Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 the ACT Administrative Appeals Tribunal Professor LJ Curtis, President put the test to be applied in relation to “fit and proper character” in the case of taxi driver licensing in this way, at [12]:

“One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant’s criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi.”

Senior Member Robertson found that Mr Ashford was a fit and proper person to hold a public transport authority. He said (at [22]):

In determining whether Mr Ashford is a fit and proper person to hold an authority to drive buses under the Passenger Transport Act, I would take into account that it has been 7 years since Mr Ashford’s sentence concluded and nearly 9 years since he was released from prison and that he has apparently been a law-abiding citizen since that time with no further convictions or charges. I would also take into account that he has been working in that time as a fireman and a delivery driver and apparently has had a clear driving record since his release from prison. I recognise that Mr Ashford’s offences were serious and resulted in his serving a prison sentence… A reasonable person with whom Mr Ashford comes into contact, including the parents of children whom he might be called upon to drive, would recognise the possibility, indeed likelihood, of rehabilitation.

The sticking point was Mr Ashford’s ‘repute’ or reputation.  The tribunal relied (at [11]) on the decision in Loye v Director General, Department of Transport [2000] NSWADT 145 where it was said that a criminal history does not necessary prove that a person has a bad reputation.

… an assessment of repute is a matter for the Tribunal, weighing all the evidence, and not determined only by the existence of a criminal history.

This Tribunal has on a number of occasions invoked the authority of Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 to the following effect:

A person’s reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession (per Waddell J at page 393).

… Previous convictions are relevant to this extent:

They are the raw material upon which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are acted on by people generally as the best guide to his reputation and standing (Cross on Evidence 6th Aust ed 2000 Sydney, at para 19165 citing Goody v Oldhams Press [1967] 1 QB 333; [1966] 3 All ER 369 concerning defamation cases)

… As a matter of law, a criminal history is not evidence of bad repute, but creates a presumption that the person has, among those who know of that history, a bad reputation. It puts the onus on the person to establish their good reputation.

As a matter of fact in the particular case, the criminal history is relevant to the extent that it is known in the community, and that it bears on the person’s reputation in that community…

There is no saying what effect knowledge of the criminal history might have on the estimation of a person’s character, although a positive estimation in spite of knowledge of a criminal history would ordinarily weigh in favour of the person. Whether the person’s criminal history is known in the community will be a factor in assessing what weight to give to the evidence of repute.

The Department having identified a history of convictions, the applicant must show that in spite of that history he enjoys a good reputation. Evidence of a person’s repute comes from people who can say what a “specific group of people” think of the person. As well, a person may hold a position in the community from which it is reasonable that a person is well regarded. It is necessary to receive evidence relating to the estimation of those groups referred to in Re T and the Director of Youth and Community Services above. The probative value of that evidence will be the greater the more current it is.

In essence a person can have a good reputation even with a criminal history; but if the people don’t know of that criminal history their assessment of the person’s reputation will be of less value.

In this case all of Mr Ashford’s referees spoke of his good character, but none addressed his criminal history. None said that they thought he had a good reputation even though he had been served time in gaol for drug offences.  In concluding Senior Member Robertson said (at 14):

Although each of the referees speaks highly of Mr Ashford and his character, none of the references include any suggestion that the referee was aware of Mr Ashford’s conviction. Without evidence that the referees were explicitly aware of Mr Ashford’s conviction and, despite that knowledge, attested to his good reputation, with knowledge that that attestation is to be tendered in the Tribunal for the purpose of establishing that Mr Ashford has a good reputation, the references are of limited value in assessing Mr Ashford’s reputation.

The Tribunal found that the onus was on Mr Ashford to show that a “specific group of people” thought highly of him even though he had those convictions. He failed to do that so failed to overcome the ‘presumption that the person has, among those who know of that history, a bad reputation’ and so the application for a public transport authority was again declined.

Lesson learned

If you are going to ask for a reference make sure that your referee knows why you want the reference and what you intend to do with it.

If you are asking for a reference to be put before a court make sure the reference is addressed to the court (not ‘to whom it may concern’) and it addresses the reason why the person is before the court.  In this case the referees needed to say words to the effect that they knew Mr Ashford was applying for a public transport authority, they knew of his criminal history and even so they were prepared to attest to his good character.

If you are seeking a reference to support a plea in mitigation, the reference has to be addressed to the court and indicated that the referee writer knows the offences for which you are to be sentenced. The referee must not say words to the effect of ‘I don’t think he or she committed the offence …’, or worse, that ‘he or she did not commit the offence’.  When a reference is being used for sentencing the person has either entered a plea of guilty or been found guilty after a trial.  The referee writer has to accept that the person is guilty.  IF they don’t the reference is unhelpful. IF they assert that the person ‘did not’ commit the offence, then the referee writer should have been giving evidence at trial.

Failure to have a reference that explicitly addresses why it has been given and which addresses the issue that needs to  be addressed, in Mr Ashford’s case, his reputation amongst the community given his criminal record, then they serve little purpose.

 


Categories: Researchers

Offender sentenced for causing January 2017 bushfires in Victoria

25 November, 2017 - 08:55

Between the 4 and 14 January 2017, Mark Ganon lit a number of grass fires in the North West metropolitan area of Melbourne by attaching weights to sparklers that were lit and then throwing them into grass from his vehicle.  The fires burned out 431,274 square metres of grassland. Some of these fires burned ‘close to residential properties, posing a risk to the public and major freeways causing traffic delays.  Self-evidently, this type of criminal behaviour poses a great risk to the safety of people who may be nearby and those tasked with fighting the fire, as well as a great risk of damage to property.  Fortunately,  the damage from [Mr Ganon’s] conduct was confined and no one was injured’ (DPP v Ganon [2017] VCC 1314, [7] (Lacava J)).

Police detected Mr Ganon driving a vehicle, similar to one identified on CCTV, with stolen number plates. He was stopped, and after a struggle with police, arrested. He was found to be unlicensed, driving an unregistered vehicle and in possession of a small amount of methylamphetamine. He was charged on 17 January 2017 and was held in custody until hs sentencing on 14 September 2017, a total of 226 days.

Mr Ganon entered a plea of guilty to all offences – six charges of intentionally causing a bushfire and one charge each of possession of a drug of dependence; handling stolen goods; committing an indictable offence whilst on bail; resisting an emergency worker on duty; unlicensed driving and driving an unregistered vehicle.  Whilst Mr Ganon had 9 previous convictions, none were for arson or related offences. This was his first time in prison. Whilst on remand the judge noted (at [22]) Mr Ganon ‘have behaved well, remained drug-free and [had] a job.’

In sentencing Mr Gannon, Lacava J said (at [16], [18]-[19]):

You endangered the safety of people and property on a fairly large scale.  The offending extended over a period of almost two weeks and it involved repeated acts of lighting fires.  Any sentence must properly impose a measure of protection of the community from you and reflect deterrence, both general and specific, and must appropriately denounce your offending and impose just punishment and take into account your prospects for rehabilitation, which I assess as being only fair.  One cannot be more certain, because you must rid yourself of drug dependency and have appropriate treatment for your mental health problems…

By your guilty pleas, you have saved the time and cost of a trial.  I also treat your pleas of guilty as indicative of genuine remorse on your part for your actions.

Because you pleaded guilty at the earliest opportunity, you are entitled to a reduction in sentence …

Counsel for the defendant pointed to support that Mr Ganon had from his family and that he had ‘already made significant progress towards [his] own rehabilitation’ ([30]).   He suggested ‘a term of imprisonment of not more than 12 months and have you assessed for a community corrections order’ ([31]).

The judge did not agree that this would be an appropriate sentence, he said (at [31]):

In my opinion, your offending is too serious and having regard to the purposes of sentencing which must be taken into account when sentencing you for this offending, I am of the opinion that a term of imprisonment of 12 months and a community corrections order would not properly serve the purposes of sentencing in this case.  For these reasons I will impose a term of imprisonment and fix a non-parole period.

Mr Ganon’s sentences ranged from a $200 fine for driving an unregistered vehicle to three years for one of the arson charges.  Some sentences were to served consecutively (ie one after the other) others, or at least part them, concurrently (ie at the same time).  The effect was a total sentence of 5 years imprisonment with a non-parole period of 3 years and 4 months.  The sentence and the non-parole period were all back dated to the date that Mr Ganon was first arrested.  Had Mr Ganon entered a plea of ‘not guilty’ and been found guilty after trial, the appropriate sentence would have been ‘seven and a half years and I would have fixed a non-parole period of five years’ ([46]).

Commentary

I make no comment on whether this, or is not, an appropriate sentence. Sentencing is a complex process taking into account a multitude of factors both personal to the offender and the objective risk to others. Judges have experience in dealing with people and placing the offending before them on a scale. For people with no experience of the criminal justice system every offence is as bad as it gets if that’s the only one they’ve seen. Judges, with extensive experience in law before their appointment to the Bench, realise that the range of human behaviour is extreme and its causes complex.  Whether readers of this blog think 5 years is lenient, harsh, or just right, I shall leave to them to decide.  Hopefully this summary (or reading the full judgement) at least shows the factors that are taking into account and some insight into the judge’s reasoning.

I do say that it is appropriate to give a discount for a guilty plea as it does allow and encourage offenders to take responsibility for their action and it saves the state and victims (where there are victims) the time and trauma of a trial. If there were no discount it would always be worth going to trial and seeing if the Crown case, for some reason, fails to prove the case to the required standard. (The discount for a guilty plea does, however, also put pressure on people who are not guilty to enter a plea rather than take their chances at trial).

It is also important to set a non-parole period. Without a non-parole period an offender would be released at the end of his or her sentence with not assistance to fit back into society.  With parole, there is an incentive to take steps to behave whilst in prison and to deal with whatever issues are in the offender’s background. The offender can be rewarded with parole for good behaviour, and when released their release can be subject to terms and the supervision of the parole service both to monitor their behaviour and to assist them with the transition back into society.

 

 

 

 

 


Categories: Researchers