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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD, Australian Lawyer. Email: meburn@australianemergencylaw.com
Updated: 3 hours 59 min ago

Paramedic suspended for 12 months for dishonesty

31 October, 2023 - 09:28

In Paramedicine Board of Australia v Pickard-Clark [2023] VCAT 1204 the Victorian Civil and Administrative Tribunal suspended Pickard-Clark’s registration for 12 months and ordered that he undergo further education in relation to ‘honesty, integrity and the importance of working within the limits of scope of practice’.  The education could be in the form of one-on-one tutoring with a person approved by the Board, or completion of formal education course approved by the Board.

The facts

Mr Pickard-Clark has extensive experience in the pre-hospital emergency care industry dating back to 1975.  Paramedics were first registered in December 2018 but he was not registered until December 2019. His registration was subject to a condition of 1700 hours of supervised practice ([7]-[9]).  Since May 2018 he had been conducting a business as a private event health services provider.

In February 2021 he submitted a bid to secure a contract to provide health services at a school cadet camp. At [14]:

In order to better his chances of obtaining that contract, on 24 February 2021 he sent the ‘doctored’ registration certificate to the school. This falsely stated that there were ‘Nil’ conditions on his registration. He said he obtained this from another person, who had the ability to produce such forgeries.

The school became aware of the discrepancy and reported the matter to AHPRA.  Mr Pickard-Clark was interviewed and made full admissions ([16]).  The matter was referred to VCAT and it took until October 2023, 2 years and 9 months after the event, to be finalised.

The Tribunal said (at [20]-[22]):

It was agreed that by engaging in the conduct described, Mr Pickard-Clark failed to comply with:

a. Clauses 1.2, 3.1, 3.2 and 8 of the Paramedicine Board of Australia Code of Conduct (‘Code’); and

b. S 120 of the National Law.

Those provisions of the Code relevantly require that paramedics be ethical and trustworthy, honest, and display a standard of behaviour that warrants the trust and respect of the community.

Section 120(1) of the National Law provides that a health practitioner who is registered on conditions must not knowingly or recklessly claim, or hold themselves out, to be registered without such conditions. Section 120(2) provides, in effect, that a breach of that obligation may constitute a basis for disciplinary proceedings against the practitioner.

The tribunal was satisfied (at [24]-[26]):

… that the conduct comprises professional misconduct within the meaning of (c) and (a) of the definition of that term in the National Law’.

That is, regarding (c), it was conduct inconsistent with the practitioner being a fit and proper person to hold registration in the profession. Honesty is a bedrock requirement for any registered professional. Members of the community should be able to accept without question the word of a registered health practitioner, particularly in relation to such a fundamental matter as whether their registration is subject to conditions or not. The proper functioning of the profession, and of the regulatory controls put in place for the protection of the public, rely on this. The dishonesty displayed by Mr Pickard-Clark on 28 February 2021 was clearly inconsistent with him being a fit and proper person to practise. (As noted below, however, that does not necessarily entail that he must be disqualified at the conclusion of this disciplinary proceeding, two and a half years later.

We also find, as agreed, that the falsification of the registration certificate amounted to unprofessional conduct which is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. This is underscored by the fact that the conduct breached the above provisions of the Code, and s 120 of the National Law. Hence, we find, it amounted to professional misconduct within the definition of that term under (a) in s 5 of the National Law.

In determining the appropriate penalty the Tribunal took into account Mr Pickard-Clark’s immediate admissions, his contrition and his recognition of the stupidity of his actions ([28]). They were (at [31]) ‘… also conscious that this relatively simple case has taken to two and a half years since notification to reach final determination’.  At [33] and [39] they said:

Clearly, a reprimand should be imposed. This reflects the community’s denunciation of Mr Pickard-Clark’s conduct. It will appear on his official registration record, which is publicly available…

The falsification by Mr Pickard-Clark of his registration certificate was blatantly dishonest, and as such, needs to attract a sanction which sends the appropriate message of deterrence to other practitioners. But bearing in mind the practical implications of the conduct, as described above, the delay and his clear remorse, a period of 12 months out of practice is sufficient to send that message.

The order for education was made to ‘reinforce the basis for his ethical obligations’ and in the hope that it would ‘have the benefit of mitigating to some degree against the impact of any professional isolation which may exist’ during the period of suspension ([41]).

Conclusion

Paramedicine has for years been listed as one of Australia’s most trusted professions. Admitting paramedicine to the list of registered health professionals was a recognition of that trust.  As the Tribunal said (at [25]) ‘Members of the community should be able to accept without question the word of a registered health practitioner …’. The orders made here were intended to reinforce that obligation and to help protect the community’s trust in the profession.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Paramedic barred from seeking re-registration for 5 years for failing to commence CPR

29 October, 2023 - 22:42

In Paramedicine Board of Australia v Clark [2023] VCAT 1192, the Victorian Civil and Administrative Tribunal ordered that Mr Clark cannot apply for registration as a paramedic, and cannot work in any health service ‘involving the provision of care to a person, including, without limitation, by way of first aid or in any aged care or disability care setting’, until 26 October 2028.

Mr Clark agreed ([7]) that he was guilty of professional misconduct and that penalties were appropriate. He had not sought to renew his registration since November 2020 and and lost his employment with Ambulance Victoria ([6]).

The Facts

In July 2020 Mr Clark and his partner were called to a female patient who had collapsed. They arrived at 10:57am to find the patient ‘conscious and responsive, although she was making incomprehensible sounds’ ([2]).  At 11:25am she suffered a cardiac arrest.  Mr Clarke said that the patient was in asystole and there was no value in performing CPR.  Another paramedic on the scene ‘said it ‘did not feel right’’ but these concerns were ignored.  Further ([4]):

… while he spoke to a clinician at Ambulance Victoria (‘AV Clinician’), he told the clinician that SST had been in asystole and they had withheld resuscitation (rather than seeking advice as to the appropriate course).

Without CPR, the patient died. A clinical review of the case led to allegations that:

  • Mr Clark failed to provide adequate clinical care when making the decision to withhold resuscitation;
  • He failed to communicate effectively with the other team members; and
  • He provided misleading information about the events in question ‘particularly indicating in the Patient’s records (and subsequent discussions) that she was in asystole, contrary to the data from the electrocardiogram (‘ECG’) monitor which indicated that [she] was in bradycardia (i.e. had a slower than normal heart rate) at the time.

At [10]-[13] the Tribunal said:

While the provision of cardiopulmonary resuscitation (‘CPR’) may or may not have resulted in SST surviving her cardiac arrest, Mr Clark’s decision not to commence resuscitation deprived her of any chance of survival, was inconsistent with relevant guidelines and was substantially below the standards expected of a paramedic of an equivalent level of training and experience. 

Further, despite the presence of other colleagues and the ability to seek advice from the AV Clinician, Mr Clark pressed on with his decision, contrary to the Code of Conduct (interim) for Paramedics from June 2018 (‘Code of Conduct’) which, among other things, requires paramedics to consult and take advice from colleagues when appropriate, which was clearly the case in this situation.

Lastly, the information that Mr Clark provided to his colleagues (i.e., that SST was asystolic) was clearly false and his subsequent reporting of the events in SST’s personal care record (‘PCR’) – suggesting that the AV Clinician ‘did not question this nor raise any concerns’ and that ‘all on scene agreed to withhold resuscitation’ – is inconsistent with the accounts of his colleagues and therefore was misleading.

While mistakes can of course be made in the hectic and stressful situations that confront paramedics, often on a daily basis, Mr Clark’s lack of self-awareness and professional humility meant that critical opportunities to remedy the situation were lost.  The events have effectively brought a premature end to Mr Clark’s career as a paramedic.

With respect to allegation 2 and failure to communicate with colleagues, the Tribunal pointed to the Code of Conduct which said that good paramedic practice required ‘‘communicating clearly, effectively, respectively and promptly with colleagues’ ([20]).  Mr Clark was said to have failed in that regard as he failed to take into account Paramedic B’s concerns and Paramedic A’s ‘silence’.  This case was, of course, about Mr Clark and we don’t know if there were any consequences for paramedics A and B but one might think that if those paramedics failed to clearly articulate any concerns or suggest alternative assessments then may also raise questions about their conduct.

Of particular concern was Mr Clark’s communication with the AV clinician who could only go on what they were told, that is they were not there to form their own opinion.  As the Tribunal said (at [21]):

… by conveying to the AV Clinician that the Patient was ‘brady[cardia] into asystole’ and that they had ‘exhausted any other management’ (despite never commencing CPR), Mr Clark influenced the AV Clinician’s ‘interpretation of what had transpired at the scene’;[27] and

And with respect to the allegation that Mr Clark entered misleading information into the Patient Care Record the Tribunal said (at [31]):

… the second statement is misleading to the extent it suggests that Mr Clark sought the AV Clinician’s views on a proposed course of action.  Rather, the matter was presented to the AV Clinician as a fait accompli, and was based on information that was itself false (i.e., that SST was asystolic) or misleading (i.e., that there was consensus between the team members).

Having determined that the allegations were established, the Tribuanl had to determine the appropriate order. The Paramedicine Board submitted (at [48]) that:

… given the objective seriousness of [Mr Clark’s] conduct, his lack of insight and remorse and to ensure that general deterrence, specific deterrence and the protection of the community and maintenance of the reputation of the profession are achieved.

With respect to the need to protect the public the Board submitted ([49]):

… there is an obvious need to protect the public given the nature of his conduct, his limited insight and his unwillingness to accept that his conduct on 20 July 2020 was wrong. The Respondent has stated that if he were confronted with the same patient again, he would make the same decision.  The Respondent has provided no evidence of an understanding that his actions were wrong, his remorse, and steps taken to minimise the risk of such conduct occurring in the future. Accordingly, the Tribunal can have no confidence that the Respondent is a fit and proper person to hold registration as a paramedic and that he is able to practice the profession of paramedicine competently and safely.

It was also submitted that ‘An order for disqualification and prohibition [would] … send a strong message to the community and the profession, that paramedics who engage in this type of conduct will be the subject of meaningful disciplinary action’.

The Tribunal agreed with the Board’s submissions and imposed the disqualification for five years. The Board had also suggested that Mr Clark be prohibited from working in any health service for that period. The Tribunal thought that went too far. They said (at [66]-[67]):

The definition of health service in the National Law is extremely broad.  In our view, it is inconsistent with the principle found in section 3A(2)(c) of the National Law (see [45]) to impose a prohibition order that applies to all health services, as opposed to that subset of health services which the allegations demonstrate must be prohibited in order to protect the public and ensure the safety and quality of services.  There may be circumstances where ‘transferable skills’ can still be used, without posing a risk.

We have modified the proposed form or order to limit the prohibited health services to those involving the provision of care to persons, with specific inclusions based on the areas of concern identified by the Board.

For media reporting on this case, see

The references to ‘bird poo’ come from a statement Mr Clark made to AV during their investigation. The detailed allegations are set out as an annexure to the judgment and there it is alleged that apart from failing to accurately diagnose that the patient was not in asystole,

Mr Clark identified contradictory factors as the rational[e] for his assessment for withholding resuscitation. During the interview conducted by Ambulance Victoria for the In Depth Case Review, Mr Clark told Ambulance Victoria the following rationales were considered, namely;

(i) [The patient’s] unknown COVID-19 status;

(ii) [The patient’s] size and weight as a reason he was unable to relocate 2 metres away to a path for patient management to commence resuscitation (100 kg, weight and 168 cm, height);

(iii) water-soaked ground;

(iv) bird faeces on the ground; and

(v) close proximity to water’s edge;

The Tribunal accepted (at [16]) that none of these were valid reasons to withhold resuscitation.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

New Mental Health and Wellbeing Act 2022 (Vic) not reference in Mental Health Act 2007 (NSW).

28 October, 2023 - 11:05

Today’s correspondent tells us:

Victoria has a new mental health Act (Mental Health and Wellbeing Act 2022), the NSW mental health regulations that allow Victorian Paramedics reciprocal powers if they are sent into NSW to detain and transport involuntary mental health patients to Victoria still refers to the old Victorian act. Ambulance Victoria insists we still have reciprocal powers but can’t point to anything in the NSW act or regulations that actually allows that?

The Mental Health and Wellbeing Act 2022 (Vic) came into force on 1 September 2023 (s 2(2)). On its commencement the Act repealed the Mental Health Act 2014 (Vic) (s 761).

The Mental Health and Wellbeing Transitional Regulations 2023 (Vic) provide for the continuation of orders and proceedings as if they were made or commenced under the new Act. Regulation 49 says:

49. Person subject to interstate order taken to Victoria

On and after 1 September 2023, a person who, immediately before that date, is being taken to an authorised psychiatrist in this State under section 324 [Person subject to interstate compulsory order taken to Victoria to determine suitability for Temporary Treatment Order] of the old Act is taken as being transported to the authorised psychiatrist under section 606 [Transfer of a person to Victoria] of the new Act.

That’s all well and good in Victoria but doesn’t deal with the power of a Victorian paramedic in NSW.  In NSW the Mental Health Act 2007 (NSW) is headed ‘Interstate Application of Mental Health Laws’.  Section 176 says:

(1) A person who is detained as an involuntary patient or forensic patient in a mental health facility in this State may be transferred to a mental health facility in another State, if the transfer is permitted by or under a provision of a corresponding law of the other State and is in accordance with the regulations…

(3) A person may be taken to a mental health facility in another State under this section by a person who is authorised to do so by the regulations or under a provision of a corresponding law of the other State.

What are the ‘corresponding laws’ is set out in the Mental Health Regulations 2019 (NSW) r 20. It says, relevantly:

The following laws and any regulations made under those laws are corresponding laws for the purposes of Chapter 8 of the Act–

(a) the Mental Health Act 2014 of Victoria…

As noted above, since 1 September 2023 the Mental Health Act 2014 of Victoria no longer exists.  That means that for anyone detained after that date, no transfer is permitted, and no person is authorised to transfer the patient, under the Mental Health Act 2014 (Vic) so no-one is authorised by ‘a provision of a corresponding law of’ Victoria.

It would appear that no-one in either NSW Health or VicHealth take the provisions of corresponding laws very seriously.  NSW Health publishes on its website the ‘NSW-Victoria agreement for the return of absconding forensic patients’. This agreement is dated 19 February 2002 ie before either the Mental Health Act 2014 (Vic) or the Mental Health Act 2007 (NSW) had been enacted but it would appear to be the agreement that continues to be relied. Also available is the signed, but not dated, NSW-Victoria agreement for the transfer of civil patients between NSW and Victoria. It was meant to be dated sometime in 2011.  That agreement refers to the Mental Health Act 2007 (NSW) and the Mental Health Act 1986 (Vic) (also no longer in force).

Victoria used the recent amendments to change its definition of corresponding laws. Regulation 39 of the Mental Health and Wellbeing Transitional Regulations 2023 (Vic) refers to the order ‘made under section 314 of the old Act on 26 September 2017 and published in the Government Gazette on 28 September 2017’. It is said to continue save that:

in paragraph (b), for the reference to “Mental Health Forensic Provisions Act 1990 (New South Wales)” there were substituted ” Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (New South Wales)”

That is, they have updated their list of ‘corresponding laws’ to refer to a NSW law that was assented to on 23 June 2020 and commenced on 27 March 2021 so only 2 years and 7 months since that Act came into force.

NSW has had from 6 September 2022 (when the Mental Health and Wellbeing Act 2022 (Vic) received royal assent) to 1 September 2023 (when it came into force) to amend its definition of ‘corresponding law’.  The Act has been in force for nearly 2 months so relatively, a very short time.

I suspect this is an issue where people are being transferred and no-one’s complaining so there is no urgent need to fix it. Further the principle in the Acts and the agreements is that interstate orders are to be honoured and transfers arranged and that is for the benefit of those that need transfer interstate. Because the transfer is intended to be beneficial a court would look for ways to facilitate them. I would argue that a court would (or should) find that references to the 2014 Act should be read as references to the 2022 Act.  This could be justified because the Australian Constitution s 118 says ‘Full faith and credit shall be given, throughout the Commonwealth to the laws… of every State.’  Further the Interpretation of Legislation Act 1984 (Vic) s 117 says:

A reference in an Act to … any other Act or to any provision of any other Act …shall, unless the contrary intention appears, be construed—

(a) …

(b) if the Act, … or provision in question has been re-enacted or re-made (with or without modification), as a reference to the Act … or provision as re-enacted or re-made and in force for the time being;

And Act is said to include an Act of another state.

That means where the NSW Act refers to the Mental Health Act 2014, to the extent that Act has been ‘re-enacted or re-made’ then the NSW Act should be read as referring to the ‘re-enacted or re-made Act’. The fact that the transitional provisions give the cross reference ie an order under the old s 324 is now an order under the new s 606 suggests that the new Act – dealing with the same subject matter as the 2014 Act – represents an Act and provisions that have been ‘re-enacted or re-made’. 

A NSW court accepting that an authorisation under the Mental Health and Wellbeing Act 2022 (Vic) is sufficient for the purposes of the Mental Health Act 2007 (NSW) s 176 would be giving ‘full faith and credit’ to both the 2022 Act and the Interpretation of Legislation Act 1984.

It is I agree, pretty poor form that NSW has not amended its regulation to refer to the Mental Health and Wellbeing Act 2022 (Vic) and that both states still rely on agreements that reference out of date legislation, but these things can take time (2 ½ years in Victoria’s case). I don’t think it will be a real issue for paramedics. It will become an issue if someone sues one of the States (not the paramedics) for false imprisonment.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

The GoodSam App and good Sam(aritan) laws in Queensland

27 October, 2023 - 16:39

Today’s question is about the application of good Samaritan laws and the GoodSam App (see Crowd sourcing first aid (August 12, 2014) and Responding third parties to 000 ambulance calls (May 7, 2023)) in Queensland. My correspondent says:

I’m aware that there is no legislation protecting Mr Do Good in the event they assist someone in need of aid and that the Civil Liabilities act would only protect Mr Do Good if they were a member of a named organisation in the included schedules (1&2?).

QAS have been holding off on rolling out a GoodSAM program due to these concerns however, could it be rolled out in a limited capacity, in a similar way AV trailed it, by only allowing members of those named organisations to sign up? (Eg SES, QAS, SLSQ, BCC, VMR, etc). Would they be protected by the civil liabilities act if they responded to a GoodSAM notification whilst off-duty from their organisation?

In Queensland there is no good Samaritan legislation as it is understood in the other states. Part 1, Division 7 of the Civil Liability Act 2002 (Qld) is titled ‘Enhancement of Public Safety’ rather than ‘good Samaritan’. Section 26(1) says:

Civil liability does not attach to a person in relation to an act done or omitted in the course of rendering first aid or other aid or assistance to a person in distress if:

(a)        the first aid or other aid or assistance is given by the person while performing duties to enhance public safety for an entity prescribed under a regulation that provides services to enhance public safety; and

(b)       the first aid or other aid or assistance is given in circumstances of emergency; and

(c)        the act is done or omitted in good faith and without reckless disregard for the safety of the person in distress or someone else.

Critical for the application of this section is that ‘the first aid or other aid or assistance is given by the person while performing duties … for an entity prescribed under a regulation…’. The relevant regulation is the Civil Liability Regulation 2014 (Qld), r 4 and Schedule 1.

These provisions would apply to members of those organisations who agree to ‘sign up’ to the Good Sam App provided that the organisation of which they are a member accepted that they were turning out on behalf of that organisation, that is the organisation would have to accept that from the time they accepted the call they were ‘on duty for’ and responding as a member of that organisation.  If they were considered ‘off duty’ – that is if the organisation said ‘it’s got nothing to do with us’ then s 26(1) would not apply.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

What should ‘hospital security staff … get their head around’?

26 October, 2023 - 16:30

Today’s correspondent says:

I was just wondering if there is anything you could suggest that Hospital security staff should get their head around? It all seems very confusing to me e.g. Duty of care, are we meant to be clinically led and is that any defence of wrongdoing, has a patient been sectioned, are they voluntary or involuntary, can we restrain a patient at any time if we are told to do so…

In the post Publication on detaining patients in the ED (August 29, 2023) I refer the following paper which I co-authored and which is available for free from the journal Emergency Medicine Australia:

Kelly, A.-M., Eburn, M., Cockburn, T. and Senthi, A. (2023), Review article: Detaining patients against their will: Can duty of care be used to justify detention and restraint in emergency departments?. Emergency Medicine Australasia. https://doi.org/10.1111/1742-6723.14299

In that paper we developed a decision-making flow chart on decision making about whether or not a patient in ER can be detained. Hopefully this chart will also assist security staff and is attached to this post. 

There is also a link to a webinar that may assist; see –https://vimeo.com/854216186/49c3a4283b.

In summary;

Hospital security (assuming they are not sworn special constables) have no particular legal authority, rights or privileges. They are servants and agents of the hospital – that is they are employed to do the work of the hospital (servants) but also represent the hospital (agents) so anything they do is done by the hospital.

The hospital owes its patients a duty of care -that is a duty to provide reasonable care in the patient’s best interests. It is not a duty to guarantee a good outcome, it is not a duty to impose treatment or care. It is a duty to act reasonably in all the circumstances. A security guard cannot determine what care is clinically indicated so he or she has to be led by the medical and nursing staff if that becomes an issue.

Mental health legislation in every state and territory provides for the detention and treatment of people who are mentally ill and who require treatment. Generally speaking (WA is at least one exception) a person can be detained even if they are competent and are refusing treatment provided the requirements in the Act have been met. If a medical practitioner has taken the necessary steps to examine and detain a person under mental health legislation, then the person is an involuntary patient. A health service should be aware of and teaching hospital security in what circumstances force can be used as this will depend on the terms of the mental health legislation in each state or territory.

You cannot restrain a patient ‘at any time’ just because you are told to do. Patients who are competent are free to leave and free to refuse treatment. Attempting to restrain or detain a patient without lawful authority (and ‘doctor’s orders’ is not legal authority) may be a tort – assault or false imprisonment. In our article (above), my co-authors and I said:

Necessity justifies treatment that can include both physical and chemical restraint where that is necessary to treat a physical condition. For example, it would include placing a patient in an induced coma in order to treat their head injury or maintain their airway. Necessity can also justify detention of a person who is behaving uncontrollably and disruptively and posing an immediate danger to themselves or others… Restraining someone who is an immediate danger to others may also be justified by the law of self-defence, but that would not authorise the administration of any treatment.

If you attempt to detain a person or to impose treatment against their will they are entitled to resist and to use force in the process. This can lead to an escalation of the incident and risks injury to both patient and security staff.

If a security guard’s attempt to detain a person is unlawful, the hospital will be liable. As noted, the guard is the hospital’s agent, they act on behalf of the hospital. The hospital cannot act except through its staff so it is the hospital that has detained or tried to detain the patient so it is the hospital that will be liable for any damages.

For related posts see:

Conclusion

If there is anything I ‘suggest that Hospital security staff should get their head around’ it is the principle that a person is presumed to be competent unless a medical practitioner has determined that they are not; and a competent person is free to leave a hospital whenever they want, whether that is a good idea or not.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Reporting yourself to AHPRA

25 October, 2023 - 13:25

Today’s correspondent asks:

When is a paramedic required to notify AHPRA of a complaint made against themselves?

I ask this as I was accused in June of what I would categorise as a serious offence. I was stood down a month later, which was the first I was aware of the allegation. Somewhat naively, I assumed that my employer would notify AHPRA. The somewhat excited response by AHPRA to my disclosure during registration renewal reveals that they had not done so.

I have looked up all I can find is Part 7 of the Notifications Guideline on the AHPRA website.  “must within 7 days… 3 vii …  a complaint is made about the practitioner to an entity etc.

A straw poll amongst my colleagues reveals complete ignorance of this requirement.   Collectively we know multiple dozens of people who have had to answer complaints.  I can name six friends who have been stood down in the last two years…. none of them have notified AHPRA, nor has our employer done so.

In discussions with my union, they have stated they may put out an information bulletin regarding this, but I feel that this issue is probably nation-wide and am seeking your wise counsel and good offices to spread the news far and wide.

I think there are two issues here – 1) when is a paramedic required to notify the Paramedicine Board (via AHPRA) of a complaint against themselves? and 2) when is an employer required to notify the Board (via AHPRA) of a complaint against an employee?

When is a paramedic required to notify the Paramedicine Board (via AHPRA) of a complaint against themselves?

The Health Practitioner Regulation National Law s 130 says:

A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner’s or student’s health profession written notice of the event.

‘Relevant event’ means (s 130(3):

(a)        the practitioner is charged with—

(i)         a scheduled medicine offence; or

(ii)        an offence punishable by 12 months imprisonment or more, whether in a participating jurisdiction or elsewhere; or

(b)       the practitioner is convicted of or is the subject of a finding of guilt for—

(i)         a scheduled medicine offence; or

(ii)        an offence punishable by imprisonment, whether in a participating jurisdiction or elsewhere; or

(c)        appropriate professional indemnity insurance arrangements are no longer in place in relation to the practitioner’s practice of the profession; or

(d)       the practitioner’s right to practise at a hospital or another facility at which health services are provided is withdrawn or restricted because of the practitioner’s conduct, professional performance or health; or

(e)        the practitioner is disqualified under an agreement under section 92 of the Health Insurance Act 1973 of the Commonwealth because of the practitioner’s conduct, professional performance or health; or

(f)        the practitioner is subject to a final determination under section 106TA of the Health Insurance Act 1973 of the Commonwealth that contains a direction under section 106U(1)(g) or (h) of that Act that the practitioner be disqualified because of the practitioner’s conduct, professional performance or health; or

(g)        the practitioner’s authority under a law of a State or Territory to administer, obtain, possess, prescribe, sell, supply or use a scheduled medicine or class of scheduled medicines is cancelled or restricted; or

(h)       a complaint is made about the practitioner to an entity referred to in section 219(1)(a) to (e) [ie various Commonwealth entities such as Medicare and ‘another Commonwealth, State or Territory entity having functions relating to professional services provided by health practitioners or the regulation of health practitioners’].

(i)         the practitioner’s registration under the law of another country that provides for the registration of health practitioners is suspended or cancelled or made subject to a condition or another restriction.

The mere fact that your employer has received a complaint does not necessarily fit any of those events and would not need to be reported.

If you are ‘stood down’ then paragraphs (c), (d) and (g) would appear to apply and you would have to notify AHPRA of that change in circumstances within 7 days. If a complaint is made to a health complaints body eg the NSW Health Care Complaints Commission or Queensland’s Health Ombudsman, then paragraph (h) would apply and you would also need to report that.

When is an employer required to notify the Board (via AHPRA) of a complaint against an employee?

The Health Practitioner Regulation National Law s 142 says:

If an employer of a registered health practitioner reasonably believes the health practitioner has behaved in a way that constitutes notifiable conduct, the employer must notify the health ombudsman of the notifiable conduct.

Notifiable conduct (s 140) means:

(a)        practising the practitioner’s profession while intoxicated by alcohol or drugs; or

(b)       engaging in sexual misconduct in connection with the practice of the practitioner’s profession; or

(c)        placing the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or

(d)       placing the public at risk of harm by practising the profession in a way that constitutes a significant departure from accepted professional standards.

If the complaint to the employer doesn’t fit any of those paragraphs, then they are not required to report the complaint, or the outcome to AHPRA.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Expanding practice for Tasmanian paramedics

25 October, 2023 - 12:44

Today’s correspondent is

… a paramedic and nurse practitioner in Tasmania. We have developed a model of care utilising a paramedic as a care provider in a Nurse practitioner led clinic. I am lobbying hard to find rewarding work for paramedics outside ambulance. I would like to press for limited prescribing for paramedics and wonder how to perpetuate this?  I see that the Tas Poisons Act 25.1(2) refers to “authorised endorsed health professionals” so theoretically I need to work out a way to add endorsement?

My questions

1) Are there any legal restrictions to prevent paramedics working in primary care/ private practice?

And

2) How do we start on the endorsed prescribing that is similar to ECP or remote area nurses? 

Question 1

There is no legislated limit on what paramedics can and cannot do. The Health Practitioner Regulation National Law works via title protection; it does not define scope of practice.  Apart from performing restricted dental acts (s 121), giving anaesthesia in dentistry (s 121A), prescribing optical appliances (s 122) or performing spinal manipulation (s 123) a paramedic can do anything that he or she is competent to do provided it complies with the Code of Conduct issued by the Paramedicine Board.  The Code of Conduct (June 2022) says (p. 6) ‘Practitioners have a responsibility to recognise and work within the limits of their skills and competence’ (see also [1.1](d)].  Paragraph 1.2 says:

Good practice includes that you:

a. ensure you maintain adequate knowledge and skills to provide safe and effective care9

b. ensure that, when moving into a new area of practice, you have sufficient training and/or qualifications to achieve competency in that new area.

Conclusion question 1

There are no legal restrictions to prevent paramedics working in primary care/ private practice provided they work ‘within their skills and competence’.

Question 2

The issue here is a right to prescribe, rather than possess, supply or administer a drug.

The Poisons Act 1971 (Tas) s 25C(2) says:

An authorised health professional, who is endorsed to prescribe scheduled substances by an authorised body may only, for the purposes of his or her profession, possess, sell, supply or  prescribe  the scheduled substances specified in that endorsement.

An ‘authorised body’ is the organisation declared to be the body that can authorise particular health professionals. For example, the Optometry Board and the Podiatry Board can endorse the registration of optometrists and podiatrists respectively, to ‘prescribe a scheduled substance … in accordance with an endorsement on his or her registration’ (Poisons Regulation 2018 (Tas) r 7).

Conclusion question 2

Fundamentally for a paramedic to prescribe a narcotic or restricted substance they must be endorsed to do so (rr 20 and 45). To do that it would be necessary to persuade the Minister for Health that this would be of community benefit. The Minister could then prepare a regulation to appoint an authorised body (presumably the Paramedicine Board) that could then authorise Tasmanian paramedics with appropriate skills and qualification to prescribe relevant drugs.  How you ‘start on the endorsed prescribing that is similar to ECP or remote area nurses’ is not a legal question, it is a question on government relations and how best to present a relevant case to the minister.  That is an issue my friend Ray Bange, the Paramedic Observer, is better placed to answer.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Comparing an ‘enduring power of guardianship’ with an ‘authoritative health directive’

25 October, 2023 - 11:36

Today’s correspondent asked to me to:

… explain simply the difference between an enduring power of guardianship and an authoritative health directive, when they are needed and whether they are legally binding and if one overrides the other?

The simple difference is that appointing an enduring guardian is nominating a person to make decisions for you. Setting out an ‘authoritative health directive’ is making and communicating your own decision. Enduring guardians have to make decisions in the best interest of the person for whom they are a guardian and in accordance with their known preferences and wishes so an authoritative health directive would override, or limit an enduring guardian’s decision.

To give a longer answer, with reference to law, I’ll use Victoria as my example as not every state, and that includes NSW, has binding legislation on ‘authoritative health directives’.  The relevant Act in Victoria is the Medical Treatment Planning and Decisions Act 2016 (Vic).

Instructional directive

An ‘instructional directive’ (s 6(1)) is:

(a) is an express statement in an advance care directive of a person’s medical treatment decision; and

(b) takes effect as if the person who gave it has consented to, or refused the commencement or continuation of, medical treatment, as the case may be.

The following examples are given in s 6:

A statement that a person consents to a heart bypass operation in specified circumstances.

A statement that a person refuses cardiopulmonary resuscitation.

Where a health practitioner proposes to administer medical treatment, the practitioner must ‘give effect to any relevant instructional directive’ (s 60).

Conclusion on instructional directive

Where a person has given an ‘instructional directive’ then that is their consent, or refusal of consent, to the treatment and a health practitioner can rely on that to make decisions to give, or withhold treatment in accordance with that directive.

Medical Treatment Decision Makers

A person can appoint another person to be their ‘appointed medical treatment maker’ (s 26). Where there is no relevant ‘instructional directive’ a health practitioner must look to the appointed medical treatment maker to give or refuse consent to care. That person ‘must make the medical treatment decision that the medical treatment decision maker reasonably believes is the decision that the person would have made if the person had decision-making capacity’ (s 61).

If the person has made a statement that they do not want particular care, or that it is contrary to their values, then the medical treatment decision maker would be required to honour those views.

Conclusion on medical treatment decision maker

The medical treatment decision maker cannot make a decision inconsistent with a instructional direction. In other cases the medical decision maker must consider any express statement of patient values and what they know of the patient to make the decision that they believe the patient would make if they could.

Other states and territories

Without tracing every Act the law is going to be of similar effect in all Australian states and territories even if the name of the documents or the title of the decision makers vary.

As I said NSW does not have binding ‘advance care directive’ legislation but people can still make statements about what care they do or do not want and that should be honoured.  The common law does not permit treatment of those that cannot make their own decisions where that treatment is contrary to their known wishes (see Legal justification for treating the unconscious (April 11, 2021)).

An enduring Guardian (appointed under the Guardianship Act 1987 (NSW)) sits at the top of the list as a ‘person responsible’ for an incapable patient (s 33A). As the person responsible they can give consent to treatment but in making a treatment decision they must ‘have regard to: (a) the views (if any) of the patient …’ (s 40).  Accordingly they must consider, and should honour, anything the patient has said about their wishes for care and any treatment that they do, or do not want (see also NSW Health ‘Making an Advance Care Directive’ (2022).

Conclusion

An enduring guardian, or enduring attorney, or medical decision maker (the terms vary from jurisdiction to jurisdiction) is a person appointed to make medical decisions on behalf of a person when they are no longer able to make or communicate their own decisions,

An advance care directive, a health directive, an instructional directive (again the terms vary from jurisdiction to jurisdiction) is a binding statement by the person of about treatment that they want, or do not want. They serve to communicate the patient’s wishes. They are binding in the same way a patient’s competent decision to consent to or refuse consent to treatment is binding.

The advance care directive limits the power of the substitute decision maker. In some states if there is an advance care directive the substitute decision maker is not involved. In other case (eg NSW) or where the advance care directive does not clearly apply in the circumstances that have arisen, the substitute decision maker must consider the patient’s expressed wishes and attempt to make the decision the patient would make if they could.  To that extent the advance care directive ‘overrides’ or limits the power of a substitute decision maker.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

‘Emergency’ and the Road Rules 2014 (NSW)

21 October, 2023 - 18:28

Today’s correspondent asks a question about:

… the definition of an emergency n the NSW road rules 2014 as it applies to a member of FRNSW, RFS or SES.

The Road Rules 2014 (NSW) dictionary states that an emergency worker driving a vehicle changes the status of the vehicle to an emergency vehicle. The dictionary states that an emergency worker is:

(b) a member of a fire or rescue service operated by a NSW Government agency, a member of the State Emergency Service or a member of a fire brigade (however referred to) or rescue service of the Commonwealth or another State or territory, providing transport in the course of an emergency.

The NSW State Emergency Service defines an emergency as follows ((I believe this is taken from the definition contained in the State Emergency and Rescue Management Act 1989 (NSW) (the SERM Act) s 4):

Definition of “emergency”

(1) In this Act—

emergency” means an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which—

(a)     endangers, or threatens to endanger, the safety or health of persons or animals in the State, or

(b)     destroys or damages, or threatens to destroy or damage, property in the State, or

(c)      causes a failure of, or a significant disruption to, an essential service or infrastructure,

being an emergency which requires a significant and co-ordinated response.

I ask what scenarios given the above definition constitute an emergency? Would a land search for a person missing in the bush meet the definition?  Or an elderly dementia patient missing in a urban environment? Given there is a threat to loss of life, and it requires a coordinated response. Land searches in NSW typically are significant multi agency responses involving NSW Police, RFS, SES, NSW Ambulance etc.

This is not to advocate that transport to a land search requires a lights and sirens response. In almost all cases it would not, and it would not past the “reasonable” test. Rather I ask the question because if the scenario is an emergency, the workers transporting to (and possibly from) the search are now ’emergency workers’ and the vehicle the workers are travelling in, is now an ‘emergency vehicle’. The legislation provides for improved conditions for an ‘emergency vehicle’ to get to the scene. For example:

  • A emergency vehicle could park at the scene or nearby, contrary to the stated council or other parking regulations enabling more rapid access of workers and gear to scene (Road Rules 2014 (NSW) r 307);
  • A driver under 25 could drive with greater than 1 passenger under 21 after 11pm (Road Transport (Driver Licencing) Regulation 2017 (NSW) r 38);
  • A emergency worker who is a green p plater is now permitted to use a mobile phone via a hands-free cradle to access google maps which may enable a quicker route free of traffic congestion.  (Road Rules 2014 (NSW) rr 299, 300 and 300-1);

My other question relates to when does the “course” of an emergency end?

In the case of a land search. Is it when the person lost in the bush is found/ operation is concluded. (Remembering that this may be several days) Or is it when the emergency vehicles arrive at the search location or is it when the emergency vehicle return to their base/home location at the end of the day.

The definition of emergency quoted above is indeed from the SERM Act and as it says, it is the definition that applies ‘in this Act’. It is not the definition for the purposes of the Road Rules.  The Road Rules do not define emergency. The issue arose in the case of Wells v R [2017] NSWCCA 242 (discussed in my post Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017) and the many posts mentioned there).  In that case counsel for Mr Wells argued (at [126]) that the trial judge was wrong ‘to find that, as a matter of definition, an emergency must have some aspect of urgency to it… To the extent that it was found by his Honour that the return of the appellant to the weighbridge was not an emergency, as defined, that was said to have led to error.’

Button J (with whom Gleeson JA and Harrison J agreed) said (at [132]):

I do not accept that “an emergency” can be an event that does not have at least some aspect of urgency to it. I say that not only as a matter of ordinary English usage. I say that also because, with respect, I accept the submission of the Crown that the interpretation for which the appellant contends would lead to absurdities; for example, a tanker being driven to an event that was patently not urgent – such as a routine meeting of volunteer firefighters – could nevertheless be judged as travelling to an emergency, with consequent modification to the operation of the Road Rules.

In an earlier post – When is a member of the emergency services an ‘emergency worker’ for the purpose of the Road Rules 2014 (NSW)? (January 5, 2017) – I said:

The real impact, in my view, of these rules is not in the protection they give the emergency services but the protection they give the police.    The police can’t have an approach of ‘we let the firies off because they’re good people’, rather we are governed by ‘the rule of law’: ‘Be you ever so high, the law is above you’…. That includes the driver of an emergency service vehicle who is bound by the law as much as anyone. The reason police, fire fighters and paramedics can drive contrary to the road rules is not because they are exempt from the law, but because there are specific laws to allow them to do those things, but they must comply with that law – this is fundamental to the issue of the rule of law.

The presence of rr 306 and 307 means that a police officer who sees a fire appliance at the side of the road whilst the crew are fighting the fire can say to anyone who asks ‘they’re allowed to do that’, but that same officer, who thinks it’s not safe or they don’t need to be where they are can direct them to move the vehicle or issue a ticket.

The same for a judge.  If the judge, looking at all the facts, thinks that what the driver did was reasonable he or she can acquit them and point to the law as justifying that conclusion.   I think that’s what would happen in the scenarios above, if on all the facts, a police officer or judge thought the actions of the emergency worker were justified either in parking by the side of the road or crossing the road against a red ‘don’t walk’ light they can take no action and justify that to the community as being consistent with the law, not just a decision on a whim.    And if they do issue an infringement notice, the person who receives it has an opportunity to challenge that decision and make an argument that is more than just ‘but this is silly’. They can actually point to the law.

Ultimately these clauses are very, and I would say deliberately, imprecise to give flexibility to the RFS (and other emergency services) the police and the courts. If, in all the circumstances, the way the vehicle is driven, or parked, is reasonable then the police and courts can ‘let you off’ not on the basis of hidden discretion but because the law says they can; if it is not reasonable then you can still get a ticket.

(See also Road traffic exemption – Who determines if it is reasonable that the provision should not apply? (May 22, 2016)).

Discussion

I think that ‘a land search for a person missing in the bush …  Or an elderly dementia patient missing in a urban environment’ would meet the definition of emergency within the meaning of the State Emergency and Rescue Management Act.  Whether the driver of an SES, RFS or FRNSW vehicle is ‘providing transport in the course of an emergency’ depends on the particular task that he or she is engaged in.  Even if it is an emergency, the use of any particular exemption depends on whether it is reasonable and whether the driver is taking reasonable care.

These issues most likely to arise if there is an accident. They are therefore more relevant when ‘driving’ rather than parking.  If a driver was attending to a task that was not urgent, even if it was part of the emergency response, and there is a collision then a court, as the court did in Mr Wells’ case, may find that there was no ‘emergency’ for the purposes of the Road Rules even if there was an emergency within the meaning of the SERM Act.  That might also be true if a driver was detected using a phone.  Even if the police or court accepted that there was an ‘emergency’ they still need to consider whether the exemption should apply and whether the driver was taking reasonable care.  If there was a collision that is going to suggest that there was not reasonable care. That too was discussed in Wells’ case where the court said even if Mr Wells counsel was correct and it was an emergency, it would not have helped as Mr Wells was not taking ‘reasonable care’ so the exemption from the road rules would not have applied (see [134]-[135]). 

These issues are less likely to arise in parking matters, but they may if a vehicle is parked so dangerously that another vehicle collides with it. In that case too a court would ask ‘what was the driver doing that was so ‘urgent’ that this was an emergency?’ and then ‘and did they take ‘reasonable care’ in all the circumstances?’

For the purposes of the road rules the emergency ends when the urgency ends. 

Conclusion

There is no definition of ‘emergency’ for the purposes of the Road Rules.  The closest we have is the discussion in R v Wells which tells us that the purpose for which the vehicle is being driven, or parked, must have ‘at least some aspect of urgency to it’.  Storm damage to a house may be part of an emergency for the SERM Act but it doesn’t make it an emergency for the Road Rules. Responding to a hazardous material spill may be an emergency, returning later when it has been cleaned up to collect the crew is not (R v Wells).


This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

QAS paramedics accessing patient information via ‘The Viewer’ for ‘follow up’.

20 October, 2023 - 17:28

Today’s question is:

…  about a relatively new program that Queensland Ambulance Service (QAS) rolled out to their paramedics. The program itself is actually a Queensland Health program that has existed for a while, but QAS paramedics have just been granted access to it recently – The Viewer.

My questions are, should The Viewer be used by paramedics to follow-up on patients for educational purposes? Does this require patient consent? And if follow-up is allowed without patient consent, to what extent can The Viewer be used? Below is some background information on The Viewer and extracts from QAS training modules on The Viewer.

The Viewer is a Queensland Health application that collates all of a patient’s information in one place, so that staff can easily see a patient’s history and personal information. This includes information such as pathology results, mental health data, discharge summaries, operation notes, medical images, care plans, etc.

Through emails to staff and education material, the QAS have stated that this program is available for paramedics to use when providing direct patient care and for patient follow-up. Below is an extract from the QAS education module for The Viewer, describing the ‘authorised’ uses.

 When Can I Use The Viewer

  • Providing direct patient care
    • Providing clinical care to patients
    • Reviewing care plans to plan patient disposition
    • Reviewing discharge summaries to understand recent admissions
    • Advanced Care Planning (AHD, ARP, Statement of Choices)
  • Patient Follow-up
    • Clinicians may use The Viewer to undertake patient follow up on patients who they provided direct patient care for.
    • This must only occur during rostered shifts. Officers must not be accessing The Viewer after hours and from their private residence.
    • Follow up should occur within a reasonable time frame and with limited use.
    • For example, within 4-6 weeks after the incident occurring and on limited occasions. That is, reviewing a patient’s information daily could be considered in appropriate[sic].

When Can’t I Use The Viewer

  • Looking up yourself, family, friends, etc
  • People you have not treated
  • Because of curiosity
  • Do not use on days off
  • Post exposure (e.g. needle stick injury)

I believe The Viewer is a great tool for paramedics when trying to ascertain a medical history from a patient, as a lot of patients are not medically literate. Without comprehensive discharge summaries and health records, the medical history given to a paramedic can be quite lacking. It is also very useful to understand patients who have complex medical needs, and any care plans they may have in place. I can see when a paramedic is ‘providing direct patient care’ that the use of The Viewer would be acceptable as it is covered under IPP 9 – Use of personal information only for relevant purpose in the Information Privacy Act 2009 (Qld).

I am concerned though that the use of The Viewer for ‘patient follow-up’ might contravene the disclosure of private information laid out in the Information Privacy Act 2009 (Qld).

A few years ago, I read your blog post titled ‘Giving feedback to paramedics’ (1 April 2017), and when this new authorised use of The Viewer was announced I was curious as to how it related to the privacy laws. I understand that your post was referring the Privacy Act 1988 (Cth), and that the response from the Office of the Australian Information Commissioner also only referred to the Commonwealth Act. However, I have not been able to find a clause in the Information Privacy Act 2009 (Qld) that seems to differ enough from the Privacy Act 1988 (Cth) to allow such a disclosure of personal information. The Information Privacy Act 2009 (Qld) does state in IPP 11 – Limits on disclosure that the agency controlling an individual’s information may disclose it to an entity if “…(b)the individual has expressly or impliedly agreed to the disclosure”. It appears patient consent would allow for this disclosure, but QAS have not stated in any of their training that patient consent is required. In fact, all the material seems to imply that patient consent is not required. Below are some quotes from training videos made by QAS personnel.

“…one of the things that really excites me about The Viewer is the ability to follow-up our patients, and I think that’s vital for us to develop our clinical acumen and diagnostic accuracy.”

“…couple of weeks down the track you can go online, look your patient up, have a look for a discharge summary [to find out the discharge diagnosis]. [Which would be] enormously beneficial for you in making your future decisions about patient care.”

I would also like to note the section in the QAS training which states The Viewer cannot be used ‘because of curiosity’. If access to The Viewer for ‘patient follow-up’ is allowed without patient consent, what type of access would be allowed before it crossed over into ‘curiosity’.

My short answer is that the Viewer could not lawfully be used for ‘follow up’ if that means going online to ‘look for a discharge summary [to find out the discharge diagnosis]’.  I think that is clear from the Terms and Conditions of the Viewer and the provisions of privacy law.

The Terms and Conditions

There is much public information about the Viewer – see https://www.health.qld.gov.au/clinical-practice/innovation/digital-health-initiatives/queensland/the-viewer.  An online brochure says users

… must accept the Terms and Conditions when registering for the HPP. Queensland Health will conduct audits to ensure appropriate use of the information is being adhered to.

Penalties apply for inappropriate access and use of the HPP including possible deregistration.

A website containing patient resources, under the heading Privacy and Security says:

Eligible health practitioners may only access records within the Health Provider Portal (HPP) for the purpose of providing care or treatment to a patient.

Appropriate use of the information is defined by the Hospital and Health Boards Act 2011 and Privacy Act 2009.

Penalties apply to health practitioners for inappropriate access and use of information, including possible deregistration.

These Terms and Conditions must be accepted when registering for access to the HPP.

Similar information is contained in the resources for practitioners.

The terms and conditions are available online. They say that the purpose of the portal is to ‘… facilitate the care or treatment of an individual by a Prescribed Health Practitioner acting in that capacity and in accordance with section 161C(2)(a) of the Act’. ‘The Act is the Hospital and Health Boards Act 2011 (Qld).

Clause 2.1(b) says:

You may access and use the Application, to view, use and display the Content for your professional use when necessary in accordance with the Purpose. You must not access or use the Application for any other purpose.

Inserting the relevant definitions to expand that clause it reads:

You may access and use the Application, to view, use and display the Content for your professional use when necessary, in accordance with the care or treatment of an individual by a Prescribed Health Practitioner acting in that capacity and in accordance with section 161C(2)(a) of the Hospital and Health Boards Act 2011 (Qld). You must not access or use the Application for any other purpose.

Section 161C(2) says:

A prescribed health professional must not access information contained in a prescribed information system unless—

(a)        the information is necessary for the prescribed health professional to facilitate the care or treatment of an individual; or

If you have no further care of a patient, that is you have treated them and are no longer involved in their care, then following up to see if your diagnosis or treatment was correct may be useful and perhaps of benefit to some future patient, but you are not providing ‘care or treatment’ to that individual. Accessing the information is not necessary to ‘facilitate the care or treatment of an individual’ as you are no longer involved in the care or treatment of that individual.

Privacy

In my earlier post Giving feedback to paramedics (1 April 2017) I quoted from an email I received from the Australian Information Commissioner who said ‘The Australian Privacy Principles (the APPs) contained in the Privacy Act 1988 (Cth) (the Act) … do not apply to State or Territory public health bodies.’  In Queensland the relevant law is the Information Privacy Act 2009 (Qld).  Information Privacy Principle 10 says:

An agency having control of a document containing personal information that was obtained for a particular purpose must not use the information for another purpose unless—

(a) the individual the subject of the personal information has expressly or impliedly agreed to the use of the information for the other purpose;

A patient gives information to their health care practitioner so that practitioner can provide appropriate care. It is part of that purpose that paramedics pass that information onto the triage nurse and treating practitioners to provide continuity of care. But the information that the patient provides, and the opinions that are recorded by the treating team (eg diagnosis) and information about ongoing care are provided so that those providing care can do so. Those that were involved in the patient’s care but who are no longer caring for the patient have no need to access that information. If they do for their own purposes eg ‘to develop our clinical acumen and diagnostic accuracy” then that is another purpose and needs the patient’s consent.

In that earlier post I said that ‘one could argue that closing that information loop was directly related to the primary purpose of their health care’ but I on re-reading that post I am even less persuaded by that argument. But even if that were true with respect to the privacy principles it is not true with respect to the Hospital and Health Boards Act 2011 (Qld) s 1612(C)(a). 

Follow up might be relevant if a GP or a community paramedic wanted to know if the patient had gone for their specialist appointment or had their tests so they can see if they need to remind the patient, or see if there is some reason that they have not done so or to see if the results will impact on the future care plan. Accessing the information by a paramedic with no expectation that they will treat the patient again, is in no way accessing the information ‘to facilitate the care or treatment of an individual’

QAS policy

Interestingly the QAS on its webpage ‘Patient information’ says:

Request from a medical practitioner on behalf of a patient

Only a medical practitioner treating the patient may request the patient’s eARF.

The medical practitioner must provide:

  • evidence of medical practitioner’s identity and qualification
  • signed and current authority from the patient.

Presumably there are times when an ambulance crew treat a patient who was being attended to by a good Samaritan doctor who stepped up before the ambulance got there.  QAS would not provide access to the record by the doctor who said ‘I just wanted to know how that person got on’ without the patient’s express consent. Presumably that doctor could now look up the patient’s record on The Viewer but it would be equally inappropriate to do so.

Conclusion

I fail to see how QAS or anyone could read the terms and conditions and/or the Act and argue that reviewing a patient that you have treated is permitted. There is nothing in the are terms of access or the Hospital and Health Boards Act 2011 (Qld) s 1612(C)(a) that support the statements that:

Clinicians may use The Viewer to undertake patient follow up on patients who they provided direct patient care for.

This must only occur during rostered shifts. Officers must not be accessing The Viewer after hours and from their private residence.

Follow up should occur within a reasonable time frame and with limited use.

For example, within 4-6 weeks after the incident occurring and on limited occasions. That is, reviewing a patient’s information daily could be considered in appropriate[sic].

In the circumstances described the information is being accessed because the paramedic is ‘curious’ as to what happened and whether their diagnosis and treatment was accurate. They are not seeking access to care for an individual. It may be useful information to allow paramedics ‘to develop our clinical acumen and diagnostic accuracy’; it may be ‘enormously beneficial for you in making your future decisions about patient care’ but it is not about care of the patient whose information is being accessed or any identified ‘individual’. Access would be for a secondary and impermissible purpose.

Presumably QAS have had some legal advice to which I am not privy, but based on what I have been told is the information provide by QAS, the QAS position is wrong.

For related posts see:

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Church volunteer as first aider

16 October, 2023 - 14:39

Today’s correspondent asks:

If a faith-based organisation (in this case a church) agrees to pay for the training of a first aider, and that first aider agrees to act as the parish first aider for all events and services.  Does the Good Samaritan law still apply?  I understand that there is also a Duty of Care obligation to the parishioners, but I wanted to understand if the Good Sam law applies to the first aider given, they are undertaking a role on behalf of the church.  And in turn what liability the church would have in the unlikely event of litigation.  I am based in Victoria.

There is no clear answer to that, in part because these laws have never been tested.

The Wrongs Act 1958 (Vic) s 31B(1) defines a ‘good Samaritan’ as:

… an individual who provides assistance, advice or care to another person in relation to an emergency or accident in circumstances in which—

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

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

That is different to NSW that refers to ‘payment or other reward’ (see Are St John Ambulance (Victoria) volunteers ‘good samaritans’? (July 25, 2023).  I would think a member of a church is getting some ‘other reward’ for volunteering to be part of the team, but in Victoria it has to be a ‘financial reward’.  If the parish pays for the person’s first aid training that might constitute a financial reward.

As my correspondent has noted there is a duty to parishioners. If the church were in any jurisdiction other than Victoria, the Work Health and Safety Act would apply, the church, assuming it employs someone, would be a person conducting a business or undertaking and would therefore have a duty to ensure there were adequate numbers of trained first aiders (SafeWork Australia, Work Health and Safety Model Regulation, cl 42).  

Victoria has not adopted the national WHS scheme. In Victoria the Occupational Health and Safety Act 2004 (Vic) applies.  Assuming the church is an employer then it has a duty to ‘ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer’ (s 23(1)).   Unlike the Work Health and Safety model, there is no specific, general duty to provide first aid. WorkSafe Victoria however interpret the obligation to ‘provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer’ (s 21(2)(d)) as including a duty to ensure ‘appropriate first aid measures are in place, including providing first aid kits and suitably trained first aid officers for the welfare of employees’ (WorkSafe Victoria, Compliance Code: First Aid in the Workplace (1st ed, November 2021), [8]).

Given the church has an obligation to provide first aid if it could be shown that using volunteer members saved the church and thereby those members money -eg if there was a expectation to meet the costs of the church but these were reduced given the volunteers then that too may constitute a financial reward.

In that earlier post I quoted a published article that I wrote Michael Eburn, ‘Protecting volunteers?’ (2003) 18(4) Australian Journal of Emergency Management 7-11) where I said (at pp. 8-9):

United States cases on Good Samaritan legislation have held that the legislation will not apply where there is a pre-existing duty to treat a patient. The argument goes that if the purpose of the Act is to encourage people to act when they might not otherwise act, then it need not and should not apply to persons who are under a legal obligation to act in those circumstances. A person who acts when under a legal duty to act is not a ‘Good Samaritan’ intended to be protected by this sort of legislation (Velazquez v Jiminez, 798 A.2d 51, 64 (NJ, 2000); …

A person who has volunteered to be the church first aider, is under a duty to assist as the church is under a duty to provide first aid (discussed above) and it meets that duty by having these first aiders.

It could be argued therefore that the good Samaritan provisions do not apply.  And why would one want to argue that? Because an injured person would want to sue the church not the first aider. If the first aider was negligent then the church will be vicariously liable.

But what if the statute does apply? On one view there could be no vicarious liability – if the good Samaritan is not liable no one can be vicariously liable. That appears to be the intention behind the Civil Liability Act 2002 (NSW) s 3C which says:

Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort.

But there is no equivalent provision in Victoria or the other states and territories.  In Victoria it could be argued that s 31B doesn’t deny that a person or organisation that uses volunteers is not liable just because the volunteers themselves are not.  That would be consistent with s 37 that says that a ‘volunteer is not liable in any civil proceeding for anything done, or not done, in good faith by him or her in providing a service in relation to community work organised by a community organisation’ but the community organisation is. That ensures that a community organisation, like an employer, is responsible for selecting and training its volunteers and so it, like an employer, should be liable for their negligence in the performance of their duties for that organisation.

Even if the Act did apply a plaintiff would try to get around it by suing the church on the basis of its non-delegable duty to take care of its parishioners and by alleging negligence in the selection, training, and supervision of its volunteers.   If that were not the case a person who was injured by a volunteer first aider would have no recourse regardless of the level of negligence and that would not be a good or acceptable outcome.

In my view a person who volunteers to be the church first aid officer is not a good Samaritan. They are not just a bystander who happens upon an accident, they are set up and holding themselves out to perform the service that the church must provide. It is better to see them as volunteers. Whether they are a ‘good Samaritan’ or a ‘volunteer’ they are not personally liable for their good faith efforts to render assistance.  If they are a volunteer then the church remains liable in the event of negligence.  If they are ‘good Samaritans’ then it is at least arguable that the church would remain liable and any clever lawyer would frame any legal action as being against the church for its failure to ensure reasonable care was provided rather than trying to sue the first aider.

What that means is that the church, regardless of how the volunteer is classified, should assume that it would be liable in the extremely unlikely event of litigation where the allegation is that a person was injured due to the negligent provision of first aid.  I’m sure the church has public liability insurance as it no doubt carries many risks with respect to parish activities and that someone may trip and fall on the church grounds or get injured in a play group etc.  That insurance would almost certainly extend to the provision of first aid because it would form part of the church’s public liability and add zero to the total risk (but of course the question of exactly what is covered should be directed to the insurer or broker).

Conclusion

The point of the good Samaritan legislation was to encourage people to step up at an accident. It was not intended to apply to people who have agreed to take on the role of first aider. For those people the volunteer provisions apply, also ensuring that they are not liable but that the organisation for which they volunteer is.

Either way the church should assume that it would be liable – either directly or vicariously liable – for any negligent performance by a first aider who they have selected and trained. But that should not scare anyone, the risk if liability is minimal (remember no-one’s been sued for doing first aid) and is no doubt covered by existing public liability insurance arrangements.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Woman in labour refusing treatment

8 October, 2023 - 22:09

Today’s correspondent is a paramedic who raises the issue of a pregnant woman’s right to make health care decisions that may affect the unborn baby. They have in mind a situation where:

Paramedic crew are on scene with a female patient; full term waters broken and in labour. Patient is a chronic drug addict. She is refusing transport until she can secure a supply of drugs. She is agitated and non-compliant and obviously in labor. Birth is not imminent, but she is well on the way.

Q1:       Is there a duty of care to the unborn child?

Q2:       Can the mother be considered lacking in capacity of she is a; on drugs or b: hanging out for drugs and in an obsessed state of mind?

Q3:       If she is not deemed sectionable under Section 20, can the Police schedule her as she is threatening the safety and life on the unborn child?

Q4:       Can the patient be forced to go to hospital on the grounds her child will require resuscitation once it is born and the likelihood of mother calling ambulance for help after delivery low?

Q5:       Could you argue there is a lack of capacity if the mother fails to comprehend the urgency and seriousness of delivering the baby unassisted?

It is critical in this story that we’re told that she is refusing transport in order to secure drugs, not that she is currently affected by drugs.

In Collins v Wilcock [1984] 3 All ER 374 Lord Goff said ‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery…’ It is the patient’s consent that converts what would otherwise be a battery into lawful touching. That doesn’t change just because the person is a pregnant woman whether she is 2 weeks or 40 weeks pregnant.

Q1:       Is there a duty of care to the unborn child?

A child is not a person in the eyes of the law until it has been born.  In R v Hutty [1953] VR 338 Barry J said:

… legally a person is not in being until he or she is fully born in a living state. A baby is fully and completely born when it is delivered from the body of its mother and it has a separate and independent existence in the sense that it does not derive its power of living from its mother. It is not material that the child may still be attached to the mother by the umbilical cord; that does not prevent it from having a separate existence. But it is required … that the child should have an existence sperate from and independent of its mother, and that occurs when the child is fully extruded from its mother’s body and is living by virtue of the functioning of its own organs.

In Opbroek by her next friend Crittall v Australian Capital Territory [2016] ACTSC 64 Mossop AsJ said (at [27]):

In Watt v Rama [1972] VicRp 40; [1972] VR 353 (Watt), a Full Court of the Supreme Court of Victoria held that a plaintiff, who at and after birth suffered injuries caused by the negligent driving of the defendant prior to the plaintiff’s birth, had a cause of action in negligence against the defendant in respect of those injuries. That decision resolved some uncertainty about the state of the law in Australia and has been accepted since as stating the common law: X and Y (By her tutor X) v PAL (1991) 23 NSWLR 26; Lynch v Lynch (1991) 25 NSWLR 411; Ren v Mukerjee (unreported, Supreme Court of the ACT, 12 December 1996, 5-6); Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1, 146 [407]; Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52, 74 [66], 106 [176], 128 [257]; Laws of Australia [33.2.1380]. In reaching that decision, the Court rejected the submission that the defendant did not owe to the plaintiff prior to her birth any duty because she was not then a human being. The conclusion reached in Watt is the foundation for a cause of action such as that in the present case, where conduct of a defendant in relation to the pre-natal period is relied upon to give a cause of action to a child who has been born alive.

And at [30]:

The significant point about these judgments is that they emphasise that the injury upon which the plaintiff is entitled to sue is that which occurs at birth, at the point where the plaintiff suffers those injuries as a human being and not before. Any damage pre-birth is not an independent element of the cause of action but, merely an evidentiary fact relevant to the issue of causation.

It follows that there is a duty to the unborn child, but the duty is a duty not to cause injury, it is not a duty to prevent injury (Stuart v Kirkland-Veenstra [2009] HCA 15). (Whether the mother owes a duty to her unborn child is more problematic (see Anna Walsh ‘Can there be a positive maternal duty of care to the unborn in Australia?’ (2009) 95 Precedent 35-38 and Christina Do and Jackie Mapulanga-Hulston ‘The Ethical and Legal Conundrum: Should a Mother Owe a Duty of Care to her Unborn Child?’ Curtin University) but we need not address that here as the question we’re addressing is the paramedic’s duty.)

If the paramedic does owe a duty to the unborn child, it is a duty to do what is reasonable in all the circumstances which must include reference to the paramedic’s authority and the mother’s right to choose.  The paramedic’s duty may be a duty to warn the mother if, in the paramedic’s opinion, the clinical indications are that the mother or baby are at risk and need transport to hospital or that taking drugs at this stage poses a risk to the baby. But the duty cannot be a duty to take the mother into custody or otherwise apply force to her.  In another context French CJ said ‘The case for a duty of care depended upon the existence of the power to apprehend. That power did not exist in this case’ (Stuart v Kirkland-Veenstra [2009] HCA 15, [5]). In that case Victoria Police could not have had a duty to detain Mr Veenstra because they had no power to detain him.

A lawful power to do something may give rise to a duty to exercise that power. A duty of care on the other hand, does not give rise to a power or authority to do something and in particular it does not allow someone to do something that would otherwise be illegal such as assaulting someone (see Publication on detaining patients in the ED (August 29, 2023); No power to detain a patient just because it’s good for them (January 22, 2023) and Relying on the concept of ‘duty of care’ to impose treatment on the unwilling (September 30, 2020)).

For all practical purposes, particularly in the context of this question, we can say that there is no duty to the unborn child. There is certainly no duty that could justify treating the woman without her consent or forcing her to go to hospital.

Q2:       Can the mother be considered lacking in capacity of she is a; on drugs or b: hanging out for drugs and in an obsessed state of mind?

Whether a person lacks capacity or not is a question of fact.  It is not a conclusion or axiomatic consequence of a particular situation. The mother is competent if she:

… is able to:

  • Understand the information relevant to the decision and the effect of the decision; and
  • Retain that information to the extent necessary to make the decision; and
  • Use or weigh that information as part of the process of making the decision; and
  • Communicate the decision, including by speech, gesture or other means.

A person is presumed to have decision-making capacity unless there is reasonable evidence to the contrary… (Kelly, A.-M., Eburn, M., Cockburn, T. and Senthi, A. (2023), Review article: Detaining patients against their will: Can duty of care be used to justify detention and restraint in emergency departments? Emergency Medicine Australasia https://doi.org/10.1111/1742-6723.14299).

Just because she is a drug user or ‘hanging out for drugs’ does not mean that she is not competent.  A paramedic would have to ask the questions they normally ask and do the assessment they normally do to determine if the patient is competent. A patient may well understand the advice that she should go to hospital and not take drugs, but she better than the paramedics may also understand her need for drugs.

She may or may not be competent, her competence may or may not be affected by drugs or her need for drugs but it is not axiomatic and you cannot just assume a lack of competence simply because the patient has taken drugs or is ‘hanging out’ for drugs.

An ethical, professional paramedic has to assess their patient’s competence without judging their decision either to refuse treatment or take drugs.  The paramedic is there to treat this patient and to assess this patient’s competence. Greater care needs to be taken to assess competence where the paramedic thinks the patient is making, or has made, a poor choice to avoid substituting the paramedic’s decision for the patient’s.

Q3:       If she is not deemed sectionable under Section 20, can the Police schedule her as she is threatening the safety and life on the unborn child?

Section 20 of the Mental Health Act 1987 (NSW) provides that an ambulance officer who believes a person is mentally ill or mentally disordered may take that person to a declared mental health facility to be dealt with in accordance with the Act.  First it does not seem that in this case the paramedics want the person to be dealt with under the Act (save that if she is detained as an involuntary patient, a doctor may consent to any necessary surgical procedure (s 99) but there is nothing to suggest that a childbirth necessarily requires emergency surgery). 

In any event to be mentally ill a person must be suffering from a mental illness (s 14) that is

… a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms–

(a) delusions,

(b) hallucinations,

(c) serious disorder of thought form,

(d) a severe disturbance of mood,

(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d).

A person is not to be taken to mentally ill or mentally disordered just because they have taken any alcohol or other drugs (s 16).  Just because a person is a drug addict refusing medical care does not mean they are mentally ill.

A person is mentally disordered (s 15) if their:

… behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary–

(a) for the person’s own protection from serious physical harm, or

(b) for the protection of others from serious physical harm.

Demanding drugs by a drug addict may not be irrational. Wanting to take her into care for the baby’s benefit does not fit s 15(b) as the baby is not yet born and not therefore a separate person.

I agree that on the scenario given the person could not be ‘taken’ into care under s 20.

So, can the Police schedule her as she is threatening the safety and life on the unborn child? The police power is in s 22. It says

A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility…

Again on the story given you would not assume that the person is either mentally ill or mentally disturbed in which case the police have no power to ‘schedule’ her any more than the paramedics do.

Police cannot, generally, take someone into ‘protective custody’ whether it is for the person or some other person’s benefit.   Police can take an intoxicated person found in a public place into protective custody (Law Enforcement (Powers and Responsibilities Act) 2002 (NSW) s 206)) but on the story we’re given the patient is not intoxicated even if she wants to be.  And if she’s in her own home she’s not in a public place.

No, If she is not ‘sectionable’ under Section 20, the Police cannot schedule her just because she is threatening the safety and life on the unborn child.

Q4:       Can the patient be forced to go to hospital on the grounds her child will require resuscitation once it is born and the likelihood of mother calling ambulance for help after delivery low?

We’re not told why the woman should go to hospital – Birth is not imminent, but she is well on the way. Women have been giving birth forever.  They can refuse care for any reason or for no reason.

A patient cannot be ‘forced to go to hospital on the grounds her child will require resuscitation once it is born and the likelihood of mother calling ambulance for help after delivery low’.

Q5:       Could you argue there is a lack of capacity if the mother fails to comprehend the urgency and seriousness of delivering the baby unassisted?

The test for competency was given in answer to q. 2 above. To be competent she must be able to ‘Understand the information relevant to the decision and the effect of the decision’ and be able to ‘Use or weigh that information as part of the process of making the decision’.  She doesn’t have to come to the decision the paramedics think is a reasonable decision.  She doesn’t even have to use or weight the information, the issue is whether she can do those things, not whether she did (see PBU & NJE v Mental Health Tribunal [2018] VSC 564 discussed in the post Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018) where I said:

The appropriate test for capacity, both at common law and under the Victorian legislation, is a functional test, that is the question is ‘whether, at the time the decision had to be made, the person could understand its nature and effects’.  It is not an outcome test that is whether it is a good or wise decision.

The given facts beg the question of ‘what is the urgency and seriousness of is delivering the baby unassisted as many healthy babies have been born that way?’  It may be that the mother’s drug use means the baby will be at greater risk of being born in poor condition but is that, at this stage, an emergency? 

And the patient is not unassisted, paramedics – registered health professionals are there – if the patient doesn’t want transport to hospital what’s to stop the paramedics staying and assisting with the delivery?  Paramedics owe a duty of care to their patient and the duty is not ‘take it or leave it’. Today paramedics are more than just stretcher bearers whose only tool in the toolbox was to drive the patient to hospital.  The duty a paramedic owes their patient is a duty to act reasonably in all the circumstances and that can, and we know at times must, mean helping women to deliver their babies.  Is it reasonable in this case to stay with the patient?

A counterpoint

Imagine the same scenario but the woman is not a drug addict. No-one would suggest a women in labour could be forced by paramedics to go to hospital if she did not want to no matter how much the paramedics thought she should.  That is what respect for patient autonomy is all about.

In PBU & NJE v Mental Health Tribunal [2018] VSC 564, Justice Bell quoted both Sidaway v Board of Governors of Bethlem Royal Hospital [1985] AC 871 where Lord Templeman said:

Where the patient’s health and future are at stake, the patient must make the final decision. The patient is free to decide whether or not to submit to treatment recommended by the doctor… if the doctor making a balanced judgment advises the patient to submit to the operation, the patient is entitled to reject the advice for reasons which are rational, or irrational, or for no reason. The duty of the doctor in these circumstances, subject to his overriding duty to have regard to the best interests of the patient, is to provide the patient with information which will enable the patient to make a balanced judgment if the patient chooses to make a balanced judgment.

And Malette v Shulman (1990) 67 DLR (4th) 321 where Robins, Catzman and Carthy JJA said:

The right of self-determination which underlies the doctrine of informed consent also obviously encompasses the right to refuse medical treatment. A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. Regardless of the doctor’s opinion, it is the patient who has the final say on whether to undergo the treatment … for this freedom to be meaningful, people must have the right to make choices that accord with their own values regardless of how unwise or foolish those choices may appear to others …

In her article ‘Can there be a positive maternal duty of care to the unborn in Australia?’ Anna Walsh says:

In the case of In re F (in utero), the English Court of Appeal was required to determine whether a foetus could be made a ward of the state on the grounds that the behaviour of the pregnant woman was endangering the foetus. The pregnant woman was mentally disturbed and led a nomadic existence and local authorities held fears for the safety of the child once born and wanted her found and admitted to a hospital. She was 36 years old and had another child, aged 10, who had been made a ward of the state. The court held that as a foetus at whatever stage of development has no existence independent of its mother, the court cannot exercise its rights, powers and duties of a parent over the foetus without controlling the actions of the pregnant woman. Accordingly, the court could not extend its jurisdiction over minors to a jurisdiction over a mother for the protection of the unborn child, which had no legal rights for existence.

The fact that a person is pregnant does not mean they are not competent and that they cannot make decisions about their own health care regardless of the impact it may have on their unborn child. If the courts cannot compel a woman to undergo treatment or exercise a protective jurisdiction over the unborn, neither can a paramedic.

Conclusion

The fact that a person is both pregnant and a drug addict does not mean they are not competent.  If they are competent and not mentally ill they can refuse care no matter how much the treating health care practitioners think that is a poor choice. The answers to the questions are:

Q1:       Is there a duty of care to the unborn child?

Yes but it is a duty not to cause harm, not a duty to prevent harm. The duty also has to be understood as the duty to do what one can reasonably do. One cannot do what one has no authority or power to do. There is no duty to act illegally or to force care upon the mother for the baby’s benefit as that would conflict with the duties owed to the mother.

Q2:       Can the mother be considered lacking in capacity of she is a; on drugs or b: hanging out for drugs and in an obsessed state of mind?

No. She may be lacking capacity but that cannot be inferred by her status as a drug user. That has to be assessed as it does with every patient.

Q3:       If she is not deemed sectionable under Section 20, can the Police schedule her as she is threatening the safety and life on the unborn child?

No.

Q4:       Can the patient be forced to go to hospital on the grounds her child will require resuscitation once it is born and the likelihood of mother calling ambulance for help after delivery low?

No.

Q5:       Could you argue there is a lack of capacity if the mother fails to comprehend the urgency and seriousness of delivering the baby unassisted?

The answer is the same as the answer to q. 2. Capacity has to be assessed in each case.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Who is a ‘firefighter’ for the purposes of presumptive workers compensation legislation?

8 October, 2023 - 12:49

In a recent post I discussed why an employee may, or may not, want to be classified as a ‘firefighter’ (see RFS Operational officer deemed firefighter v2 (September 25, 2023)).  The issue arose again, but in a different context, in Chiswell and Australian Capital Territory (Compensation) [2023] AATA 3101 (29 September 2023) (O’Donovan SM).

In most if not all jurisdictions, there is a presumptive workers compensation legislation that applies to firefighters. This legislation provides that where a person has provided qualifying service and then develop certain cancers, the worker will not need to get expert evidence to show that their service contributed to their cancer. The link between the cancer and their service is presumed and they are then entitled to workers compensation insurance.  In Chiswell’s case the issue was whether Mr Chiswell had provided the necessary qualifying service.

Mr Chiswell commenced as a firefighter in 1990. By 2002 he was no longer involved in direct firefighting as he now worked fulltime in the Communications Centre. He retired in 2018 and was diagnosed with a cancer in 2021 ([2]). To benefit from the statutory presumption, he had to demonstrate 15 years’ service as a firefighter.

The Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) s 8(a) says ‘an employee is taken to have been employed as a firefighter if firefighting duties made up a substantial portion of his or her duties’.  Senior Member O’Donovan said (at [8]):

At the hearing in January 2023 it became clear that because the applicant’s period of service as an active firefighter fell short of the 15-year qualifying period, it was necessary to determine whether his time spent performing duties in Comcen, in a position classified as a firefighter, but not attending fires, counted towards the qualifying period…

Comcare, the Commonwealth and ACT workers compensation insurer argued Mr Chiswell was not a ‘firefighter’ (as defined by s 8(a)) for 15 years so did not benefit from the presumption. Mr Chiswell argued that throughout his career his positions had all been designated as ‘firefighter’ or ‘senior firefighter’ ([2]) and he was therefore entitled to the benefit of the presumption.  At [9]-[11] the Tribunal said

The parties advanced two very different approaches to the provisions. The applicant advances a straightforward reading of the text of the provision. The respondent on the other hand seeks to emphasise the context of the provision as a better guide to Parliament’s intention and a proper understanding of the provisions. Each approach is orthodox in its own way, but a purposive approach which takes account of context is essential to the correct analysis of a statute.

The applicant contends that he satisfies the requirements of subsection 7(8) under either the pre- or post-December 2022 version of the provisions. The argument is simple. He was employed as a firefighter and retained that classification until he was medically retired in 2018. His total period of employment as a firefighter was approximately 30 years. He was exposed to the hazards of a fire scene during that 30-year period…

The respondent’s position is that the term ‘firefighter’ should be given its ordinary meaning which refers to ‘a person whose task is to extinguish fires’. The respondent rejects the position advanced by the applicant that a person employed by the Fire Service who holds the classification of a firefighter is thereby ‘employed as a firefighter’ for the purposes of the SRC Act…

The Tribunal, to understand the relevant sections, looked at the information considered by Parliament when deciding to make the law. The Senate Committee’s report on the Safety, Rehabilitation and Compensation Amendment (Fair Protection for Firefighters) Bill 2011 said (at [61] of the judgement; emphasis added by the Tribunal):

The committee heard that the proposed legislation draws a line around firefighters AND those engaged in firefighting activities. Coverage would not expend (sic) to other officers—such as mechanics or clerical officers—employed by the fire services.

Senior Member O’Donovan said (at [62])

These passages indicate that subsection 7(8)’s objective was to provide protection to the class of employees who are firefighters, rather than to a subset of persons engaged in firefighting activities who can demonstrate accumulated exposure. The fact that the Committee identified two classes of person to be protected – ‘firefighters’ and ‘those engaged in firefighting activities’ – indicates that the Committee understood that not every person who is employed as a ‘firefighter’ actually fights fires. Armed with that understanding of the Bill’s purpose, it is difficult to read the phrase ‘employed as a firefighter’ as a phrase which only encompasses a subclass of people who actually fight fires.

And (at [64]):

Consequently, I am satisfied that the applicant was, while working in Comcen, ‘employed as a firefighter’. To read the provision down as referring only to persons who actually fight fires would impose an evidential burden on the applicant which the provisions were designed to avoid.

Another second requirement was that Mr Chiswell had to prove that he ‘was exposed to the hazards of a fire scene during that period’ (s 7(8)(c)).  Mr Chiswell argued that having attended a single fire would be sufficient. The tribunal disagreed saying (at [73]-[76]):

… First, attendance at a fire is not necessary – only exposure to hazards that are have a fire scene as their source. Exposure to these, even in other contexts such as at the fire station, are sufficient to meet the threshold.

Being exposed to hazards which have their origin at fire scenes ‘during’ the 15 year qualifying period is what is required. In this context I am satisfied that the word ‘during’ is closer in meaning to ‘throughout’ than it is to ‘at some point’, although either interpretation is open on the text. I am satisfied that the Parliament intended that this paragraph impose a meaningful threshold for exposure. A single exposure threshold would not be consistent with the Committee’s acceptance that it is cumulative exposure to toxins which is the source of the risk to firefighters.

In the applicant’s case, I am satisfied that he was exposed to the hazards of a fire scene during the qualifying period. When he was an active firefighter he was exposed to those hazards by his attendance at active fires and when he was working at Comcen he was exposed to those hazards when active firefighters came in wearing uncleaned personal protective equipment. On this basis I am satisfied that the applicant’s employment at Comcen meets the threshold specified in subsection 7(8)(c).

The Tribunal determined that Mr Chiswell was entitled to the presumption and the decision by Comcare to deny him compensation for his cancer was set aside.  The presumption is ‘rebuttable’ so the Tribunal could not order Comcare to pay compensation but it could order Comcare to make a decision on the basis the presumption did apply.  It is still open to ‘the respondent to consider whether it wishes to obtain medical and other evidence relating to whether the presumption is capable of rebuttal’ ([88]).

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Protective Services Officer’s inability to respond under lights and siren

8 October, 2023 - 11:56

Today’s correspondent works

… as a Protective Service Officer (PSO) in the Australian Federal Police (AFP). We are tasked with protecting establishments such as Parliament House, the Prime Minister’s residence, certain Defence bases, foreign embassies, etc.

To most civilians, we look the exact the same as state police. We wear almost identical uniforms and drive cars that say ‘police’ on the side with red and blue flashing lights. However, we have very different powers, including the fact that we are not trained or authorised for urgent duty driving (UDD). This means that if we are called to a priority 1 job, we are not allowed to drive under lights and sirens and are not allowed to exceed the speed limit, go through red lights, etc. This severely limits our ability to respond in a timely manner. We are told that the only time we can activate our red and blue lights is particular situations such as if we are stopped, on scene at a vehicle crash, part of a nuclear convoy to ANSTO, etc.

The Vienna Convention on Diplomatic Relations of 1961 art 22(2) says ‘The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.’

My question is, would it be considered that the AFP and therefore the Australian government are taking ‘all appropriate steps to protect the premises of the mission’ given that the officers whose sole role it is to protect these establishments are not provided the training and authorisation to respond UDD? This is a particular problem in major cities where heavy traffic can severely impact response times for us, whereas state police can respond to the same job several times quicker.

I would argue that the AFP is not taking all appropriate steps, given that Federal Agents, Airport Police and ACT Police all receive this internal training and are authorised. The whole situation is made more confusing because more and more PSOs now carry military-style rifles as part of routine patrols. This would indicate a heightened threat environment, yet if we’re carrying a rifle and receive a call for an active shooter, we technically have to drive normally to the scene.

The Vienna Convention on Diplomatic Relations of 1961 forms part of Australian law.  The ‘receiving state’ is ‘Australia and, where the context so permits, … every State of the Commonwealth and every Territory’ (Diplomatic Privileges and Immunities Act 1967 (Cth) s 7).

The question we have to consider is how could the question arise?  Assume an embassy is attacked and that country wants to take some sort of legal action – under either Australian or international law – and argue that Australia did not take ‘all appropriate steps to protect the premises of the mission’ on the basis that the response by the AFP Protective Services was held up in traffic? 

Just putting it like that I think shows why it would be an impossible argument. What is ‘appropriate’ has to take account local laws, local arrangements. The Protective services staff are not the only way Australia would seek to protect an embassy. If an embassy was attacked state and federal police and in extreme circumstances, the Australian Defence Force (Defence Act 1903 (Cth) s 33(1)(a)(i)), could all be used to defend and recover the embassy.

There are many things that could be done but are not done, but in the event of an attack one would say – that would have stopped it.  We could have sandbags around each embassy, a tank on the street, snipers on the roof and surrounding buildings.  Helicopter gunships on constant patrol over the embassy sector in Canberra etc.  If someone does attack an embassy one could argue ‘if that had been in place, that attack would not have occurred’ but that does not mean those sorts of measures would be ‘appropriate’ or that something less was not appropriate given the threat assessment.

The argument that in any particular case the fail to allow PSOs to drive on urgent duty would be akin to arguing that they failed to put a better ambulance at the bottom of the cliff, rather than a fence at the top. ‘Appropriate steps’ to protect the embassy includes the work of ASIO/ASIS, the Departments of Foreign Affairs and Trade, Defence and Home Affairs as well as the regular work of federal and state police forces. The aim is to prevent rather than respond to an attack. Once the attack has been launched all that work has failed. The argument about failure to take ‘appropriate steps’ would look at the fence – what the intelligence community knew or failed to discover much more than whether a PSO was able to get there in 5 or 8 minutes.  And it would have to be shown that in any particular response the PSO would have got there before the first police got there and that their arrival – a minute or two earlier – would have made a significant difference.

It is an issue that’s been discussed in other contexts and begs the question ‘how much difference does it make to response time to drive with lights and sirens?’  Certainly, we don’t want an emergency vehicle to wait for a full sequence of traffic lights but drivers do have to drive with reasonable care which means not driving at a speed or manner dangerous to the community. And if the PSO officers aren’t at the embassy, but have to get there, the police will also be responding.

Conclusion

There is no chance any court or tribunal would hold that not allowing protective service officers to drive on urgent duty meant the Commonwealth was not taking ‘all appropriate steps to protect the premises of the mission against any intrusion or damage’.  The assessment of the appropriate steps would look at the entire range of steps including intelligence gathering and the role of all the responders including the AFP, state and territory police and the ADF.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Scope of practice pending formal training

30 September, 2023 - 19:55

Today’s question revisits the issue of a conflict between an employer’s directions and an employee’s skills – see https://australianemergencylaw.com/?s=volunteer+scope+of+practice –  but this question has a twist. Today’s correspondent is:

… a paramedic practicing in a remote area of NSW.

Recently, NSW Ambulance have increased the scope of practice of paramedics to include Needle Thoracocentesis, CPAP and the application of PEEP to ventilation; all skills that may be lifesaving, and further are within the scope of practice of equivalent paramedics in all other states.

Both ambulance unions currently are opposing the skills upgrade, and as part of this action, NSWA educators are refusing to teach the new skills, leaving paramedics who want to take part in the upgrade unable to learn them.

At my station, our nearest ICP backup is approximately 300km away; and obviously unavailable to us. Additionally, aeromedical assets are generally a minimum 2hrs from us.

As such, all of us are very passionate to learn and utilise these skills regardless of the current industrial issues, as their lack of availability in the past has contributed to patient deaths in our area multiple times recently.

We are all very familiar with the skills through our own research as registered professionals, prior university studies and practice with the equipment on station and are satisfied we understand the indications/contraindications for each and would be capable of performing them. Because of this, we have stocked the vehicles with the new equipment “just in case”.

My questions are the following:

1.         If we were to utilise these skills, and an adverse outcome occurred that was related to the procedure (e.g, inadvertent misplacement of a decompression needle), could we be held liable as individual practitioners, or otherwise would ambulance have grounds for terminating our employment based on a skill they have not yet trained us in formally?

2.         Alternatively, if we withheld the skills and a patient had an adverse outcome, could we and/or the service be held liable?

The answers to these questions, and to so many others, is ‘it depends on all the circumstances’.

Question 1 Employee’s duty

First an employee is required to obey the reasonable directions of an employer. The employer is required to ensure people are trained and competent in the skills required to do their job and, quite rightly, can insist on a person meeting a training requirement before being endorsed with a particular scope of practice. The starting point has to be therefore, if you haven’t been trained and ‘signed off’ on these skills, you should not be using them and if you do, depending on all the circumstances, your employer may have grounds to dismiss you.

Liability- breach

Second, whether there is ‘liability’ depends on a number of factors, in particular duty, breach and damage. That a paramedic owes a duty of care to their patient goes without saying. As for ‘breach’ that means a paramedic did not act reasonably in the circumstances. Where the circumstances are the patient is facing imminent death, the paramedic is ‘very familiar with the skills … and are satisfied we understand the indications/contraindications for each and [are] capable of performing them’ then there may be no breach even if the procedure is not effective.  Whether your licensed or not does not prove negligence. An unlicensed driver may be very competent; a licensed driver may be a threat to all other road users and who has the licence does not prove who was at fault at the accident. So just because you have not been signed off does not mean you are not competent.

It may be reasonable to try and sometimes some adverse events are risks ‘inherent’ in the procedure, ie even with the best care they can still happen, or it may be that there is a risk of error – say ‘inadvertent misplacement of a decompression needle’ but the risk is worth running taking into account the alternative (ie death).  It may be that to have a go is not unreasonable.

On the other hand if there is a less than optimal performance, and the plaintiff can prove damage, then yes, the paramedic could be liable but that would depend on whether there was damage and the issue of vicarious liability.

Damage

Damage requires proof that the person is worse off as a result of the paramedic’s conduct. If the option is ‘do nothing and the patient dies or do something’. If the ‘something’ doesn’t work the patient still dies so no harm is done. If the something saves their life, even if it is imperfect, the patient has not suffered harm (but see below for some further nuance on that point).  At least in the context here whether the patient dies or not, it is hard to see how the paramedic has caused any loss or damage so there can be no liability.

Vicarious liability

If the patient was going to survive anyway so it can be said that the patient is worse off then there could be liability, but who that falls to would also depend. First the plaintiff wants to sue someone with money so the better target is NSWAS. They will be vicariously liable even if their employee does an authorised act in an unauthorised way. Here paramedics are employed to provide care to their patient. It would turn on whether they are employed solely to provide care as directed or a more general – do the best they can for the patient. Remember in the inquiry into the death of Allison Hume ([2011] FAI 51; see Legal confusion leads to unnecessary death (December 8, 2011)):

[The Incident Controller] in particular, considered that the rescue operation was “a success”. In his view he had adhered to the policies and procedures set out by Strathclyde Fire and Rescue Service. He had obtempered to the letter the instruction contained within the Memoranda from Strathclyde Fire and Rescue Service of the 14 and 27 March 2008. There had been no casualties other than the one to whom the Service was called upon to rescue.

Unfortunately this was not a successful operation: a woman died who had … survivable though life threatening injuries…

Would you, or your Incident Controller, or the patient, or their family, think your operation was a ‘success’ because you ‘adhered to the policies and procedures’ even though a person ‘died who had … survivable though life threatening injuries…’?  Or is it a success to think ‘this person is going to die if I do nothing, there is something I can try, it’s this or its nothing, I’ll give it a go’?  Do we want paramedics to exercise clinical judgement (see High Court overturns finding of negligence against Queensland paramedic (August 13, 2020)) or as the Sheriff in the matter of Allison Hume said rescuers who are willing and able to use ‘some imagination, flexibility, and adaptability’.  The issue of vicarious liability would therefore turn on what the ambulance service expects of its staff and what success looks like.  I imagine the ambulance service wants it staff to only use the skills they are trained and ‘signed off’ on but a modern paramedic’s skills are not just technical, they are about judgment and acting in the patient’s best interests and sometimes going outside the rules – where it is a matter of life and death – can be justified – Performing an Emergency tracheotomy (or life mimics art?) (March 11, 2018).

The twist in this question is the comment ‘we have stocked the vehicles with the new equipment “just in case”.’  Most other times when I’ve answered a similar question the scenario has been that the equipment is there.  Here however my correspondent is adding the equipment to the car ie making sure they have it not just having coincidental access to it. This may look like they are on a ‘frolic of their own’ ie setting up their own practice rather than that of their employer.

Question 2

No, the service could not be liable if you withheld the skills, and a patient had an adverse outcome.  The service doesn’t promise to provide an ICP to everyone. The service doesn’t provide a full medical retrieval team to everyone but no doubt there are some people who have died who might not have had that been available.

Could you be liable? Not for the payment of damages because you can only be expected to do your job.  Other paramedics may consider that the failure to act demonstrates a lack of skill or knowledge in the practice of a profession, but it would be hard to expect a colleague to do something they are not formally trained in or authorised to do.  Again that is different from the usual question where the correspondent says ‘I am trained and do this procedure in my ‘day job’ but I’m instructed not to do it on this overtime shift or this volunteer organisation’.

To return to the issue of damage

I said above that if the patient survives there is no harm done. That is true in this context but may not be in all contexts. Where a patient has indicated they refuse treatment, eg they don’t want to be resuscitated because the very thing they don’t want is to end up in a residential aged care facility with permanent hypoxic brain damage. You resuscitate them knowing that they had refused treatment and they end up in the very position they wanted to avoid, then they may well be able to show real damage (see also Malette v Shulman (1990) 67 DLR (4th) 321; doctor sued for administering blood contrary to patient’s known wishes even though it saved her life). But that arises in the context of the tort of battery, not negligence which we are discussing here. I raise it just to make the point that there could be damage even if the patient survives but as I say, not in the context of this discussion.

Conclusion

As I have noted today’s questions varies from the ‘usual’.  Usually, the scenario is the person is trained in a procedure but on this particular shift/job they have been instructed not to use those skills even though the equipment is to hand. In this scenario the paramedic has not been formally ‘signed off’ by anyone and they are loading the equipment themselves.

The answers to the question are:

Question 1: Yes, if they ‘were to utilise these skills, and an adverse outcome occurred that was related to the procedure’ then they ‘could be held liable as individual practitioners, [and] … ambulance [might] have grounds for terminating [their] employment …’ That is not to say either of those things would happen. It would depend on all the circumstances, but it is theoretically possible.

Question 2: If you withheld the skills and a patient had an adverse outcome, neither you nor the service would be liable.  It would not be the service that killed the patient, it would be whatever their condition was.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Advice from the RFSA regarding workers compensation for RFS and SES volunteers

26 September, 2023 - 10:00

Following my post RFS Operational officer deemed firefighter v2 (September 25, 2023) I received this very helpful explanation from Greg Dezman, Policy & Governance Manager, NSW Rural Fire Service Association, which I post here with his permission:

Hi Michael

I’ve just read your v2 post on the Birkinhead matter.

You well address the fact of workers comp provisions being a complex mess. That complexity increases further when considering the interplay of various employed officers’ awards with the workers comp system. For example, clause 23.7.7 of the FRNSW Permanent Firefighters Award 2022 requires Fire & Rescue to pay an employee the difference between their workers compensation payment and their ordinary rate of pay. So any disadvantage for a FRNSW firefighter (with regard weekly benefits) has no impact on the individual – they’ll have the difference made up through their payroll. There are also specific disability provisions in the F&R Award (indeed, they have a separate Death & Disability Award). Police also have additional cover in relation to disability through government funded insurance arrangements, and I imagine there would be something similar for NSW Ambulance paramedics.

In terms of the history of some of the changes:

2012 was the first tranche of changes, when the government sought to significantly restrict benefits. It was at this time that firefighters, paramedics, police, volunteers in emergency services and a few others were exempted, retaining the more generous pre-2012 provisions. These changes reduced benefits in a number of areas for other workers:

  • stopped payment of weekly benefits beyond five years in most cases, and medical benefits more than 12 months after the end of weekly benefits;
  • made it harder to claim weekly benefits beyond 2 years;
  • reduced weekly benefits for injured workers with no work capacity;
  • created a threshold of 11% whole person impairment to receive lump sum damages for permanent impairment, and abolished lump sum payments for pain and suffering;
  • removed the ability to claim in respect of most journeys to and from work;
  • made it harder to claim for heart attacks and stroke; and
  • removed the ability of family members to claim for psychological injuries as a result of a worker’s injury/death.

2015 was when the government made some provisions more generous. However, they only did so for non-exempt workers, leaving firefighters, paramedics, police, ES volunteers etc with the older, less generous provisions in these aspects. These changes included:

  • Increases to weekly benefits;
  • Increases to lump sum payments for whole person impairment; and
  • Increases to death benefits (although this particular change did apply to some exempt workers, including firefighters, paramedics, police & ES volunteers)

The 2015 changes have created significant gaps in weekly benefits and lump sum payments for permanent impairment between workers in the general scheme and those exempt from the 2012 changes.

Weekly benefits are slightly more nuanced than in the table in your post. While for the first 26 weeks weekly benefits are 100% of pre-injury earnings, this is only for those employed under an award (and only covers 100% of base salary, not overtime and other allowances). This obviously covers all FRNSW firefighters, NSW Ambulance paramedics and police officers, but is not necessarily the case for volunteers whose regular employment is more varied. For those not employed on an award, weekly benefits in the first 26 weeks are only 80% of pre-injury earnings (although this does include regular overtime and allowances.)

The biggest discrepancy (value-wise) arising as a result of the 2015 changes is for those suffering permanent impairment, especially for volunteers who don’t have the added benefit of disability provisions in an award. For exempt workers still under the pre-2012 scheme, the maximum payment for permanent impairment is just $220,000 (plus up to $50,000 for pain and suffering, for a total of $270,000). This amount is fixed in the pre-2012 Act, and is not subject to indexation. Following the 2015 changes, the base amount of compensation at the highest level of impairment for most workers is $577,050 (plus indexation), bringing the current value of payments to a maximum of $713,660.

2022 was when funeral benefits were finally extended to volunteers, having not been among the provisions of the main workers comp legislation previously picked up by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987.

There are also other discrepancies among workers compensation coverage that are specific to volunteers, both positive and negative, but these are generally less significant than the above (although that won’t be the experience of anyone who’s personally affected by the difference.)

Hopefully that helps fill in some of the gaps you might have about how the system works. I’m not sure I can lay claim to any particular technical expertise, but happy to talk through any other issues you come across.

Greg

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Workers compensation for SES and RFS volunteers

25 September, 2023 - 19:36

Following my post RFS Operational officer deemed firefighter v2 (September 25, 2023) I received this question:

Your recent post around workers compensation payments and coverage for operational firefighters and Paramedics has sparked some considerable discussion within multiple SES Units around their entitlements.

Recently in discussions with a number of paid staff around Workers Compensation a NSW SES Deputy Zone Commander stated that “NSW SES Volunteers are covered for 100% of their weekly wage that they receive in their non-SES employment in the event that they are injured on SES duties”.

In addition, a Zone Commander stated words to the effect that “if SES Volunteers are injured assisting RFS in bush firefighting or support activities that they would also be covered the same as a NSW RFS Firefighter”. She also stated that there is “no difference between RFS and SES as we all do the same job serving our community”.

Several questions were raised by Volunteers present as to whether they were covered for 100% of their total salary package or whether there was an upper limit. The response by the paid staff member was to the effect that SES Volunteers would receive 100% of their salary package and that if Volunteers had personal injury insurance this would be “on top of workers compensation payments”.

There are a number of us that believe this information may not be a correct interpretation of the workers compensation coverage available to NSW SES Volunteers. 

I would like your comments on the compensation available to NSW SES Volunteers in the event of total impairment and ceasing work –

SES volunteers are covered by the Workers Compensation (Bush Fire, Emergency And Rescue Services) Act 1987 (NSW).  That Act sets up two funds, one for firefighters and one for emergency and rescue workers. Section 26 says:

An emergency service worker or a rescue association worker who has received an injury (and, in the case of the death of the worker, the worker’s dependants) shall be entitled to receive compensation as follows:

(b) where total or partial incapacity for work results from the injury–the weekly payments of compensation prescribed by Division 2 of Part 3 of the Principal Act,

Section 10, relating to volunteer firefighters is in the same terms so the compensation for SES volunteers is the same as compensation for RFS volunteers.

The ‘Principal Act’ is the Workers Compensation Act 1987 (NSW). Division 2 of Part 3 of deals with ‘Weekly Compensation by way of Income Support’.  In my earlier post I produced a table of weekly benefits based on my understanding of weekly benefits assuming no capacity to return to work. That table is reproduced below:

 Exempt workers – Firefighters, police, paramedics (pp. 14-15)Non-exempt workers (p. 11)First 13 weeks100% of their pre-injury average weekly earnings or $2,423.50 whichever is the lower.95% of their pre-injury average weekly earnings or $2,423.60 whichever is the lowerSecond 13 weeks100% of their pre-injury average weekly earnings or $2,423.50 whichever is the lower80% of their pre-injury average weekly earnings or $2,423.60 whichever is the lowerThereafter90% of their pre-injury average weekly earnings or $570 per week, whichever is the lower80% of their pre-injury average weekly earnings or $2,423.60 per week, whichever is the lower, for up to 130 weeks

The question is whether SES volunteers are exempt workers given they are not ‘firefighters, police [or] paramedics’.  Schedule 6, cl 19H has ‘Provisions consequent on enactment of Workers Compensation Legislation Amendment Act 2012’ says that the 2012 changes to the ‘benefits amendments’ do not apply to claims made under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (cl 19H(4)). Clause 25 says ‘The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter…’ Recognising that this law is ridiculously complex it appears that SES volunteers are treated like police, firefighters and paramedics. This is confirmed by the State Insurance Regulatory Authority Workers compensation benefits guide – October 2023 p. 14 and following.

If that is correct their weekly benefits would be 100% of their pre-injury income or $2423.50 (whichever is the lower) for 26 weeks and then 90% of their pre-injury income or $570 (whichever is the lower) per week thereafter. No worker is guaranteed 100% of their pre-injury income under workers compensation and SES volunteers are no different.

It’s not the SES’s fault

This is not a policy choice of the SES. This is the effect of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) and the Workers Compensation Act 1987 (NSW).  The SES don’t decide what the benefits are; the insurance scheme is run by icare and icare applies the law.  I would also suggest that paid staff telling volunteers that they would receive 100% of their salary package reflects that they don’t know the answer rather than any intent to deceive.  As the discussion on this blog show, this area of law is ridiculously complex and hard to find. I’m sure they’re told ‘volunteers are covered by workers compensation’ and that is true; but workers compensation is designed to under-compensate.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

RFS Operational officer deemed firefighter v2

25 September, 2023 - 14:22

In my post Death benefits are the same for employed and volunteer firefighters in NSW (September 30, 2022) I said:

The Workers Compensation Act 1987 (NSW) has been constantly amended but the amendments do not always apply to all workers. In particular police, firefighters and paramedics have been exempt from changes made in 2012 and 2015 (at least). That means there are multiple versions of the Act in force at the same time. Trying to chase down every amendment and which one applies (or doesn’t) is a convoluted and complex problem…

The 2015 changes to workers compensation law were designed to make workers compensation less generous – less compensatory – and harder to get. Due to political pressure, police, firefighters and paramedics were exempted from those changes but that has led to litigation where people want to argue that they are or should be classed as a police officer, firefighter or paramedic in order to get the more generous benefits.  See:

The issue arose again in the case of Birkinhead v NSW Rural Fire Service [2023] NSWPIC 419 but in a way that has taken me by surprise. 

Why post v2?

This is in fact my second post in this case because, in the first, I made a first-year law student error and failed to properly identify who was the applicant and who was the respondent. In any event after publishing the first version of the post I was contacted and told I’d made an error, in this case applicant was Ms Birkinhead. She argued that she was not a firefighter and her benefits should be calculated based on the post 2012 law. This surprised me because the point of exempting firefighters, police and paramedics from the changes in 2012 and 2015 was to give them the benefit of more generous provisions. The issue, I discovered, arose because of the payment of weekly compensation benefits.

The State Insurance Regulatory Authority publishes an updated Workers Compensation Benefits Guide twice a year. The current version is dated October 2023.  It explains the difference which I have summarised in the table below:

Weekly benefits assuming no capacity to return to work:

 Exempt workers – Firefighters, police, paramedics (pp. 14-15)Non-exempt workers (p. 11)First 13 weeks100% of their pre-injury average weekly earnings95% of their pre-injury average weekly earningsSecond 13 weeks100% of their pre-injury average weekly earnings80% of their pre-injury average weekly earningsThereafter90% of their pre-injury average weekly earnings80% of their pre-injury average weekly earnings for up to 130 weeks

That looks like a benefit for the exempt workers; but the devil is in the detail. A worker gets the lower of the amount in the table or a prescribed statutory maximum.  The statutory maximum is indexed twice a year to take into account inflation.  One would think the statutory maximum would be the same for both; but it’s not. For an exempt worker the maximum weekly compensation benefit after 26 weeks is $570 (p. 21).  For a non-exempt worker the maximum weekly benefit is $2,423.60 (p. 12).

That means my table should read:

Weekly benefits assuming no capacity to return to work:

 Exempt workers – Firefighters, police, paramedics (pp. 14-15)Non-exempt workers (p. 11)First 13 weeks100% of their pre-injury average weekly earnings or $2,423.50 whichever is the lower.95% of their pre-injury average weekly earnings or $2,423.60 whichever is the lowerSecond 13 weeks100% of their pre-injury average weekly earnings or $2,423.50 whichever is the lower80% of their pre-injury average weekly earnings or $2,423.60 whichever is the lowerThereafter90% of their pre-injury average weekly earnings or $570 per week, whichever is the lower80% of their pre-injury average weekly earnings or $2,423.60 per week, whichever is the lower, for up to 130 weeks

If you’re an exempt working earning more than $712.50 per week, you’re better off under the post 2012 provisions!

This comes as a complete surprise to me, and I wouldn’t be surprised if it also came as a surprise to the politicians and the government – see Death benefits are the same for employed and volunteer firefighters in NSW (September 30, 2022).

If you are a politician (or anyone) and you want to know the law you look at the current law – the Workers Compensation Act 1987 (NSW) as last amended on 16 December 2022.  It’s very difficult to find the law as it was in 2012 and again in 2015 to create the version of the Act that applies to exempt workers – but it is not the Act that is published on the NSW Legislation website. 

The Act itself has ‘Schedule 6 Savings, transitional and other provisions’ which is meant to save the old law as it applies to exempt workers, and it has some 43 separate parts (each of which contains multiple sections).  One would have to understand them to fully understand the law that applies to an injured worker.  It is not surprising this is a field for accredited specialists. 

I have tried reaching out to some accredited specialists to see if someone wants to come onto the blog and either write a post, or join me for a recorded pod-cast to see if some light can be shed on the outrageous mess that is NSW Workers Compensation law. So far without success but I’ll keep trying.   In any event what I’ve written above has to be taken with a word of caution – it may still be wrong because of some hidden detail somewhere in the mess.  And I’d welcome comments from anyone who can shed more light onto how the system actually works.

To return to Ms Birkinhead.

Ms Birkenhead was employed by the Rural Fire Service as an operational officer. She began her RFS career as a volunteer firefighter in 2007 before being employed in 2017. Her employed role involved planning and managing the response to fires including significant deployments during the 2019-2020 summer bushfires. It was an essential requirement for her role that she hold the RFS qualification as an Advanced Firefighter ([38]). (She had also received training as crew leader community facilitator, planner and prescribed burn supervisor ([15])).

The workers compensation insurer accepted that she suffered a psychological injury ‘caused by trauma associated with working in the office, including receiving 000 calls, heavy workload, dealing with the community affected by the fires and reviewing footage of an aircraft crash in which three of her colleagues were killed’ ([5]). After 26 weeks the insurer sought to decrease her weekly benefits in accordance with the pre 2012 law.  If the analysis above is correct, the maximum weekly benefits would have been much less than the amount she actually earned.

The problem for the court (and earlier courts) was trying to define a person’s employment. In earlier cases involving paramedics their employment status as ‘’paramedics’ could readily be determined by the awards to which their employment were subject’ ([77]) but no statutory definition of ‘firefighter’ exists ([80]). The presiding member of the Personal Injuries Commission, Member Homan, said (at [83]-[84]:

In the absence of an award or applicable statutory definition, in order to determine whether a worker is designated as a ‘firefighter’ or falls within the class of workers who are firefighters it is necessary to determine whether the applicant’s activity or employment was to extinguish fires.

Even if I find the applicant is not designated or classified as a firefighter, the case law leaves open the possibility that she may yet have been a ‘firefighter’ at times when she was performing the duties of a ‘firefighter’.

Member Homan determined (at [89]) ‘that the applicant’s designated role was not that of a ‘firefighter’’; but that was not the end of the matter. Member Homan then proceeded to consider the actual tasks Ms Birkinhead was required to perform. The RFS (at [98]):

… defines firefighting duties as including an act “at or about the scene of or in connection with a fire which is necessary or, directed towards, or incidental to, the control or suppression of the fire or the prevention of the spread of the fire or any other way necessarily associated with the fire” (emphasis added). This included “…[o]ffice duty performed directly in connection with the organisation and direction of the firefighting effort”.

At [100] Member Homan said:

The applicant’s evidence is that during the 2019/20 Northern and Southern NSW fires she was performing office-based duties including taking 000 calls, doing intelligence work, preparing situation reports and planning where the fires might spread. I find that this work was:

(a)    in connection with a fire;

(b)    directed towards or incidental to the control, suppression or spread of a fire, and

(c)    performed directly in connection with the organisation and direction of the firefighting effort.

And at [102]:

Although the applicant in this case was not physically at a fire front, she performed work in connection with a fire front which was directed towards or incidental to the control, suppression or spread of the fire. … I find that whilst performing these duties the applicant was a ‘firefighter’.

Discussion

What I can say with certainty is that Ms Birkinhead was held to be a firefighter and the cae law confirms it is not just your job title, but the actual work you are required to do that determines that issue.

 What I cannot say with certainty is what that meant for her compensation benefits other than she, and her lawyers, clearly thought they were better off as a non-exempt worker.

It would be useful for NSW to have a workers compensation scheme that actually compensates injured workers rather than the current scheme that is intended to be hard to access and to under-compensate injured workers.  Carve outs for workers who managed to bring political pressure (remember fire brigade vehicles blockading outside state parliament – ‘On strike: In Australia, New South Wales firefighters & medic refused to respond for five hours. Fire trucks massed at State ParliamentSTATter 911 (June 21, 2012)) was intended to provide some relief for firefighters, paramedics and police but has led to this type of litigation and still leaves a complex and unfair workers compensation scheme. It also appears, for whatever reason that exempt workers are worse off than if they were covered by the current scheme which was clearly not the intended outcome.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Required documentation prior to transportation under the Mental Health Act 2007 (NSW)

22 September, 2023 - 10:25

Today’s question is about:

… the requirements for documentation prior to transportation under a Schedule 1 form from the Mental Health Act 2007 (NSW). Traditionally I have always required the hospital/doctor to provide a correctly completed original (top copy) of the Schedule 1 for a patient prior to loading. With the increasing occurrence of Telehealth and people being transferred under a Schedule 1 after a video assessment we are left wondering what paperwork we require and what happens if the receiving facility says that they have no record of this paperwork when we arrive?

The Mental Health Act 2007 (NSW) s 19(1) says:

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

Schedule 1 requires the examining medical practitioner to certify that:

I, [name in full—use block letters] (Medical Practitioner/accredited person) of       certify that on [date] immediately before or shortly before completing this certificate, at [state place where examination/observation took place] I personally/by audio visual link examined/personally/by audio visual link observed [name of person in full] for a period of [state length of examination/observation].

This anticipates that the doctor and the patient will not be in the same location so it will not always be possible for a transporting paramedic to get the original signed copy of the Schedule.

The Act says the person ‘may be taken to and detained’.  An ambulance officer may ‘may take to … a mental health facility … any person who is authorised by this Act to be taken … to … the facility’ (s 81).  The certificate provides that the person ‘may be taken to … a declared mental health facility’. The certificate is therefore sufficient authority to the ambulance officers to exercise their powers under s 81.

The Act itself says nothing about how the document is to be provided. Given the person may be taken to, and detained at, the mental health facility it seems reasonable that those that may be called to collect and transport the person plus the receiving facility would all want the document.  That would work if, for example, a doctor personally examined the patient, called an ambulance, handed the certificate to the paramedics who then transported the patient and handed the certificate to the receiving facility.

Where the examination has occurred by audio/visual link the doctor may want to email the certificate to the receiving facility and to the ambulance service.  Neither would have the ‘original’. 

The Evidence Act 1995 (NSW) provides that the content of documents can be proved by the production of a copy (s 48). The Evidence Act however applies in NSW courts (s 4).  That would be relevant if someone were complaining that they had been unlawfully obtained and the fact that the certificate was issued could be proved by tendering a photocopy or an emailed copy of the certificate.

The Electronic Transactions Act 2000 (NSW) s 10 provides:

If, under a law of this jurisdiction, a person is required [or permitted] to produce a document that is in the form of paper, an article or other material, that requirement is taken to have been met if the person produces, by means of an electronic communication, an electronic form of the document,

I think it is safe to accept that a faxed, photocopied, emailed or delivered via electronic messaging copy of the Schedule 1 certificate would be sufficient.

A paramedic can legally act if the certificate exists, so it also depends on the paramedic’s level of satisfaction. They may be satisfied if the doctor tells them that they have completed the certificate (it is not enough that the doctor tells them they will complete the certificate). You would not accept anyone, other than the doctor’s advice that the Schedule 1 certificate exists, and I would not think it wise to accept even that. 

If the certificate, or a copy, is not provided an ambulance officer should consider whether the criteria for action under s 20 have been met, that is do they believe ‘on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.’  If they are personally satisfied of that then they could exercise their own judgment to take the patient to the prescribed facility and the facility could then detain the person based on the ambulance officers’ assessment without the need for the doctor’s certificate – that is the patient could be detained on the basis of s 20, rather than s 19.

Conclusion

I would want to see a copy but would not insist on ‘a correctly completed original (top copy) of the Schedule 1’. A photocopy, faxed, emailed or other electronic form of the schedule should be sufficient.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Coloured flashing lights for marine rescue organisations in Queensland

21 September, 2023 - 16:20

Today’s correspondent wants to know:

Is a DCV [Domestic Commercial Vessel] operating in Queensland Waters permitted to display flashing lights of any colour, and specifically blue/red?

I understand that the Marine Safety (Domestic Commercial Vessel) National Law Act (Cth) is the authoritative document for commercial vessels, and further that in regards COLREG [Convention on the International Regulations for Preventing Collisions at Sea, 1972] matters s 6 reverts us back to State Law. There isn’t anything in the Transport Operations (Marine Safety) Act 1995 (Qld) that I can see [unlike NSW maritime law] that prohibits the display of any light other than one which could be confused with COLREG lighting requirements. Currently QPS [Queensland Police Service] and QBFP [Queensland Boating and Fisheries Patrol] have blue flashing lights. MSQ [Maritime Safety Queensland] has a one-page document saying that blue light can be used by QPS and QBFP, but from my research and prior employment it isn’t based on law.

Reason for asking is that the two volunteer marine rescue organisations will be transitioned into a single government entity under QPS. Whilst I probably wouldn’t personally support blue, perhaps magenta like our Transport Inspectors use on road under TORUM [Transport Operations (Road Use Management) Act 1995 (Qld)].

The Marine Safety (Domestic Commercial Vessel) National Law Act has been adopted as part of the law of Queensland by the Transport Operations (Marine Safety–Domestic Commercial Vessel National Law Application) Act 2016 (Qld).  A ‘domestic commercial vessel’ is ‘a vessel that is for use in connection with a commercial, governmental or research activity’.  Given that neither Marine Rescue (VMR) Queensland nor the Australian Volunteer Coast Guard (AVCG) are government operated bodies arguably their boats are not domestic commercial vessels. On the other hand, marine rescue may be considered a ‘governmental’ activity but in this case the government relies on these volunteer organisations to provide that service in which case they are domestic commercial vessels. Nothing turns on that however as the Marine Safety (Domestic Commercial Vessel) National Law does not appear to say anything relevant to the current question.

I’m not given a link to the MSQ ‘one-page document’ but my own search located ‘Flashing lights for rescue vessels’ Issued December 2017. This document says:

In line with tradition, emergency and compliance authorities Queensland Police Service (QPS), Queensland Boating and Fisheries Patrol (QBFP), Maritime Safety Queensland (MSQ), Queensland Fire and Emergency Services (QFRS) and Queensland Parks and Wildlife Service (QPWS) have adopted the use of blue flashing lights on vessels (Emergency and Compliance Vessels) when carrying out emergency, compliance, enforcement and rescue functions in Queensland waters.

I note that red/blue lights are used in NSW – see Red/blue lights on NSW SES boats (October 25, 2016).

To assist rescue vessels, that is those operated by ‘Marine rescue services, such as Volunteer Marine Rescue (VMR) Queensland, the Australian Volunteer Coast Guard (AVCG) and Airservices Australia (Aviation Rescue and Firefighting Services)’ the Department has set out ‘MSQ’s position for the display of special purpose (flashing) lights by Rescue Vessels’. They say:

The COLREGs allow a ship to exhibit such additional lights that cannot be mistaken for the lights prescribed under the COLREGs, do not impair their visibility or distinctive character, and interfere with the keeping of a proper look-out.

To enhance the visibility of all Rescue Vessels while they are taking part in marine rescue operations, a consistent display of special purpose (flashing) light is desirable.

A Rescue Vessel shall exhibit an all-round yellow light:

• flashing at regular intervals at a frequency of 90 flashes or fewer per minute;

• placed below the masthead light so as not to impair the visibility or distinctive character of any lights prescribed under the COLREGs, or interfere with the keeping of a proper look-out; and

• only when the Rescue Vessel is operating:

– in the course of search and rescue activities (which exclude non-emergency operations and transiting);

– to warn others of a maritime hazard;

– in accordance with a direction given by a compliance authority, for example, when tasked by authorities to operate at a safe speed in excess of the regulated speed limit.

In order to avoid Rescue Vessels from being confused with Emergency and Compliance Vessels, a Rescue Vessel shall only exhibit an all-round flashing yellow light as described above.

Consistent with the MSQ position statement, the Transport Operations (Marine Safety) Regulations 2016 (Qld) says that an enforcement officer may ‘operate the ship displaying lights and sounding a repeater horn or siren in addition to the lights and sound devices required for operating the ship under the collision regulations…’ (r 96(2)(b)).  There is no equivalent of r 96 that relates to the operator of a rescue vessel.

The COLREGS set out the sort of lights that must be displayed on a boat, green and red starboard and port side indicators, mast lights, lights to indicate when a ship is fishing, at anchor, limited in its ability to navigate etc. The COLREGS are incorporated into the law of Queensland by the Transport Operations (Marine Safety) Regulations 2016 (Qld) (r 79 and Schedule 9 definition of ‘collision regulations’).  

The relevant wording in the COLREGS is rule 20(b) which says:

The Rules concerning lights shall be complied with from sunset to sunrise, and during such times no other lights shall be exhibited, except such lights as cannot be mistaken for the lights specified in these Rules or do not impair their visibility or distinctive character, or interfere with the keeping of a proper look-out.

Rule 36 says:

If necessary to attract the attention of another vessel, any vessel may make light or sound signals that cannot be mistaken for any signal authorized elsewhere in these Rules…

With respect to a yellow flashing lights:

  • The Transport Operations (Marine Safety) Regulations 2016 (Qld) 80 provides that a ship that is ‘more than 20m, is capable of a speed of more than 20kn and only operates in smooth waters’ must display a ‘flashing all-round yellow light’ whilst underway.  
  • Rule 23(b) of the COLREGS says that ‘An air-cushion vessel [ie a hovercraft]when operating in the non-displacement mode shall, in addition to the lights prescribed in paragraph (a) of this Rule, exhibit an all-round flashing yellow light.’
  • COLREGS Annex 2; cl 3 says ‘Vessels engaged in fishing with purse seine gear may exhibit two yellow lights in a vertical line. These lights shall flash alternately every second and with equal light and occultation duration. These lights may be exhibited only when the vessel is hampered by its fishing gear.’
Discussion

I agree with my correspondent. The Department’s position statement is not supported by reference to authorising law.  The terms ‘Rescue Vessel’ and ‘special purpose (flashing) light’ do not appear in any of the Acts or regulations reviewed here.

The only clear statement is in the COLREGS that have been adopted into Queensland law and they allow for any light provided it cannot be confused with the lights prescribed under that law (which are generally steady and white, red, yellow or green). There may be a risk that a flashing yellow light could be confused with the yellow flashing lights required for hovercrafts and ‘Vessels engaged in fishing with purse seine gear…’ so the MSQ position statement may be an indication that MSQ will not consider the use of yellow lights by Marine Rescue organisations as a breach of the COLREGS.

Without legal authority or endorsement by MSQ, the use of coloured or flashing lights would have no meaning and other water users could not be expected to know what they mean. Presumably, given the MSQ position statement, boat users understand the yellow flashing light represents marine rescue.  If the operator of a DCV chose to display a magenta light, no-one would know what to make of it.

Conclusion

With respect to lights – other than red, green, white or yellow – it appears that indeed a ‘DCV [Domestic Commercial Vessel] operating in Queensland Waters permitted to display flashing lights of any colour’ provided they ‘cannot be mistaken for the lights specified in [the COLREGS] or do not impair their visibility or distinctive character, or interfere with the keeping of a proper look-out.’

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers