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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
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Managing HR issues within a CFA brigade

17 July, 2017 - 14:54

I originally made this post on July 14 2017.  When writing the post I was responding to a question from a volunteer with Victoria’s Country Fire Authority.  My correspondent told me that:

The brigade executive has written to all members asking them to confirm their desire to remain in the brigade.  The letter says: ‘If we do not hear from you, we may have to assume that you no longer wish to be a member of […] Fire Brigade.”   Minutes of a brigade meeting note “Leave of Absence: People not attending meetings, training etc. for a period of three months or more require approval by OM …”

I was asked to advise:

  1. Can a non-response to the letter justify an assumption that the member ‘no longer wish[es] to be a member” of the brigade or be otherwise used to remove anyone; and
  2. What right has the OM to require a volunteer to seek approval not to offer their services at any particular time?
My original answer was wrong

In my original response (that is set out at the end of this post) I concluded that ‘Subject to the terms of any specific brigade rules, the only power to cancel a person’s membership of the CFA lies with the CFA and only if a member is convicted of an offence under the CFA Regulations (not just a criminal offence).

After posting my original answer, a correspondent, Tony Knight, wrote to me and pointed out that I had missed s 23(1)(d) of the Country Fire Authority Act 1958 (Vic).  He was right; I had, and that section makes all the difference.  It means that the conclusion, above, was wrong.

Before I deal with s 23(1)(d), let me say that I have left my original answer, below, because I hope it maintains the integrity of my blog to admit when I get it wrong (see also, for example:

I also hope it encourages people: if you think I am wrong, get in touch and let me know why. With ongoing debate we’ll come to a ‘correct’ answer – see for example the discussion that followed the post Lights and sirens for St John (NSW) – amended (March 23, 2016).

I also hope it helps meet the blog’s educative purposes by showing the process of legal thinking and how small things can make a big difference.

To return to the questions asked

Can a non-response to the letter justify an assumption that the member ‘no longer wish[es] to be a member” of the brigade or be otherwise used to remove anyone[?]

The Country Fire Authority Act 1958 (Vic) s 23(1)(d) says, relevantly:

The [Country Fire] Authority may at any time and from time to time— …

(d)        … cancel … the enrolment of any officer or member of any brigade;

The section does not give, nor require, any specific grounds before the Authority takes that action.

Another correspondent wrote and said

… I do not have access to the paperwork … however I do recall internal management paperwork that laid out the process of having someone’s membership terminated. There were steps to contact the person, timeframes for letters and then the secretary applied to the authority to have them removed. A long process with a lot of steps to contract the member and allow all possible attempts to seek clarification as to why they were not attending.

Like that correspondent I, too, don’t have access to the paperwork or internal CFA policy documents but I will assume, for the argument, that the description given above is correct.  It would make sense to think that an organisation like the CFA does have a process to terminate a person’s membership if the member is not taking an active part in the work of the CFA.  No organisation wants to have members ‘on the books’ who are not effective members.

One would also expect that an organisation like the CFA would have in place processes to ensure that a member had every opportunity to respond before their membership was cancelled (but on the obligation to provide ‘natural justice’ see Natural justice in, and the jurisdiction of, the CFA (January 21, 2017) and the other posts that are referred to there).

That then brings me to the questions asked –

Can a non-response to the letter justify an assumption that the member ‘no longer wish[es] to be a member” of the brigade or be otherwise used to remove anyone;

The CFA can ‘at any time … cancel … the enrolment of any officer or member of any brigade’ and presumably for any reason. Having a letter in the terms suggested may be ‘inelegant’ – it may be better to rephrase it as asking the member to ‘show cause’ why they should not be removed or some such, but whatever wording is used is likely to offend someone.  In essence however, it seems to me that the CFA is and must be able to cancel the enrolment of a member who is not an active or efficient member.  And one has to have a process that allows that to happen even if the member cannot be contacted either because they have moved or they simply refuse to engage in correspondence with the CFA.

There could be arguments that any action, in any given case, was not properly taken, was done in bad faith or was a denial of natural justice.  Those arguments will be harder to make if indeed there is a ‘process of having someone’s membership terminated’ and that process has been followed.

It follows that my answer to question 1 is now ‘in principle, yes – but whether the particular letter issued in this case is sufficient depends on CFA internal policies and procedures which I can’t access and therefore cannot comment on’.

Question 2 was:

What right has the OM to require a volunteer to seek approval not to offer their services at any particular time?

It is still the case that the Act says that regulations may be made with respect to granting leave of absence to volunteers (Country Fire Authority Act 1958 (Vic) s 110(1)(ca)) and that no regulations have been made.

The Country Fire Authority Act 1958 (Vic) s 27 says ‘Subject to the general powers and directions of the Authority every brigade or group of brigades and all officers and members of brigades or group of brigades shall be under the order and control of the Chief Officer.’

It is axiomatic that the Authority, and brigades, need to be able to manage their response to any fire or emergency and to do that they need to know in general terms who is available. Of course it is understood that with a volunteer brigade on any given day some volunteers won’t be able to make it but if someone is going to be absent for a period the brigade, and the CFA, would have a legitimate interest in knowing that.  Further, if relying on s 27 the CFA and/or the Chief Officer has set minimum attendance and training requirements (see also Country Fire Authority Regulations 2014 (Vic) r 43) then they may require that a member is ‘excused’ if they are not going to meet those requirements. If they fail to do meet the requirements without leave, then no doubt action could be taken to cancel their membership (s 23(1)(d)).

It follows that my answer to question 2 is now ‘it depends on CFA internal policies and procedures which I can’t access. In principle however, the CFA could impose attendance and other requirements that a member must meet or risk their membership, and equally the CFA could have in place policies and procedures to allow, and require, members to seek approved leave if they are not able to meet those requirements for a period of time’.

Conclusion

My answers to the questions asked are now:

Question 1: Can a non-response to the letter justify an assumption that the member ‘no longer wish[es] to be a member” of the brigade or be otherwise used to remove anyone.

Answer 1: In principle, yes – but whether the particular letter issued in this case is sufficient depends on CFA internal policies and procedures which I can’t access and therefore cannot comment on.

Question 2: What right has the OM to require a volunteer to seek approval not to offer their services at any particular time?

Answer 2: It depends on CFA internal policies and procedures which I can’t access. In principle however, the CFA could impose attendance and other requirements that a member must meet or risk their membership, and equally the CFA could have in place policies and procedures to allow, and require, members to seek approved leave if they are not able to meet those requirements for a period of time.

My original answer

Today’s question comes from a CFA volunteer.  Unfortunately, there are issues between members of the Brigade with the result that some members are not attending meetings or training.   The brigade executive has written to all members asking them to confirm their desire to remain in the brigade.  The letter says: ‘If we do not hear from you, we may have to assume that you no longer wish to be a member of […] Fire Brigade.”   Minutes of a brigade meeting note “Leave of Absence: People not attending meetings, training etc. for a period of three months or more require approval by OM …”

My correspondent asks me to advise:

  1. Can a non-response to the letter justify an assumption that the member ‘no longer wish[es] to be a member” of the brigade or be otherwise used to remove anyone; and
  2. What right has the OM to require a volunteer to seek approval not to offer their services at any particular time?

I have confirmed that ‘OM’ means the Operations Manager who is the head of a District.  It is a paid, full time CFA staff position.

I do not want to get involved in a brigade dispute, so before answering this question I did write to my correspondent and say:

Providing advice on specific issues raises issues of my professional responsibilities, carries a professional risk and so carries a professional fee.   To avoid that, I answers questions on the public forum that is my blog. Everyone can see what I wrote and I’m not advising one side or the other.

I make no comment one way or the other on what may, or may not, be happening in the brigade in question or who is or is not ‘in the right’.  What follows is merely my analysis of the relevant legislation and not the merits of the competing claims.

The model of the CFA, as set out in the Country Fire Authority Regulations 2014 (Vic) is that a group of people form a brigade and then apply to the CFA to be registered as a brigade (r 30).   A brigade may adopt its own internal rules (r 33). If the brigade does not adopt rules, the rules set out in Schedule 2 govern the brigade’s internal management.  My correspondent has not provided me with brigade rules, and if he or she did reference to them may identify the brigade for others, so I will answer this question on the assumption that the rules set out in Schedule 2 are the relevant brigade rules.

A person is a member of a CFA brigade only if they enrolled by the CFA as a member of that brigade (r 37).  A member of a brigade ‘must comply with the training requirements determined by the Authority’ (r 43).  I am unable to determine if the CFA has published any such requirements. The Schedule 2 rules don’t provide details of minimum attendance or training.  They do provide that the ‘brigade may … appoint a management team to manage and administer the affairs of the brigade.’

In terms of discipline the regulations do provide for a number of ‘offences’.  There are procedures to investigate an allegation that a member has committed an offence.  Where an offence is proved the ultimate sanction is that the brigade can recommend to the CFA ‘that that the enrolment of the member be cancelled’ (r 45).  A member commits an offence if he or she, inter alia (r 44):

(d) commits an act of misconduct; or

(e) is negligent in the discharge of the member’s duties; or

(f) is inefficient or incompetent and the inefficiency or incompetence arises from causes within the member’s control; or

(g) is guilty of disgraceful or improper conduct.

Under the Country Fire Authority Act 1958 (Vic) s 110(1)(ca), regulations can be made ‘for the granting of  leave  of absence to volunteer officers and members of brigades’.  The issue of leave is not however mentioned in the Country Fire Authority Regulations 2014 (Vic) so it appears that no regulations have been made with respect to leave.

Discussion

Unless the Brigades rules or the CFA’s published ‘training requirements’ impose minimum attendance requirements upon a member I can’t see that not responding to a letter could imply that a member does not want to be part of the brigade.

That result is somewhat surprising. Before looking at the Act and Regulations one assumed that there had to be provisions to cancel membership of a brigade eg for non-attendance. If a person hasn’t been seen for some time one would think it is reasonable to write to them and ask them to either commit to the brigade or remove their name from membership.  One would want to have a ‘notice period’ to clear inactive names from the roll.  One couldn’t insist on an answer in case people have moved away or simply chose not to engage.  It would therefore seem reasonable to be able to say to someone – ‘we haven’t heard from you for a long time, if we don’t hear from you we will take steps to cancel your membership’.

But neither the Act nor the Regulations provide for that. It appears the only way to cancel a member’s enrolment is to make a recommendation to the CFA. It is the CFA, and not a Brigade, that determines whether a person is a member of the brigade (Country Fire Authority Act 1958 (Vic) s 23(1)(d)). And the only power to cancel a person’s enrolment arises when the member is convicted of an offence (rr 44 and 45).   Even if a member failed to ‘comply with the training requirements determined by the Authority’ (r 43) he or she could only have his or her enrolment cancelled if it was alleged that failure constituted an offence under r 44.

Further, ‘A member of a brigade who wishes to resign from the brigade must notify the secretary of the brigade in writing’ (r 40). It follows that even if the brigade management were to write and say ‘‘If we do not hear from you … we will deem this as your resignation” that would not suffice.  A resignation must be in writing from the member.

As for ‘leave’ there is nothing in the Act or Regulations to require a volunteer to seek leave.  It is clearly intended that there could be regulations on this topic, but there are none so one must infer the omission to regulate leave is intentional.  It could be done, but it hasn’t been done.

Conclusion

Remembering that it is the CFA, and not the Brigade, that determines who is a member of a brigade I can’t see how ‘a non-response to the letter justify an assumption that the member ‘no longer wish[es] to be a member” of the brigade or be otherwise used to remove anyone’.

Subject to the terms of any specific brigade rules, the only power to cancel a person’s membership of the CFA lies with the CFA and only if a member is convicted of an offence under the CFA Regulations (not just a criminal offence).  Even if failure to attend training or otherwise take part in brigade activities could amount to misconduct, negligence, inefficiency, incompetence, disgraceful or improper conduct it could not justify termination of the person’s membership until the procedures set out in rr 46-57 had been followed.  Merely writing in terms that ‘if we don’t hear from you we will infer your resignation’ will not suffice.

Whilst I can understand that the OM and Brigade management would want to know when people are available or ‘on leave’, there is not only no requirement, there is no procedure to seek or authority to grant leave.

Accordingly, my answers to the questions asked are:

Question 1: Can a non-response to the letter justify an assumption that the member ‘no longer wish[es] to be a member” of the brigade or be otherwise used to remove anyone.

Answer 1: No.

Question 2: What right has the OM to require a volunteer to seek approval not to offer their services at any particular time?

Answer 2: None.

 


Categories: Researchers

Managing HR issues within a CFA brigade

14 July, 2017 - 14:05

Today’s question comes from a CFA volunteer.  Unfortunately, there are issues between members of the Brigade with the result that some members are not attending meetings or training.   The brigade executive has written to all members asking them to confirm their desire to remain in the brigade.  The letter says: ‘If we do not hear from you, we may have to assume that you no longer wish to be a member of […] Fire Brigade.”   Minutes of a brigade meeting note “Leave of Absence: People not attending meetings, training etc. for a period of three months or more require approval by OM …”

My correspondent asks me to advise:

  1. Can a non-response to the letter justify an assumption that the member ‘no longer wish[es] to be a member” of the brigade or be otherwise used to remove anyone; and
  2. What right has the OM to require a volunteer to seek approval not to offer their services at any particular time?

I have confirmed that ‘OM’ means the Operations Manager who is the head of a District.  It is a paid, full time CFA staff position.

I do not want to get involved in a brigade dispute, so before answering this question I did write to my correspondent and say:

Providing advice on specific issues raises issues of my professional responsibilities, carries a professional risk and so carries a professional fee.   To avoid that, I answers questions on the public forum that is my blog. Everyone can see what I wrote and I’m not advising one side or the other.

I make no comment one way or the other on what may, or may not, be happening in the brigade in question or who is or is not ‘in the right’.  What follows is merely my analysis of the relevant legislation and not the merits of the competing claims.

The model of the CFA, as set out in the Country Fire Authority Regulations 2014 (Vic) is that a group of people form a brigade and then apply to the CFA to be registered as a brigade (r 30).   A Brigade may adopt its own internal rules (r 33). If the Brigade does not adopt rules, the rules set out in Schedule 2 govern the Brigades internal management.  My correspondent has not provided me with brigade rules, and if he or she did reference to them may identify the brigade for others, so I will answer this question on the assume that the rules set out in Schedule 2 are the relevant brigade rules.

A person is a member of a CFA brigade only if they enrolled by the CFA as a member of that brigade (r 37).  A member of a brigade ‘must comply with the training requirements determined by the Authority’ (r 43).  I am unable to determine if the CFA has published any such requirements. The Schedule 2 rules don’t provide details of minimum attendance or training.  They do provide that the ‘brigade may … appoint a management team to manage and administer the affairs of the brigade.’

In terms of discipline the regulations do provide for a number of ‘offences’.  There are procedures to investigate an allegation that a member has committed an offence.  Where an offence is proved the ultimate sanction is that the brigade can recommend to the CFA ‘that that the enrolment of the member be cancelled’ (r 45).  A member commits an offence if he or she, inter alia (r 44):

(d) commits an act of misconduct; or

(e) is negligent in the discharge of the member’s duties; or

(f) is inefficient or incompetent and the inefficiency or incompetence arises from causes within the member’s control; or

(g) is guilty of disgraceful or improper conduct.

Under the Country Fire Authority Act 1958 (Vic) s 110(1)(ca), regulations can be made ‘for the granting of  leave  of absence to volunteer officers and members of brigades’.  The issue of leave is not however mentioned in the Country Fire Authority Regulations 2014 (Vic) so it appears that no regulations have been made with respect to leave.

Discussion

Unless the Brigades rules or the CFA’s published ‘training requirements’ impose minimum attendance requirements upon a member I can’t see that not responding to a letter could imply that a member does not want to be part of the brigade.

That result is somewhat surprising. Before looking at the Act and Regulations one assumed that there had to be provisions to cancel membership of a brigade eg for non-attendance. If a person hasn’t been seen for some time one would think it is reasonable to write to them and ask them to either commit to the brigade or remove their name from membership.  One would want to have a ‘notice period’ to clear inactive names from the roll.  One couldn’t insist on an answer in case people have moved away or simply chose not to engage.  It would therefore seem reasonable to be able to say to someone – ‘we haven’t heard from you for a long time, if we don’t hear from you we will take steps to cancel your membership’.

But neither the Act nor the Regulations provide for that. It appears the only way to cancel a member’s enrolment is to make a recommendation to the CFA. It is the CFA, and not a Brigade, that determines whether a person is a member of the brigade (Country Fire Authority Act 1958 (Vic) s 23(1)(d)). And the only power to cancel a person’s enrolment arises when the member is convicted of an offence (rr 44 and 45).   Even if a member failed to ‘comply with the training requirements determined by the Authority’ (r 43) he or she could only have his or her enrolment cancelled if it was alleged that failure constituted an offence under r 44.

Further, ‘A member of a brigade who wishes to resign from the brigade must notify the secretary of the brigade in writing’ (r 40). It follows that even if the brigade management were to write and say ‘‘If we do not hear from you … we will deem this as your resignation” that would not suffice.  A resignation must be in writing from the member.

As for ‘leave’ there is nothing in the Act or Regulations to require a volunteer to seek leave.  It is clearly intended that there could be regulations on this topic, but there are none so one must infer the omission to regulate leave is intentional.  It could be done, but it hasn’t been done.

Conclusion

Remembering that it is the CFA, and not the Brigade, that determines who is a member of a brigade I can’t see how ‘a non-response to the letter justify an assumption that the member ‘no longer wish[es] to be a member” of the brigade or be otherwise used to remove anyone’.

Subject to the terms of any specific brigade rules, the only power to cancel a person’s membership of the CFA lies with the CFA and only if a member is convicted of an offence under the CFA Regulations (not just a criminal offence).  Even if failure to attend training or otherwise take part in brigade activities could amount to misconduct, negligence, inefficiency, incompetence, disgraceful or improper conduct it could not justify termination of the person’s membership until the procedures set out in rr 46-57 had been followed.  Merely writing in terms that ‘if we don’t hear from you we will infer your resignation’ will not suffice.

Whilst I can understand that the OM and Brigade management would want to know when people are available or ‘on leave’, there is not only no requirement, there is no procedure to seek or authority to grant leave.

Accordingly, my answers to the questions asked are:

Question 1: Can a non-response to the letter justify an assumption that the member ‘no longer wish[es] to be a member” of the brigade or be otherwise used to remove anyone.

Answer 1: No.

Question 2: What right has the OM to require a volunteer to seek approval not to offer their services at any particular time?

Answer 2: None.

 

 

 

 


Categories: Researchers

More on emergency lights on Qld vehicles

13 July, 2017 - 11:34

In response to my post More on emergency lights on NSW vehicles (July 4, 2017) a commentator wrote:

Can you please explain how the above effects Queensland; in particular, mines rescue vehicles (owned and operated by the mine). If a mines rescue member had the right training, & the qualification: ‘drive under operational conditions’, would this person be able to respond to, let’s say, a mutual aid emergency call from another mine site on public roads?

In addition, does it make any difference if the emergency lights have clear covers, so when the light is not activated it is impossible to determine the colour?

The answer is again found in the vehicle standards as they are applied in Queensland.  These are found in schedule 1 to the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld).  Relevantly, clause 99 says:

99. Other lights and reflectors

(1) …

(a) an exempt vehicle may be fitted with any light or reflector; and

(b) a special use vehicle may be fitted with 1 or more flashing yellow lights.

(2) A vehicle, other than a police vehicle, must not be fitted with a blue light except with the written permission of the commissioner…

(4) A vehicle, other than an exempt vehicle or a special use vehicle, must not be fitted with a light that flashes.

(6) In this section—

exempt vehicle means any of the following vehicles—

(a) a police vehicle;

(b) an emergency vehicle;

(c) a transport enforcement vehicle;

(d) an Australian Border Force vehicle;

(e) an Airservices Australia vehicle.

special use vehicle means any of the following vehicles—

(a) a vehicle built or fitted for use in hazardous situations on a road;

(b) an oversize light vehicle authorised to be driven on a road under a guideline or permit issued under part 3;

(c) a vehicle built or fitted to accompany—

(i) a vehicle mentioned in paragraph (b); or

(ii) a heavy vehicle that—

(A) is an oversize vehicle within the meaning of the Heavy Vehicle National Law (Queensland); and

(B) is being used on a road under a mass or dimension exemption within the meaning of that Law;

(d) a vehicle, whether or not a school bus, fitted with warning lights and warning signs under the Transport Operations (Passenger Transport) Standard 2010, schedule 1, part 4, section 19 or 25(1).

I would infer that a mines rescue vehicle is not a ‘special use vehicle’ so any rights or exemptions can only apply if it’s an ‘exempt vehicle’.   The only relevant paragraph is cl 99(6)(b).  So a mines rescue vehicle can be fitted with ‘any light or reflector’ (other than a blue light) if it’s an ‘emergency vehicle’.  An emergency vehicle may also be fitted with a siren (cl 23).

So what’s an ‘emergency vehicle’ in Queensland?  According to the dictionary (ie Schedule 4 to the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld)):

emergency vehicle means a motor vehicle—

(a) fitted with—

(i) a repeater horn or siren; or

(ii) a flashing warning light; and

(b) driven by—

(i) an officer of the Queensland Ambulance Service or an ambulance service of another State in the course of the officer’s duty; or

(ii) an officer of the Queensland Fire and Rescue Service or a fire and rescue service of another State in the course of the officer’s duty; or

(iii) an officer or employee of another entity with the written permission of the commissioner in the course of the officer’s or employee’s duty.

That definition is somewhat circular as only an emergency vehicle can be fitted with a siren or warning light but an emergency vehicle is a vehicle fitted with those things.  Paragraph (a) distinguishes that a car without lights/sirens but operated by Queensland Fire and Rescue is not an emergency vehicle, but that doesn’t help us find an answer for today’s question.  For that we need to look at paragraph (b).   Subparagraphs (i) and (ii) don’t apply to a mines rescue brigade as Queensland Mines Rescue service is governed by the Coal Mining Safety and Health Act 1999 (Qld).   A member of a mines rescue unit is not, by virtue of that membership, ‘an officer of the Queensland Fire and Rescue Service or a fire and rescue service of another State’.  It follows that a mines rescue vehicle can only be fitted with lights and sirens to the extent that the mines rescue operator has ‘the written permission of the commissioner’ of police (see Transport Operations (Road Use Management) Act 1995 (Qld), Sch 4, definition of ‘commissioner’).

Does the driver of a mines rescue vehicle get an exemption from the driving rules? For that we need to look at the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld).  For the purpose of that regulation (and r 306 ‘Exemptions for drivers of emergency vehicles’) and emergency vehicle is defined (in Schedule 5) as:

 … a motor vehicle driven by a person who is—

(a) an emergency worker; and

(b) driving the vehicle in the course of performing duties as an emergency worker.

An emergency worker is:

(a) an officer of the Queensland Ambulance Service or an ambulance service of another State; or

(b) a fire officer under the Fire and Emergency Services Act 1990 or a fire and rescue service of another State; or

(c) an officer or employee of another entity with the written permission of the commissioner.

Again paragraphs (a) and (b) won’t apply to a mines rescue officer.  Accordingly a mines rescue operator is an emergency worker only to the extent that the Police Commissioner has said, in writing, that they are.

Conclusion

Let me return to the question:

Can you please explain how the above effects Queensland …

This question was in response to a post about NSW law.  The short answer is that the NSW law has no effect in Queensland.

… If a mines rescue member had the right training, & the qualification: ‘drive under operational conditions’, would this person be able to respond to, let’s say, a mutual aid emergency call from another mine site on public roads?

If and only if the Police commissioner has given written permission to the mines rescue operator to fit warning lights and/or siren to their vehicle and has said, in writing, that the employees of that mine rescue operator are ‘emergency workers’ for the purposes of the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld).

In addition, does it make any difference if the emergency lights have clear covers, so when the light is not activated it is impossible to determine the colour?

No, the prohibition in Queensland is on having flashing lights fitted to the vehicle, not the colour of them.

 


Categories: Researchers

Damage to property by police

7 July, 2017 - 16:47

This blog is generally about fire and rescue services and ambulance and paramedic services. Of course police issues come up as police respond to all manner of emergencies  but generally speaking I don’t go into matters of policing and law enforcement.  Having said that I’ll wander into that area to answer today’s question which is:

Out of curiosity if police remove and break roof tiles on a house while arresting an offender who is responsible for the repairs.

(I’m not given a specific jurisdiction so I’ll use NSW as an example. I am most familiar with NSW as I, along with former Justice Rod Howie, Paul Sattler and Marissa Hood, am one of the authors of Hayes and Eburn Criminal Law and Procedure in NSW (5th ed, 2016, Lexis/Nexis).  My original co-author was the late Robert Hayes from the University of Western Sydney.  The answer will be the same however in all states and territories).

I’m not sure why police are on the roof, but that doesn’t matter. The question can be rephrased in a more generic – if police damage a house while arresting an offender who is responsible for the repairs?   Asked in that way it doesn’t matter if the damage is to the roof or the door.

Police are allowed to use ‘reasonable force’ to enter premises to effect an arrest (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 10 ‘Power to enter to arrest or detain someone or execute warrant’, 230 ‘Use of force generally by police officers’ and 231 ‘Use of force in making an arrest’).  A member of the NSW Police Force is not personally liable for any injury or damage caused when, in good faith, he or she is exercising a police function (Police Act 1990 (NSW) s 23).  The Crown (ie the State of NSW) is however liable for any tort committed by a police officer (Law Reform (Vicarious Liability) Act 1983 (NSW) s 9B).  So the first part of the answer is that the crown would be liable if the action that caused the damage was a tort.

It is a tort (ie a wrong) to deliberately damage property but the police are given power to use reasonable force. It is a common law rule that if the parliament grants a power it is expected that it will be used.  It is not therefore a tort to do what the law allows so damage done in the reasonable exercise of the police power would not constitute a tort – see Vaughan v Webb (1902) 2 SR(NSW) 293. This case involved a decision by a fire brigade superintendent to pull down a wall.  Stephen ACJ said (at p. 299):

I need hardly say that, if the legislature authorises that to be done which must, of necessity cause injury, no liability can accrue to the person carrying out the will of the Legislature … So here the defendant would not be liable if the wall could not have been pulled down without injury to the plaintiff.

(It was that case that determined that acting in ‘good faith’ was not a defence to an action for negligence and led to the sections, now familiar in most emergency services legislation, that there is no liability for acts done ‘in good faith’).

By analogy a police officer doing what is authorised would not be exposed to liability, nor would the Crown, if they caused damage whilst doing something authorised by the legislature.  What the legislature authorises is the use of ‘reasonable’ force.

Whether the force is ‘reasonable’ depends on all the circumstances.  In the context of this question the issues would be:

  • What was the offender wanted for?
  • Did the police give him or her a chance to surrender? (As a general rule police have to give notice of their intention to enter premises and give anyone inside the chance to let them in before they break in, but there are exceptions where there is urgency or the warning is likely to lead to the offender’s escaping or destroying evidence; Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) s 68; Lippl v Haines (1989) 18 NSWLR 620).
  • Where there are alternatives to breaking in? Was the door unlocked?

Where the damage is done to the home of a known, violent offender or the home of someone who was knowingly sheltering the offender, then I suspect the Crown would resist any claim that they were liable for the damage.

Where the damage is done to the property of a person in order to rescue them from the offender (authorised by the Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) s 10) then I would also expect them to resist any claim in the same way that a fire brigade or ambulance service would, no doubt, deny liability for damage done when entering a house to rescue the person in the house.

If the damage is done to the home of an innocent neighbour, or if they police have entered the wrong house, they may be more willing to pay for the damage.

Regardless of the attitude of police where the actions were not reasonable they can be liable. For example in New South Wales v Ibbett [2006] HCA 57 the state was liable to pay damages and exemplary damages (ie damages there were more than the losses suffered by the plaintiff, intended to ‘make an example’ of the defendant and to reinforce the egregious nature of their conduct).  In that case plain clothes police chased an offender into his home.  He was only wanted for a traffic offence. On entering the premises police drew their weapons and pointed them at the alleged offender’s mother.  In all the circumstances the police conduct was not authorised by law.

Conclusion

If the action of police is ‘reasonable’ then they are not liable for damage done to property to make an arrest. If it was not ‘reasonable’ (taking into account all the circumstances) then the state will be liable for any damage done.


Categories: Researchers

More on emergency lights on NSW vehicles

4 July, 2017 - 08:23

This question comes from an event first aider in NSW:

I attend many events which require me to respond in my vehicle ” a medical response vehicle”.  I’m required to display warning lights. The hundred dollar question is what colour light? I spoke to the RTA people; I can’t use amber as I don’t fit their criterion.  I can’t use red and Blue as I’m not an emergency vehicle.  I can’t use red only because I’m not St John or blood bank; in fact sir you can’t use any lights at all sorry.  What about cams requirement to respond I need warning lights?  Can spare me a minute and clarify please.

There is little to clarify. The fact that CAMS (the Confederation of Australian Motor Sports) may want you to have warning lights is irrelevant. They are not the law maker.  The rules are clear and are set out in Schedule 2 of the Road Transport (Vehicle Registration) Regulation 2007 (NSW).  Rule 124(2) says, amongst other things, that a ‘vehicle must not display or be fitted with: (a) a light that flashes or rotates …’.  There are of course exceptions. Rule 124(4) sets out the sort of vehicles that can be fitted with flashing lights.   Rules 124(7) identifies the relevant colours.

Combining those two rules we see that the vehicles listed in column 1 can be fitted with a flashing light of the colour show in column 2.

Column 1 Column 2 ambulances, A blue or red light police vehicles, A blue or red light fire fighting vehicles, A blue or red light

Fire brigade emergency site command vehicle – A green light mines rescue or other rescue vehicles, A vehicle used by an accredited rescue unit (within the meaning of the State Emergency and Rescue Management Act 1989 ) – A blue or red light

A mines rescue or other rescue vehicle – A red light Red Cross vehicles used for conveyance of blood for urgent transfusions, A red light public utility service vehicles, A yellow light tow-trucks, A yellow light motor breakdown service vehicles, A yellow light vehicles used for the delivery of milk that are required to stop at frequent intervals, A yellow light buses used solely or principally for the conveyance of children to or from school, A yellow light vehicles exceeding the length, width and height limits of this Schedule, A yellow light vehicles frequently used to transport loads that exceed the maximum length, width and height limits of this Schedule, A yellow light vehicles used to escort vehicles referred to in paragraph (k) or (l), A yellow light vehicles used by the Authority, Traffic commander or Traffic Emergency patroller – A blue or red light.

Other vehicles used by the authority – A crimson light vehicles used by an employee of a council of a local government area for the purposes of enforcing excess weight limits legislation, A crimson light State Emergency Service vehicles, A blue or red light such other vehicles as are approved by the Authority. An emergency vehicle within the meaning of the Road Rules 2014 (other than those identified above) – A red light

 

The Roads and Maritime Services can give approval for any vehicle to display warning lights of any colour but we can’t identify what if any authorities have been granted.

It should be noted that these rules only apply to the extent that the vehicle is being used on a road or road related area (Road Transport Act 2013 (NSW) ss 4 and 5).  Without going into those definitions in detail one might infer that if the area in which the vehicle is operating is not ‘open to or used by the public’ (such as a designated race track, including roads that have been closed to allow a race to operate) then these rules won’t apply.   Having said that, deciding whether any particular track was, or was not a ‘road’ would have to be determined in each case and I’m not saying that any particular track is, or is not, a ‘road’ for the purposes of these rules.

Conclusion

If my correspondent’s vehicles don’t fit any of the descriptions, above, then they can’t be fitted with or display flashing warning lights unless there is specific approval from RMS.   The fact that CAMS want them to have warning lights may be a relevant consideration for the RMS when deciding to give permission but does not impact on the rules set out above.

If the vehicle is being used on a race track that is not a road or road related area then the rules do not apply but if a vehicle was fitted with warning lights, they would have to be removed before it was again driven on a public road.

 

 

 


Categories: Researchers

Wearing ‘first aid’ logo t-shirts

3 July, 2017 - 00:56

This interesting question comes from a first-aid (but I won’t identify the RTO and I will also try to avoid identifying the state or territory where they are located).  My correspondent says:

I work for a large RTO that offers a variety of courses.  I am a member of their First Aid Group.  Recently without any consultation our spare First Aid Logo shirts worn by our lecturers, were taken by another department so that their students could have a top.  My question is that there are now students wearing our First Aid tops in public.  Are there any ramifications should they witness a first aid situation and not help?  Considering the RTO name is also part of the top? Would appreciate your opinion and whether I am worrying for no reason.

To avoid debate let me say I’ve seen the t-shirts. They do not say ‘first aider’ or ‘first aid instructor’. They identify the RTO as a provider of first aid training but I won’t say exactly what it does say as that would identify the RTO involved.

The simple answer is that my correspondent is ‘worrying for no reason’.  Depending on the logo, wearing a t-shirt does not mean the person is qualified Any number of people might wear this shirt beside first aid instructors, eg the storeroom manager or the receptionist.  Merely wearing the t-shirt doesn’t change a person’s status to something they are not.  For example, you can buy NYPD (New York Police Department) clothing (see https://www.nypd.com/ ) but that doesn’t mean the wearer is a member of the NYPD or under a duty to respond as if they were a police officer.

Even if wearing the t-shirt did imply that the person had first aid training, there is no duty to rescue.  If that’s true for Victoria police (see Stuart v Kirkland-Veenstra [2009] HCA 15) then it’s got to be true for a person wearing a t-shirt that identifies a first aid training RTO.  Accordingly wearing the t-shirt isn’t going to give rise to any legal issues unless the person actually holds themselves out as having some skill.

In New South Wales and Tasmania, a person loses ‘Good Samaritan’ protection if they hold themselves out as having skills or qualifications that they do not have – see

To falsely represent that a ‘person has skills or expertise in connection with the rendering of emergency assistance’ (Civil Liability Act 2002 (NSW) s 58(3)) requires reference to the person’s intention.  Even if a bystander inferred that a person wearing the t-shirt had ‘skills or expertise in connection with the rendering of emergency assistance’ it does not mean that the person was making, or intended to make, that representation. To determine that you would need to know what the person was thinking and what was their intention when they put the shirt on.  If they approached the scene and said: ‘I’m a first aider’ (and they weren’t) then wearing the t-shirt would give credence to their ‘false representation’, but on its own (given the wording of the shirt) there is not, in my opinion, a false representation.

If the person does stop to help the fact that they were wearing the t-shirt won’t require a higher level of care.  A person need only provide reasonable care considering all the circumstances including their training and experience.  If they are not first aid trained, wearing a logo t-shirt won’t change that reality. Again, the answer would be different if they claimed to have some level of training and expertise.

Conclusion

I can understand why my correspondent is annoyed that t-shirts from the first aid department have been given to students in another area, but it won’t give rise to legal ramifications if the person fails to render assistance, or does render assistance, at an accident.

 

 

 

 


Categories: Researchers

Vicarious liability for employed first aider

2 July, 2017 - 05:26

Today’s concerns come from an employed first aider who tells me that:

The company I’m employed by contracts to a site where I am sent daily to provide a first aid service.

The site where I work impose conditions on us where we are generally unable to operate to our normal SOP’s and regularly assess and treat patients alone without our partner.

For me and my partner here, would our direct employer be liable for any issues that arise from the site? (Assuming a minor injury treated solo became a bigger issue or that we missed a symptom of a more serious injury) Would any liability be spread back to the site also, and would my partner and I assume any liability legally? (Given we are regularly operating outside of our guidelines).

I don’t know what sort of ‘site’ it is but I’ll assume it’s a construction site or some other industrial site. I’ll assume therefore that everyone on the site is an employee of the company that contracts with my correspondent’s employer. I also don’t know what state or territory this question comes from but given the (near) universal work health and safety provisions it doesn’t matter.  I’ll use the NSW legislation as my reference but it will be the same in other jurisdictions.

There are two PCBU’s here (ie persons conducting a business or undertaking). They are the contracting company and the first aid company. The contracting company owes a duty to ensure the health and safety of its workforce (Work Health and Safety Act 2011 (NSW) s 19(1)). That duty also includes a duty to provide appropriate emergency and first aid services (Work Health and Safety Regulation 2011 (NSW) r 42).

The first aid company not only owes a duty to its own staff (ie my correspondent and his partner) but also to those affected by its business (ie the potential patients and employees of the contracting company (Work Health and Safety Act 2011 (NSW) s 19(2)).

Let us assume then that because the first aiders are not working together and as a result a person receives care that is less good than it would have been if there had been two first aiders.  Let us also assume that the SOPs of the first aid company say they should work together and that is industry ‘best practice’.

In that case if the contracting company is not allowing the first aiders and the first aid company to work to that standard, then the contracting company is not meeting its obligations to its workforce.  But it can’t know that if the first aid company doesn’t tell them, and they can’t know that if the first aiders don’t tell them.  So the first thing to do is for my correspondent to raise their concerns with their employer so the employer can raise it with the client.

As the employer of an injured employee, it is the client/contracting company that will be liable for any damages that the employee suffers.  This is part of the no fault workers’ compensation scheme.  It would be very unlikely that anyone would try to shift that to the first aid company.  If they did the company would be liable for not ensuring its staff were able to work to their SOPs, and for any negligence of the employed first aiders – that is the rule of vicarious liability.

It is a myth that an employer can avoid vicarious liability by simply asserting that the employee did not do as they were instructed. Vicarious liability necessarily applies when the employee has been negligent – doing an authorised act (provide first aid) in an unauthorised way (one person alone) still attracts vicarious liability. (For a more detailed discussion on vicarious liability, see Who will be liable? The employer or the paramedic (May 2, 2017)).

The duty of the employee is to take reasonable care for his or her own safety, to ensure that by their actions they don’t affect the health and safety of others and to comply with relevant health and safety policies (s 28). Presumably an SOP that says first aiders should work in pairs is to enhance the safety of both the first aiders and there patients.  It is therefore incumbent on the first aiders to comply with that direction and if they can’t to raise their WHS concerns with their employer.  If they think the risk to them, or their patients, is too high they could and should take action to raise the issue with either their own or the sites WHS Committee, a relevant union or WorkCover.  Ultimately they could refuse to work if they think the work practices they are being required to follow ‘would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard’ (s 84).

In summary, the liability for the persons injuries would fall

  1. To their employer, the site operator. If their practices are not ensuring the safety of their staff they could be in breach of the Work Health and Safety Act.  They are liable, without proof of fault, for any injury suffered by an employee at work. If that injury is made worse because of the level of first aid provided at the direction of the employer they will be liable for all of that damage.
  2. If it could be shown that the failure to ensure that first aiders worked ‘two up’ was a failure to take reasonable care for the safety of the first aiders or those affected by the business (ie the patients) then there could be liability under the Work Health and Safety Act. Liability for the actual injuries to the injured person would be difficult to establish but might be possible if it can be shown that the presence of a single first aider led to a much worse outcome, but that would be very hard to prove.
  3. There would be no personal liability by the employed first aiders provided they have taken reasonable care which in this case I would suggest is to raise their concerns.

What should be done?

My correspondent should raise his or her concerns with their employer.  The employer in turn should raise them with the contractor/client.  If the client won’t let the first aid company operate in a way that they think is necessary to ensure the safety of their own staff and their potential patients, they should consider whether it is worth retaining the contract.


Categories: Researchers

Fatigue management in Queensland ambulance

24 June, 2017 - 03:45

Today’s question comes from a Queensland paramedic who tells that:

… here in Queensland, we have a fatigue management plan,  whereby each paramedic has to ascertain their own ‘fatigue score’ using pre-set questions in regard to how much sleep they have had in the last 24hrs as well as the previous 24hrs as well. If the score is above a certain score, action needs to be taken, ranging from Comms being aware to standing down from duty. In my experience, individual officers don’t take this seriously, as they deem it another way that management can ‘screw us over’ if we report our score and have an accident in the line of duty. I was wondering what the law says in regard to fatigue management and the legal response should a paramedic be involved in an accident and claim fatigue as a cause?

In answering this question I’m not commenting on the specific Queensland policy as I don’t have access to the relevant policy documents, so this will be a general discussion.

The starting point is the Work Health and Safety Act 2011 (Qld).  It says

(1) A person conducting a business or undertaking [a ‘PCBU’; in this context, Queensland Ambulance] must ensure, so far as is reasonably practicable, the health and safety of—

(a) workers engaged, or caused to be engaged by the person; and

(b) workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

Put simply Queensland Ambulance must take steps to try to ensure, as best it can, that neither its paramedics or those they meet are exposed to risk due to the work being undertaken. Neither the Act nor the associated Work Health and Safety Regulation 2011 (Qld) makes specific mention of fatigue management.

But let us assume for the sake of argument that fatigue management is an important issue for a 24/7 emergency service as it is for PCBU’s that ask people to drive for a living (see How to Manage Work Health and Safety Risks: Code of practice 2011). A fatigued paramedic is a risk to him or herself, their colleagues and their patients. An ambulance service can monitor what it asks its paramedics to do on any shift, ie they can know what jobs they’ve been doing and whether there’s been down time, but they can’t control what people do on their time off – whether between night shifts they’ve been working a second job or up all day at the family picnic. Or whether before the day shift they were out partying.  But if the paramedic makes a mistake and harms someone (including him or herself) it will be the ambulance service that will be liable for the negligence of the paramedic and for the workers compensation costs and, if there has been no effort to manage that risk, for breach of the WHS Act.

Given all that it seems quite reasonable to implement some scheme and in this case, it’s self-monitoring. Whether that is sufficient I can’t say but it does at least force paramedics to think about it and if they know they are going to have to complete the checklist it may remind them to go to bed early rather than stay up on a Friday night before a Saturday morning start.

But what of the claim that it’s ‘another way that management can ‘screw us over’ if we report our score and have an accident in the line of duty’. Remembering that I haven’t seen the policy document I fail to see how that could be the case.  If the paramedic reports their score and it is such that action should be taken, then the liability of the ambulance service, not the paramedic would be clear if the service did not in fact take the action that the policy called for.  If, on the other hand, the paramedic does not honestly report their fatigue score, then that could well be used to their detriment should there be a clinical or other accident.  It won’t affect liability – an employer is vicariously liable for the negligence of their employee but it may impact upon the paramedics’ compensation rights if they are injured and it may impact upon their employment.  An employee must obey the reasonable directions of the employer and requiring the employee to complete the form honestly would seem to be a reasonable direction – at least if the policy is reasonable.

Put simply, if paramedics are worried about providing ‘another way that management can ‘screw us over’’, failing to complete the form honestly would give that to them.  If the concern is that the paramedic will be stood down and lose wages or be required to take leave, then that should motivate paramedics to manage their fatigue between shifts.

Conclusion

Again, without seeing the policy I can’t see how anyone would think being dishonest on the self-assessment is going to be more in their interest than filling it out correctly.  If they fill it out correctly and involved in an accident and claim fatigue as a cause then they can point to their form and that they told the service, and that the service, being on notice, should have done something to reduce the risk to them and others.


Categories: Researchers

New speed limit when passing emergency vehicles in Victoria

20 June, 2017 - 03:32

On 6 June 2017 the Governor of Victoria, acting on the advice of the Government, made a new set of road rules for Victoria – the Road Safety Road Rules 2017 (Vic).  I understand these new rules will come into force on 1 July 2017.  Without checking every section one can infer that these are largely remaking the road rules in accordance with the nationally agreed Australian road rules.  There is however, at least on new provision.  Rule 79A, like the Road Traffic Act 1961 (SA) s 83 will introduce reduced speed limits when approaching or passing police and emergency vehicles in Victoria. The new rule 79A says:

79A Approaching and passing stationary or slow-moving police vehicles, emergency vehicles, enforcement vehicles and escort vehicles

  1. A driver approaching a stationary or slow-moving police vehicle, emergency vehicle, enforcement vehicle or escort vehicle that is displaying a flashing blue, red or magenta light (whether or not it is also displaying other lights) or sounding an alarm must drive at a speed at which the driver can, if necessary, stop safely before passing the vehicle.
    Penalty: 5 penalty units.
  2. A driver approaching a stationary or slow-moving police vehicle, emergency vehicle, enforcement vehicle or escort vehicle that is displaying a flashing blue, red or magenta light (whether or not it is also displaying other lights) or sounding an alarm must give way to any police officer, emergency worker, enforcement vehicle worker or escort vehicle worker on foot in the immediate vicinity of the vehicle.
    Penalty: 5 penalty units.
  3. A driver must not drive past, or overtake, a stationary or slow-moving police vehicle, emergency vehicle, enforcement vehicle or escort vehicle that is displaying a flashing blue, red or magenta light (whether or not it is also displaying other lights) or sounding an alarm at a speed greater than 40 kilometres per hour.
    Penalty: 5 penalty units.
  4. A driver who drives past, or overtakes, a stationary or slow-moving police vehicle, emergency vehicle, enforcement vehicle or escort vehicle that is displaying a flashing blue, red or magenta light (whether or not it is also displaying other lights) or sounding an alarm must not increase speed until the driver is at a sufficient distance from the vehicle so as not to cause a danger to the any police officers, emergency workers, enforcement vehicle workers or escort vehicles workers in the immediate vicinity of the vehicle.
    Penalty: 5 penalty units.
  5. Subrules (1), (2), (3) and (4) do not apply if the driver is driving on a road that is divided by a median strip and the police vehicle, emergency vehicle, enforcement vehicle or escort vehicle is on the other side of the road beyond the median strip.
  6. This rule applies to the driver despite any other provision of these Rules.

Sub-sections (2) and (3) are not particularly problematic. When passing a police or emergency vehicle with its hazard beacons activated, you must give way to the police and emergency workers who are on foot and must not drive past them at more than 40km/h.

Sub-section (4) gives some indication of when you can resume the normal speed limit.

Sub-section (5) tells us that if the vehicle is on the other side of the road, and there is a median strip between you and the emergency vehicle, then the rule does not apply.  If there is no median strip then the rule does apply whether you are on the same side, or the opposite side of the road to the police or emergency vehicle.

Sub-section (6) provides that you do not commit some other offence by obeying this rule, so if there is some rule that says you must not slow down, or some argument that it is ‘dangerous driving’ to do 40km/h in a 110 km/h zone is defeated.  All so far so good.

The problem I have is with sub-section 79A(1). That rule says that if you are approaching the vehicle displaying its warning beacons, you ‘must drive at a speed at which the driver can, if necessary, stop safely before passing the vehicle’. There must be a defined point at which you have ‘passed’ the emergency vehicle.  It doesn’t matter how you define ‘passed’ – so for the sake of the argument let us define ‘passed’ as the rear of your car is now in front of the stationary appliance as shown below:

To be able to stop ‘safely before passing the vehicle’ the driver of the car has to be able to stop before he or she reaches the point shown by line ‘A’. Queensland Transport (https://www.qld.gov.au/transport/safety/road-safety/driving-safely/stopping-distances/graph/index.html ) publishes the following table of stopping distances.

If you are 1000m (1km) away from point ‘A’ you could be travelling at 110km/h and you should have no trouble stopping ‘safely before passing the vehicle’.   As you get to within 100m you must slow down to 100km/h.  At 50m you must be travelling less than 70km/h.  At 30m from point A you need to have slowed to 40km/h. And as you get closer to point A you must keep slowing down if you are going to be able to safely stop before you get to point A.  Eventually you will have to come to a complete stop because you will be at point A and it will be impossible to travel at a speed where you can stop before you pass the vehicle.  If the emergency vehicle is moving slowly, the only way to travel at a speed where you could stop before you pass it is to travel behind, or beside, and at the same speed as the emergency vehicle.  If you were to travel at 40km/h eventually you would be in a position where you could not stop before you passed the vehicle.  I can’t see how s 79A(1) makes any sense at all.


Categories: Researchers

Secrecy provisions for Victoria’s Emergency Services Telecommunications Authority

20 June, 2017 - 02:50

Victoria operates the Emergency Services Telecommunications Authority (ETSA) which provides for centralised emergency call taking and dispatch services.  ESTA is established by the Emergency Services Telecommunications Authority Act 2004 (Vic).  Today’s question:

…relates directly to the ESTA Act. Specifically, section 33, Secrecy. Section 33 makes it an offence for anyone “who has confidential information that he or she has received in the course of carrying out duties under this Act” to “record, disclose, communicate or make use of that information.”. This section clarifies that it is fine to do so to “the extent necessary to perform duties under this Act”. It further makes specific exceptions for persons; Giving evidence at court, disclosing information with the written permission of the minister or person to whom the information relates, disclosing information to the Ombudsman or disclosing information specifically authorised by any other Act. Section 33 also contains a definition for “confidential information”.

“In this section confidential information means any information relating to calls received or messages communicated by the Authority in the course of providing a service to an emergency services and other related services organisation.”

My questions regarding this section are as follows:

  1. Confidential information. How do you interpret this definition? “Calls received by” does that limit to only calls received? What about calls made? Does this only include telephone calls? What about radio transmissions? This further begs the question “messages communicated by the authority”. What does this mean? What about messages received on the radio or phone to the Authority by the emergency services themselves?
  2. Senior ESTA Managers often make comment in public regarding incidents (usually incidents drawing media attention for negative reasons). Can they do so without written permission of the Minister or the person to whom the information relates?
  3. General ESTA performance information. ESTA releases internally each month to staff performance information. Generally, this information contains graphs regarding how many calls were taken, how many calls were dispatched and how performance was tracking against Inspector General for Emergency Management Benchmarks. These internal releases contain a warning that discussing or releasing this information could see the staff member charged under section 33 of the ESTA act. Obviously, internal disciplinary procedures could occur in such a case. But is it a stretch to think a staff member could be charged with this offence in the circumstance of such general, performance information was recorded, disclosed or communicated? If so, by passing out this information internally, are managers not “communicating” it already and potentially breaching the act?
  4. As far as I am aware, nobody has ever been charged under this section. Are there any cases you are aware of or ability to confirm this as the case?

I’ll start by setting out s 33 in full.  It says

33 Secrecy

(1)       In this section confidential information means any information relating to calls received or messages communicated by the Authority in the course of providing a service to an emergency services and other related services organisation.

(2)       A person who has confidential information that he or she has received in the course of carrying out duties under this Act must not, except to the extent necessary to perform duties under this Act, record, disclose, communicate or make use of that information.

Penalty: 5 penalty units.

(3)       Subsection (2) does not prevent a person from—

(a)       giving evidence or producing a document to a court in the course of criminal proceedings or proceedings under this Act, even though the evidence or document contains confidential information; or

(b)       disclosing or communicating confidential information in accordance with the written authority of the Minister or the person to whom the information relates; or

(c)        disclosing or communicating confidential information to an Ombudsman officer (within the meaning of the Ombudsman Act 1973); or

(d)       disclosing confidential information to the extent specifically authorised by another Act.

These provisions mirror provisions in the Telecommunications Act 1997 (Cth).  Under the Commonwealth law (s 278) it is an offence for an ‘emergency call person’ (that is a person who receives triple zero calls and forwards them to the relevant emergency service) to:

… disclose or use any information or document that:

(a)       relates to:

(i)        the contents or substance of a communication that has been carried by a carrier or carriage service provider; or

(ii)       the contents or substance of a communication that is being carried by a carrier or carriage service provider; or

(iii)      the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and

(b)       comes to the person’s knowledge, or into the person’s possession, in connection with the operation of an emergency call service.

Of course, it’s no offence to pass that information onto the emergency services to allow them to respond to the emergency (s 286).

Let us put this in context.  A person rings the emergency services and discloses details about themselves to obtain an emergency response.  Those details may be very personal and may be admissible in court proceedings or at least relevant to subsequent investigations.  This legislation says that the person who takes the call is not allowed to share the information – what happens at work stays at work.  With that in mind let me turn to my correspondent’s questions:

  1. Confidential information. How do you interpret this definition? “Calls received by” does that limit to only calls received? What about calls made? Does this only include telephone calls? What about radio transmissions? This further begs the question “messages communicated by the authority”. What does this mean? What about messages received on the radio or phone to the Authority by the emergency services themselves?

I don’t think it is so limited.  The words used are ‘any information relating to calls received’ not just information received during the call.  A person rings triple zero and asks for an ambulance response, the details are given is relevant information.  But equally, I would suggest, the transmission of information to the emergency service is information ‘relating’ to the call received, as is a call back from the ambulance service to the ETSA giving more information.  I don’t see why ‘calls’ would be limited to telephone calls.  One could call ‘for’ the emergency services by way of telephone, printed message delivered to the service or standing on the rooftop and yelling.  ‘Call taking and dispatch services means the services of— (a) taking, listening to and recording calls … being calls in which assistance is sought of an emergency services…’ (s 3).  ETSA could receive calls in any way it wanted to and no doubt it does that by telephone but also by Text Emergency Calls for the hearing impaired (see https://www.triplezero.gov.au/Pages/default.aspx) and, if not yet, one day by web based message services.   I can see nothing in the Act that limits how the call is made to a telephone.

The reference to ‘messages communicated by the Authority’ is a bit odd, but again the relevance is that the information is about a call communicated by the Authority, so a message back conveying more information is ‘relating to’ the message originally communicated by the authority.

In short, I would suggest that for the purposes of the Act confidential information includes the information given by the initial caller as well as information communicated by and to ETSA by the emergency services and others involved in the response.

  1. Senior ESTA Managers often make comment in public regarding incidents (usually incidents drawing media attention for negative reasons). Can they do so without written permission of the Minister or the person to whom the information relates?

That’s impossible to answer in the abstract.  It would depend what was said in the comment and whether the person involved could be identified.  Information about ETSA’s performance is probably not confidential.  Releasing the recording of the triple zero call (which seems to happen) would seem to be prohibited.  In between those there are a myriad of possibilities.

  1. General ESTA performance information. ESTA releases internally each month to staff performance information. Generally, this information contains graphs regarding how many calls were taken, how many calls were dispatched and how performance was tracking against Inspector General for Emergency Management Benchmarks. These internal releases contain a warning that discussing or releasing this information could see the staff member charged under section 33 of the ESTA act. Obviously, internal disciplinary procedures could occur in such a case. But is it a stretch to think a staff member could be charged with this offence in the circumstance of such general, performance information was recorded, disclosed or communicated? If so, by passing out this information internally, are managers not “communicating” it already and potentially breaching the act?

I would suggest internal communications is not an issue. The information that ESTA has is for its purposes and passing it within the agency for the purposes of informing the agency and performing its tasks has to be using it ‘to perform duties under this Act’.  For example the Authority is required ‘to promote and develop policies and procedures to improve the standard and provision of emergency telecommunications and other communications services’ (s 7(1)(b)).  To do that it needs to know how it’s performing to ensure that it is up to standard and find ways to improve that standard.

One would imagine that deidentified and aggregated data – number of calls received, dispatch times etc, is not confidential information but it is arguably ‘information relating to calls received’ even if it is not about a specific call. I think it might be a long shot to say releasing that information is contrary to s 33 but it might be, and even if it isn’t it would not doubt be a breach of employment conditions to breach an employer’s confidentiality and there may well be relevant provisions in Victorian public sector legislation.

  1. As far as I am aware, nobody has ever been charged under this section. Are there any cases you are aware of or ability to confirm this as the case?

I am unable to locate any cases where anyone has been prosecuted for a breach of s 33.


Categories: Researchers

Emergency call taker receiving abusive calls

18 June, 2017 - 06:13

Today’s question comes from

…an Emergency Medical Dispatcher for an Ambulance Service. Currently we have no policy or procedures in place to deal with abusive callers. We are not allowed to terminate the call and our Supervisors advise us that this is considered abandoning the call which potentially results in disciplinary action. We therefore have to endure some quite distressing calls.

Are you aware if it is an offence for a caller to abuse us like that? It may not be a habitual caller, it could just be a one-off caller.

I can’t comment on potential ‘disciplinary action’ by the ambulance service.

It is an offence to use a carriage service, ie a telephone service, to make a threat to kill (Criminal Code 1995 (Cth) s 474.15(1)), to cause series harm (s 474.15(2)) or to ‘menace, harass or cause offence’ (s 474.17).  The test for the offence in s 474.17 is objective, that is it does not require that the accused intend to cause offence.  Rather the offence is committed where the accused uses the telephone in a way ‘that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.’

The Code specifically provides that s 474.17 is intended to apply to calls made to ‘an emergency call person’ (s 474.17(2)(c)).  An emergency call person is an employee of the agency that receives triple zero calls and forwards them to the relevant emergency service, rather than a call taker with the emergency service itself (Telecommunications Act 1997 (Cth) s 7, definition of ‘emergency call person’).  Section 474.17(2)(c) is intended to ensure that certain call takers are covered but it does not limit the general terms of s 474.17 so it still follows that a person who uses a telephone in such a way to ‘menace, harass or cause offence’ to a call taker from the emergency services commits the offence.

 

 


Categories: Researchers

Parental consent before first aid training

17 June, 2017 - 19:48

I was asked today’s question by a national first aid provider but I’ll base my answer on NSW law.  The question is

Is parental/guardian consent required for participants undertaking first aid training? For example we currently have an under 18s consent form whereby any participant who is undertaking nationally accredited first aid training must have the form completed by a parent/guardian prior to training. We are considering removing this if appropriate. Your opinion would be greatly appreciated.

The first thing to consider is that this is a very broad question.  A person under 18 ranges from 0 to 17 years and 364 days.  The answer when providing first aid training to 12 year old school children might be different than when providing training to 17 year old apprentices.

Under the Minors (Property and Contracts) Act 1970 (NSW) a minor can enter a contract and is bound by the contract provided that the contract is ‘is for his or her benefit at the time’.  One might infer that first aid training is for the young person’s benefit but where there is an obligation to pay a fee that could become controversial. Is paying a $300 fee to get first aid training a contract for the young person’s benefit?  Without going into details, if you want to ensure you can enforce the agreement to get paid for services one would want to ensure that there was some sort of consent or guarantee from the young person’s parent.

Providing first aid training for children would be ‘child related work’ so a trainer would require a working with children check (Child Protection (Working with Children) Act 2012 (NSW)).  That would give some indication that it’s something the parents should know that there children are going to be involved.

At the end of the day it’s a risk assessment. What’s the risk? You won’t get paid; parents who didn’t know that first aid training was going to happen are upset to find their child was touched and bandaged; the child has a medical or other condition that is actually an impediment to their training and you should know about; you need to ensure the child is appropriately dressed and they and their parents understand what is going to be expected from them.

If participants are all at school, it may be the school has all the relevant consents and authorities. If they have all left school and are tertiary or trade students with some aged 18 and some not yet 18 it may be silly to ask their parents for consent when they are living independently.  Equally if training is being provided to young people as part of a course for homeless youth it would be pointless asking for parental consent, and if they’re living rough, there would be no guardian to consent either.  As noted it’s really an exercise in risk management and the trainers must determine what are the risks and that will vary with the target audience/market.

I note that I have not addressed legislation governing Registered Training Organisations (RTOs) for example the Vocational and Training Act 2005 (NSW) and the Vocational Education and Training (Commonwealth Powers) Act 2010 (NSW).  There are also standards for RTOs that may well be relevant here, including standards to inform and protect learners – see https://www.asqa.gov.au/about/australias-vet-sector/standards-registered-training-organisations-rtos-2015.   It’s beyond my remit to consider this legislation in detail.

Conclusion

Subject to anything that may be in specific Vocational training legislation and the standards for RTO’s I’m not aware of any specific law that says you must have parental consent, but giving people information must be good idea and making sure that a parent or guardian knows what is going on would be a simple way to reduce foreseeable risks. It will certainly be more important the younger the participant.  I don’t understand why an RTO that has an under 18s consent form would want to stop using it?  Without some guidance on their thinking it’s not possible to take the matter further.

 


Categories: Researchers

Limits on the road rule exemption for Queensland paramedics

16 June, 2017 - 03:00

Today’s question comes from a paramedic with the Queensland Ambulance Service who says that:

There has been recent increased attention within parts of the organisation paid to speeding infringement notices issued whilst travelling under emergency conditions. In particular we have been reminded that whilst we may have certain exemptions under the conditions of s306 of the Transport Operations (Road Use Management-Road Rules) Regulation 2009, speeding in the range of 40km/h over the applicable speed limit is defined separately in the QLD Criminal Code 1899 (s328a (6)). The suggestion is that if an incident occurs over 40km/h over the limit, or under some other similarly dangerous conditions described in s328a the interpretation of ‘reasonableness’ may be different and an officer in such a predicament would not be able to justify those actions.

Interested in your thoughts on this, as you can imagine such organisation tend not to provide clear legal interpretations or advice on these matters.

Regular readers of this blog will be familiar with r 306 of the Australian Road Rules, adopted in Queensland by the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld).  Rule 306 says

A provision of this regulation does not apply to the driver of an emergency vehicle if—

(a) in the circumstances—

(i) the driver is taking reasonable care; and

(ii) it is reasonable that the provision should not apply; and

(b) if the vehicle is a motor vehicle that is moving—the vehicle is displaying a red flashing light or sounding an alarm.

A vehicle operated by an officer of the Queensland Ambulance Service is an ‘emergency vehicle’ (see Dictionary of defined terms in Schedule 5).

The critical point is that the exemption in r 306 only applies to ‘A provision of this regulation’.  It does not provide an exemption from rules contained in other laws. As my correspondent has noted, another relevant rule is found in the Criminal Code 1899 (Qld).  Section 328A of the Code says that ‘A person who operates … a vehicle dangerously … commits a misdemeanour’.  In deciding whether or not a vehicle is being operated ‘dangerously’ a court has to consider:

(a) the nature, condition and use of the place; and

(b) the nature and condition of the vehicle; and

(c) the number of persons, vehicles or other objects that are, or might reasonably be expected to be, in the place; and

(d) the concentration of alcohol in the operator’s blood or breath; and

(e) the presence of any other substance in the operator’s body.

Further, if at the time, they are ‘excessively speeding’ then the offence is upgraded to ‘a crime’.    ‘Excessively speeding’ means ‘driving or operating a vehicle at a speed more than 40km/h over the speed limit’.  Paramedics receive no exemption from this rule.

What follows is that if there is evidence that the operation of the ambulance was ‘dangerous’ and that it was being driven at more than 40km/h over the speed limit, then the paramedic has committed an offence and is liable to a maximum penalty of a fine of 400 penalty units or 5 years, imprisonment.  (A Queensland penalty unit is currently worth $121.90 (see Sentencing fines and penalties for offences) so the maximum fine is $48,760). Evidence that the ambulance was involved in a collision would be evidence that the driving was dangerous but it’s not the only way to prove that allegation.  Driving at high speed in traffic or a high pedestrian zone would be dangerous even if there is no collision. Rule 306 does not justify driving in an objectively dangerous way (see Further prosecution over fatal RFS accident (August 17, 2016)).

Conclusion

The driver of an emergency vehicle has no exemption from the offence set out in s 328A of the Criminal Code 1899 (Qld), with the result that ‘if an incident occurs over 40km/h over the limit, or under some other similarly dangerous conditions described in s328A’ the question of ‘reasonableness’ just won’t arise.

I can’t imagine how it would ever be reasonable to exceed the speed limit by more than 40km/h.


Categories: Researchers

Paramedic providing a statement to Queensland police

16 June, 2017 - 02:25

This question again touches on the issue of privacy – see

See also Discovering crime during an emergency response (July 19, 2016).

Today’s correspondent is a Queensland paramedic who

… attended an injury road traffic crash where the driver appeared to have been intoxicated and had sustained injuries as a result of the crash. The QPS officer at the scene never completed a breath screening test, nor did QPS officers who attended the major hospital in relation to this driver, nor was a blood sample taken for analysis.

I have been contacted by the QPS and was told that they want to take a statement from me in relation to this case and appear as a witness for the QPS in this matter.

While I find drink driving deplorable, I believe that the agency responsible for investigating these events and presenting the facts in Court, is the QPS, and that expecting QAS to provide this information detracts from our position of neutrality. In short I believe that the QPS is expecting QAS to provide an opinion (as we do not carry alcohol measuring devices) to secure a conviction because of a very poor policing.

Is there a law which requires Queensland paramedics to provide statements to the Queensland Police Service with regard to cases attended?

The simple answer is that there is no obligation to provide a statement to police.

That can be explored in more detail.  In Queensland, the privacy principles are adopted by the Information Privacy Act 2009 (Qld).   Under that Act ‘Personal information is information or an opinion … about an individual whose identity is apparent…’ (s 12). An opinion about the driver’s level of intoxication is therefore personal information. An agency, including Queensland Ambulance, is only to use personal information for the purpose for which it was obtained, in this context to provide pre-hospital care to the injured person.  Even so personal information can be disclosed for ‘the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of laws imposing penalties or sanctions’ (National Privacy Principle 2(1)(g)(i) set out in Schedule 4 of the Queensland Act).

That makes sense. Assume a person made an admission of a serious criminal offence to a paramedic, the police may well want evidence of that admission as evidence in a prosecution and the paramedic may well think that the circumstances are such that the breach of confidence is warranted (see Discovering crime during an emergency response (July 19, 2016)).

It would appear to me that my correspondent could rely on the relevant privacy principle exceptions to give a statement but that does not impose an obligation to do so, ie the statement may be given, not must be given.

But what value is the opinion?  As a general rule, a person’s opinion is not admissible as evidence in court. A person can say what they observed but what conclusion one draws is a matter or the court. That would mean that the paramedic could say what was observed about the patient but not a conclusion that the patient was intoxicated.

There are exceptions to the rule against opinion evidence.  Qualified experts can give evidence of an opinion, and we can all give opinions of the sort of matters that are part of everyday life and where we give opinions without being conscious of all the factors we observe before drawing the opinion.  In the High Court of Australia, French CJ, Heydon And Bell JJ said (Lithgow City Council v Jackson [2011] HCA 36 at [45]):

The common law permitted the reception of non-expert opinion evidence where it was very difficult for witnesses to convey what they had perceived about an event or condition without using rolled-up summaries of lay opinion – impressions or inferences … The usual examples are age, sobriety, speed, time, distance, weather, handwriting, identity, bodily health and emotional state, but a thorough search would uncover very many more.

Forming an opinion that someone is intoxicated could be covered by either rule, ie we all are capable, in everyday life of forming an opinion whether someone is intoxicated or not.   Paramedics, like police, may also be qualified as experts. Police often give evidence along the lines of:

I have been a police officer for xx years.  In that time I have had many dealings with people who are intoxicated.  On this occasion I noted that the defendant’s speech was slurred, he/she was unsteady on his/her feet, their eyes were bloodshot (etc). I formed the opinion that he/she was slightly/moderately/well affected by alcohol.

Paramedics with their experience could probably give similar evidence.

Evidence that a driver was intoxicated would be irrelevant to a prosecution alleging that the driver had in his or her blood stream, alcohol in excess of the legal limit, but would be relevant to an allegation that the person was ‘under the influence of liquor or a drug’ (Transport Operations (Road Use Management) Act 1995 (Qld) s 79(1)).  No doubt defence counsel would seek to have any evidence excluded for the very reason that my correspondent objects to giving it, the evidence is being used to shore up a police case when other, better evidence could and should have been obtained (see Transport Operations (Road Use Management) Act 1995 (Qld) s 80 re the power to require a driver to give a breath and/or saliva sample or a doctor to take a blood sample).

The police could subpoena the clinical record and attempt to rely on that, but whether that would be admissible and what it would prove would depend on what was written and how it was expressed (see Lithgow City Council v Jackson [2011] HCA 36; Wells v Council of the City of Orange (No 2) [2017] NSWSC 510 and Ross v Vaughan [2016] NSWCA 188 where, in each case, notes by paramedics as to the possibly history of the patient’s injuries were not admissible to prove the cause of the relevant accident, but those cases did not involve recordings of things the paramedics saw or observed which may distinguish them from a situation where the paramedics has made observations about the patient’s condition and draws an inference as to the cause, in this case that the patient is affected by alcohol.

The paramedic could also be subpoenaed to give evidence in which case he or she would be required to answer questions put to him/her in court.  As a witness he or she could ask the judge to exclude questions that would reveal information received as part of the confidential health care relationship.  It would then be up to the judge to rule whether the questions had to be answered.  It would be a ‘brave’ prosecutor who called a witness without first having a statement to know what they were likely to say.

Conclusion

My correspondent could give police a statement setting out what he or she observed at the scene of the traffic accident including an opinion as to the driver’s sobriety.  Whether that would be admissible in any prosecution would depend on the charges brought and whether the defence was able to argue that it should be excluded for any number of grounds.

Saying that my correspondent could give the statement is not, however, the same as saying that he or she must do so.  There is no law compelling a person to give such evidence. The police could subpoena the clinical record and/or subpoena the paramedic to give evidence, in which case he or she would have to answer questions put to them.

Deciding whether or not to give a statement would, I suggest, require consideration of the issues raised in my earlier post Discovering crime during an emergency response (July 19, 2016).

 

 

 

 

 


Categories: Researchers

Is it an emergency? Does it have to be for Victoria’s road rules?

12 June, 2017 - 20:00

Today’s question comes from a volunteer with Victoria’s Country Fire Authority who asks a question about the Road Safety Road Rules 2009 (Vic) r 306.  As readers of this blog know, r 306 is the general exemption for the drivers of emergency vehicles.   Today’s correspondent says:

An incident occurred last year which bought into question the use of reg 306. A member at my brigade states that reg 306 is only for use for emergencies. This member is a driving instructor.

The question I have now is, “Is reg 306 exclusive to emergency use only” My understanding is that reg 306 is not limited by an emergency situation. Reg 306 provides an exemption to a provision of the Road Safety Road Rules 2009 if the following conditions are met;
– You must be a driver of an emergency vehicle
– You must take reasonable care
– It must be reasonable that the road rule not apply
– If the vehicle is moving you must display a red or blue flashing light or sound an alarm.

While I understand that an emergency response would likely be a reason that the road rule should not apply, previously I have used this exemption in situations I would not deem as an emergency.

An example was, while driving a fire fighting vehicle back from some training, I came across a motorbike rider whose motorbike had broken down at major intersection. I turned on my red and blue flashing lights and escorted him out of the intersection to a safe location away from the traffic hazard. I would not think this to be an emergency response and certainly not something a member of the public would call upon the fire brigade for. I believe I had met my exemption conditions under reg 306.

Reg 306 does not mention emergency response as a reason for a provision not to apply.

Whether r 306 mentions ‘emergency’ depends on what state you are in.  The Road Rules 2014 (NSW) define an emergency vehicle is a vehicle driven by an emergency worker provided that the emergency worker is providing transport ‘in an emergency’, ‘in the course of an emergency’ or ‘in the course of a fire or rescue emergency’.

In Victoria, what is an emergency vehicle is defined by who operates the vehicle rather than the purpose for which it is being used. Relevantly an emergency vehicle includes ‘a fire service unit under the control of— … (iii) the Country Fire Authority…’.

As my correspondent has noted, r 306 in the Road Safety Road Rules 2009 (Vic) says:

A provision of these Rules does not apply to the driver of an emergency vehicle if—

(a) in the circumstances—

(i) the driver is taking reasonable care; and

(ii) it is reasonable that the rule should not apply; and

(b) if the vehicle is a motor vehicle that is moving—the vehicle is displaying a blue or red flashing light or sounding an alarm.

The rule does not use the word ‘emergency’ nor is it implied by the definition of ‘emergency worker’ or ‘emergency vehicle’.   But even if ‘emergency’ was implied it simply begs the question of ‘what is an emergency?’   One can be confident that responding to a triple zero fire call is responding to an emergency, but in these days of all hazards and all agencies response does an emergency have to be a fire alarm?  Assume that a CFA crew is returning to station and they see a pedestrian hit by a car. They park the appliance in order to protect the person from oncoming traffic, get out and commence first aid and also turn on the red/blue warning lights in order to warn other drivers and increase their own protection.  This is not a job that people would call the CFA too but it is an emergency and I don’t think anyone would suggest that the driver of the CFA appliance could not rely on r 307 in relation to parking in the middle of the road.

So in the scenario given by my correspondent.  The broken down motorcycle is a hazard for road users including the rider.  Helping to make the scene safe seems appropriate and why is that not ‘an emergency’?

And this is something anyone can do. Rule 165 says:

It is a defence to the prosecution of a driver for an offence against a provision of this Part if—…

(c) the driver stops at a particular place, or in a particular way … to assist a disabled vehicle, and the driver stops for no longer than is necessary in the circumstances;…

Accordingly, a private citizen could pull up behind a broken-down vehicle and put their hazard lights on whist they helped (see also Road Safety Road Rules 2009 (Vic) r 221 ‘Using hazard warning lights’). Whilst escorting the rider off the road isn’t stopping or parking, II can’t imagine anyone including the highway patrol taking issue with a driver escorting a person pushing a motorcycle to reduce risks to the rider and other road users.

To return to the emergency services, rule 306 is not a prohibitive rule, it does not say ‘you must not …’  It is a permissive rule, it says ‘you may…’  Our scenario begs the question of what rules did the driver of the CFA appliance break?  Putting on the red/blue lights is not an offence (remember r 306 is permissive not prohibitive).  Escorting the rider (I’m assuming the rider was pushing the bike) doesn’t necessary imply any breach of any road rules in which case r 306 is irrelevant.   Driving with the red/blue lights on but following all the road rules is not an offence, it’s just silly as it would confuse every other driver and increase risk – it may be a failure to take ‘reasonable care’ but that does depend on the circumstances.  If the vehicle is travelling slowly because they are behind slow moving traffic (ie a motorcycle that is being pushed) it might be quite reasonable but in that case the actions don’t call up r 306.

Conclusion

In summary, the driver of an emergency vehicle (a CFA appliance) can do things other drivers cannot do provided they take care and it is reasonable.   What that means is that the driver does not do something wrong if he or she activates the red/blue lights when they think it is necessary in order to secure their safety. They may do something wrong if they drive contrary to the road rules and, ultimately, a court decides that they were not taking care or that the rule should have applied (see Road traffic exemption – Who determines if it is reasonable that the provision should not apply? (May 22, 2016)).

It is certainly a good rule of thumb that the red/blue lights should only be used in ‘an emergency’ but that simply begs the question of what is an emergency?  It can’t be something that someone would ring a fire brigade for as that is far too narrow.  Fire brigades respond to many jobs that members of the public would not call them for.  Equally most emergencies that the emergency services respond to are not an emergency for them – a house fire is an emergency for the people in it, but it’s just another day at the office for firefighters.   A broken down motorcycle is not an emergency for people safely in the cabin of their fire appliance but it is for the rider who is at risk, and for other road users given the risk that the bike or other vehicle poses.  So, if r 306 only applies in ‘an emergency’ I don’t see why that wasn’t one – it may not be reasonable to respond from the station to that scene under lights and sirens, but being there, putting the red/blues on in the manner described seems reasonable to me.   Even if it is not an emergency, as my correspondent has noted, r 306 doesn’t refer to an emergency.  If the action of the CFA driver was ‘reasonable in the circumstances’ then he or she can seek to rely on the rule should he or she be issued with an infringement notice for some breach of some other road rule.


Categories: Researchers

Using a fire alarm to call for help to a medical emergency

6 June, 2017 - 20:56

This question relates to the proper use of fire alarm buttons and, apparently flows on from a discussion between my correspondent and others that has taken place on Facebook and then LinkedIn.  The gist of the debate is ‘it is ok to tell people to activate a fire alarm for no fire emergencies?’  Specifically:

… in view of a pure legal concept is it correct to train members of the public – generally with little or no understanding of the role of Emergency Wardens – to use a Fire Alarm Activation button to summon the fire brigade in an emergency. I am concerned that training/telling/advising people to use the Fire Alarm Button under the circumstances may lead to a possible Professional or Public Liability (or worse) case if in the worst scenario someone dies because of an incorrect use due to training or incorrect training.

To add some more depth to that, my understanding is that, on one side is the view that if a person is in a building and another person is suffering a medical emergency, if there’s no phone to use, pull the fire alarm which will summon the fire brigade. There’s no fire, but at least help is on its way, fire fighters are trained at least in first aid and in some places (eg Melbourne) are emergency first responders so getting someone will start the entire emergency response process.  The counter argument is that calling the fire brigade may delay an ambulance response, as they won’t be called until the fire brigade get there and, relevantly for this blog, it may be illegal.

A suggested scenario is

Mate, if you were suffering from a MCI in a shopping mall or in an office and I didn’t have my phone or means to communicate, i’d hit the scary red button as fire and rescue would be a welcomed sight as I commenced CPR on you… and we needed to raise an alarm (if this was the only means) I only hope you would do the same for me…?

(I infer that MCI means Myocardial infarction).

The critical point for those in favour of using the fire alarm is ‘Worst case; no phone or dead device, person unconscious, next to an MCP, activate device … and await fire rescue as the medical response… using such a unit is meant to raise an alarm. In this case, all other means are not available.’ The counter point is ‘the operation of a RED fire alarm call point is not currently the accepted practice for raising a non-fire related emergency alarm.

The debate focussed on the Fire and Emergency Services Act 1990 (Qld) s 150B that says:

(1) A person must not—

(a)  ask QFES to provide a fire and emergency service at a place unless the service is required at the place; or

(b)  give a false alarm of fire.

(2) For subsection (1), a request may be made orally, in writing or by conduct.

*   Example of conduct being a request for QFES to provide a fire and emergency service at a place—

*   activation of a break-glass alarm

(3) An infringement notice under the State Penalties Enforcement Act 1999 may be issued to a person for a contravention of subsection (1) only if a fire investigation officer is satisfied, having investigated, the person does not have a lawful excuse.

(4) In this section—

fire and emergency service means protection or rescue by QFES of—

(a)  persons, property and the environment from fire and hazardous materials emergencies; or

(b)  persons trapped in a vehicle or building or otherwise endangered.

Let me start however with the ACT, the Northern Territory and Western Australia.  In the ACT all the emergency services including ACT Fire and Rescue and ACT Ambulance are governed by the Emergencies Act 2004 (ACT).  Because it is a all agencies Act, it stands to reason that the provision of ‘false alarms’ is also written for all agencies.  Section 191 of the ACT legislation says that a ‘person commits an offence if the person — intentionally gives a  false  alarm of fire, or an emergency or other incident …’  In the circumstances of a medical emergency where no other means of communication is available, pulling the alarm, even if it is marked ‘fire’ is not giving a false alarm as there is indeed an ‘emergency or other incident’.

In the Northern Territory, it is also an offence to give a false alarm of a fire or other emergency (Fire and Emergency Act (NT) s 35).  For that Act, Emergency means (s 3) ‘an occurrence, where effective response is within the capacity and resources of the Fire and Rescue Service as determined by the Chief Executive Officer, that:

(a)     causes or threatens to cause:

(i)     loss of life or property; or

(ii)       injury to persons or property or distress to persons; or

(b)     in any way endangers the safety of the public of the Territory; or

(c)        in any way causes or threatens to cause damage to the environment of the Territory.

The person who pulls the fire alarm may not know what the Chief Executive Officer has determined within the capacity and resources of the Fire and Rescue Service but it would be reasonable to think that turning up and helping with CPR is well within their capacity, and in that context, it is not a false alarm.

Finally, in Western Australia the Fire Brigades Act 1942 (WA) s 59 says that any ‘person who —  … wilfully gives a false alarm of fire, a hazardous material incident or an accident or incident requiring a rescue operation’ commits an offence. ‘Rescue operation’ means ‘the rescue and extrication of any person or property endangered as a result of an accident, explosion or other incident’.   A person suffering a cardiac arrest where the only person present is doing CPR and has no other means to call or help is calling the fire brigade to help with the ‘extrication’ of the person endangered by the incident.

Now we can say that clearly the point of a fire alarm is to report a fire, but in the circumstances described, at least in the Territories and Western Australia, there is ample room to argue that using them as a last resort for calling medical assistance is not prohibited.

So let us consider that in light of the other states.   Calling the fire brigade when that is all you can call would also seem consistent with the modern trend of emergency management – all hazards; all agencies.   Imagine you are working late and you see your colleague, the only other person in the building, has collapsed in the tea room. You’ve gone to make a cup of tea so you don’t have your mobile phone.  You can hit the fire alarm and start CPR or run back to the office, unlock the door, get your phone, go back to the kitchen etc.   Calling the fire brigades is to summon help and we no longer focus on the fact that it is, or is not, their emergency.

To go back to Queensland, ‘fire and emergency service means protection or rescue by QFES of— persons … otherwise endangered’.  A person suffering a cardiac arrest is ‘otherwise endangered’.

In New South Wales (Fire Brigades Act 1989 (NSW) s 34), Tasmania (Fire Service Act 1979 (Tas) s 128) and Victoria (Metropolitan Fire Brigades Act 1958 (Vic) s 33), it’s an offence to give a ‘false alarm of fire’ and here, assuming the fire alarm pull signal can only mean ‘fire’ and not ‘help required’ the offence might be committed.  I’ve previously discussed the concept of necessity as a defence to a criminal prosecution (see The doctrine of necessity – Explained (January 31, 2017)).  I’m sure that no fire brigade, or police force, would object to being summoned in the circumstances so in the incredibly unlikely event that someone did decide to bring a prosecution I’m sure that doctrine would apply here.

In South Australia (Fire and Emergency Services Act 2005 (SA) s 135) a ‘person must not without reasonable excuse— give a false alarm of fire or other emergency’.   In this Act, ‘emergency’ is limited to a HAZMAT incident (s 35), not a medical emergency. But the offence is only committed if there was no ‘reasonable excuse’. Given the debate I’m asked to comment on, ‘using such a unit … to raise an alarm. … all other means are not available’ then I would expect any fire brigade, police and/or court to accept that there was a ‘reasonable excuse’.

I note that I haven’t looked at all fire service legislation so I haven’t discussed the Country Fire Authority Act 1958 (Vic), Bushfires Act 1954 (WA) or the Rural Fires Act 1997 (NSW) but the provisions and arguments are going to be similar.

I also haven’t addressed the good Samaritan provisions but they could be applicable here and would provide potential defence – see Good Samaritan legislation – a comparison (February 22, 2017).

Discussion

Remember the scenario under discussion ‘‘Worst case; no phone or dead device, person unconscious, next to an MCP, activate device … and await fire rescue as the medical response… using such a unit … to raise an alarm…all other means are not available.’

I can’t see that anyone would act against such a person even if, strictly speaking, it appears to be contrary to the legislation in NSW, Tasmania and Victoria.  I think the legislation in the other states provides sufficient flexibility to say that the action in those circumstances would not be illegal.

But could a trainer that telling his or her students that ‘lead to a possible Professional or Public Liability (or worse) case if in the worst scenario someone dies because of an incorrect use due to training or incorrect training.’  I can’t imagine what the ‘or worse’ would be.  Nor can I imagine how calling for help could lead to an adverse legal result in the circumstances contemplated.

Pulling the alarm and starting CPR is going to be better than looking for a phone or saying ‘sorry buddy, can’t get help’.  A focus on ‘but it’s labelled ‘fire alarm’ and it’s not a fire’ and worse ‘I’m afraid I may get sued or prosecuted and that’s more important that trying to save your life’ is much more likely to get adverse criticism from a court.

Conclusion

One the participants in the debate wrote ‘Mate, if you were suffering from a MCI in a shopping mall or in an office and I didn’t have my phone or means to communicate, i’d hit the scary red button as fire and rescue would be a welcomed sight as I commenced CPR on you’

I suppose one has to think that in a shopping mall someone’s going to have a phone so it may be the case that in a shopping mall other options are available, but to use my example – ‘you are working late and you see your colleague, the only other person in the building, has collapsed in the tea room. You’ve gone to make a cup of tea so you don’t have your mobile phone …’ then ‘i’d hit the scary red button’ too.


Categories: Researchers

Releasing information to SA police

31 May, 2017 - 00:06

This question comes from a member of the South Australian Ambulance Service

I need guidance re what is confidential as far as Health Care Act … medical in confidence, can we disclose to police the time of an event, or the address we picked the patient up?  In one case the patient was assaulted but did not wish to say.

For the purposes of the Health Care Act 2008 (SA):

“personal information” means information or an opinion, whether true or not, relating to a natural person or the affairs of a natural person whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

I cannot find any judicial authority that has considered this definition to help define what is or is not included.

Information about the address that the ambulance was called to, and the time are, perhaps not personal information as that is information about what the ambulance officers did, not the patient.  But the address from where they were collected is information relating to them and it maybe something they want to protect. For example a person may be embarrassed if it were known that they had been at a particular address and they would not want that disclosed.  That suggests that this information is ‘personal information’.   A test may be would they object if it was broadcast – ‘Bill Smith was collected from his home’ may not be an issue, but ‘Bill Smith was collected from an address that can be identified as a ‘house of ill-repute’’ would be embarrassing.  When you apply that test it seems to me that the address from where the patient was collected (regardless of whether it was their home or a ‘house of ill-repute’) and the time would constitute ‘personal information’.

The Health Care Act 2008 (SA) s 93 says that a person ‘engaged or formerly engaged’ with the SAAS ‘must not disclose personal information relating to a person’ that was obtained while the person was with SAAS except where they are ‘authorised or required to disclose that information’ by the ambulance service.

Information may also be disclosed where the disclosure is ‘required or authorised by or under law’ (s 93(3)(a)) or where the disclosure is necessary ‘to lessen or prevent a serious threat to the life, health or safety of a person’ (s 93(3)(e)).  Note to under the Privacy Act 1988 (Cth) private information may be disclosed where the ‘disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of any individual, or to public health or safety’ (s 16A).  These provisions would be relevant if there had been an assault and there was fear of ongoing violence, eg in a situation of domestic violence, but not in a case of a ‘one off’ assault where there is no reason to think there is an ongoing threat.

Discussion

Just because police ask for information it does not mean that it is required by law, because people are not required to answer police questions.   If police can produce a search warrant then they can compel the production of documents such as a clinical record and obtain whatever information they want that way.   Equally if the police can assure the ambulance officers that the information is required ‘to lessen or prevent a serious threat to the life, health or safety of a person’ then it may be disclosed.  If the police can point to some other lawful authority to demand an answer – that is they can say ‘you are required by section … of the … Act to answer this question’ then the information can be disclosed.  In other circumstances, particularly if the patient has indicated that they don’t want the information disclosed then that should be honoured.  If for example police ask the patient what happened, where were they etc and the patient/victim refuses to answer those questions, the paramedics should not then answer the same questions when it is clear that the patient wants to protect their confidentiality.

If there is no immediate threat of future violence then the police can take it up with SAAS management and either point to the relevant lawful authority or obtain a search warrant.


Categories: Researchers

Who should call an ambulance?

30 May, 2017 - 22:50

Today’s question relates to calling an ambulance to a sporting field.

How would a sporting association stand if the strictly informed their members at sports fields that only the club/control room could call an ambulance, and as a result there was a significant delay in phoning triple zero for an unconscious player. I am referring to recreational Saturday afternoon sport but think of the poor outcome with the professional cricketer a few years back and alleged delay/confusion in calling triple zero.

The association is obviously trying to reduce frivolous calls for sprained ankles but some members are concerned of ramifications of this ruling. It is on public sporting fields.

A ‘sporting association’ that says ‘only the club/control room could call an ambulance’ is overreaching itself, because it’s clearly not true.  Anyone with a phone can call an ambulance and what’s the sporting association going to do if someone does call the ambulance?

One might expect that the club has an emergency plan, which says something like ‘In the event of an emergency, call the onsite first aid people and they will call an ambulance if required’ or some such thing.  There is value in making sure there is coordination and for example that grounds people know that there’s been an injury and that an ambulance is expected in order to clear the way, stop games if necessary and take other action.  The control room wants to know what’s going on so it does make sense to say ‘we’ll call an ambulance’ but, at the end of the day, they can’t stop anyone calling an ambulance if they think they should.

As for ‘delay/confusion’ there can be both if people aren’t sure if an ambulance has been called or there are multiple calls for the same injury (though hopefully a modern ambulance service can cope with and identify duplication).

The question was ‘How would a sporting association stand …’ I suppose the question is would they be liable if there was some delay.  I suppose the argument could be made if a person did follow the emergency plan and it wasn’t acted on in the control room. Imagine a person has collapsed, someone starts CPR and in accordance with the direction, someone else runs to the control room and asks them to call an ambulance and they simply fail to do so, but no-one else rings triple zero because they think that’s been attended to.  That would certainly look ‘bad’ and if it could be proved that the delay made the outcome worse there could be some liability.

But assuming people aren’t idiots, it does make sense to ask for calls to be made from a single point so that the arrival of the ambulance, as well as safety on the field, can be managed and coordinated.  Having an ambulance turn up at a gate that is locked because the people with the key didn’t know it was coming is not effective.  So the edict seems quite reasonable but having issued it, there has to be procedures in place to make sure it is effective, that is that someone does call triple zero or dispatch the on field medics, and the person with the key does unlock the gate.

But at the end of the day, anyone with a phone can call triple zero if they think they need to.


Categories: Researchers

Redrawing NSW RFS districts with local government changes

30 May, 2017 - 22:31

Today’s question again implies that NSW Rural Fire Service (RFS) Brigades have some existence separate to the RFS (see ‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015)), which they don’t.

I have a question regarding NSW Council amalgamations and RFS Districts.

With NSW Council Amalgamations well underway, one contentious issue that has surfaced as a result of redrawing the newly amalgamated LGA’s boundaries, has been where two previously separate fire districts, potentially managed by two different Fire Control Centres  have now become one fire district, with the local RFS members now having to decide which FCC to align with.

This is a tough decision as I’m sure the RFS members would prefer to remain with their previous FCC and not have to change, quite the stalemate.

Question

If volunteers are unable to agree on which direction to go and the decision is made for them, are there any legal options available to RFS volunteer members to challenge an unfavorable decision that members feel goes against the majority of the Brigades and in the best interest of their community?

You have my permission to use this question in your blog, however if you could leave my name out of it, that would be appreciated.

The Rural Fires Act 1997 (NSW) s 6 says:

(1) A rural fire district is constituted by this section for the area of each local authority, with boundaries of the district being the same as the boundaries of the area as at the date of commencement of this section.

(2) …

(3) If the boundaries of the area of a local authority for which a rural fire district is constituted by this section change after the commencement of this section, the boundaries of the rural fire district change so as to correspond to the boundaries of the area.

(4) If the whole of the area of a local authority for which a rural fire district is constituted by this section is dissolved after the commencement of this section, the rural fire district is dissolved.

(5) If part of the area of a local authority for which a rural fire district is constituted is dissolved after the commencement of this section, the rural fire district constituted for the area is taken to have been constituted for the remaining part of the area.

It is the Commissioner of the RFS that is ‘responsible for managing and controlling the activities of the Service …’ (Rural Fires Act 1997 (NSW) s 12(1)).  As the Local Government boundaries change so too does the fire district to match the new boundaries.  If it turns out there are now two or more fire control centres within the district, it will be up to the Commissioner to decide which to keep and which, if any, to close.  It will also be up to the Commissioner to decide which Centre each brigade will ‘align with’. It is not a matter for ‘the local RFS members now having to decide which FCC to align with’ unless that is how the Commissioner has decided to manage the changes.

There are ways to challenge administrative decisions if it is thought the decision maker has failed to take into account material required to be considered, or considered extraneous material when making the decision or if there is some sort of ‘estoppel’ (eg a promise was made and relied upon and the decision is contrary to that promise) but they are unlikely to be relevant in this context.

In this context the NSW government has determined to change the local government boundaries and the intention of the RFS Act is that the boundaries of Rural Fire Districts will match those of the local government authorities.  How the RFS is then managed within that new reality is a matter for the Commissioner not the members of each brigade.

Conclusion

With NSW Council Amalgamations it will not be a matter for local RFS members to decide which FCC to align with should a district end up with one or more FCCs.  The management of the RFS is a matter for the Commissioner.   There will be no practical legal option for RFS volunteers to challenge the decision of the Commissioner if he or she chooses to close an FCC or change the reporting lines for a brigade.


Categories: Researchers

What’s an ambulance service?

30 May, 2017 - 18:51

Following my post ‘What’s an ambulance’ (May 28, 2017) I was asked ‘what’s an ambulance service’.    My initial response was to quote the article I wrote with Dr Jason Bendall-  ‘The provision of Ambulance Services in Australia: a legal argument for the national registration of paramedics’ (2010) 8(4) Australasian Journal of Paramedicine Article 4 (see the comments at the end of the ‘What’s an ambulance‘ post).

I’m now asked:

Who licences the ambulance service in ACT, or elsewhere for that matter? What are the criteria and standards? My question is related to the upcoming national registration of paramedics and continuing Paramedicine course accreditation. If paramedics and universities need to be registered or accredited (which I support), wouldn’t it be logical to ask that those providing ambulance or paramedic services also be required to meet some sort of standard and be accredited in some way. There are many paramedic service providers in Australia. This requirement has been established in England where a number of ambulance trusts have been put on a watch-list for failing in some areas of the standards.

There is indeed an argument that not only should paramedics be registered, but that those entities that provide ambulance services, however defined, should also be subject to some sort of accreditation for example accreditation by the Australian Council on Health Care Standards.

At the moment there is no legal obligation for that sort of accreditation or even licensing for many services that might be described as ambulance services. This is particularly true for ‘event health providers’ that is people who provide emergency medical services, ranging from basic first aid to advanced paramedic care, at public and private events such as sporting and entertainment venues.

State and territory ambulance services

The state/territory Ambulance services in all jurisdictions, other than the Northern Territory and Western Australia, are created by statute.  They are not ‘licensed’ by anyone but are managed by the relevant department which, in some states, is the Health Department in others the department charged with managing emergency services.

Most state ambulance legislation provides for quality assurance mechanisms to be applied to the state ambulance services.

Non-government ambulance services

Who ‘licences’ private ambulance services depends upon which state or territory you are in.

With respect to the use of scheduled drugs, it is the health department in each state or territory that has to grant relevant authorities to allow paramedics to use and carry scheduled drugs, but that is not the same as licensing ambulance providers.

Western Australia and the Northern Territory

In these jurisdictions, there is no ambulance legislation so no-one licences ambulance services in those jurisdictions.

Australian Capital Territory

In the ACT (Emergencies Act 2004 (ACT) s 63):

(1)     A person commits an offence if—

(a)     the person is not approved by the Minister under this part to provide emergency, ambulance, firefighting or rescue services; and

(b)     the person provides emergency, ambulance, firefighting or rescue services.

Note the ‘comma’ between ‘emergency’ and ‘ambulance’ that is the section does not say it is an offence to provide ‘emergency ambulance’ services, rather it is an offence to provide ‘emergency’ services (akin to the State Emergency Service) and ‘ambulance’ services (akin to ACT Ambulance).

The term ‘ambulance services’ means ‘the provision of medical treatment and pre-hospital patient care, and includes the transport of a patient by ambulance or medical rescue aircraft’ (Emergencies Act 2004 (ACT) Dictionary).

It follows that the Minister is the relevant licensing authority.  To their credit, the ACT publishes all the relevant authorities and you can see who has been authorised and the conditions of any authorisation on the ACT Legislation Register (http://www.legislation.act.gov.au/) – see the various Emergencies (Service Provider) Approvals listed under ‘notifiable instruments’.

New South Wales

As noted in the earlier post, the Health Services Act 1997 (NSW) s 67E says:

(1) A person must not:

(a) directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, or

(b) conduct for fee or reward any operations similar to the operations carried on by the Health Secretary under this Chapter,

without the consent of the Health Secretary and except in accordance with such conditions (if any) as the Health Secretary may from time to time impose.

Now the licensing authority is the Health Secretary.  As also noted in an earlier post (see Changes to ambulance legislation in NSW – about time too! (August 24, 2015)) this will change with the commencement of the Health Services Amendment (Ambulance Services) Act 2015.  When that act commences, approval will only be required to provide emergency ambulance services. Non-emergency patient transport will not require a licence so anyone will be able to start an NEPT service.  The department will only get involved if someone complains about the service.

Queensland

The Ambulance Service Act 1991 (Qld) s 43 says:

A person, other than the chief executive or the commissioner, is not to directly or indirectly imply that the person provides or participates in providing ambulance transport without the approval of the Minister and except in accordance with such conditions (if any) as the Minister may impose.

In that state, the licensing authority is ‘the Minister’ (no doubt delegated to the relevant Department) but is only required where the service is providing ‘ambulance transport’.

South Australia

The Health Care Act 2008 (SA) says:

(1) A person must not provide emergency ambulance services unless—

(a) the services are carried out by SAAS; or

(b) the services are provided by a person or a person of a class, or in circumstances, prescribed by regulation; or

(c) the services are provided under an exemption granted by the Minister under this Part.

An ‘emergency ambulance service’ is (s 3):

an ambulance service that—

(a) responds to requests for medical assistance (whether made by 000 emergency telephone calls or other means) for persons who may have injuries or illnesses requiring immediate medical attention in order to maintain life or to alleviate suffering; and

(b) is set up to provide medical attention to save or maintain a person’s life or alleviate suffering while transporting the person to a hospital;

An event first aid provider may respond to requests for medical assistance as set out in (a) above, but if they are not transporting the patient to hospital, they are not providing an ‘emergency ambulance service’ and don’t need the Minister’s approval.

A person must not provide ‘non-emergency ambulance services’ unless the person holds a restricted ambulance service licence or has an exemption from the Minister (s 58).  Again, the Act and its regulations deal with the standards to be met by a licensed NEPT provider.

Non-emergency ambulance services are any ambulance services other than an emergency ambulance services.  Ambulance services means ‘means the service of transporting by the use of an ambulance a person to a hospital or other place to receive medical treatment or from a hospital or other place at which the person has received medical treatment’ (s 3). The critical part of the definition is that it involves transport to hospital by ambulance (and an ambulance is ‘a vehicle that is equipped to provide medical treatment or to monitor a person’s health and that is staffed by persons who are trained to provide medical attention during transportation’).   An emergency health care provider does not need approval if they are not transporting the patient to hospital, or even if they do transport the patient, they do so in a non-modified or standard vehicle (see Police v Zammitt [2007] SASC 37).

Tasmania

Ambulance services in Tasmania means ‘means services relating to the work of rendering out-of-hospital clinical care to, and the conveyance of, persons suffering from illness or injury’ (Ambulance Service Act 1982 (Tas) s 3):   Section 37 says:

A person shall not provide ambulance services similar to the services provided by the Commissioner under this Act without the written consent of the Commissioner and except in accordance with such conditions (if any) as the Commissioner may from time to time impose in relation to the provision of ambulance services by that person.

Further (s 37A):

A person must not provide non-emergency patient transport services unless the person –

(a) holds an NEPT licence; or

(b) is providing the service as part of the Ambulance Service.

NEPT licences are issued by the Secretary of the Department, so to the extent there is a licensing scheme the authority is the Secretary for NEPT providers. Again, the Act sets out the various requirements that must be met by NEPT licence holders.  The Commissioner of Ambulance Tasmania is the ‘licensing’ authority for other ambulance services but only to the extent that the service provided is ‘similar’ to the service provided by Ambulance Tasmania.

Victoria

In Victoria, the term ‘ambulance service’ means ‘means an ambulance service created under section 23 or listed in Schedule 1’ (Ambulance Service Act 1986 (Vic) s 3).  It is an offence to use the term ‘ambulance service’ or ‘ambulance’ without the approval of the Secretary of the Department.  That means a person or company who provides ‘ambulance services’ but doesn’t use the term ‘ambulance’ is not breaching that regulation.   It follows that an ‘Event First Aid Provider’ does not need to be licensed or regulated.

Non-emergency patient transport providers are indeed licensed and regulated by the Secretary under the Non-Emergency Patient Transport Act 2003 (Vic).  That Act and its regulations provide details of standards to be met by a licensed NEPT provider.

Conclusion 

There is no simple answer to ‘who licences the ambulance services in Australia?’  Statutory ambulance services in every jurisdiction other than WA and the NT aren’t ‘licensed’ they’re created by statute and run by the government.  The passage of the relevant statute is, if you like, the licence or authority to act.

For non-state providers the degree of ‘licensing’ varies.  For NEPT providers in Tasmania, South Australia and Victoria there is a well developed licensing scheme.  For other providers of ambulance services the degree of regulation and therefore the need for a licence varies from none in WA and the NT to not much in Victoria to quite extensive and  perhaps more importantly, transparent in the ACT.


Categories: Researchers