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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
Updated: 15 hours 41 min ago

Use of red/blue lights by police to give a ‘direction to stop’ (Victoria)

31 July, 2017 - 16:46

This question comes from an anonymous correspondent   I’m asked:

What can you tell us about Declaring a False Emergency. I have been advised that Police actually declare a “false” emergency when they pull you over using their lights and sirens.

I’ll assume this question comes from Victoria given the recent discussions on the new speed limits in that state.  The answer is that whoever has advised my correspondent has no idea what they’re talking about – but I can see the issue.  If you think that the new r 79A, that imposes a 40km/h limit, is about ‘emergency’ workers then you might think it doesn’t apply to police who say have pulled someone up for speeding as there is no emergency. For the rule to apply, so one might think, it must be a ‘false’ emergency. But that’s not correct.

First r 79A applies whenever a driver is approaching ‘a stationary or slow-moving police vehicle, emergency vehicle, enforcement vehicle or escort vehicle …’  There is no reference to their being an emergency just a vehicle of those descriptions.  Under Victorian law ‘police vehicle’ means ‘means any vehicle driven by a person who is— (a) a police officer; and (b) driving the vehicle in the course of their duties as a police officer…’ again no reference to an emergency.

With respect to exemptions from the road rules, police rely on r 305, not r 306. Rule 306 applies to ‘emergency vehicles’ so even in those states where an emergency vehicle is only an emergency vehicle when it is being used in response to an emergency, that doesn’t apply to police.  Police have an exemption from the road rules when it is reasonable in the circumstances and they are taking reasonable care. In some circumstances they don’t even need red/blue lights or a siren (Road Safety Road Rules 2017 (Vic) r 305).

Police have a number of powers to require a driver to pull over.  A police officer may give a driver a ‘direction to stop’ by the ‘use of red and blue flashing lights on; or sounding of an alarm, siren or other warning device from— a motor vehicle that is being driven by a police officer in the course of his or her duties as a police officer’ (Road Safety Act 1986 (Vic) s 64A(5)).  There is no pretence that there is an ‘emergency’.

Conclusion

Police are entitled to use their red/blue lights and sirens in order to communicate to a driver that they are required to stop.   Rule 79A applies so that other drivers are required to slow down to 40km/h when passing a stationary police car with red/blue lights activated regardless of whether the police have pulled over to issue a speeding ticket or to take part in a response to a multi-vehicle accident. There is nothing to say that the use of red/blue lights or r 79A is somehow limited to an ‘emergency’. So the premise that ‘Police actually declare a “false” emergency when they pull you over using their lights and sirens’ is wrong.


Categories: Researchers

Refusing consent – damned if you do and damned if you don’t; but not in Pennsylvania

26 July, 2017 - 11:39

This post is about a medical negligence case from Pennsylvania (which came to my attention via Bill Madden’s ‘Medical + health law blog‘) .  The decision in this case touches on an issue that is often discussed here.  The issue is about a patient refusing consent to life saving treatment with the assertion that those called upon to assist will be sued if they don’t honour the patient’s wishes but if they do, and the patient dies, they will be sued by the family.  The inference I draw from those concerns is that doctors, and paramedics, think or fear that not only will they be sued, but that they will be successfully sued, either way.

The fact that Seels v Hahnemann University Hospital and Others 2017 PA Super 227 ever made it to the Superior Court of Pennsylvania (and before that, a trial court) may confirm the first of those fears, ie that the attending doctors or paramedics might be sued either way.  But the result however, may help ease the fear that they will be successfully sued.

The facts

Mrs Seels-Davila was a member of the Jehovah’s Witnesses faith and in accordance with her understanding of the doctrines of that faith she declined to receive human blood products.  In September 2010 Mrs Seels-Davila was pregnant and chose to deliver her baby at the defendant hospital as they operated a ‘Bloodless medicine’ program. The critical issue for this program was making sure that patients were informed of the potential consequences of their choices and the various options available to them.   The program was not a medical program in that there were no special procedures or techniques for those in the program – only that they were given the chance to express their wishes in an informed way.

Mrs Seels-Davilla was taken through the issues and confirmed her ‘request that no blood (whole blood, red cells, white cells, platelets and plasma) be administered to me during this hospitalization.’   The delivery was problematic and Mrs Seels-Davila became critically ill.  Whilst still able to, she confirmed ‘I refuse all blood components and human source products.’  Her condition continued to deteriorate and doctors and nurses urged her to reconsider her position but she remained adamant.  When she was no longer able to express her wishes both her father and her husband (who were both members of the faith) also refused to give permission for a transfusion even when it was apparent that without that treatment, she would die. The expert witness called for the family confirmed that a blood transfusion would probably have saved her life.  But no transfusion was given, and she died.

Mrs Seels-Davila’s husband, Raymond Seels, sued the hospital. His claim was not that they should have ignored her, or his, wishes but that they were negligent in the way they treated his wife in terms of how the various procedures were carried out.  In essence that there was negligence in the way a cesarean section was performed and post-operative bleeding was managed.    The trial court found that there had been no negligence and found in favour of the defendant hospital.   Mr Seels appealed to the Superior Court of Pennsylvania.

The relevance of her refusal

There were a number of issues raised on the appeal, but only one is relevant to readers of this blog.  The issue was the relevance of her refusal of treatment.  The appellant, Mr Seels, argued that all the consent documents should not have been put before the jury (and here, note, that a case like this would not be heard by a jury in Australia).  The gist of the argument was that the case against the hospital was that they had been negligent, not that they had assaulted Mrs Seels-Davila or that her consent had not been properly informed.   Mrs Seels-Davila did not consent to negligent surgical treatment so the issue of the terms of the consent was irrelevant.

The court noted that as a general rule ‘where a plaintiff “only asserts negligence, and not lack of informed consent, evidence that a patient agreed to go forward with the operation in spite of the risks of which she was informed is irrelevant and should be excluded.”’ But that is just a general rule; evidence of the terms of consent may be very relevant if it is alleged that the negligence was a failure to give proper information (as in the Australian case of Rogers v Whitaker (1992) 175 CLR 479) or in cases where the plaintiff has consented to experimental treatment or has expressly consented ‘to any particular risks associated with the unconventional or experimental treatment’.   The Pennsylvania trial court:

…  determined that the unique circumstances of this matter rendered Seels-Davila’s consent and release forms absolutely relevant and essential to the truth seeking function of a jury trial. It would have been manifestly unjust and improper to not allow them into evidence. Indeed, rather than allowing for misconceptions to arise about Seels-Davila “consenting” to substandard medical care at Hahnemann, the consents and releases made clear that Seels-Davila, of her own free will, consistently refused to accept safe, effective, routine, and lifesaving medical treatment when she barred her doctors from administering blood transfusions, and even refused to collect and store her own blood in the event an emergency arose. There was not a shred of doubt that Seels-Davila fully understood the lifethreatening ramifications of her decision to be a “bloodless” patient, and that she specifically agreed to hold the doctors harmless for any negative outcomes of her decision.

The Superior Court agreed with the trial judge’s reasoning.

The argument is compelling.  Mrs Seels-Davila could have been easily saved.  Witnesses for both the hospital and the family agreed that with a blood transfusion she would probably have survived. In the absence of the consent forms, a jury asked to consider what would a ‘reasonable’ doctor do when faced with a patient whose condition was deteriorating rapidly and where a transfusion would save her life would no doubt conclude that failure to administer the blood transfusion was a breach of the standard of care expected from a reasonable doctor or health facility.  But the question of negligence has to be answered ‘in all the circumstances’ and in this case the circumstances included her informed and repeated refusal to accept a blood transfusion, confirmed by her family even when death was imminent.

Implications

On the one hand, this case confirms some worst fears.  If the doctors had administered blood they may have saved her life but they would have failed to respect her autonomy and may well have been sued for battery (see for example Malette v Shulman [1990] 67 D.L.R. (4th) 321).  Here they did honour her wishes and they were sued by the family, led by her husband who had, when asked ‘also declined to assent to the transfusion, saying that he did not want to go against his wife’s wishes or submit her to medical treatment that violated her religious beliefs.’

However, in Malette v Shulman the Canadian hospital lost when it gave blood that they knew the patient refused even though it saved her life.  In this case, the Hahnemann University Hospital won – both at trial and on appeal. That result is another example that shows the courts are willing to recognise and give priority to a patient’s informed choices (in an Australian context see Hunter and New England Area Health Service v A [2009] NSWSC 761 and Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 both discussed in my earlier post, CFA Emergency Medical Response Guidelines (March 8, 2017)).

Where a person has refused treatment, ultimately they and their family have to accept the consequences of that decision. Here, the jury found that there was no negligence in the way the surgery was performed or in the post-operative treatment. And further, the health practitioners did nothing wrong by watching Mrs Seels-Davila die when they knew they could save her but to do so would be to ignore or set aside her known, informed wishes and her genuine faith.  Her refusal to accept blood transfusions was ‘relevant and essential’ to answering the question of whether or not she received reasonable care in all the circumstances.


Categories: Researchers

Should governments allow fire affected communities to rebuild?

25 July, 2017 - 14:18

That’s a question I ask in an opinion piece published by Risk Frontiers.  See Should governments allow fire affected communities to rebuild?‘ (2017) 16(4) Risk Frontiers Newsletter pp 2-4.

Two other recent presentations are:

  • Balancing nature conservation and risk management. Presentation to the National Parks Association (ACT) Bushfire Management – Balancing the Risks Symposium, 21 July 2017 [Extract from Symposium proceedings] [Audio].
  • Eburn, M and Collins, A, ‘Recognising Limits of International Law in Disaster Risk Reduction (DRR) as Problem and Solution’.  Presentation and the International Law and Disaster Risk Reduction Symposium, University of Reading (UK), 29 June 2017. [Website][Powerpoint] [Audio].

Categories: Researchers

What is a vehicle that is ‘operated by or on behalf of and under the control’ of Ambulance Victoria?

21 July, 2017 - 13:46

This question follows on from my post St John Ambulance, NEPT providers and the Victorian Road Rules (July 17, 2017). To reiterate that post started on the question of whether a vehicle operated by either St John Ambulance Australia (Victoria) or a licensed Non-Emergency Patient Transport (NEPT) provider was an ‘emergency vehicle’ for the Road Safety Road Rules 2017 (Vic) and, in particular, r 79A which imposes a 40km/h speed limit for drivers as they pass a stationary or slow moving emergency vehicle that has its emergency warning lights or siren on.  My conclusion was that these vehicles are not ‘emergency vehicles’.

This led to many comments both about the merit of that rule and on whether such vehicles can be fitted with flashing warning lights at all.  As I noted in that post, a vehicle other than an exempt vehicle, can only be fitted with flashing warning lights if there is approval from VicRoads.  An exempt vehicle includes an emergency vehicle (Road Safety (Vehicles) Regulations 2009 (Vic) Schedule 2, cl 118).  An emergency vehicle includes (Road Safety (Vehicles) Regulations 2009 (Vic) Schedule 2, cl 3):

a vehicle operated by or on behalf of and under the control of—

(i) an ambulance service created under section 23 of the Ambulance Services Act 1986 or listed in Schedule 1 to that Act …

Schedule 1 to that Act lists 17 separate ambulance services that are, collectively, known as Ambulance Service – Victoria (‘AV’) (Ambulance Services Act 1986 (Vic) ss 3 and 23).  An ambulance service is a body corporate that can enter contracts and sue, and be sued (s 23(2)).  An Ambulance Service can be part of a company, association or joint venture where that is ‘incidental or conducive to the exercise of the powers of the ambulance service’ (s 16).

In the context of my original post there were comments to the effect that NEPT providers are acting under contract to AV.  That may be true but I understood, in context, the inference to be that the contract with AV was the basis of their authority to act and it also implied that they were therefore acting ‘on behalf of’ AV.  In that context, I said:

NEPT providers are not contractors to Ambulance Victoria that is to say they do not operate because of some contract with AV. They may contract with AV in that AV may outsource patient transport services by engaging the services of licensed NEPT providers but that is the same way that they may outsource the maintenance of their ambulances. The contract with AV to the extent there is one, is a business opportunity for the NEPT providers not the source of their authority to operate.

If AV is a customer of an NEPT provider it does not mean that their vehicle is being operated ‘by or on behalf of and under the control of’ AV. If I hire a taxi the driver takes me where I want to go but he or she is operating the vehicle and it’s under their control. If a person contacts AV for non-emergency patient transport and they contract with a private NEPT provider to provide that service, then AV and the patient are the NEPT provider’s customers but the vehicle is being operated by and on behalf of the NEPT provider who is operating its business.

Note that in the Non-Emergency Patient Transport Regulations 2016: Regulatory Impact Statement, the Department of Health & Human Services said (at p. 6):

More than half of the NEPT services in Victoria are provided by twenty licenced private businesses. The remainder is provided by AV. Six of the licenced private businesses also currently provide NEPT services under contract to AV.

So 6/20 NEPT providers act ‘under contract’ to AV. Further ‘The Minister of Health has also stated publically that NEPT transports currently undertaken by AV are to be transferred to the NEPT sector.’

In writing that I had a particular business model in mind but my comments have led to confusion.    As one correspondent has written:

I know you said that NEPT cars contracted to do AV work are not emergency vehicles but granted they maintain AV issued radios and MDTs as well as being Dispatched to emergency (code 2 and 3 via Triple Zero) and non-emergency cases (code 4) both via ESTA and basically directed and controlled by the AV DM and clinician, can that not be argued that they are being contracted to and operated on behalf of Ambulance Victoria.

I mean essentially, the contract is the NEPT company provides the vehicle and the staff, and AV has full control over it without the NEPT company’s interference and it is treated as an AV resource.

Like in the taxi scenario, if13 Cabs is providing the driver and the taxi but if it is taking jobs from Silver Top Cabs due to a contract, is the 13 Cabs operating on behalf of Silver Top Cabs despite it being a 13 Cabs car?

Also, in some rural areas, the CPAV is contracted out to NEPT companies to respond to Emergency calls at the request of AV paramedics and sometimes these are requested code 1. Would these then be considered as emergency vehicles operated on behalf of Ambulance Victoria?

This was not the point of my original post so I will now try to clarify my thinking.  Note however there is not going to be a definite answer here.  What there will be are arguments.  Resolving the issue in any case would require a judge to make a decision but this is unlikely to ever be a matter that will occupy a judicial officer other than, perhaps, a magistrate.

The issue is what does ‘operated by or on behalf of and under the control of’ an ambulance service mean?

‘Operated by’ is probably pretty clear.  As noted an ambulance service is a legal entity so it can own assets.  Where an ambulance service owns its own fleet, that fleet is operated ‘by’ that ambulance service.  Those vehicles are an emergency vehicle so can be fitted with flashing lights.  This I would suggest also applies to vehicles that the ambulance service may not own.  The ambulance service may establish a subsidiary company to operate its fleet or may use some fleet management or leasing company to provide the ambulances.  But if the vehicle is incorporated into their service, operated by their staff etc one would, I suggest, conclude that the vehicle is operated ‘by’ the ambulance service.

‘Under the control of’ may also be reasonably clear.  Where the vehicle is still incorporated into the work of the service and it is the service that determines how and when the vehicle is used.  Like an employee/employer relationship, the more authority that the service has to decide what jobs the vehicles are dispatched to, when the staff are stood down, where the vehicle is positioned etc then one might reach a conclusion that the vehicle is being operated ‘under the control’ of the ambulance service.

‘On behalf of’ is more controversial.  I suggest that a private NEPT provider is acting on its own behalf.  If it’s a for profit exercise it is making services available that may be available to AV but they may also have other customers – private hospitals, nursing homes etc.  They are acting on their own behalf.

Let me draw an analogy with the airline industry (the details that follow are no doubt incomplete but I think they make the point). I am a regular flyer with Qantas.  If I fly from Canberra to any capital city, other than Sydney, I’ll get on jet aircraft that is clearly marked ‘Qantas’.  I don’t know if Qantas own the aircraft, or lease it, but I would suggest that aircraft is operated ‘by’ Qantas.

If I fly to Sydney I may get a Qantas aircraft, but often it will be a Boeing 717 or Bombardier Q400 and these aircraft are marked ‘QantasLink’.  My ticket will say that this flight is operated by Eastern Australian Airlines on behalf of QantasLink.  I don’t know who Eastern Australian Airlines are but I can’t book a flight with them except by booking with QantasLink.  They don’t operate their own services, they operate only as QantasLink.  The crew all wear QantasLink uniforms and I suggest that QantasLink (no doubt guided by its parent company, Qantas) set out details on how the flight is to be run, standards for crew behaviour and presentation, script the emergency briefing etc.  I would suggest that this is a flight operated ‘under the control’ of QantasLink.

During the mid-1980’s there was a pilot’s strike.  At that time Qantas, chartered aircraft from Air Canada.  I can’t remember where I was going but I remember getting on an Air Canada aircraft.  The plane was clearly an Air Canada plane, the crew wore Air Canada uniforms and I would suggest the policies and procedures used during that flight were those of Air Canada. But I the days of the two airlines policy Air Canada couldn’t fly domestic routes in Australia.  I couldn’t log onto the Air Canada website (if there had been such a thing in those days) to book an Air Canada flight between Sydney and Melbourne.  No doubt Qantas determined the routes and the timetable but Qantas were not operating the aircraft.  I would suggest those aircraft were being operated ‘on behalf’ of Qantas; but not ‘under the control’ of Qantas (even if Qantas did set the destination and timetable).

Today if I fly to Europe, Qantas flights go through Dubai. My booking may say I’m on a Qantas flight but when I get to the airport I’m clearly getting on an aircraft owned and operated by Emirates.  I could log onto the Emirates website and book a seat on the same plane with an EK flight number.  So Emirates have an agreement with Qantas to operate the flight on a ‘code share’ basis and to offer various services to me as a Qantas passenger, but they are not operating the flight on behalf of or under the control of Qantas. It is an Emirates flight and the agreement they have with Qantas they have because they think that it is in the best interests of Emirates and its shareholders.

What’s the relevance to ambulance services?  Assume I’m an inpatient in a hospital and I need to be transported somewhere.  The hospital books NEPT with AV.  A vehicle turns up marked ‘Ambulance Victoria’.  The crew are wearing AV uniforms.  It is an AV dispatcher that has determined which car is to be allocated to transport me.  AV determines the salary, and uniform of the staff and supplies all the equipment in the car.  I don’t know who owns it and I don’t care.  I would suggest that is a vehicle being operated ‘by’ AV.

Assume that AV have entered into arrangements with some private hospitals and private health insurers and have created ‘Ambulance Victoria NEPT Service’ as a separate legal entity.  Assume that service only accepts tasks from AV.  The AV despatcher decides which vehicle is assigned to a job and AV sets standards that the subsidiary company is required to meet.  I would suggest that might be an example of a service (and therefore a vehicle) that is being operated ‘on behalf of and under the control’ of Ambulance Victoria.

Assume now that I’ve set up an NEPT service – Michael Eburn’s Victoria NEPT Service.  I employ my own staff, meet the requirements of the NEPT regulations but to the extent there’s flexibility I determine the manner in which the company operates.  AV is one of my customers but so are local hospitals and others.  My company is not being run ‘on behalf of and under the control’ of Ambulance Victoria.  If I’m transporting a patient where the client rang AV and AV were unable to provide the service and therefore asked me to do it, then one might say that I’m acting ‘on behalf of’ AV but my service is not being run ‘on behalf of and under the control’ of Ambulance Victoria – and the ‘and’ means both must be true.

My correspondent has set out other scenario and asked whether it could be argued that these services are being operated ‘on behalf of and under the control’ of Ambulance Victoria.  The answer is yes, it could be argued that.  The more control that AV has, that is the more ‘AV has full control over it without the NEPT company’s interference and it is treated as an AV resource’ the more likely it is that one might conclude the vehicle is being ‘operated on behalf of and under the control’ of Ambulance Victoria.

The issue is more theoretical than real

But the reality is the issue is largely irrelevant. The conversation began with s 79A and would these vehicles be ‘emergency vehicles’.  They might be, but r 79A is largely unenforceable. If it is enforceable one has to imagine the police are there with a radar/lidar operation. All it takes is there to be one other emergency vehicle, or for the police vehicle to have its red/blue lights on and the lower speed limit applies.  If the NEPT vehicle is the only vehicle there, a person who doesn’t slow down isn’t going to get prosecuted anyway.

And if someone does get a ticket for driving past an NEPT vehicle (and no other emergency or police vehicle with its red/blues on) and if that driver choses to take the matter to court and if that driver thinks to argue – ‘but that wasn’t an emergency vehicle’ then I suggest a Magistrate is likely to take a pragmatic view – You saw there was an accident; you saw there was an NEPT vehicle with red/blue flashing lights; you saw the crew was working there, but still you didn’t slow down?’  A magistrate may well decide to hold that the vehicle was an emergency vehicle noting that this does not create a ‘precedent’ that other judges have to follow.  A decision to that effect may not be correct according to the strict reading of the law but Magistrates have to move through their list.  An appeal to the Supreme Court may be get down to the sort of discussion here but not many people are willing to take a traffic ticket to the Supreme court.  Alternatively, if you don’t slow down in those circumstances and there’s an issue of whether the vehicle was an emergency vehicle, the police could allege negligent driving or driving at a speed dangerous in the circumstances so there are still offences that could be charged even if not a breach of s 79A.

What of the exemption under r 306?  An NEPT vehicle is transporting a patient who goes from ‘non-urgent’ to ‘urgent’ so the driver activates the red/blue lights and proceeds through a red light whilst taking the person to hospital.  If the vehicle is not an ‘emergency vehicle’ r 306 doesn’t apply.  But again, a pragmatic police officer may decide not to issue the fine after reviewing the red light camera and hearing the story.  And he or she might, on the report, say that they relied on s 306 and even if that’s not correct, who’s going to challenge that?   And if the police officer does issue a ticket, and the driver choses to take the matter to court, a magistrate may again take a pragmatic view and agree that in the circumstances it was an emergency vehicle even if that’s not the letter of the law – remembering that the Magistrate’s decision is not binding on anyone else. If the magistrate does that and everyone’s happy that’s the end of it.  If the Magistrate accepts that the vehicle was not an emergency vehicle, the magistrate may apply the rule of necessity and say that even in the circumstances there was a defence and find the driver ‘not guilty’.  Or he or she may find the offence proved but take no action imposing no conviction and no penalty.

If the action was dangerous, it does not matter whether the vehicle is an ‘emergency vehicle’ or not as r 306 only applies if the driver was taking ‘reasonable care’.

What about fitting warning lights? That’s relevant.  If the vehicle is operated ‘on behalf of and under the control’ of Ambulance Victoria then the permission of VicRoads is not required to fit flashing warning lights.  A prudent NEPT provider, even a subsidiary company owned by AV (Ambulance Victoria NEPT Service in my example above) should seek permission from VicRoads to ensure that there is no dispute as to what they are allowed to have fitted to their vehicle.  And if you can argue that an NEPT vehicle when transporting a patient under contract to AV is acting ‘on behalf of and under the control’ of AV then they can have lights fitted then, but not when they are transporting a patient for another client, in which case they’d have to remove the fitted lights – or get permission from VicRoads.

Who will see this as important?

The issue will only be a real issue for an NEPT provider who wants to fit red/blue lights but either doesn’t want to get permission from VicRoads, or VicRoads has refused permission. If the operator can argue that their vehicle is operated ‘on behalf of and under the control’ of Ambulance Victoria’ then they can fit the lights regardless of VicRoads’ attitude.   But the argument that ‘we might have to stop at an accident’ or ‘we might be tasked by AV’ or even ‘we may be tasked by AV to an emergency’ may be good reasons for VicRoads to give permission but they will not convert the non-emergency patient transport vehicle (emphasis added) into an emergency vehicle as defined by the road rules.  And, as noted above, even if it is the case that when providing the service under contract with AV the vehicle is operating ‘on behalf of AND under the control’ of AV then they could have flashing lights fitted but would have to remove them when they were providing other patient services.   Accordingly the argument, if it could succeed would only be helpful if the NEPT provider’s one and only client was AV.  The alternative is to get permission from VicRoads.

Conclusion

To be an emergency vehicle (in the context of an ambulance) it has to be a vehicle that is ‘operated by or on behalf of and under the control’ of Ambulance Victoria.  What that means is arguable. The more control that AV has, that is the more ‘AV has full control over it without the NEPT company’s interference and it is treated as an AV resource’ the more likely it is that one might conclude the vehicle is being ‘operated on behalf of and under the control’ of Ambulance Victoria.

 

 

 

 

 

 

 

 


Categories: Researchers

Flood or hazmat?

18 July, 2017 - 01:06

Today’s question comes from:

… a member of 2 NSW Emergency Services, I know the legislation for each agency, and they both are quite defined and powerful. I also know of a recent incident where there was an overlap and there was a significant grey area as to responsibility and who was in control of the incident. I know the ideal world would have no issues, however during emergencies and disasters, publicity and ego’s get in the way and lines get even more blurred.

The Incident: Gas Cylinders floating in flood water that was beyond the confines of the normal path of the river that was in flood…  FRNSW could be defined as the Combat Agency as it was a HAZMAT incident, however it occurred in flood water that has NSWSES as the Combat Agency.

So, my question is: Who’s responsible for this incident overall, i.e. which agency reports to the other as the Incident Controller.

The Fire Brigades Act 1989 (NSW) says (at s 6(2)):

It is the duty of the Commissioner to take all practicable measures:

(a) for protecting and saving life and property endangered by hazardous material incidents, and

(b) for confining or ending such an incident, and

(c) for rendering the site of such an incident safe.

The State Emergency Service Act 1989 (NSW) says (s 8(1)):

The State Emergency Service has the following functions:

(aa) to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis,

(a) to act as the combat agency for dealing with floods (including the establishment of flood warning systems) and to co-ordinate the evacuation and welfare of affected communities…

It is also a function of the SES to ‘to assist, at their request, members of … Fire and Rescue NSW … in dealing with any incident or emergency’ (s 8(1)(g)).

One can see the argument.  If the gas bottles are posing a threat to ‘life and property’ then presumably they’re a hazardous material and it’s the job of Fire and Rescue NSW to make it safe.  Equally flood waters are full of all sorts of hazards.  As NSW SES says ‘Floodwater can contain things like rubbish, dead animals, sewage and other contaminants such as poisons. It is safer to stay clear of floodwater. It is not a place to play.’  If the SES have the function to ‘protect persons from dangers … arising from floods’ then this is just another danger.

So who’s in charge? The state emergency plan is required to ‘identify, in relation to each different form of emergency, the combat agency primarily responsible for controlling the response to the emergency’ (State Emergency and Rescue Management Act 1989 (NSW) s 12(3)(a)). The doctrine set out in the Australian Inter-agency Incident Management System (AIIMS) is that the combat agency has an incident controller who is responsible for the response. But that doesn’t help define whether this incident is best classified as a flood incident where the SES require the assistance of NSW Fire and Rescue; or a hazardous materials incident where Fire and Rescue require the assistance of the SES.

If both agencies are on scene, one would hope that it would not come down to who is the incident controller, as the agencies would work together.  They would assess the risk – what’s the water doing? What are the gas bottles going to do?  How dangerous is it? Do the SES members really want to handle the hazardous material? Do the fire crews really want to enter the flood water and do they have a boat?   If it’s a flood and the SES provide the IC, he or she can call on Fire and Rescue to deal with the hazardous materials and no doubt the SES floodwater technicians will help if required.  If it’s a hazmat material and fire and rescue provide the IC then they could call on the specialist flood water technicians and flood boat operators to help if required.

But there is some law. For each local area, there is a police officer appointed as the Local Emergency Operations Controller (or LEOCON) (State Emergency and Rescue Management Act 1989 (NSW) s 30).  The LEOCON is ‘responsible for controlling … the response to an emergency that affects only that area’ but not if ‘there is a single combat agency primarily responsible under the State Emergency Management Plan for controlling the response to the emergency…’ (s 31).  But if there really is a disagreement about whether, in this example, it’s a flood or a hazmat incident there is no ‘single combat agency’ so the LEOCON could take control and give directions to both Fire and Rescue and the SES to play together.

Ultimately the ‘State Emergency Operations Controller may assume responsibility for controlling the response to an emergency from the combat agency primarily so responsible under the State Emergency Management Plan if:… in the case of any disagreement on the matter, the Minister has directed the Controller to do so’ (State Emergency and Rescue Management Act 1989 (NSW) s 19).

If the commanders on scene can’t work together so that the matter gets elevated to the LEOCON or worse, to the State Emergency Operations Controller (which would also involve both agencies headquarters staff) one would have to consider it a failure of leadership by everyone involved.

The simple answer should be the agency that takes the lead should be the agency best placed to take the lead in all the circumstances.  The issue of who is the ‘incident controller’ is irrelevant.

 

 

 

 


Categories: Researchers

Who decides what PPE to wear?

18 July, 2017 - 00:20

A Victorian correspondent tells me that:

There’s a discussion unfolding in my confined space group regarding first responders not wearing adequate PPE for the identified hazards in an industrial setting.

As an example, if an Ambulance crew or Fire crew respond to a refinery, and the refinery has specific PPE requirements such as long sleeves, long pants, hard hats and goggles (all quite common in a refinery), but they deem it unnecessary (the Vic OHS Legislation affords exemptions to certain requirements for responders) where does the liability and the legal ramifications (if any) stop and start if they’re injured?

Likewise, in the same vain, if a crew is stopped at a gate and told they must comply with the requirements and the response is delayed which impacts on patient care, is there issues there too?

This is about the Occupational Health and Safety Act 2004 (Vic). (If only Victoria has adopted the Work Health and Safety Act 2011 it would make answering these questions so much easier; but they haven’t). Under the 2004 Act (s 21):

An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.

Further, under s 23:

An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.

Putting aside the question of volunteers that means the employer of the ambulance or fire crew has to take steps to ensure their health and safety. In a perfect world there’s been a risk assessment and consultation with the workers and PPE suitable for the sort of work those crews are likely to face are provided.  For fire crews we see that the turn out gear includes boots, trousers and jackets, helmets, gloves, eye protection, breathing apparatus etc. No doubt ambulance crews also have gloves, hard hats, eye protection etc.  When selecting PPE the services have to consider the broad range of situations that their crews will face including entering into workplaces that themselves pose a risk.

By the same token, the operate of a factory has to ensure that its staff have PPE and that others are not exposed to risk so for example, visitors are not allowed on the site without the PPE commensurate with the risk on site.  There are exemptions from some requirements for emergency service employees (see Occupational Health and Safety Act 2004 (Vic) ss 42 and 50) but we need not concern ourselves with these in this answer.

What follows is that there are two duty holders. The emergency service organisation owes a duty to ensure the safety of its staff and the owner of the business where the emergency has occurred also has a duty to ensure that those coming onto the site, the emergency staff, are not put at risk by that workplace.  The question really is, what is the risk?

The factory/refinery/plant may have PPE requirements that apply because of the various hazards in the work of the industry. But if there’s an emergency such that police or ambulance have been called perhaps the work place has been shut down so those risks are not present.  In any event it’s hard to imagine that in most workplaces the PPE worn by responders, at least fire fighters, isn’t going to be better than that worn by the factory workers.  So a security guard who says, for example, ‘the factory policy is that you can’t come here without a high-viz vest and a hard hat’ to an ambulance paramedic who is coming to treat a patient who’s collapsed in the car park is probably being over-officious. No doubt other emergency services, like the fire service, would rely on their statutory authority to force entry.

On the other hand, the security guard who says ‘this is a highly secure chemical laboratory and we’re not going to let you in because if you go in there, there is material that will kill you or you will release some microbe and cause Armageddon’ is meeting his or her duty. And the paramedics or fire fighters would be wrong to insist on being allowed in (see also Laboratory safety (April 7, 2016).

Ideally the responders need to listen to the PCBU that operates the business to understand what hazards there are and the PCBU that operates the business needs to warn the responders if there are particular hazards.  The factory or plant should have its own emergency plan and if there are extraordinary hazards that should be communicated to the local fire and other emergency services, in other words the emergency services should be involved in the planning so everyone knows what is required in the response.  If, on the other hand, the insistence on some PPE is simply inflexible doctrine without regard to the actual risk, given what’s actually happened, then the PCBU is not being reasonable trying to prevent the emergency services from effecting the rescue.

So ‘where does the liability and the legal ramifications (if any) stop and start?’ In simple terms it depends on who is being ‘reasonable’ or not.  Everyone has their obligations – the 2011 Act says ‘If more than 1 person has a duty … each person: (a) retains responsibility for the person’s duty in relation to the matter…’ so depending on what happens the question will be did both the emergency service and the factory or plant PCBU do all they could to ensure ‘so far as is reasonably practicable’ everyone’s safety.

 


Categories: Researchers

St John Ambulance, NEPT providers and the Victorian Road Rules

17 July, 2017 - 17:19

This was a very long question regarding the new speed limit in Victoria and its application to St John Ambulance and Non-Emergency Patient Transport (NEPT) vehicles should they stop and provide assistance at an emergency.   I have edited the original question but hopefully convey the meaning.  My correspondent wrote to VicRoads asking them to list NEPT Vehicles and St John Ambulance vehicles as emergency vehicles.  They say:

I received this response from Vicroads;

‘For the rule to apply, the vehicle must be classified as an emergency vehicle and displaying flashing lights. St John Ambulance Victoria vehicles are not currently emergency vehicles for the purposes of the Victorian road rules (e.g. they do not have carte blanche exemption to the road rules as other emergency vehicles do). The definition of an emergency vehicle can be found in the dictionary of the road rules.’

This means that technically the rule would not apply to St John Ambulance Victoria vehicles…  Given the majority of drivers do the right thing by slowing down when passing any flashing lights by the roadside, it is very likely they will also slow down in the unlikely event drivers pass a stationary St John Ambulance Victoria vehicle with flashing red lights.

My correspondent goes on:

Which would correlate with a previous post from you, in that St John Ambulance doesn’t provide ambulance services. However, St John does have an obligation to stop and render assistance at Car accidents and other emergencies if flagged down, likewise NEPT providers hold the same obligations. St John also provides emergency assistance under the State Health Emergency Response Plan (SHERP) which is also documented in the Emergency Management Manual Victoria (EMMV).

By looking up the Victorian road rules legislation dictionary it can be seen that an emergency vehicle is defined as:

(a) a vehicle operated by or on behalf of and under the control of

(i) an ambulance service created under section 23 of the Ambulance Services Act 1986 or listed in Schedule 1 to that Act; or

(ii) an ambulance service created under a law in force in another State or in a Territory of the Commonwealth;

(b) a vehicle operated as an ambulance by the Australian Defence Force …

… St John other than by reference to being allowed to use the word ‘Ambulance’ is clearly not defined as an ambulance service. However in that Act I couldn’t find any reference to NEPT vehicles as they would be defined under the Non-Emergency Patient Transport Act 2003. Based on this information NEPT vehicles would also not be covered as an emergency vehicle. Which means that the new 40Km/h regulation wouldn’t apply to those vehicles either if they were using their warning devices while stopped at an accident or other incident on the roadside.

However under the road rules definitions there is also the definition of an emergency worker;

(a) the driver of, or passenger in, an emergency vehicle being operated or used in connection with the performance by that person of emergency services in the course of duty (paid or voluntary), whether in relation to a fire or a medical or other emergency; or

(b) a pedestrian performing emergency services in the course of duty (paid or voluntary), whether in relation to a fire or a medical or other emergency;

Looking at this information, could it be determined that a St John volunteer (or employee) or a NEPT employee that is stopped at the scene of an accident or other incident on the roadside and is providing assistance, is then considered an emergency worker as they are performing emergency services in the course of duty in relation to a medical or other emergency? Would this then mean in the references to emergency workers under rule 79A(2) & 79A(4) that even though the vehicle a St John Volunteer or NEPT employee is driving isn’t an emergency vehicle, the person is an emergency worker and the 40Km/h rule would apply in the vicinity of that worker so long as another service such as Vic Pol or other service arrives on scene?

If NEPT/St John staff are emergency workers under certain situations, could a NEPT or St John vehicle become an ambulance or other emergency vehicle if working under contract or under the direction of Ambulance Victoria or another emergency service such as Victoria Police, SES or Emergency Management Victoria?

Examples of instances where working under contract to another agency would come to effect would be on days of disaster such as the Thunderstorm Asthma event when NEPT services where responding to Code 1 calls, or if St John or NEPT stops at a car accident they are in effect rendering emergency ambulance assistance as per agreements with Ambulance Victoria and the Department of Health. Other instances where this would occur is during a SHERP activation where NEPT or St John could be sent to various emergencies.

Granted most members of the public wouldn’t differentiate between a NEPT/St John vehicle or an emergency ambulance, especially at a distance when driving along a road, so it would be more than expected that another motorist would slow down to 40Km/h regardless of the vehicle as it would be displaying red or blue flashing lights. However if the outcome of my previous question results in proving a vehicle isn’t able to receive temporary emergency vehicle status under another service, what would be the benefit to fitting red and/or blue lights with or without a siren to vehicles if they are not granted any exemptions or protections in Victoria?

Could it be argued that the definition of an emergency vehicle in Victoria needs to change in order to provide exemptions/protections to such services if they are being granted permissions to have red/blue beacons fitted with or without sirens?

That’s all a bit complex so I’ll work through it step by step.  First there is the new rule – see New speed limit when passing emergency vehicles in Victoria (June 20, 2017).  The rule applies to a driver approaching a stationary or slow moving ‘emergency vehicle’ that is displaying a flashing red, blue or magenta light or sounding an ‘alarm’ (Road Safety Road Rules 2017 (Vic) r 79A).  My correspondent has given the relevant definition of an ‘emergency vehicle’ and it does not include a vehicle operated by St John Ambulance Australia (Victoria) nor a vehicle operated by an NEPT operator licenced under the Non-Emergency Patient Transport Act 2003 (Vic).   So my correspondent is correct, the rules that relate to a new speed limit when approaching an emergency vehicle do not apply where the vehicle is operated by St John Ambulance Australia (Victoria) or a licensed NEPT provider.

There is also an obligation to give way to emergency workers on foot. Rule 79A(2) says:

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.

As my correspondent has noted, an emergency worker is

(a)             the driver of, or passenger in, an emergency vehicle being operated or used in connection with the performance by that person of emergency services in the course of duty (paid or voluntary), whether in relation to a fire or a medical or other emergency; or

(b)            a pedestrian performing emergency services in the course of duty (paid or voluntary), whether in relation to a fire or a medical or other emergency;

To the extent that the St John member or NEPT provider is in a vehicle operated by their service, they are not ‘the driver of, or passenger in, an emergency vehicle’ (emphasis added) so paragraph (a) doesn’t apply to them.

To the extent that they are out of their vehicle and providing assistance then paragraph (b) may apply.  The question might be whether they are acting ‘in the course of duty’ but let us assume for the sake of the argument that they are.  If that is the case then rule 79A(2) would require other drivers to give way to the St John member/NEPT employee at the scene of the accident and in the vicinity of an emergency or police vehicle with its lights activated. In short, if there’s an accident and ambulance, police, fire or other emergency service are in attendance with their red/blue lights on, a driver has to slow down and give way to, ie not run over, those helping at the accident even if those people are not members of the fire, ambulance, police or emergency services.  Nothing surprising there.

My correspondent put it this way:

Would this then mean in the references to emergency workers under rule 79A(2) & 79A(4) that even though the vehicle a St John Volunteer or NEPT employee is driving isn’t an emergency vehicle, the person is an emergency worker and the 40Km/h rule would apply in the vicinity of that worker so long as another service such as Vic Pol or other service arrives on scene?

I think that’s right.  The 40km/h rule applies when the police, Victoria Ambulance, Fire or SES have their warning lights activated.  Rules 79A(2) and 79A(4) don’t refer to the 40km/h rule but say that the driver must give way to those working at the accident and must not speed up unless it is safe to do so.

My correspondent then asks:

If NEPT/St John staff are emergency workers under certain situations, could a NEPT or St John vehicle become an ambulance or other emergency vehicle if working under contract or under the direction of Ambulance Victoria or another emergency service such as Victoria Police, SES or Emergency Management Victoria?

I do not think  the use of the words ‘a vehicle operated by or on behalf of and under the control of’ the various services in the Victorian road rules does not require that the vehicle is ‘owned’ by the service, eg the CFA or SES may want to charter a bus as part of their emergency response.  That bus may be operated ‘on behalf of and under the control of’ that service.  It’s arguable that could apply in the right circumstances.  To the extent that St John or an NEPT provider have an agreement to provide supplementary services to the state health department or ambulance service, then to the extent that they are fulfilling that agreement the vehicle is still being operated by St John or the NEPT provider and is under their control.  If however the providers simply delivered their vehicles to Ambulance Victoria and allowed them to use them to supplement the fleet, whether that included retaining St John or NEPT members as part of their crew, then the vehicle may then be operated ‘by or on behalf of and under the control of’ Ambulance Victoria.  It really would depend on the particular circumstances.

I would add that I can’t see that where a ‘St John or NEPT stops at a car accident they are in effect rendering emergency ambulance assistance as per agreements with Ambulance Victoria and the Department of Health.’  I would want to see what sort of agreement says that will happen and that they are not stopping just because it’s the right thing to do.  As for ‘the Thunderstorm Asthma event when NEPT services where responding to Code 1 calls’ even then the vehicle is still being operated by the NEPT provider and is under their control, even if they are responding to tasks allocated to them by Ambulance Victoria.

As for the benefit of fitting red/blue lights and/or siren but given no exemption under the road rules (eg r 306) that’s a good question and one I don’t have an answer to.

Could it be argued that the definition of an emergency vehicle in Victoria needs to change in order to provide exemptions/protections to such services if they are being granted permissions to have red/blue beacons fitted with or without sirens?

It not only ‘could be argued’ but it is clearly true.  If St John Ambulance or NEPT providers are to gain an exemption under r 306 or to be included in rule 79A then yes the definition of ‘emergency vehicle’ would need to be changed.  Whether it should be changed is quite another question.

Conclusion

My correspondent moved from the new speed limit rule to the question of exemptions.  What I would conclude from the long question and answer is:

  1. St John Ambulance and NEPT providers in Victoria do not operate an ‘emergency vehicle’ and so the 40km/h rule does not apply to vehicles passing them. I would add that I think that is probably irrelevant. Assuming they do have red or red/blue warning lights (an issue I haven’t addressed here) no other driver is going to know whether or not a St John Ambulance or NEPT vehicle is or is not an emergency vehicle so it won’t make any difference to their behaviour. They’ll either slow down or they want.
  2. If there is an emergency vehicle also on site, then drivers are required to slow down and give way to emergency workers on foot and that could include St John and NEPT providers. Equally it’s probably irrelevant.  Most drivers are going to give way and if they’re not it’s not going to be because of some finer point on whether or not the people are emergency workers.
  3. Providing an emergency medical service in cooperation with or even at the request of ambulance Victoria would not mean a St John or NEPT vehicle was being operated ‘operated by or on behalf of and under the control of’ Ambulance Victoria (or the other emergency services). More would be required.
  4. I don’t know what the value of fitting red/blue warning lights and/or sirens to vehicles that are not emergency vehicles for the purposes of the road rules is.
  5. To include St John or NEPT vehicles in the definition of an ‘emergency vehicle’ would require an amendment to the regulations. Whether that amendment should be made is a question I make no comment on.

 

 


Categories: Researchers

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