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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: 3 hours 32 min ago

What’s an ambulance?

28 May, 2017 - 04:18

The answer to this question might seem obvious, but it isn’t and it has again arisen in the context of who can put flashing warning lights on their vehicles in New South Wales.

The relevant rule is in the vehicle standards that are set out as Appendix 2 to the Road Transport (Vehicle Registration) Regulation 2007 (NSW).  Rule 86 says that an emergency services vehicle may be fitted with a flashing headlight.  An emergency service vehicle includes ‘am ambulance’ (r 86(7)(a)).

Rule 124 deals with lights and reflectors.  It says, as a general rule, that a vehicle may not be fitted with a light that flashes or rotates.  There are exceptions and ‘ambulances’ may be fitted with a flashing blue or red light (r 124(4) and (7)).

So, what is an ambulance?  The term is not defined. A google search brings up the following definitions:

Ambulance | Define Ambulance at Dictionary.com
www.dictionary.com/browse/ambulance
Ambulance definition, a specially equipped motor vehicle, airplane, ship, etc., for carrying sick or injured people, usually to a hospital. See more.

ambulance – definition of ambulance in English | Oxford Dictionaries
https://en.oxforddictionaries.com/definition/ambulance
noun. A vehicle equipped for taking sick or injured people to and from hospital, especially in emergencies. ‘we called an ambulance’

ambulance Meaning in the Cambridge English Dictionary
dictionary.cambridge.org/dictionary/english/ambulance
ambulance meaning, definition, what is ambulance: a special vehicle used to take sick or injured people to hospital: . Learn more.

Ambulance | Definition of Ambulance by Merriam-Webster
https://www.merriam-webster.com/dictionary/ambulance
Medical Definition of ambulance. : a vehicle equipped for transporting the injured or sick.

The critical parts of these definitions is the nature of the vehicle ie a vehicle equipped for patient transport, rather than who uses it.

(As a matter of interest South Australia does adopt that definition.  In that State, an ambulance is ‘a vehicle that is equipped to provide medical treatment or to monitor a person’s health and that is staffed by persons who are trained to provide medical attention during transportation’ (Health Care Act 2008 (SA) s 3).  In Police v Zammitt [2007] SASC 37 the defendant was acquitted of operating an unlawful ambulance service because even though the vehicles used were painted with the term ‘ambulance’ and fitted with warning lights and sirens ([27]), ‘The evidence did not suggest that the vehicles were modified to provide medical care to patients being transported’ ([28]).)

If the matter came before a court in NSW that is if someone claimed to have an ‘ambulance’ and therefore claimed the right to have red/blue lights on it, and if the police disagreed, then a court would have to decide whether r 124 applied or not.  To do that the court would have to decide what does the term ‘ambulance’ for the purposes of the Road Transport (Vehicle Registration) Regulation 2007 (NSW) mean?

It could mean a vehicle as defined above.  But if that’s the case then a lot of vehicles that are operated by NSW Ambulance and which have red/blue lights on them are not ambulances.  Things like rapid response motor cycles, sedan cars, operational support vehicles etc.

Let’s add some complexity here.  For the purposes of the Road Rules 2014 (NSW) an ‘emergency vehicle’ is a vehicle used by an emergency worker and that includes ‘a member of the Ambulance Service or the ambulance service of another State or Territory, in the course of providing transport in an emergency associated with the provision of aid to sick or injured persons’ (Road Rules 2014 (NSW) Dictionary).  So, a rapid response motorcycle operated by NSW Ambulance is an ‘emergency vehicle’ (at least when responding to an emergency) even if it is not an ‘ambulance’.  That means it may be fitted with a siren (Road Transport (Vehicle Registration) Regulation 2007 (NSW) r 33(3)(b)) and red, but not red and blue, flashing warning lights (r 124(7)(b)).  But we know they are fitted with red and blue lights.  So either RMS has given approval for the blue lights or someone thinks they meet the definition of ‘an ambulance’ (despite the dictionary definitions above).

A court may well accept that for the purposes of the Road Transport (Vehicle Registration) Regulation 2007 (NSW), an ambulance should be defined as any vehicle operated by an ambulance service.  But a correspondent has said that this would mean anyone could buy an ambulance, paint Joe Bloe’s Ambulance Service on it and then fit red/blue lights (but not a siren).

I think that’s probably true.  According to the Health Services Act 1997 (NSW) ‘”ambulance services” means services relating to the work of rendering first aid to, and the transport of, sick and injured persons.’  Anyone who provides ‘first aid to, and the transport of, sick and injured persons’ are providing ambulance services.  If they have a vehicle that is ‘equipped for taking sick or injured people to and from hospital, especially in emergencies’ then they have an ambulance.   If they have an ambulance then they might also have, as NSW Ambulance Service does, other vehicles that are part of their ambulance service.

What might stop that is the Health Services Act 1997 (NSW) s 67E which says

(1) A person must not:

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

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

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

Prima facie not anyone can set up an ambulance service, but we know that they do. There has been a massive growth in private ambulance services and at least in 2010 when Dr Jason Bendall and I wrote ‘The provision of Ambulance Services in Australia: a legal argument for the national registration of paramedics’ ((2010) 8(4) Australasian Journal of Paramedicine Article 4), NSW health had issued no authorities under s 67E.   If the Health Services Amendment (Ambulance Services) Act 2015 (NSW) comes into force, then the  situation will be even clearer with the prohibition then only applying to emergency ambulance services (see Changes to ambulance legislation in NSW – about time too! (August 24, 2015)).

What I don’t think ‘ambulance’ means is ‘an ambulance operated by the Ambulance Service of NSW’.  If the legislature meant only an ambulance operated by NSW Ambulance they could have said so, or could have used the term ’emergency vehicle’ as they did in r 33 (relating to sirens). The fact that they did not use the same phrase as in r 33 leads to the conclusion that they did not mean the same thing.

The irony is that merely fitting warning lights to a vehicle does not mean the driver or vehicle gets any exemptions under the Road Rules 2014 (NSW).  To get the benefit of r 306, a vehicle must be an emergency vehicle. What is an emergency vehicle is not defined by reference to the vehicle, but the person driving it, who has to be an emergency worker.  In the context of this discussion that is ‘a member of the Ambulance Service or the ambulance service of another State or Territory, in the course of providing transport in an emergency associated with the provision of aid to sick or injured persons’ (Road Rules 2014 (NSW) Dictionary).

To summarise the position so far, an ambulance is at least a vehicle equipped for transporting the sick or injured.  NSW Ambulance operates ambulances so their ambulances may be fitted with red/blue flashing lights (putting aside the issue of support and rapid response vehicles).  A NSW Ambulance officer is an emergency worker so if he or she is driving the ambulance and needs to respond to an emergency then he or she may activate the warning devices (lights and sirens) and enjoy an exemption from the road rules if they otherwise comply with r 306.  So far so good, that’s all how it should be.

Joe Bloe on the other hand is running a not-for-fee or reward service providing ‘first aid to, and the transport of, sick and injured persons’ that is he is providing ambulance services and is therefore operating an ambulance service. It does not matter that the transport is limited to transport around an event site and not to hospital, it’s still transport and therefore he is providing an ambulance service (Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548).  When the Health Services Amendment (Ambulance Services) Act 2015 (NSW) comes into force it will be the case that by not providing transport to hospital, there is no ‘emergency ambulance service’ so the prohibition that will then be in s 67E will not apply to Joe Bloe’s Ambulance Service, but he will still be providing a non-emergency ambulance service. In that case, it will be even more certain that Joe can set up his own ambulance service. But Joe Bloe’s staff won’t be emergency workers so they can’t use the warning lights, can’t fit a siren and get no exemption from the Road Rules 2014.

That may be an argument against my conclusion – the law can’t allow Joe Bloe’s ambulance service to fit red/blue lights if they don’t also get the exemption in r 306.  But the law does do that. A ‘Red Cross vehicle used for conveyance of blood for urgent transfusions’ can be fitted with a red flashing light (r 124(7)) but a red cross employee is not an emergency worker for the purposes of the Road Rules 2014 so a Red Cross vehicle is not an emergency vehicle for the Road Rules 2014. Finding that an ‘ambulance’ can be fitted with a red/blue light (see rr 124(4) and 124(7) but that the driver does not enjoy the benefit of r 306 is therefore not inconsistent with other provisions of r 124.  It’s not clear then when the Red Cross or Joe Bloe’s Ambulance could use the warning lights, but they would be of some use when parked eg if Joe Bloe is providing an ambulance service to provide first aid and transport in a city on Saturday nights, the lights would help people find the service and also warn other drivers not to run into the ambulance.  So there may be some use in having the lights even if they can’t be used when driving.

Returning to rapid response and support vehicles

We can now return to the problem of the rapid response and support vehicles operated by NSW Ambulance.  If NSW Ambulance has authority from RMS to fit red and blue lights (not just red) to those vehicles then that’s fine.  If they don’t but rather fit red and blue lights (rather than just red) on the basis that they are vehicles operated by NSW Ambulance and therefore an ‘ambulance’ then that argument will also be open to Joe Bloe’s Ambulance Service.   I of course don’t know what approvals are held by NSW Ambulance.

Conclusion

This is a ridiculously complicated situation and is an example, with due respect to Parliamentary counsel, of poor drafting.  It would be much better if r 124 said that red/blue lights can be fitted to an emergency vehicle as defined by Road Rules 2014 (NSW) and leave it at that, but that’s not what it says.   It says that red/blue lights may be fitted to ‘ambulances’ not ‘ambulances operated by the Ambulance Service of NSW’ or ’emergency vehicles’.

Organisations that operate an ambulance service can, I would argue, fit red/blue lights to their ambulance; but if they want to use them when driving and get an exemption from the road rules they need to go further and have their officers declared as ’emergency workers’.


Categories: Researchers

What can you expect from civil litigation?

24 May, 2017 - 06:17

This question is stimulated by a story appearing in The Australian (Pia Akerman, ‘Black Saturday bushfire victims demand inquiry into law firmThe Australian (online) 22 May 2017).

The Australian operates behind a paywall so you may not be able to access the story.  The gist of the story is that plaintiffs in the Murrindindi-Marysville are upset over the conduct of law firm Maurice Blackburn with one of the plaintiffs, Mr Don Brown, calling for a Royal Commission into the firm’s behaviour.  Mr Brown suffered losses of $7 million but the story does not report how much he finally received. He is quoted as saying:

“I believe both the federal and state governments should involve themselves in this financial disaster created by an unfunded class action which had no possibility of achieving a fair and factual settlement for claimants of both fires, and (they should) ensure that claimants are not left to the totally unjust settlements proposed by Maurice Blackburn.”

The story goes onto say:

Other Murrindindi-Marysville class action group members have similarly called for a government or judicial review, with one man sending back his $120,000 settlement in protest against the firm.

This begs the question which I posed, at the start, of what can you expect from litigation?

The starting point of the law is that losses fall where they lie.  Property owners also own the risk that their property will be damaged by fire, storm or other hazards.  To manage that risk, we can take steps to mitigate the risk and buy insurance to off-set the financial risk.  If the losses are caused by, or contributed to by the failure of someone who owes a duty to take care to protect us then we may seek damages.  To obtain those damages the plaintiff has to prove their case on the balance of probabilities.   People being sued are likely to have a different view of what happened (otherwise the case wouldn’t be defended). The defendant may deny that they caused the loss, or deny that they owed the plaintiff a duty of care, or deny that the plaintiff’s losses are as much as the plaintiff claims. Whatever defence is raised, the plaintiff has to meet it.

Australian tort litigation is a ‘winner take all’ system.  The plaintiff either wins or loses so you may prove most of the case but unless you meet all the legal thresholds, you lose.  Equally the damages that a defendant has to pay are based on the plaintiff’s proved losses, not on the degree of negligence.  So the plaintiff may claim that the defendant did five things wrong and may lose on four them, but if the defendant was negligent, even if the negligence was only slight, then they are liable for all the plaintiff’s losses (subject to any claim for contributory negligence which I shall skip over).

Let us assume a plaintiff can prove their damages of $1m.  They commence legal action.  If they win on every point they’ll get $1m plus interest and costs.  If they lose, they get nothing but have to pay the defendants costs.  The defendant faces a similar reality.  So everyone assess the value of their case- every case has its weakness and can be lost.  A defendant my offer something less than the plaintiff claims because paying out that amount early is cheaper and less stressful than running it to the end. The plaintiff may accept that because money today is worth more than money that may be received in the future and a guaranteed outcome is better than running the gamble that may lead to more, but may also lead to nothing.

A realist would never believe that they will receive compensation that actually equals their losses or that the court will see the facts the way they do.    Australian governments do intervene in some ways.  Whether you claim or not some medical expenses are met through Medicare and some income protection through Centrelink but the governments are not responsible for making good private losses.

This then brings me to the article  First ‘“I believe both the federal and state governments should involve themselves in this financial disaster created by an unfunded class action which had no possibility of achieving a fair and factual settlement for claimants …’

It begs the question of why would the federal and state governments get involved?  The relevant law is state law not federal law so it’s hard to see what the federal government’s interest in the matter would be (save that the Commonwealth is empowered to make laws with respect to insurance – Australian Constitution s 51(xiv)).  The States actually run the courts and in this case were one of the defendants.   It also begs the question of what is ‘a fair and factual settlement’ given that the defendants consistently denied liability?

A class action settlement must be approved by a judge. I discuss the decision of Emerton J who approved this settlement in my earlier post, Marysville/Murrindindi ‘Black Saturday’ settlement approved (May 29, 2015).  In the course of his judgment, Emerton J said (at [56]) ‘I have considered the liability risks … Those risks are not to be lightly dismissed, as the proceeding raises complex issues of law and fact. The plaintiff and group members face some risk of an adverse result at trial, including the risk of a nil outcome.’ So the claimant quoted in the Australian wants a settlement that is ‘fair and factual’ but the judge did note that there was a risk that the findings may well have gone in favour of the defendant.  As he said at [10] ‘The defendants deny the claims made by the plaintiff…’  If the defendant denies the plaintiffs’ claims there was a real risk the plaintiffs would lose and get nothing.   So a settlement in favour of the defendants, even if it did not equate to compensation for 100% of claimed losses, may well be described as ‘fair’ based on the disputed facts.

When approving the settlement His Honour was aware that the expectation was that those claiming for injury or death would receive about 70% of their assessed losses and those claiming property only would receive about 60% of their assessed losses. His Honour understood people were not getting 100% of their losses, but it was better than getting nothing.

The advantage of class actions is that a representative plaintiff brings the action. Other members of the class do not face the same exposure to costs or the need to conduct the litigation. The downside is that people are not in control of their own destiny, the plaintiff and the lawyers can settle the claim despite objections by members of the class.  Emerton J noted that Mr Brown objected to the settlement approval.  His Honour said (at [88]-[89]):

The Court has received four notices of objection to the settlement.

Three of those notices are in identical form. They are from Mr Don Brown, Bloodstock Breeder Services Pty Ltd, and DGB Builders Pty Ltd. Mr Brown is the owner of the two companies. Other than a high level submission set out in the notice itself, no material has been put before the Court in support of these objections. The objection appears to be that the allocation to business losses is too low and that the terms of the settlement are unfair to group members who are business owners. There is also a complaint that the terms of settlement are materially uncertain.

What then raises, in my mind, is what is a ‘judicial review’?  These proceedings were subject to judicial review. Class actions are subject to case management by the court (Supreme Court Act 1986 (Vic) Part 4A and Practice Note SC GEN 10 Conduct of Group Proceedings (Class Actions)).  Further, the final settlement must be approved by a judge who must be satisfied that the proposed settlement ‘… is fair and reasonable as between the parties having regard to the claims of group members’ and ‘… is in the interests of group members as a whole and not just in the interests of the plaintiff and the defendants’ (Rowe v AusNet Electricity Services Pty Ltd & Ors [2015] VSC 232, [49] (Emerton J)).

Conclusion

Mr Brown is dissatisfied with the outcome of this case and clearly was at the time when the settlement was proposed.  It does make one wonder what he expected – no plaintiff should ever expect to recover all their losses from litigation.  Litigation is a ‘win-lose’ procedure (not win-win) but to avoid that outcome parties are encouraged to, and do, compromise their claims. This compromise must always reflect the risk.    Compensation after an event, including a disaster depends upon proof of fault.  Many who suffered in the Black Saturday fires may be convinced that the electrical supply authorities and the state defendants (the CFA and Victoria Police) were negligent but that is, and was, a defended claim.  An assertion that this was not a ‘fair and factual’ settlement suggests faith that the ‘facts’ supported the claim but according to Emerton J this was not certain.

As noted class actions bring benefits but also costs. Plaintiffs with significant losses (like $7m) may well be better off opting out of the class and bringing their own action. They may not get any more in settlement but at least they’d be in control of their own affairs.

Regardless of the merits however I find it hard to believe that a government would consider that this is a matter that warrants an inquiry.  The matter has been subject to close judicial review and no doubt has achieved the efficiencies that were hoped for were group or class actions were created.   One can make significant criticism of fault based litigation (again see my post, Marysville/Murrindindi ‘Black Saturday’ settlement approved (May 29, 2015)) but given that Australian compensation does depend upon proof of fault, these compromises are inevitable.


Categories: Researchers

Graduate paramedics ability to practice

12 May, 2017 - 06:32

This short question comes from a paramedic student in NSW who wonders:

… if I’ll actually be able to practice the skills I’ve been taught with a private ambulance company once I complete the diploma. And will it change once paramedic registration starts?

This of course assumes that my correspondent has secured a job which I’ll assume has occurred.

Today paramedicine is a largely unregulated field.  Today it’s up to the employer to determine what the graduate paramedic is employed to do, ie the scope of practice.  It will also be up to the employer to determine whether the new graduate must undergo supervised practice or further training before being allowed to work on his or her own or as the senior member of a team.

Once registration is in place, the Paramedicine Board will have a role in determining what is required for registration. They may require a period of internship or supervised practice before registration, or they may allow a paramedic to be registered upon graduation but impose a condition on the paramedic’s registration that restricts their practice.  Alternatively the Board may allow full registration upon graduation, with no restrictions.   I can’t say what the Paramedicine Board will decide to do.

I realise I misunderstood the question and this student is doing a diploma, not a degree. It will be up to the paramedicine board to determine which qualifications are suitable for regisration as a paramedic. Qualifications for registration haven’t been determined but it is expected that, with the exception of Diplomas issued by Ambulance Service of NSW, a diploma program will not be sufficient for registration.

For that that have a diploma and relevant experience, they may be registered under the grandfathering provisions – see ‘Grandparenting’ paramedic qualifications (April 26, 2017).

So the answer should be:

Today paramedicine is a largely unregulated field.  Today it’s up to the employer to determine what qualifications are required for the job and the paramedic’s scope of practice.  It will also be up to the employer to determine whether to employ people with a diploma and whether the new graduate must undergo supervised practice or further training before being allowed to work on his or her own or as the senior member of a team.

Once registration is in place it will be the paramedicine board that will determine whether the Dipoma is sufficient for general registration or will be allowed for registration under the grandfathering provisions.  If the Diploma is not sufficient then my correspondent will not be able to be employed as or use the title ‘paramedic’.

My correspondent may be employed in a role that is not a paramedic role and again it will be up to the employer to determine what his or her role will be.

 

 


Categories: Researchers

Treating those without capacity to refuse consent

7 May, 2017 - 01:38

Today’s question comes from a NSW Paramedic and again raises the touchy issue of s 20 of the Mental Health Act 2007 (NSW).  My correspondent writes:

I have a query about the legalities of transporting patients where they lack the ability to consent/or refuse consent to non-transport, but they are refusing to come to hospital.

I am speaking of situations like delirium, acute head injury or the heavily intoxicated, among other examples. Specifically where we, as clinicians after thorough assessment, have determined the patient has lacked either competency or capacity to refuse transport (and therefore must be taken to hospital).

I understand that where life threatening conditions exist and the patient is unconscious we have a duty of care to take the patient to hospital under the doctrine of necessity. I’m more concerned about what I perceive to be the grey area where the patient is not long term incapacitated and not unconscious, but awake and probably protesting to be taken to the hospital against their will.

As I understand it, the Guardianship Act has procedures in place for patients who are deemed formally incapacitated on a long term basis.

I am wondering about the patients where their condition is transient and no guardian has been appointed (like a head injured person who is too confused or drowsy to demonstrate an understanding of the important risks of non transport, or an elderly patient who has acute delirium who is usually able to make decisions for themselves, but today has no idea what day it is or what is wrong with them and is trying to go to the toilet in the corner of the bedroom, but is refusing to go to hospital).

In these cases, where does the law stand regarding our authority to transport them to hospital. Is it a requirement that a paramedic uses section 20 of the mental health act to transport these patients to hospital as they are “mentally disordered”? Note: these patients are medically unwell, not mentally unwell, and I would not be taking them to a specific mental health facility, but to a regular emergency department. There has been significant contention amongst my paramedic peers about need to use the mental health act to transport these people. Or whether, as they are unable to demonstrate competency and capacity we have the right, under a duty of care, to take them to a safe place until they regain competency/capacity (or a guardian is appointed).

I realise you discuss mental health and section 20 several times on your blog (thankyou! Its very enlightening), but I have not seen anyone discus this point. I would really appreciate any light you could shed on this point.

Again the doctrine of necessity is the key issue here – see The doctrine of necessity – Explained (January 31, 2017).  As Lord Goff said in In Re F [1990] 2 AC 1 ‘The principle is one of necessity, not of emergency’.    So the principle applies whenever it is necessary and in the patient’s best interests to provide care but the aid giver, in this context, the paramedic, cannot communicate with the patient.    It means my correspondent’s first point identifies some confusion.  My correspondent says:

I understand that where life threatening conditions exist and the patient is unconscious we have a duty of care to take the patient to hospital under the doctrine of necessity.

First for necessity to apply there does not have to be a ‘life threatening condition’ (though the one’s suggested in this post may well be life threatening) nor does the patient have to be unconscious.  Taking a lost child by the hand and guiding them to a police station would be justified by necessity.   As Lord Goff said:

Take the example of an elderly person who suffers  a stroke which renders him incapable of speech or movement. It is by virtue of this principle [necessity] that the doctor who treats him, the nurse who cares for him, even the relative or friend or neighbour who comes in to look after him, will commit no wrong when he or she touches his body.

The doctrine of necessity does not impose a duty of care.  It’s true that the paramedics do owe the patient a duty of care. What necessity does is explain what they can do to meet that duty, it is not the principle that imposes the duty but perhaps that is too technical to concern us further.

A person has a right to give consent to treatment and to refuse treatment but to do so they must be competent.   To quote from another earlier post Institutionalised patient refusing paramedic transport for booked treatment (March 6, 2017)

3.  … to be a binding, a refusal of treatment must be informed, cover the situation that has arisen and the person must be competent (In Re T [1992] EWCA Civ 18)

4. A person has decision-making capacity if they are able to understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision (In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 169).

I’m going to accept that the patient’s described above are not competent and I note that my correspondent has said ‘we, as clinicians after thorough assessment, have determined the patient has lacked either competency or capacity to refuse transport’.   Given that’s true their purported refusal is not binding and so the doctrine of necessity will justify the delivery of treatment, and transport, that is treatment that ‘a reasonable person would in all the circumstance take, acting in the best interests of the assisted person’.

It’s true that the Guardianship Act 1987 (NSW) does have provisions for the appointment of substitute decision makers but we will assume for the sake of the argument, that none of those are relevant in the circumstances (eg even if there is a substitute decision maker, they are not there when the paramedics arrive).

Again we come to the Mental Health Act 2007 (NSW) s 20 and the idea of ‘using’ it.  I would suggest s 20 is also irrelevant.  Again s 20 says:

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

There is one requirement for this section – that the ambulance officer ‘believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.’  But in this scenario you are actually intending that the person be dealt with under the Mental Health Act; here the concern is an underlying physical condition.   Second the paramedic is not intending to take the patient to ‘a declared mental health facility’.  Section 20 really has no application here.

Section 20 applies where a person is suffering from a mental illness or is mentally disordered and it’s their mental illness/disorder that needs attention.  A person may not be competent in which case, even without the Mental Health Act, necessity would justify treatment.  The point of s 20 is that is authorises the use of force and more importantly means the staff of the mental health facility may detain the person pending further examination (ss 18 and 27).

Given where the section sits in the Act and the power to use force (s 81) the implication is that s 20 also allows treatment even where the patient is competent to refuse it.  For example the patient may understand the advice that he or she is mentally ill and the need for treatment but still believe that the proposed treatment is not warranted or has to take second priority to whatever their mental state demands. But in the circumstances described s 20 has no role to play.

Conclusion

Necessity is not a doctrine of emergency. It justifies the delivery of treatment that is reasonable and in the patient’s best interests when the patient is unable to communicate or form their own wishes.   They may be unconscious or for reasons such as head injury or delirium they may not be competent to give, or refuse, consent.  In those cases necessity justifies treatment that is reasonable and in the patient’s best interests.  It is not necessary to rely on s 20 of the Mental Health Act 2007 (NSW) in the circumstances described.


Categories: Researchers

Is an incorporated bush fire brigade a ‘bush fire brigade’ for the purposes of the Bush Fires Act 1954 (WA)?

5 May, 2017 - 21:54

Today’s question relates to some interesting legal issues arising from Western Australia.  On the page ‘about’ I say:

… This is not a place for providing specific legal advice, so I won’t be able to answer questions that are based on actual events, such as “we responded to a job and now someone wants to sue me, what should I do”.  For those jobs you (or more importantly, the service of which you are a member) needs to get legal advice from a practising lawyer. I also won’t comment on questions about service decisions, so questions like “My service has just issued a directive/policy/item of PPE and I think it is illegal, what do you think?” won’t be answered. Finally I won’t get into inter-personal issues “A fellow member said this, is it defamatory or can we kick them out of the service?” Having said that I want to hear as many things as possible because if I know the issues that are affecting the members I can do more productive and useful work in trying to find answers. If your concern clearly falls in the above categories then understand I may not be able to give an answer, but remember there is no harm in asking and if I think I shouldn’t answer a question or comment on an issue, I’ll say that.

Today’s question sails very close to that line, perhaps over that line but it’s too interesting to ignore.

To answer this question I set out the facts as I understand them, rather than as my correspondent wrote them, taking steps to de-identify the brigade, people and council as much as possible.  The gist of the question is that a particular fire brigade in Western Australia is incorporated under the Associations Incorporation Act 2015 (WA).   Section 42(1) of that Act says:

A member of the management committee of an incorporated association who has a material personal interest in a matter being considered at a management committee meeting must, as soon as the member becomes aware of the interest, disclose the nature and extent of the interest to the management committee.

The Bush Fires Act 1954 (WA) s 41(1) says:

For the purpose of carrying out normal brigade activities a local government may, in accordance with its local laws made for the purpose, establish and maintain one or more bush fire brigades and may, in accordance with those local laws, equip each bush fire brigade so established with appliances, equipment and apparatus.

Under the Local Government Act 1995 (WA) s 3.5:

A local government may make local laws under this Act prescribing all matters that are required or permitted to be prescribed by a local law, or are necessary or convenient to be so prescribed, for it to perform any of its functions under this Act.

Section 3.7 says:

 A local law made under this Act is inoperative to the extent that it is inconsistent with this Act or any other written law.

The relevant council has passed a Bush Fire Brigades Local Law that says, inter alia:

A brigade member shall disclose to the bush fire brigade or the Committee any financial interest (whether direct or indirect) he or she may have in any matter being considered by the bush fire brigade or the Committee, as appropriate.

The problem is that a member of the brigade (not a committee member) failed to declare a pecuniary interest in a motion presented to the brigade’s monthly meeting. The brigade wanted to impose a censure in accordance with the local law.  The member argued that the local law was inconsistent with the Associations Incorporation Act 2015 (WA) as that Act only required members of a management committee to disclose a financial interest.  By virtue of the Local Government Act 1995 (WA) s 3.7 if the local law was inconsistent with the Associations Incorporation Act, then it was inoperative and the member was not under any obligation to make the disclosure.

The matter was subject to appeals first to an appeal committee and then to the local government who all agreed that the local law did apply, that the member had done the wrong thing and was appropriately censured. Advice from the Department of Commerce, however, took the contrary view and accepted there was an inconsistency and therefore the local law had no application.

I’m asked to comment on that conclusion and whether the fact that at the time the decision was made the relevant law was the Associations Incorporation Act 1987 (WA).   With respect to the application of the 1987 or 2015 Act that will make no difference.  Section 21 of the 1987 Act was in substantially the same terms as s 42(1) of the 2015 Act so if the local law is inconsistent with the 2015 Act it was also inconsistent with the 1987 Act.

Inconsistent laws

But was it inconsistent?  On one view it was not.  Section 109 of the Australian Constitution provides that where a valid law of the Commonwealth is inconsistent with a valid law of a state, then the Commonwealth law prevails.    The Australian Law Reform Commission said, in their report For Your Information: Australian Privacy Law and Practice (ALRC Report 108) at [3.3]:

This provision may operate in two ways: it may directly invalidate state law where it is impossible to obey both the state law and the federal law; or it may indirectly invalidate state law where the Australian Parliament’s legislative intent is to ‘cover the field’ in relation to a particular matter.

If we apply a similar test to the question of whether the Associations Incorporation Act 2015 (WA) s 42(1) is inconsistent with the relevant local law, the answer has to be ‘no’.  First it is possible to comply with them both.  A member who discloses a pecuniary interest in accordance with the local law is not doing something prohibited, nor are they failing to do something that is required, by the State Act.   Secondly the State Act and the local law are not in the same ‘field’.  The State Act is governing the conduct of members of the management committee and is written for all incorporated associations.  It is not trying to govern the conduct of members who are not members of the management committee.  That might be a matter for members of the management committee who can write local rules for their association (s 21) that bind all members.  Equally it may be a matter for the local government through the passage of local laws.

The effect of incorporation

But herein lies a bigger issue.  As noted the Bush Fires Act allows local governments to establish a bush fire brigade.  The relevant local law makes reference to the local government establishing the Brigade and that the rules, set out in the local law, ‘govern the operation of a bush fire brigade’.  The rules are set out in schedule 1 and deal with the sort of matters you would expect in the rules of an association. They do not say that the brigade is a separate legal entity nor do they provide for incorporation.

The Associations Incorporation Act 2015 (WA) also provides for club rules and says that the committee can write rules (s 21) that meet prescribed requirements (s 22).  An association may adopt the model rules set out in the Act and regulations and if they fail to make their own rules, they are deemed to have adopted the model rules (s 29).    The process of incorporation creates a separate legal entity that can sue and be sued (Associations Incorporation Act 2015 (WA) s 13).  A local government is also a legal entity that can sue and be sued (Local Government Act 1995 (WA) s 2.5).  So if someone wanted to sue the brigade, who do they sue – the local government or the incorporated entity?

This begs the question of who took steps to incorporate the brigade, and why?  If the council established the brigade, but the members then took steps to incorporate it, they created a new separate legal entity.  Arguably the incorporated entity is not the brigade established by council – it is a separate legal entity and the local fire brigade laws have no application to that entity.    An incorporated association must make its own rules or adopt the model rules.  If that is correct then the application of the local law to the incorporated entity would be inconsistent with the State Act.  To put that simply, the State Act says the rules have to be made in accordance with s 21 or the model rules apply, and the local law saying ‘these rules apply’ is inconsistent with those provisions in the State Act.  My correspondent says that the member involved argued that ‘as we are an incorporated body our meetings are governed by the Association Incorporations Act making the Local Law irrelevant’ – I think that’s correct.

I know where this confusion comes from.  It is based in history when brigades were created by community members and operated on their own but over time they’ve been incorporated into government, either local government in WA, state government as in NSW or statutory authorities as in Victoria.  But they are no longer independent agencies (see How autonomous are NSW Rural Fire Brigades? (February 25, 2015); see also RFS brigades entering into a contract (March 1, 2015)).  A fire brigade in WA is meant to be operated by the local government.  By establishing a separate legal entity there is an inconsistency as the management of the incorporated entity is governed by the Associations Incorporation Act, not the Bush Fires Act or the Local Government Act. The attempt by a local government to impose rules via a local law is inconsistent with the rule making provisions of the Associations Incorporation Act and therefore inoperative.

Conclusion

It is my view that the local laws created by the council are inconsistent with the Associations Incorporation Act 2015 (WA).  It is not that rule 7.4 as set out in the schedule of the local law is inconsistent with s 42(1) of the Associations Incorporation Act 2015 (WA), rather it is that the application of the local laws, at all, to an incorporated brigade are inconsistent with Associations Incorporation Act 2015 (WA).

The bigger question is ‘does the act of incorporation mean that the incorporated association is not the brigade created by the local government and governed by the Bush Fires Act 1954 (WA)?’  Answering that question is not within the power of this blog but it would be the more important question for the council to answer.

 

 

 

 


Categories: Researchers

Who will be liable? The employer

2 May, 2017 - 04:44

Today’s question comes from a paramedic who:

In the past … worked for a state ambulance service, but now I’m working for a private company contracted to provide paramedical services. There is currently no clinical training program for new employees as (I’m told) the company is only recruiting ‘experienced’ paramedics. I am now working with equipment and medications that I have never used before, but my entire scope of practice and all clinical skills appear to be considered ‘assumed knowledge’. Without an appropriate clinical education/training program, I am concerned about my lack of knowledge and inevitable deterioration of clinical skills. If I was to provide someone with emergency medical care, and it was found that the level of care was not at the expected standard, who would be held liable?

Assuming we’re talking about providing care whilst at work, the answer is ‘your employer’.


Categories: Researchers

‘Grandparenting’ paramedic qualifications

26 April, 2017 - 23:39

Today’s correspondent asks

Re: Paramedic registration in the future, will persons holding the Diploma in Paramedicine be able to register under AHPRA, or only persons with a degree in same?

It’s impossible to answer questions like this with precision as final decisions will be up to the Paramedicine Board which is yet to be created and members appointed.  This is what the fact sheet Health Practitioner Regulation National Law Amendment Law 2017: Frequently asked questions says (on p. 13):

How will ‘grandparenting’ of existing paramedics work?

The National Law sets out ‘grandparenting’ provisions, which apply for three years from the commencement of registration of paramedics (the participation day), in order to enable a person who is working as a paramedic to apply for registration even if the person does not hold an ‘approved qualification’ for registration, but has another relevant qualifications/s, training and experience practising the profession.

‘Approved qualifications’ for general registration for paramedics will be decided by the National Board after it is established.  The intent is to ensure that practitioners who are legitimately practising the profession have a way of seeking registration and are not disadvantaged because they are not recent graduates. This is especially important because no state or territory in Australia currently has a registration system in place that could ‘automatically’ transition state and territory registered paramedics into paramedics registered under the National Law.

The proposed grandparenting provisions in the draft Bill state that an individual is qualified for general registration in paramedicine if the individual:

  • holds a qualification or has completed training in paramedicine, whether in a participating jurisdiction or elsewhere, that the Paramedicine Board considers is adequate for the purposes of practising the profession; or
  • holds a qualification or has completed training in paramedicine, whether in a participating jurisdiction or elsewhere, and has completed further study, training or supervised practice in the profession required by the Paramedicine Board for the purposes of this section; or
  • has practised paramedicine during the 10 years before the participation day for a consecutive period of 5 years or for any periods which together amount to 5 years and satisfied the Paramedicine Board that he or she is competent to practise paramedicine.

As indicated above, these grandparenting provisions will not apply in relation to the NSW vocational qualification specified in the Bill.

It is also important to note that all of the other eligibility requirements for registration, for example criminal history and identity checks, set out in section 52 of the National Law will apply to everyone seeking registration.

The more detailed COAG Health Council, Summary of the draft Health Practitioner Regulation National Law Amendment Law 2017 says, at p. 39:

This new section provides for grandparenting of qualifications for the existing paramedic workforce to enable them to obtain registration under the National Scheme, for a period of three years from the participation day (note that another provision, outlined below, deals with practitioners who hold a Diploma of Paramedical Science issued by the Ambulance Service of NSW).

This new section provides that an individual who applies for registration in paramedicine before the “relevant day” (a defined term meaning the period of three years from the participation day) is qualified for general registration in paramedicine … [if they hold the qualifications and/or experience listed above].

Unfortunately the draft Bill is not available so all we have to go on is these documents.  The first paragraph, above, might suggest that the grandparenting provisions allow a current paramedic to ‘obtain’ registration for three years, leaving the inference that during that time they have to obtain a board ‘approved qualification’ (unless the Board approves their current qualification) to continue their registration after three years.

The second paragraph, on the other hand, says that an individual with the training and experience listed and who applies for registration within the first three years of the registration scheme  ‘is qualified for general registration in paramedicine’.  The implication there is that provided the person obtains their first registration within three years, they will be eligible for general registration and will be entitled to continue that registration after the three year period.  This would be consistent with the stated aim of ensuring ‘that practitioners who are legitimately practising the profession have a way of seeking registration and are not disadvantaged because they are not recent graduates’.

My understanding is that it is the second interpretation that is intended: that is a person with a current qualification and/or experience will be able to apply for general registration within the first three years of the scheme and once registered will be able to maintain their registration without having to upgrade to a Board ‘approved qualification.’  As noted however, without the actual text of the Bill, and more importantly the Act when passed, it is impossible to confirm that one way or the other.  Those that have been actively involved in the development of registration and who have seen the draft Bill may be able to add more comment here.

The reference to ‘the NSW vocational qualification’ is important.  To ensure that NSW joined the national scheme it was agreed that the vocational paramedic qualifications offered by NSW ambulance would be sufficient for general registration.  Whilst the Board will determine the approved qualifications for general registration for paramedics, they will have no choice but to accept a person who holds a paramedic qualification issued by NSW is (subject to them meeting the other requirements for registration) eligible for general registration.  The relevant qualifications are (COAG Health Council, Summary of the draft Health Practitioner Regulation National Law Amendment Law 2017 p. 5):

  • Diploma of Paramedical Science;
  • Diploma of Paramedical Science (Ambulance);
  • Advanced Diploma of Paramedical Science (Ambulance);
  • Diploma in Paramedical Science (Pre-Hospital Care); or
  • Advanced Diploma Paramedical Sciences (Pre-Hospital Care).

It should be noted that a paramedic is eligible for registration if he or she ‘holds a qualification the National Board … considers to be substantially equivalent, or based on similar competencies, to an approved qualification’ (Health Practitioner Regulation National Law s 53(b)).  If the NSW Ambulance qualifications were ‘approved qualifications’ then anyone with a ‘substantially equivalent’ diploma could also seek general registration and be exempt the grandparenting provisions (that will only apply for 3 years).   To stop that happening the Bill (COAG Health Council, Summary of the draft Health Practitioner Regulation National Law Amendment Law 2017 p. 40) will declare that the NSW Ambulance qualifications are not:

… an “approved qualification” for section 53(b).

The Paramedicine Board will decide what qualifications are “approved qualifications” for section 53(a) and (b) after it is established. A person will only be qualified for general registration in paramedicine under section 53(b) if they hold a qualification which is substantially equivalent to, or based on similar competencies as, an “approved qualification” decided by the Board.

What this means is that if you hold a Diploma in Paramedicine issued by someone other than the Ambulance Service of NSW, you will not be able to argue that this qualifies you for general registration on the basis that your Diploma is ‘substantially equivalent’, or even identical, to the NSW Ambulance issued diploma.

 

 


Categories: Researchers

New options on this page

26 April, 2017 - 02:45

I’ve added some new pages to this blog.  If you follow the links on the top of the page you can see lists of my academic work.   The new menus are shown on the picture, below.

Apart from references to books, book chapters, journal articles and other writing you can also see details of presentations I have given at conferences and as professional development.  In many cases there are links where you can download copies of my published work, powerpoint slides or notes used during presentations and in some cases audio and video recordings of those presentations.

If these are of use you are welcome to use them but I retain my intellectual property rights.  What I do require is that if you use the material you give due acknowledgement to me as the author and identify the source of the material.


Categories: Researchers

Holding dual registration – EEN and paramedic

25 April, 2017 - 00:36

Today’s correspondent is a medic with the Royal Australian Navy.  They write:

Currently, all Navy Medics hold a Diploma in Paramedical Science, and most of us are studying for a degree in same. We also hold Cert 4 in nursing (Endorsed Enrolled Nurse).

Question:

  1. When paramedics are recognised by ARHPRA and become registered, can we keep both EEN & Paramedic registration?
  2. How does this effect our scope of practice, if at all?
  3. How would this effect, Paramedic we can diagnose and issue the required medication (Prescribe, within our protocols). EEN cannot, and does this become a legal issue if the worst case scenario happens and the patient passes away?

As a Medic we work as a Medic, have Paramedic quals and registered as EEN under ARHPRA. I feel very uneasy in our Current circumstance. And this has never been Looked at or tested under the legal system, either DFDA or civilian, or the ARHPRA board.

I have previously touched on these issues – see:

There is no reason to think that people will not be able to hold dual registration.  There are plenty of paramedics who are already enrolled or registered nurses and they will no doubt want to continue both registrations when paramedics join the ranks of registered health professionals.

The standards set for each profession are indeed the minimum standard.   As I said in my earlier post ADF medics and drugs (November 16, 2016):

The Enrolled nurse standards for practice may set out the minimum requirements for an enrolled nurse but it doesn’t mean that one can’t have other qualifications and skills.  I suppose it is possible that a person could be both an enrolled nurse and a registered medical practitioner.  Their practice as a doctor would not somehow mean they are breaching their registration standards as a nurse.

More likely there are enrolled nurses who are employed as paramedics.  Their practice as a paramedic, in accordance with the authorities granted to them as paramedics would not be a breach of the minimum standards expected as an enrolled nurse.  The definition of ‘unsatisfactory professional conduct’ that applies in NSW (Health Practitioner Regulation National Law (NSW) s 139B) is “Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner’s profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience”.   An MT that applies his or her training and skills in accordance with the authority granted by the ADF [or as a registered paramedic] is not acting below, but in accordance with the standard expected of someone with that ‘level of training or experience’.

If their conduct does fall below the expected standard, they can expect to lose both their employment and their registration.  For example, a paramedic who steals drugs or assaults their patient may lose both their job and their enrolment.  But, in context, supplying drugs that one is authorised to supply as a paramedic or MT in accordance with one’s training, skills and authority is providing care beyond or above, not below, the standard of a person who is an enrolled nurse but not a paramedic or MT.  Consider the ‘standards of practice’ as the minimum skill set, not the only skill set one can have.

I can’t see anything in the Nursing and Midwifery Board of Australia Standards for Practice: Enrolled Nurses 1 January 2016 that says Enrolled Nurses must not do something that a paramedic may do. The standards are all about acting within competence and training.  I can’t see anything that would be inconsistent with appropriate professional practice if the EEN were also a registered paramedic.

Consider too, that if a registered paramedic declined to offer some treatment for fear that this might breach his or her standard as an enrolled nurse, that decision would be a breach of the paramedic standard.   To again go back to an earlier post (Nursing standards and assisting in an emergency (May 22, 2014)), “No court or tribunal would ever accept that some statement on nursing ethics or practice is intended to, or does, stop a nurse providing assistance at an emergency” and that will be particularly true if the nurse is also a registered paramedic.


Categories: Researchers

Again revisiting the Mental Health Act 2007 (NSW) s 20

18 April, 2017 - 22:13

This comment was received via the FaceBook version of this blog:

The s20 is written and directed to a medical officer at the receiving hospital. So the assessment of the patient should be carried out by a medical officer. The triage process is not an assessment by a medical officer. This gives Paramedics the authority to “hold” the patient after triage, before the patient has been offloaded and handed over to hospital staff. This has been my interpretation of the s20 for many years. Many NSW Paramedics believe that the s20 is for ‘transport only’ and that somehow the validity of the s20 ends when the patient enters the doors of the emergency department. This information is apparently also given by NSW Ambulance educators. Can you please clarify this? Another issue is the grey area of who has responsibility for the security of the patient before the patient has been formally handed over. Many times I have heard “security can’t touch the patient, because they haven’t been scheduled by a doctor”. Could you advise if hospital security staff have the right to help restrain a patient under the holding powers of a Section 20 prior to being assessed by a doctor?

Can we stop talking about ‘the s 20’?   Section 20 says an ambulance officer can take a person to a mental health facility.  Compare that to s 19 that says ‘A person may be taken to and detained in a declared mental health facility on the basis of a certificate about the person’s condition issued by a medical practitioner or accredited person. The certificate is to be in the form set out in Part 1 of Schedule 1.’   It might make sense to say a person has completed ‘a s 19’ as there is a specific form; or that they ‘have scheduled the person’ because the form is in the Schedule to the Act.  There is no similar requirement under s 20.    Paramedics when they deliver a patient to a health facility ideally hand over a clinical record indicating what they observed, the diagnosis made and the treatment given.   If they have a record indicating why they formed the view that the person was mentally ill and, if relevant, why they used force and/or sedation then that too is just the clinical record – it is not ‘a s 20’.

It is not the case that ‘Therefore ‘holding powers to keep a patient at a hospital until they are assessed’ should only end when the patient has been assessed by a medical officer’ because that is not what the Act says.  Section 18 says ‘A person may be detained in a declared mental health facility in the following circumstances:… (b) after being brought to the facility by an ambulance officer (see section 20)’.    It is up to the facility to have in place procedures to receive and assess a patient.

Assume that the patient is brought to the facility and there is room to receive them.  The facility, like any hospital, will need to have in place procedures to receive and triage the patient.  Let me assume the person doing the triage is a nurse with specialist mental health training.  That person will form the view as to whether the patient should be detained or not.  No doubt (to borrow an example from a commentator on this site – see https://emergencylaw.wordpress.com/2017/04/17/more-on-the-treating-the-mentally-ill-by-paramedics-in-nsw/#comment-7471) if the person ‘has recently been to a dance party, and was given a few ‘pills’ to try. She thought it was a ‘good idea at the time’ …. A few hours later…  police began to receive reports of a young woman naked, walking down the centre of a busy road. One motorist stopped to offer her ‘assistance’ with a jacket to wear, but she ran away screaming “they will kill us all”’  the triage nurse may decide to detain the person.  If, on the other hand, and to use the example that started this whole discussion (see Detaining a voluntary patient in NSW (March 31, 2017)) the ‘patient … mentioned suicide during an argument with his girlfriend. We asked that he come to hospital with us for assessment and to get him out of a volatile situation. The man was quite happy to comply, did not need any convincing and walked freely to the ambulance for transport’ then it may be decided that the person is indeed a voluntary patient.

Now the critical issue here is that the decision to detain (or not) does not require a prior assessment by a medical practitioner.  Why do I say that? Because s 27 tells me so.  Section 27 sets out the procedures ‘for ongoing detention in mental health facility’.  Section 27(1) says ‘An authorised medical officer must examine the person as soon as practicable (but not later than 12 hours) after the person arrives at the facility or after the person is detained after being a voluntary patient.’   So the medical examination must occur within 12 hours of arrival and after the person has been detained.  Unless the paramedics are going to sit with the patient for up to 12 hours, there has to be a process to hand their care to the facility.

So this is my understanding of what the law requires.  The ambulance officers form a view that the person ‘appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’ (s 20) so they transport them to a mental health facility.  On arrival the person is subject to triage assessment and the triage nurse, on behalf of the facility, has to decide whether to take the person in as a voluntary or involuntary patient.  They may decide to ‘detain’ them (ie treat them as an involuntary patient) on the basis of the history given by the ambulance officers (s 18(1)(b)).   Having agreed to ‘detain’ them it is then up to the facility to arrange for a medical examination in not less than 12 hours (s 27(1)) to confirm that they should remain in the facility as an involuntary patient.

If the facility cannot receive the patient, then s 20 would give the paramedics the authority to continue to treat the patient and perhaps transport them to another facility, just as they would continue to treat someone whilst waiting to offload them in a general hospital emergency department.  But once the patient’s been admitted to the facility (which must occur after triage, and can occur before examination by a medical practitioner) then the paramedics are free to go and the care of the patient is the facility’s responsibility (just as it must be in a general hospital emergency department).

To put that another way, that ‘s20 is for ‘transport only’ and that somehow the validity of the s20 ends when the patient’ is delivered to the care of the facility (not when they enter the door) must be true.  Section 20 is only directed to ambulance officers, it only empowers ambulance officers.  Subject to being a condition that allows the facility to chose to detain a patient (s 18(1)(b)) it doesn’t compel anyone else to do anything.    If you transport a patient with a cardiac condition to an emergency department you will continue to treat them pending triage and pending the hospital finding a bed for them but once they’re in the hospital’s care, paramedics don’t have to hang around to make sure that they are seen by the doctor or that the doctor treats them as the paramedics think they should be treated.

Same as in mental health, if you arrive at a mental health facility (and to again borrow from a commentator on this site – see https://emergencylaw.wordpress.com/2017/03/31/detaining-a-voluntary-patient-in-nsw/#comment-7473) the person ‘… has been transported to a Mental Health facility, for the purpose of ‘assessment’, with a view to the person then being detained, and the transport event was NOT planned in advance ( with the receiving facility ), then Police & Ambulance must take the person back with them, and take them to another facility (which WOULD be arranged before they left the first facility ). It means, that both uniformed Services are required to wait with the person at the facility that has declined receiving them, potentially for an hour or more.’     But if they do accept the patient s 20 doesn’t then authorise or require the paramedics to wait up to 12 hours for a medical assessment.  At that point the person is being detained by the facility.

As for security that would be a matter for the facility that employs them.  They are there I assume to secure the facility, the safety of the staff and the patient.  If the patient needs to be ‘secured’ then it would be axiomatic that security staff can do that, why else are they there?  Again there would need to be procedures in place so if ‘the facility’ (acting through its staff, let’s say the triage nurse) determines to detain the person (s 18(1)(b)) then they will have procedures in place to do so.  If the patient is not detained, they are a voluntary patient, then security staff have no authority to detain them or secure them unless their condition changes and they become a threat to themselves or to others.

In the findings on the Inquest into the death of Mr Robert Plasto-Lehner [2009] NTMC 014 (10 June 2009) the Northern Territory Coroner was critical of police action.  Relevant to our discussion the coroner noted (at [71]-[73]) that the deceased was taken to the Royal Darwin Hospital by police who were acting under the NT equivalent to s 22 of the NSW Act.   At the hospital Mr Plasto-Lehner was seen by a triage nurse and 15 minutes later by a doctor.  The doctor ‘sectioned the Deceased under section 34 (1) of the [Northern Territory] Act [the equivalent to s 19 of the NSW Act], the effect of which was that a recommendation had been made that the Deceased be psychiatrically examined. That section 34 notice authorised the Deceased to be held at the Royal Darwin Hospital until either he was taken to Cowdy Ward or he was assessed by the psychiatric registrar and released. He was no longer in the custody of the police, but was an involuntary patient in the care and control of the hospital’ ([74]).

That process, one can imagine, also applies in NSW.  The person is brought to a facility by ambulance officers (s 20) or police (s 22) and is triaged.  The facility must have procedures and it would be reasonable to think that one of them is for a doctor to examine the person and schedule then under s 19 (though that’s not essential).  Once the person is detained in the facility then they are ‘no longer in the custody of the police [or ambulance officers, but are] … an involuntary patient in the care and control of the hospital’.  Pending their further detention they must, within 12 hours, be examined by an ‘authorised medical officer’ under s 27.

What happened in that case is that even though Mr Plasto-Lehner was now in the custody of the hospital, the police remained with him pending the psychiatric examination.  Given the delays he became increasingly agitated and sought to go outside arguably for fresh air or for a cigarette.   For whatever reason (and the coroner did not accept the police explanations) the police felt they had to use force to restrain Mr Plasto-Lehner which they did.  The force used was ‘ unnecessary and excessive’ ([143]), and fatal.

The Coroner said (at [124]-[125]):

After the Deceased was sectioned by Dr Cromarty at 4.30pm, the police had no legal power at all to detain the Deceased at the hospital or to prevent him from leaving the hospital… Further, there is no common law power that the police can call in aid of. The common law does not even impose a positive duty upon police to take affirmative action to prevent a person such as the Deceased from committing suicide (Stuart v Kirkland-Veenestra [2009] HCA 15 at [99], [127]). I accept that neither … police officer was aware that they had no power to detain or control the Deceased at the hospital….

Unless the section 34 recommendation contains a clear statement that police do have authority to exercise the powers under the Act, there is no effective role the police can play after the handover.

In New South Wales a doctor’s certificate under s 19 ‘may contain a police assistance endorsement that police assistance is required …The endorsement is to be in the form set out in Part 2 of Schedule 1.’

The situation in NSW is then, the same as in the NT.  If the person is taken to hospital (under either s 20 or s 22) they may be detained.  They may also be detained if a doctor completes the certificate required by s 19.  One can imagine that a triage nurse may first assess a patient then call upon a doctor who completes a s 19 certificate.  If that’s done the person can be detained and there is no further role for the ambulance officers or police.     There is no power forpolice to use force to give effect to the s 19 certificate unless the doctor has specifically noted that such assistance is required, just as it was in the NT.

What’s different in NSW is that the facility doesn’t need a s 19 certificate to detain the patient.  The fact that they have been transported by ambulance (s 20) or police (s 22) is sufficient (see s 18).  But once the hospital has accepted the patient then the role of the ambulance officers must end.  The person is ‘no longer in the custody of the police [or ambulance officers, but are] … an involuntary patient in the care and control of the hospital’.

Let me then break down the issues as posed by today’s correspondent:

The s20 is written and directed to a medical officer at the receiving hospital.

No, ‘the s 20’ can’t be anything more than a clinical record.  It’s not ‘directed’ to anyone it records the patient’s history and treatment as does any clinical record.  There is no such thing as a ‘s 20 certificate’ as there is for s 19.

So the assessment of the patient should be carried out by a medical officer.

That is not required.  The facility may detain the person given that they have been transported by ambulance officers (s 18(1)(b)).   They could arrange for a medical officer’s examination and if the medical officer is not an ‘authorised medical officer’ they could complete a s 19 certificate but that too, does not compel the facility to detain the person, but they ‘may’ do so (s 18(1)(a)).   Having determined to detain the person, the facility needs to arrange for an ‘authorised medical officer’ to examine the person within 12 hours (s 27).

 The triage process is not an assessment by a medical officer.

No, nor does it need to be.

This gives Paramedics the authority to “hold” the patient after triage, before the patient has been offloaded and handed over to hospital staff.

That’s true, but ‘offloaded and handed over to hospital staff’ does not require a medical examination.  Just as in a general emergency department paramedics can deliver the patient to the facility before they are seen by a doctor, so too in a mental health facility.  Once the patient has been accepted, and that may be by the triage nurse depending on the facilities procedures, then they are no longer subject to the ambulance officer’s authority.

This has been my interpretation of the s20 for many years. Many NSW Paramedics believe that the s20 is for ‘transport only’ and that somehow the validity of the s20 ends when the patient enters the doors of the emergency department.

The validity of s 20 ends when the patient is received into the facility, just as a paramedics authority and duty to treat anyone ends when they are received by the next care provider, normally an emergency department.

 Another issue is the grey area of who has responsibility for the security of the patient before the patient has been formally handed over. Many times I have heard “security can’t touch the patient, because they haven’t been scheduled by a doctor”.

They can if they are posing a threat to themselves or to others.  That is what it means to secure the premises and the safety of the staff and patient, but the force used needs to be reasonable.

Could you advise if hospital security staff have the right to help restrain a patient under the holding powers of a Section 20 prior to being assessed by a doctor?

Not if the patient is being cooperative or simply asserting their desire to leave.

Section 81 allows the use of force and restraint and if the person has not been admitted to the facility so they are still in the care of the paramedics, then anyone can assist.  Imagine that you are on the street trying to restrain a violent, mentally ill person then a security guard or any bystander could assist.   If the person has been admitted to the institution, whether they have been seen by a doctor or not, then the role of the security staff is a matter for the institution that employs them.

Once the person has been accepted by the institution, whether as a voluntary or involuntary patient, ‘there is no effective role the police [or ambulance officers] can play after the handover’ and ss 20 and 81 become irrelevant.


Categories: Researchers

Obstructing access to a NSW SES station

17 April, 2017 - 21:04

Following up on my post Obstructing access to a NSW RFS fire station (April 11, 2017) I was asked ‘Would it be possible for you to answer this in the context of an SES unit?’

The penalties for parking in front of a driveway or obstructing traffic are of course the same.   The State Emergency Service Act 1989 (NSW) s 22A says:

(1) The Commissioner may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons from injury or death or protecting property threatened by an actual or imminent emergency, direct, or authorise a senior emergency officer to direct, the doing of any one or more of the following: …

(c) the taking possession of, and removal or destruction of any material or thing in an emergency area or any part of an emergency area that may be dangerous to life or property or that may interfere with the response of emergency services to the emergency.

That begs the question of whether or not the SES shed is in the emergency area. It may be if the emergency is a flood or storm, but less clear if it’s say a call out to a road crash rescue.

Fundamentally the justification will come down to ‘necessity’ (see The doctrine of necessity – Explained (January 31, 2017)).

If you were to ‘bulldoze’ an obstructing vehicle out of the way a magistrate may be persuaded that it was justified taking into account the nature of the emergency call (a life threatening flood or road crash rescue may justify more than a tree on a driveway); whether there were any alternatives (eg did you really have to do that to get out, or was it motivated by a bit of street justice?); if you had notice of the obstruction did you try to do something about it (eg if it happened during training, did you speak to the driver and attempt to call police?  If they parked over the driveway and the first you know about it is when you arrive to respond to the call out and there’s no driver there, then calling the police would be a waste of time etc).

As I said in my original post:

I think the outcome would depend on motivation.  If there was an attempt to manoeuvre around the obstruction, and if damage was minimised and if the driver’s had been warned, that would all seem reasonable.  If there was evidence that more damage was done than was necessary, just out of spite, then it’s a different matter.  If the decision to gently push the vehicles out of the way is the only way to get out of the station then there is no reason to think that the protection from liability in s 128 would not apply.  Again it may be different if there is an alternative (perhaps it’s a drive through station and you could back out).  If you do damage to the cars because you think it’s fun or in accord with your sense of justice, that is probably not ‘done in good faith for the purpose of executing any provision’ of the RFS Act; but if it is the only way to respond to a fire call then short of taking the station ‘off line’ it may be an appropriate response.

I think that’s true too, if the service is the SES (substituting s 25 of the SES Act for s 128 of the RFS Act).

 


Categories: Researchers

Further commentary on the Mental Health Act 2007 (NSW) s 20

17 April, 2017 - 19:54

This is another question regarding the Mental Health Act 2007 (NSW).  Today’s question is:

Does a Section 20 completed by an Ambulance Paramedic provide any holding powers for a patient to remain at hospital until assessed and if so by who? Throughout my career I have continually received conflicting advice from colleagues and educators with some stating a Section 20 only provides holding powers during transport and others, including a specific mental health educator, advising that a Section 20 provides holding powers to keep a patient at a hospital until they are assessed.

I have reviewed the Mental Health Act to the best of my ability and can not find information specific to this question. Ideally I would like to put the question to bed so to speak by being able to find some sort of written reference in the Mental Health Act.

I think I have answered this question in my earlier posts:

Even so I think I can return to it again to try to make a more complete description of the Act, because this is clearly a matter of controversy and confusion.

There are books on statutory interpretation, the leading text written by colleagues and friends, see Pearce, D C; Geddes, R S, (2014) Statutory Interpretation in Australia (8th edition, Lexis/Nexis).  Even so it is my view that the easiest way to understand legislation is to simply read it.   You can read the Mental Health Act 2007 (NSW) on Austlii or on the official NSW legislation website.    I will work through the relevant sections but not quote them in full but you can go to the online versions for the full text.

First note that ‘a Section 20 completed by an Ambulance Paramedic’ doesn’t actually mean anything.  Section 20 talks about authority but doesn’t provide for a certificate or form as s 19, and Schedule 1 does.  The ambulance service may have created documentation for patient hand over but there is no prescribed form for s 20.

What does s 20 say?  Section 20(1) says that an ambulance officer may take a person to a declared mental health facility ‘if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’.    If there are ‘there are serious concerns relating to the safety of the person or other persons’ then an ambulance officer can ask for police assistance (s 20(2)).

Because an ambulance officer is authorised to take a person to a mental health facility they are also authorised to use force, and sedation (ss 81(2) and (3)).   So far the action of the ambulance officer, including forming the belief that the person would benefit by being taken to a mental health facility and that the force or sedation is required, impose no obligation upon anyone else.

If an ambulance officer asks for police assistance (s 20(2)) then the police ‘must, if practicable’ provide that assistance (s 21).  That is the only section that imposes a ‘compulsion’ on someone else to act on the ambulance officers’ determination.

When a person is taken to a mental health facility by an ambulance officer, the mental health facility may, not must, detain the person on the basis on the ambulance officer’s opinion (s 18(1)(b)).   And that makes sense, the staff at the mental health facility are (hopefully) the experts and they don’t want to be committed to detain a person if they think the ambulance officers’ conclusions were wrong and that the person does not require detention.

The other relevant section is s 81(1) which says that ambulance officers are authorised to transport people to a mental health facility where that is ordered by someone else.  So, for example, if a doctor completes a ‘mental health certificate’ (s 19) then ambulance officers are authorised to transport the person in accordance with that certificate without having to form their own view under s 20.

Conclusion

The question I was asked today was (to paraphrase it):

I have been advised that ‘Section 20 only provides holding powers during transport and others, including a specific mental health educator, advising that a Section 20 provides holding powers to keep a patient at a hospital until they are assessed’; what is correct?

Section 20, when read with ss 81 and 12 (which says that detention should only be used when ‘no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available’) allows ambulance officers to form their own view on a person’s mental state and to take them, with force and/or sedation if required, to a mental health facility.  It imposes no obligation upon the mental health facility to detain the person but it does impose an obligation upon police to assist if the ambulance officer asks for police assistance.  In that sense ‘Section 20 only provides holding powers during transport’.

However, the fact that the person has been transported by ambulance means that the staff at the mental health facility may detain the person pending the further assessment required by s 27.  In that sense, the fact that the paramedics delivered the person, relying on s 20, does give rise to ‘holding powers to keep a patient at a hospital until they are assessed’ but it does not compel or require that the person is so detained.   It is a condition precedent (ie it is something that must happen first) to give the mental health facility the power to detain the person.


Categories: Researchers

More on the treating the mentally ill by paramedics in NSW

17 April, 2017 - 00:32

I’m not sure what training NSW paramedics are getting on the Mental Health Act 2007 (NSW) but it does seem to be at odds with what the Act says.  Today’s question asks

… in regards to writing a section for a patient in circumstances where a doctor is escorting the patient during a transfer with the treating paramedic. In the event that a section is required because a patient needs to be sedated and/or restrained whilst in transport which clinician should be writing the section? I am unable to find any documentation on this and would assume that the higher clinical level would be the responsible clinician in that case, however it is most likely that any medications being administered are the responsibility of the paramedic.

As I’ve noted in earlier posts, the Mental Health Act 2007 (NSW) s 20 says:

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

Why is that important?  Because s 81 says:

(2)  A person authorised by this Act to take a person to or from a mental health facility or other health facility may:

(a) use reasonable force in exercising functions under this section or any other provision of this Act applying this section, and

(b) restrain the person in any way that is reasonably necessary in the circumstances.

(3)  A person may be sedated, by a person authorised by law to administer the sedative, for the purpose of being taken to or from a mental health facility or other health facility under this Act if it is necessary to do so to enable the person to be taken safely to or from the facility.

The implication of both s 81 and the place of s 20 within that part of the Act dealing with involuntary treatment is that the treatment and transport can be provided even if the patient does not consent to the treatment.

But the idea of ‘writing a section’ rather than recording the observations that caused the paramedic to form the view that treatment was required and that ‘no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person’ (s 12) is not referred to in the Act.

Section 19 says:

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

An accredited person is a person accredited by the Secretary of the Ministry of Health for that purpose.  Ambulance officers could be accredited but I doubt they are given the presence of s 20. Action under s 19 certainly sounds like a traditional ‘schedule’ that is there is a prescribed a ‘Medical certificate as to examination or observation of person’ to be completed that allows the person to be taken and detained. When completing that certificate the doctor or accredited person must certify that he or she:

(a) has personally examined or observed the person’s condition immediately before or shortly before completing the certificate, and

(b) is of the opinion that the person is a mentally ill person or a mentally disordered person, and

(c) is satisfied that no other appropriate means for dealing with the person is reasonably available, and that involuntary admission and detention are necessary, and

(d) is not a designated carer, the principal care provider or a near relative of the person.

They are also required to note ‘The following medication (if any) has been administered for purposes of psychiatric therapy or sedation…’

The problem is that the question I have been asked:

In the event that a section is required because a patient needs to be sedated and/or restrained whilst in transport which clinician should be writing the section?

Doesn’t make sense.    If the paramedics have been called to transport a person who has been examined by a doctor or accredited person and a ‘Medical certificate as to examination or observation of person’ has been completed then it is up to the doctor to identify what medication has been given.    If the doctor is travelling with the patient and he or she wishes to prescribe or administer medication then he or she can then do that and would need to record that.  If, on the other hand, the paramedics take the view (whether the doctor is there or not) that in compliance with the clinical practice guidelines and the patient’s condition they want to administer sedation then they could do that and record it.    Where the doctor is travelling with the patient, then ideally the decisions in the ambulance are made with consultation between the practitioners (paramedic and medical).

But the question of who completes ‘the section’ just doesn’t make sense.  If the paramedics have formed no view of the patient’s mental state but are transporting him or her because the doctor has completed the form then of course it’s the doctor who has completed the ‘Schedule’ and is responsible for the evidence in it and the opinions that are relied on to detain the person.

If, on the other hand, assume the patient has attended his or her GP and the GP has formed the view that the patient is mentally ill and has called for an ambulance but has not completed any paperwork, then the ambulance crew when attending may take the view that it ‘appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’ then the ambulance officers can transport the person to hospital under s 20.  In that case the paramedics have to record their observations and treatment as they would with any patient.


Categories: Researchers

A private emergency vehicle in SA

12 April, 2017 - 23:52

A correspondent

… would be interested in some feedback regarding South Australian laws. I work for a private entity in remote SA which provides an emergency response service on private land We operate emergency ambulances with an exemption under sections 57, 58 & 62 of the Health Care Act. We also provide fire and rescue services however we do not have any exemption under the Fire and Emergency Services Act or any other legislation that I’m aware of. Our fire and rescue vehicles are registered as emergency vehicles because they comply with Motor Vehicle Regulations given they are principally used for the purpose of firefighting (or taking action in connection with an emergency), have red and blue flashing lights, sirens and appropriate response equipment. My question is specifically; Are we leaving ourselves exposed when responding in our fire and rescue vehicles on public roads in support of local state operated response services?

In South Australia an emergency vehicle is

… any vehicle driven by a person who is—

(a)         an emergency worker for the provision; and

(b)         driving the vehicle in the course of his or her duties as an emergency worker.

The important thing is the status of the driver as an ‘emergency worker’, not the status of the vehicle.    If they are registered as an ‘emergency vehicles’ then that has to be to allow warning devices to be fitted, but is not relevant to their use on public roads and an exemption from the road rules.

The definition of ‘emergency worker’ for SA is set out in the Road Traffic (Road Rules–Ancillary And Miscellaneous Provisions) Regulations 2014 (SA) r 54.  An emergency worker is

  • a member ‘of an emergency services organisation within the meaning of the Fire and Emergency Services Act 2005’ (r 54(1)(a)).

The emergency services organisations are the SA Metropolitan Fire Service (SAMFS); the Country Fire Service (SACFS) and the State Emergency Service (SASES) (See Fire And Emergency Services Act 2005 (SA) s 3) and I infer that my correspondent’s employees are not members of an emergency service organisation (but they might be).

Authorised officers are appointed by the State Coordinator (Emergency Management Act 2004 (SA) s 17).  I would infer that my correspondent’s employees are not authorised officers under the Emergency Management Act 2004.

  • persons engaged in the provision of emergency ambulance services under section 57(1) of the Health Care Act 2008 on behalf of—
    (i) SA Ambulance Service Inc; or
    (ii) St Johns Ambulance Australia South Australia Incorporated;

My correspondent says ‘We operate emergency ambulances with an exemption under sections 57, 58 & 62 of the Health Care Act’ but they ‘are a private entity in remote SA which provides an emergency response service on private land’ so I infer they are not doing so on behalf of SAAS or St Johns [sic] Ambulance SA.

  • any other persons engaged in the provision of emergency ambulance services under section 57(1) of the Health Care Act 2008 

Section 57(1) says

A person must not provide emergency ambulance services unless—

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

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

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

My correspondent says they have an exemption under s 57(1) so when providing an ambulance service it’s an emergency vehicle but the question is about ‘responding in our fire and rescue vehicles on public roads in support of local state operated response services’ to which I infer that is fire and emergency services.

  • members of the Australian Federal Police or Australian Border Force; 
  • members of the armed forces of the Commonwealth engaged in police, fire fighting or ambulance duties or duties in connection with the urgent disposal of explosives or any emergency; 
  • employees of Airservices Australia engaged in fire fighting duties or duties in connection with any emergency. 

Clearly none of these apply to my correspondent.

Prima facie my correspondent’s vehicles (other than an ambulance operated in accordance with an exemption under s 57(1) of the Health Care Act 2008 (SA) is not an ‘emergency vehicle’ for the purposes of the Australian Road Rules as the driver is not an ‘emergency worker’.   But the minister or his or her delegate (Road Traffic (Road Rules–Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) r 6 and Road Traffic Act 1961 (SA) ss 11 and 12) may grant exemptions and approvals. So if they have granted a relevant approval or exemption then they may be an ‘emergency worker’.   I can’t know what sort of approvals have been given under the road rules.

 

 


Categories: Researchers

The ADF operating emergency vehicles

11 April, 2017 - 22:32

A member of the Australian Defence Force (the ADF) has

… queried the legal basis as to fitting emergency lights (red/blue) and sirens to service police and ambulance vehicles.

Undoubtedly, no issue arises from their use in duties on commonwealth land. However, given the geographical spread of defence establishments, I can only assume circumstances arise whereby service emergency vehicles will utilise public roads.

In such an event, are service police vehicles classified ‘police vehicles’ in NSW, and as such, able to lawfully operate under urgent duty driving? Alternatively, does the ADF (and vehicles displaying ADO plates) hold some general exemption from the road rules?

Any insight you held would be greatly appreciated.

By virtue of ancient history, Acts of Parliament do not ‘bind’ the Crown unless they say they do.  But the Crown is in theory the same Crown so an Act of the Parliament of NSW can bind the Crown in right of the Commonwealth and vice versa.  The Road Transport Act 2013 (NSW) is the Act that authorises the making of the Road Rules 2014 (NSW).  The Act says ‘This Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament of this jurisdiction permits, the Crown in all its other capacities.’  To the extent that NSW can, it binds the Commonwealth too.  What follows is that a commonwealth public servant driving a commonwealth car on a NSW road is bound by the NSW road rules unless there is a valid Commonwealth law that says something else.

The Australian Constitution (s 109) says that where there is a valid law of the Commonwealth and an inconsistent valid law of a state then the Commonwealth law prevails.  There is not an exemption from the Road Rules but if the fitting of red/blue lights and sirens to a commonwealth vehicle (ADF, AFP, Air Services Australia) if authorised by a valid Commonwealth law, then it will be permitted regardless of state law.

The Defence Act 1903 (Cth) s 123 says:

A member of the Defence Force is not bound by any law of a State or Territory:

(a) that would require the member to have permission (whether in the form of a  licence  or otherwise) to use or to have in his or her possession, or would require the member to register, a vehicle, vessel … or other thing belonging to the Commonwealth; or

(b) that would require the member to have permission (whether in the form of a  licence  or otherwise) to do anything in the course of his or her duties as a member of the Defence Force.

If the ADF has determined to put lights and sirens on their cars then neither the ADF nor a member of the ADF needs permission from the state transport authority for permission nor do they need permission to use them in the course of their duties.   That does not mean they can just run people over or drive as dangerously as they want.   The driver (and the ADF) could still be negligent and could still breach provisions of the various items of traffic legislation as the Commonwealth is unlikely to give permission to drive carelessly.  But with respect to fitting lights/sirens and urgent duty responding, this particular provision would appear to provide the necessary authority.


Categories: Researchers

Obstructing access to a NSW RFS fire station

11 April, 2017 - 22:11

Today’s correspondent is from

… a large NSW rural fire station with lots of space about. I found a vehicle parked in front of each of the 4 bays and the drivers just setting off on bicycles. I stopped them and politely suggested that they might like to move their vehicles.  I was told “I can park where I want” by one person and “You have no right to make me move.” I calmly advised him (Perhaps incorrectly) “no but if we get called I have the right to push them all clear with the bullbar and it becomes your issue as it will be deemed damage caused by the incident.. . Your call.” Unlocked the door and walked into the station. They moved their cars….  where do we stand?

Self help is never a good look, so let’s start with the law. First ‘A driver must not stop on or across a driveway…’ Road Rules 2014 (NSW) r 198.  The maximum penalty is a fine of 20 penalty units ($2200).  There are also offences if the area in front of the fire station is marked as ‘no stopping’ (r 167) or ‘no parking’ (r 168).  The first step, and best before the driver’s move off, is to call the police rather than rely on the threat of force.

If a fire alarm is received, no-one is going to write a rule that says ‘it’s ok to push parked cars out of the way’ so more general rules have to be found.    The Rural Fires Act 1997 (NSW) s 22 says that an officer of the RFS

…  may, for the purpose of controlling or suppressing a fire or protecting persons, property or the environment from an existing or imminent danger arising out of a fire, incident or other emergency: … (b) take any other action that is reasonably necessary or incidental to the effective exercise of such a function.

Specifically, s 22A says:

An officer of a rural fire brigade or group of rural fire brigades may cause to be removed any person, vehicle, vessel or thing the presence of whom or which at or near a fire, incident or other emergency might, in the officer’s opinion, interfere with the work of any rural fire brigade or the exercise of any of the officer’s functions.

A question might arise as to whether the vehicles near the fire station are ‘at or near’ the emergency.

I think the outcome would depend on motivation.  If there was an attempt to manoeuvre around the obstruction, and if damage was minimised and if the driver’s had been warned, that would all seem reasonable.  If there was evidence that more damage was done than was necessary, just out of spite, then it’s a different matter.  If the decision to gently push the vehicles out of the way is the only way to get out of the station then there is no reason to think that the protection from liability in s 128 would not apply.  Again it may be different if there is an alternative (perhaps it’s a drive throught station and you could back out).  If you do damage to the cars because you think it’s fun or in accord with your sense of justice, that is probably not ‘done in good faith for the purpose of executing any provision’ of the RFS Act; but if it is the only way to respond to a fire call then short of taking the station ‘off line’ it may be an appropriate response.


Categories: Researchers

Yellow flashing lights on a private vehicle in WA

6 April, 2017 - 08:58

Today’s correspondent is a volunteer with the SES in Western Australia.   They ahve

…  recently purchased a vehicle, and have fitted discreet LED amber beacons as well as a removable magnetic amber roof beacon to help visibility while the vehicle is stationary on a busy section of road.  If I have the time, I try to be a Good Samaritan to do emergency traffic management or stop for the purposes of providing first aid at an accident while waiting for a higher authority (police, fire, ambulance or SES, etc).

Both of those tasks are offered as a member of the public, not in any capacity as an SES volunteer and I only wear a high vis vest, not my SES uniform when I do it.

I park well off the road, and use the lights to warn traffic that there is something happening ahead. When I’m driving normally for everyday things like shopping, etc, I hide the mag roof beacon and ensure the switch can’t be accidentally activated. The lights are for stationary use and offer no exemptions for any traffic rule. The exterior of the vehicle looks like any normal one.

I get a lot of mixed messages about the legality of it. I’ve had people say that it’s flat outright illegal and I risk a large fine and impoundment, and others say that I’m actually not going to cause a huge fuss if I use it only when circumstances dictate that it would be reasonable to use any equipment when needed in a large enough incident.

Can you clarify if at all possible? In WA, almost every 4wd has a beacon permanently fitted to the exterior of the vehicle,  and they don’t seem to be pulled over.

The relevant rules are the Road Traffic (Vehicle) Regulations 2014 (WA).

A vehicle other than an exempt vehicle or a special purpose vehicle ‘must not display — (a) a light that flashes…’ (reg 327(2)).

An exempt vehicle is (reg 327(4)) is:

(a) an emergency vehicle;

(b) an Australian Protective Service vehicle;

(c) an Australian Customs and Border Protection Service vehicle;

(d) an Airservices Australia vehicle; or

(e) any other type of vehicle approved by the CEO and used in conformity with any conditions that may be imposed by the CEO

The vehicle described by my correspondent is not an exempt vehicle.

‘[A] special use vehicle may be fitted with one or more flashing yellow lights (or flashing lights of another colour or colours approved by the Director General)’ (Regulation 327(3)(b)).  A special use vehicle is (regulation 327(4)):

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

(b) a vehicle that because of its dimensions is permitted to be driven only in accordance with —

(i) an order or permit as defined in section 32 or 38; or

(ii) a permit issued under regulation 453 or 454;

(c) a vehicle built or fitted to accompany a vehicle mentioned in paragraph (b);

(d) a bus fitted, before July 1999, with a sign telling road users that the bus carries children;

(e) a transport enforcement vehicle;

(f) any other type of vehicle approved by the CEO and used in conformity with any conditions that may be imposed by the CEO.

A special use vehicle includes a vehicle ‘fitted for use in hazardous situations on a road’. On one argument fitting yellow lights would be to fit the vehicle for use in hazardous situations but that would be circular. It would mean any vehicle fitted with yellow flashing lights is entitled to be fitted with yellow flashing lights. Merely ‘fitting’ yellow lights cannot make a vehicle a special use vehicle, there must be more such as the vehicle is used by an authority or agency that has cause to operate in hazardous situations on roads. That might include a group established to provide motorcycle escorts for bike rides (see Is An Escort Motorcycle A “Special Use” Vehicle In Queensland (March 4, 2017) but it can’t be any private vehicle.

But regulation 327(3) isn’t strictly correct because all vehicles must display flashing lights.  Regulation 331 says:

A turn signal … must —

(a) consist of a steady or flashing illuminated yellow sign at least 150 mm long and 25 mm wide that — …

(d) when in operation, be visible from both the front and rear of the vehicle at a distance of 30 m.

Further there are provision for the use of hazard lights – hazard lights are ‘the turn indicator lights on a vehicle when set to display regular flashes at the same time, and at the same rate, as each other’ (Road Traffic Code 2000 (WA) r 188).

There are other provisions for the use of yellow or amber flashing lights by tow trucks (Road Traffic (Vehicle) Regulations 2014 (WA) r 410); a towing vehicle, a pilot vehicle or an escort vehicle (r 443) and agricultural implements and agricultural combinations (rr 428, 431, 438, 441, 444 and 450) but they are not relevant here.

A person must not drive or use a vehicle unless there is compliance with each provision in this Part that applies to the vehicle or a combination of which the vehicle is a part’ (Road Traffic (Vehicle) Regulations 2014 (WA) r 232).  The maximum penalty is a fine of 16 PU or an on the spot fine of 2 PU (n WA a penalty unit for road offences is $50 (Road Traffic (Administration) Act 2008 (WA) s 7).

If the vehicle is stopped by the side of the road and my correspondent has got out of it then they are not driving the vehicle.  The vehicle must not be driven except in compliance with the rules but r 327(2) says the vehicle must not display a light that flashes.  So if the lights are only on when the vehicle is parked and the driver is out of the car, arguably no offence is committed.

The Road Traffic (Administration) Act 2008 (WA) defines ‘use’ ‘… in relation to the  use  of a vehicle on a road, includes the drawing or propelling, in any manner, of a vehicle on a road’.  Again it would appear that a stationary parked vehicle is not being ‘used’ (subject to any case law on the point, and this is already getting too long to find that).

Conclusion

On the face of it, the use of the flashing yellow lights on the vehicle is illegal unless the fitted LED lights are part of the indicator lights and come on with the hazard lights and all flash at the same time – ie do not have a strobe effect.  I can imagine the registration authority taking a dim view of the ‘fitted discreet LED amber beacons’ but police, at a scene, may take a pragmatic view of the removable roof light, but whether they do or not is up to them.

There is an argument that if the vehicle is parked and the driver is out of the car, then the car is not being either driven or used, in which case no offence under the Road Traffic (Vehicle) Regulations 2014 (WA) r 232 and 327(2) is being committed, but you’d have to be prepared to take that before a magistrate to confirm that is indeed the case.


Categories: Researchers

No liability for Yarnell (Arizona, USA) fire

3 April, 2017 - 23:52

On 30 June 2013, the Yarnell Hill Fire, in Arizona, USA claimed the lives of 19 firefighters and destroyed homes and property.   The fire was caused by lightning two days earlier.    People who lost homes and properties sued the State of Arizona alleging negligence in the fire fighting effort and a failure to protect their private property and to issue timely warnings.

The matter came before the Superior Court Of Arizona, where it was dismissed – see Arizona State Forestry Division Not Liable To Homeowners For Property Lost In The Yarnell Fire, 2013 (May 8, 2015).

On 30 March 2017, The Arizona Court of Appeals upheld the decision of the Superior Court (Gordon Acri, et al., v State of Arizona, et al. Nos. 1 CA-CV 15-0349, 1 CA-CV 15-0350 Consolidated).    Judge Cattani, speaking on behalf of the court (Cattani, Winthrop and Swann JJ) said (at [4]):

… the State did not owe the Residents a legal duty in connection with its efforts to combat a wildland fire resulting from a natural occurrence on public land in natural condition. To hold otherwise would effectively require the State to act as an insurer against naturally occurring calamities affecting private property throughout the state. And imposing such a duty (with its corresponding potential for liability) based on the State’s undertaking to coordinate wildland firefighting would create a self-defeating incentive not to engage in such important efforts. Thus, the Residents’ claims fail as a matter of law.

Alleged duty claimed to arise when the state began fire fighting operations

The court said (at [9]) that a proposed duty to protect private property ‘against a natural occurrence on public land maintained in natural condition—is unworkably broad.’  A more limited duty that arose only when the State undertook fire suppression would lead to perverse results as the State could avoid that duty by simply doing nothing.

The parties agree that prevention or suppression of wildfires—like the emergency response to any natural disaster—is a fundamental public safety obligation, and that public policy should encourage a prompt and efficacious response from the State. But imposing a tort duty based on the State’s undertaking to provide an emergency response could instead encourage inaction: the State could shield itself from liability by simply doing nothing. Such a result is contrary to the overriding needs of the public.

The claim failed to address the fact that the forest service was a state entity. At [10] the court said:

… the governing statute expressly guides the state forester’s discretion to provide wildfire suppression services, absent a governing cooperative agreement, by reference to “the best interests of this state” and whether such services “are immediately necessary to protect state lands.”… Imposing a duty of care beyond the legislative directive would impermissibly replace the State’s discretion to consider the complex mix of risks and considerations presented by a wildfire with a mandate to prioritize the interests of individuals whose property might immediately be threatened.

This is not an unusual approach when dealing with government agencies who must take a broad overview approach to their tasks. Whether it’s monitoring oyster leases (Graham Barclay Oysters v Ryan (2002) 211 CLR 540) or allocating resources to fight a fire (Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales [2014] ACTCA 45) the state is not acting for the benefit of some individuals but the whole community and must make decisions that may not be optimal for everyone.  To owe a duty of care to those most proximate to the hazard would mean that the state could not consider and the interests of those more remote and broader interests such as the protection of the environment and cultural assets.

Alleged duty to prevent the spread of fire from state land

The plaintiffs also claimed (at [13]) that the state owed them a duty to protect them from the fire because the fire started on state land.    The fire was not started by ‘the state’ (it was started by lightning) and it started on land that was maintained in a ‘natural condition’, that is ‘the condition of land has not been changed by any act of a human being’ ([14])  The court said ([15]-[16]):

Because the Yarnell Hill Fire arose from a natural cause on land that remained unused and in natural condition, these authorities do not support imposition of a duty in this case…

Accordingly, we decline to recognize a common law duty to protect the Residents by preventing the spread of a naturally caused fire started on State land maintained in natural condition.

For a discussion on Australian law on this topic, and how it might adversely impact upon decisions to conduct hazard reduction burns, see Michael Eburn and Geoff Cary, ‘You Own the Fuel, But Who Owns the Fire?’ In Rumsewicz, M (ed) Research Forum 2016: Proceedings From The Research Forum At The Bushfire And Natural Hazards CRC And AFAC Conference Brisbane, Australia, 30 August – 1 September 2016, (BNHCRC, 2016), 145-150.

Voluntary undertaking

Under Arizona law a person can come under a legal duty to take reasonable care ‘by undertaking (with or without a formal relationship) to perform services for the plaintiff’ ([17]).  Here, however, the forest service was not fighting the fire as a service to the property owners.    The actions of the state were (at [18]):

… consistent with the state forester’s discretionary authority to provide wildfire suppression services in the interest of the state and in the interest of protecting state lands …  rather than an undertaking directed to the benefit and protection of the Residents’ property.

Abnormally dangerous activity

Alleged liability for undertaking an abnormally dangerous activity [20]-[21]_ could not succeed because even if firefighting is abnormally dangerous, it was the fire, and not the firefighting that caused the plaintiff’s losses

Duty Based on Precluding Local Firefighter Action

Finally the plaintiff’s claimed that a direction from the Arizona State Forestry Division that local firefighting assets were not to be involved in fighting the Yarnell fire ‘prevented the Residents and local firefighters from performing activities on non-state lands that might have reduced the Residents’ damages’.  The court rejected this claim as ‘directive not to do anything to “combat the Yarnell Hill Fire” is not the same as a directive not to use local efforts to protect property within Yarnell’ ([22]).  That is the action of the Forestry Division in taking control of the operations dealing with the wildfire did not limit the ability of other assets to protect properties in the township.

Conclusion

This is yet another case that has confirmed that fire fighting agencies are established to deal with a complex issue with competing demands.  Finding a duty to protect individuals would hamper the ability of fire fighting organisations to considering the many competing priorities and demands and to make tough operational decisions that may lead to foreseeable losses.   That sort of duty would hamper the agencies and defeat the goal of public safety by advancing a private obligation.  For a discussion on the Australian cases on this topic, see Liability for Fire – A Review Of Earlier Posts (January 8, 2016).


Categories: Researchers

No adverse comments regarding paramedics following death of a woman in Ballarat, Victoria.

3 April, 2017 - 22:39

On the Facebook version of this page I posted links to news stories relating to the death of Stacy Yean.

For this blog I have gone to the findings of the Coroner, Philip Byrne.

What happened?

Ms Yean was 23 years old.  She became very ill on 5 January 2016.  After 2 hours, the family called the local hospital for advice and was told to contact her doctor.   A call was made to the doctor but the doctor was unavailable and the locum service did not provide house calls in that area.

At 3.15pm a call was made to triple zero.  The initial call taker triaged the call as non-life threatening and it was transferred to Ambulance Victoria’s referral service.  A paramedic took the call and determined that an ambulance was not required but the family were invited to call triple zero again should circumstances change.

At 4.30pm another triple zero call was made and an ambulance was dispatched.   The ambulance was staffed by an experienced paramedic educator and a graduate paramedic who had been ‘on the road’ for only 2 weeks.   The paramedics took two sets of observations, 10 minutes apart, and concluded that Ms Yean ‘may have a “gastric bug” and [her] presentation did not mandate transport to hospital’.   They offered to take her to hospital but did advise that the hospital was busy and she was likely to face a long delay in being seen.   In light of the advice, Ms Yean declined the offer of transport to hospital.

Ms Yean came out of her bedroom at 11pm and spent some time with her father before returning to bed.  She appeared to be asleep at 1am.  At 11am she was found deceased in her bed.  An autopsy, including toxicology, biochemical and microbiological analysis, failed to identify the cause of death.

In the circumstances the Coroner held a full inquest with oral evidence from those involved.

Matters in contention

One can only imagine the heartbreak that Ms Yean’s family must have felt.  They called triple zero, their daughter was not taken to hospital, and she died.

In a poignant statement, Mr James Yean said:

“I am sure that if she was taken to hospital on the 5th of January 2016, my daughter Stacey would still be alive”.

In a letter to the Court dated 11 May 2016 Mrs Adrienne Yean wrote:

“If the right call had been made Stacey would still be with us today or at the very least she would have passed in a hospital setting with people who could have tried to save her life, not alone in her room.”

The fundamental thrust of the family’s position is that claimed deficiencies in the management of Ms Yean on the afternoon of 5 January 2016 were causal factors in her death.

In light of the family’s concerns the coroner undertook a detailed investigation into the response by Ambulance Victoria.

The 3.15pm triple zero call

This call was referred to the referral service and no ambulance was sent.   In a review of the call, Ambulance Victoria identified that various questions, required by the triage procedures, were not asked.  The coroner considered the impact of that failure but concluded that, even if those questions had been asked, the outcome would have been the same.  The failure to send an ambulance at 3.15pm did not contribute to Ms Yean’s death because her ‘condition did not deteriorate or alter significantly’ between that time and 4.30pm when the second triple zero call was made and an ambulance was despatched.

The assessment by paramedics at 4.30pm

There was an issue as to whether or not the paramedics refused to transport Ms Yean to hospital.  After some evidence it was conceded that they paramedics had offered to transport her but had warned Ms Yean that there was likely to be a significant delay. According to the family, it was said ‘that she might have to wait in the Emergency Department for 5-6 hours with a bucket between her legs.’  The paramedics confirmed that they did advise there would be a wait, but denied that they specified a particular time.

Ms Yean’s father said that he offered to drive his daughter to hospital but she declined because of the advice received from the paramedics, that there would be a long delay.   Counsel for the family asked the coroner to find that the advice, and consequent decision not to go to hospital, contributed to Ms Yean’s death.  The coroner did not make that finding.  He said:

While the prospect of a significant wait in the Emergency Department was no doubt one of the factors, perhaps even the main reason Ms Yean declined the offer of transportation, that cannot reasonably be seen as causal or contributing factors in her subsequent death; it was merely stating a likely fact.

He went on (emphasis in original):

I find the interpretation put on the issue of transportation by both parties, AV and the family interesting. Ms Handley [one of the paramedics] states Ms Yean “refused” the offer of transportation. I would have thought a more appropriate interpretation would be “declined” rather than “refused”.  The family maintain Ms Yean was “talked out” of going to hospital; both interpretations are, in my view, strained.

I do not consider it unreasonable for a paramedic to advise a patient there may well be a significant delay in being seen at an Emergency Department, particularly if that paramedic has observed ambulances “ramped” earlier in the day.  The decision taken, while no doubt influenced by the prospect of a significant delay, ultimately was taken by Ms Yean, I do not accept she was refused transport to hospital.

The bottom line is, the offer of transportation was made, but declined.  Of course no one could have predicted the tragic event which unfolded sometime overnight, at a time I am unable to determine.

Professor Stephen Bernard, Senior Medical Advisor to Ambulance Victoria gave evidence.  He confirmed that the actions by the paramedics were in accord with then clinical practice guidelines.  The coroner said (emphasis in original):

Bearing in mind that the paramedics are the professionals, I suggest that in the final analysis their assessment of the patient, following clinical guidelines, is the appropriate basis upon which a decision is taken to transport, or not.

Having carefully reviewed the evidence … I have concluded that [the paramedics’] … assessment of Ms Yean’s condition was in accordance with AV’s clinical practice guidelines, their performance did not depart from a norm or standard, nor did it fall short of a recognised duty.  Consequently, in my considered view, I conclude the weight of the evidence does not warrant the making of an adverse finding, or indeed comment, against the paramedics or AV.

Finally the family claimed that during an Open Disclosure process, designed to work with the family to explain and explore what had happened, a representative of Ambulance Victoria conceded that Ambulance Victoria had been at fault in the way Ms Yean was treated.   The Coroner observed (emphasis in original) that:

Over the years I have quite often observed a mere apology or expression of sympathy construed as an acknowledgement of fault/culpability when clearly it is not.

I do not accept the contention that … on behalf of AV, admitted a deficiency in performance by AV staff.  I believe any belief to the contrary is likely founded upon a misunderstanding, miscommunication, misinterpretation or a combination of all three, of what Mr … sought to convey.

Commentary

Let me first acknowledge the terrible tragedy in this case.  The family of Ms Yean did all that they could do, they sought medical advice and acted on it.  As a parent one hopes that this will lead to the best outcome but in this case the outcome was as bad as it could be.  One can understand their grief, frustration and loss and belief that someone, Ambulance Victoria paramedics, let them down.

For the paramedics this too must be a tragic case.  They gave their honest advice and opinion and their patient died and they had to spend a year reliving the matter for the coroner.  For one of the paramedics, with only 2 weeks on road experience, this will no doubt be a formative experience in their career.   We can only feel sympathy for them, too.

Elsewhere I have argued that paramedics should not be required to transport everyone – see:

This case highlights the risk of not transporting everyone, but as the Coroner noted:

It is possible perhaps even probable, that Ms Yean, even if transported to hospital, would have been discharged home, probably after the provision of an anti-emetic medication, rather than be admitted.

The coroner was not critical of the decision to advice Ms Yean of the likely delay nor of the decision of Ms Yean to chose not to go to hospital.  Paramedics are professionals and are there to exercise their professional judgment.  They could not have foreseen the consequence in this case.

The tragedy here is that there is no doubt that everyone was trying to do the best that they could for Ms Yean. The family sought medical advice; the advisors gave their honest opinion that her condition did not warrant hospital treatment and that if taken to hospital there would have been significant delays.   Given that, even now it is not known what caused Ms Yean’s death, it can’t be said that any decision was wrong or that transporting her to hospital would have made a difference.


Categories: Researchers

US Appeals court confirms firefighters not liable for loss of homes during Yarnell fire

1 April, 2017 - 03:25

A correspondent has sent a link to a US News Story – Court: No legal right to sue for loss of homes Arizona Daily Sun (March 30, 2017).

This story is reporting on an appeal from an earlier decision arising out of the Yarnell fire: see Arizona State Forestry Division Not Liable To Homeowners For Property Lost In The Yarnell Fire, 2013 (May 8, 2015).

The gist of the story is that the Appeal court has confirmed that the firefighters did not owe a duty to homeowners to protect their property.  Quoting from the judgment the article says:

“Prevention and suppression of wildfires — like the emergency response to any natural disaster — is a fundamental public safety obligation,” [Judge Kent] Cattani wrote. “Public policy should encourage a prompt and efficacious response from the state.”

But the judge that falls apart if public officials have to fear that deciding to fight a fire would impose liability for damages to others.

“The state could shield itself from liability by simply doing nothing,” Cattani said. “Such a result is contrary to the overriding needs of the public.”

I will attempt to locate the judgment and will add more if there is more to add.


Categories: Researchers