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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
Updated: 15 hours 49 min ago

Paramedic providing a statement to Queensland police

16 June, 2017 - 02:25

This question again touches on the issue of privacy – see

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

Today’s correspondent is a Queensland paramedic who

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

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

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

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

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

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

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

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

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

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

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

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

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

Paramedics with their experience could probably give similar evidence.

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

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

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

Conclusion

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

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

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

 

 

 

 

 


Categories: Researchers

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

12 June, 2017 - 20:00

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

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

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

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

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

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

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

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

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

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

(a) in the circumstances—

(i) the driver is taking reasonable care; and

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

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

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

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

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

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

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

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

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

Conclusion

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

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


Categories: Researchers

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

6 June, 2017 - 20:56

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

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

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

A suggested scenario is

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

(I infer that MCI means Myocardial infarction).

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

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

(1) A person must not—

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

(b)  give a false alarm of fire.

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

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

*   activation of a break-glass alarm

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

(4) In this section—

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

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

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

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

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

(a)     causes or threatens to cause:

(i)     loss of life or property; or

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

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

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

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

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

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

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

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

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

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

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

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

Discussion

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

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

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

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

Conclusion

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

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


Categories: Researchers

Releasing information to SA police

31 May, 2017 - 00:06

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

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

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

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

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

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

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

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

Discussion

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

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


Categories: Researchers

Who should call an ambulance?

30 May, 2017 - 22:50

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

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

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

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

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

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

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

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

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


Categories: Researchers

Redrawing NSW RFS districts with local government changes

30 May, 2017 - 22:31

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

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

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

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

Question

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

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

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

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

(2) …

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

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

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

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

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

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

Conclusion

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


Categories: Researchers

What’s an ambulance service?

30 May, 2017 - 18:51

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

I’m now asked:

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

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

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

State and territory ambulance services

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

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

Non-government ambulance services

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

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

Western Australia and the Northern Territory

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

Australian Capital Territory

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

(1)     A person commits an offence if—

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

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

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

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

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

New South Wales

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

(1) A person must not:

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

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

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

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

Queensland

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

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

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

South Australia

The Health Care Act 2008 (SA) says:

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

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

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

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

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

an ambulance service that—

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

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

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

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

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

Tasmania

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

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

Further (s 37A):

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

(a) holds an NEPT licence; or

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

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

Victoria

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

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

Conclusion 

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

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


Categories: Researchers

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