Today’s correspondent:

… was doing some reading I came across on Duty of Care.  Before Christmas, before registration of Paramedics came in, I was regarded as a Paramedic as I do have the diploma of Paramedical Science, then Registration came in after Christmas and unless your Registered you can’t call yourself a Paramedic, I am now wondering about this question:- if I was to attend a vehicle accident, or an industrial accident, where now does that put me with the law, as I am qualified as a Paramedic before Christmas I could use all skills and meds for my level of training, now after Christmas if I don’t use all my skills and knowledge and someone dies because of that reason, could I be charged for not using all my skills and knowledge that I could have used before Christmas?  Where do all of us stand as far as treating someone who hold the diploma of paramedicine? Do we withhold certain treatment because we are not registered and sadly watch the patient deteriorate, or do we do what we are trained for?  Will we be charged for holding back treatment because of the stupid registration process that was rushed through and be charged for not doing what we used to be able to do, or do we do what we can for the patient and still be charged. Where do we stand with the law?  It seems a very grey murky area.

It’s not grey or murky at all.   With due respect to my correspondent the question suggests a misunderstanding on what registration means.

Registration under the Health Practitioner Regulation National Law is about title protection, not scope of practice.  Since December 2018 only a registered paramedic can use the title ‘paramedic’ and it is indeed an offence to use the title if you are not registered (Health Practitioner Regulation National Law, Division 10).  The law however says nothing about scope of practice, that is there is nothing that is inherently paramedic practice or that only a registered paramedic can do.

For my correspondent the difference is that before 1 December 2018 he or she could use the title ‘paramedic’.  After that date (assuming he or she had not applied for registration before that date and the application has not been decided (see Paramedicine Board, Fact sheet: Using the title ‘paramedic’ after 1 December 2018) he or she is no longer entitled to use the title ‘paramedic’.  But my correspondent is still trained to do all the things that he or she did before 1 December.

The use of medication is complex but I’ll assume that my correspondent either had personal authority or was employed by and endorsed by a person with a relevant authority (see The last word on scheduled drugs? (September 29, 2019)).  The authority to carry drugs does not (yet) come with registration as a paramedic so, depending on the wording of any drugs authority, registration won’t have made a difference.

Subject to the fact that I have not seen whatever drug authority my correspondent works under the simple answer will be that registration makes no difference to his or her scope of practice.

My correspondent is as qualified now as he or she was before Christmas. They can use all skills and meds for their level of training. After 1 December 2018 they still have those skills and training and if they are going to treat an injured person, they should use them.  There is no legal impediment to doing what you can to help a person in need.

My correspondent should not withhold certain treatment because he or she is not registered because there is no treatment that only a registered paramedic can administer.

Do what you are trained to do.  Registration is irrelevant. The only thing you cannot do is use the title ‘paramedic’.

I have been having correspondence with a fellow lawyer on the Mental Health Act 2007 (NSW) s 20. I have written multiple posts on this subject – see https://emergencylaw.wordpress.com/?s=%22Mental+Health+Act+2007+%28NSW%29%22.  Writing to a fellow legal practitioner forced me to think about, and summarise, the position that I have come to over the years of writing this blog.  I share that summary below:

I am more and more of the view that the Mental Health Act 2007 (NSW) s 20 does not say what paramedics think it says.  Section 20 (‘Detention on information of ambulance officer’) says:

(1) 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.

(2) An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.

It says paramedics may take a person to a mental health facility, but it does not say that they may take them if they are competent and refuse treatment – see https://emergencylaw.wordpress.com/2019/09/29/using-force-under-the-mental-health-act-2007-nsw/.  There is no reference to ‘apprehend’ or ‘detain’ in s 20 but those words are used in sections:

• 18 (‘When a person may be detained in mental health facility’);
• 21 (‘Police assistance’); and
• 22 (‘Detention after Apprehension by Police’).

Compare, too, the differences in the section headings – the heading to s 20 refers to detention by a mental health facility on the ‘information of an ambulance officer’ whereas s 22 refers to detention by a mental health facility after a person has been ‘apprehended’ by police.  Section 20 is not entitled ‘Detention after apprehension by an ambulance officer’.

The inference is: given the power to detain or apprehend is given in ss 18, 21 and 22, the failure to use those words in s 20 must imply that it is not intended that paramedics have those powers.

I have also been persuaded that s 81 does not authorise paramedics to forcibly treat a person who is competent but refuses consent (again, see https://emergencylaw.wordpress.com/2019/09/29/using-force-under-the-mental-health-act-2007-nsw/).  Section 81 says that a person authorised to take a person to a mental health facility may use force (s 81(2)) and sedation (s 81(3)).  But if s 20 only authorises an ambulance officer to take someone who consents, or who is unable to consent then s 81 can only apply in those circumstances.  It does not expand a paramedic’s authority to use force or sedation to detain a person who, although mentally ill, remains competent and refuses treatment and transport.

If s 20 and s 81, when read together, did allow the use of force and sedation to treat a mentally ill person who remains competent but refuses treatment then there would be no need for s 22(2).  That subsection specifically calls up, and gives to police the power, to use force and other measures listed in s 81.    I would argue that the reason s 22(2) is there, with no equivalent in s 20, is to allow the administration of force, and sedation, to a person who has been ‘apprehended’ by police and is therefore being subject to enforced treatment.  In other words s 22(2) when read with s 81 allows police to detain a person who is mentally ill, competent and refusing treatment but the absence of the word ‘detain’ and the absence of an equivalent to s 22(2) in s 20 means that paramedics do not have that power.

In summary, my view is that:

• If a person is not competent to give consent then the doctrine of necessity (https://emergencylaw.wordpress.com/2017/01/31/4203/) justifies treatment and s 20 allows the paramedics to bypass the nearest hospital to go to a mental health facility whilst at the same time providing clinically indicated treatment (that may include restraint or sedation). The power to give that treatment where the patient cannot consent (as opposed to refuses to consent) is also supported by s 81.
• Where a person does consent, they can be transported to a mental health facility and given whatever treatment they consent to. Once at a mental health facility, the facility may choose to detain the person pending examination by an appropriate practitioner, based only on the paramedic’s assessment (s 18).
• If a person remains competent and refuses consent s 20 does not, in my view, authorise detention of the person and treatment without consent by ambulance officers.  Paramedics who fear the person will, if transported by ambulance, be a threat to themselves or others, need to call police (s 20(2)) who have the power to ‘apprehend’ the person and the police must exercise that power when requested to do so by paramedics (s 21(1)).  The problem here is that this only applies if the patient will pose a threat if transported by ambulance.  If the reason they will pose a threat is because they don’t want to be transported but they remain competent, mentally ill, but no threat to others if not subject to enforced transportation,  then there is no power under s 20 to compel them to come with the paramedics and therefore no power to call for police assistance (s 20(2)).  It would be perverse if police could detain a person who poses no threat but may pose a threat if forced to receive treatment that they do not want.  It seems to me s 21 is relevant for a person who is not competent to consent to or refuse treatment and who poses a threat to him or herself or others including the treating paramedics.  In those circumstances s 21 may authorise police detention (to avoid claims of false imprisonment) and allow police to use the force that they are trained to use whilst both the common law and, arguably, s 81 justify appropriate treatment in the absence of consent.  I cannot see that treatment in the presence of an express or implied, competent refusal of consent is authorised by s 20 and therefore s 21 would not authorise treatment, and force, where the only reason the person is a threat is because he or she is exercising his or her right to refuse treatment (see https://emergencylaw.wordpress.com/2015/10/05/tasmania-alcohol-affected-patient-refuses-treatment-and-is-not-guilty-of-assaulting-police-part-2/).
• If a person is or appears to be mentally ill, remains competent, is refusing treatment and transport and:

 … is committing or has recently committed an offence or … has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person

then police can act under s 22.  Further, if police take action under s 22 that ‘calls up’ the powers for compulsory treatment under s 81.  That is essential as it allows the treatment to be given even when the patient refuses consent.  If police have acted under s 22 then they are authorised to take the person to a mental health facility or to seek assistance from ambulance (s 81).  Paramedics who transport a patient who has been apprehended by police under s 22 could then rely on s 81 to restrain or sedate the competent patient contrary to the patient’s wishes.

• It is still, however, my view if police, acting under s 22, form the view that a person is mentally ill and apprehend them and call for ambulance assistance, paramedics are not obliged to act upon that request if they form the view that the person is not mentally ill (see https://emergencylaw.wordpress.com/2018/05/15/nsw-police-paramedics-and-the-mentally-ill/).

Conclusion

If a person is or appears to be mentally ill, remains competent, is refusing treatment and transport and is not committing an offence or posing a threat to him or herself or to others, then there is no power in either ss 20 or 22 to detain the person and treat them against their will (see also Stuart v Kirkland-Veenstra [2009] HCA 15).

The use of force is limited to police and only in cases where a person is a threat to themselves or others (s 22), not just where it would be in the patient’s best interests. This is consistent with the aims of the Mental Health Act to restrict the application of non-consensual and forced treatment (see Mental Health Act 2007 (NSW) ss 3 and 12).

What follows is that I am increasingly of the view that, absent police action under s 22, the Mental Health Act 2007 (NSW) does not give ambulance officers the power to detain and treat a person who is mentally ill, competent and refusing consent to treatment/transport.   Further police action under s 22 can only be justified where the person is committing an offence or posing a threat to themselves or others.  Compulsory treatment and transport, just because it would be in the patient’s best interests is not justified under ss 20, 21 or 22.

This is all matters of complex legality.  Deciding whether a mentally ill person remains competent that is whether, at the time that a decision has to be made, the person can understand its nature and effects (PBU & NJE v Mental Health Tribunal [2018] VSC 564, [154] (Bell J); see https://emergencylaw.wordpress.com/2018/11/24/latest-decision-on-refusing-medical-treatment-reviewing-the-principles/) is no doubt a complex clinical question.

Today’s correspondent asks:

When a person creates an Emergency Plan, does he or she have to put their name on the document

1.4.5. Competent Person (AS3745:2010) – there is a section in the Emergency Plan which deals with bomb threat, personal threats etc.  The AS3745:2010 offers only guidelines and so does the Australia-NZ Committee of Counter-Terrorism guidelines on Crowded Places.  The person has to source all this information out and put them into the Emergency Plan, which is building specific. However, does this person need to have qualifications, skills, knowledge and education in this area – because he is collecting all the data and presenting it as professional advice and response procedures in the Emergency Plan.

Or can the person be someone who has no experience whatsoever or limited experience in the areas of Counter Terrorism write a manual about response procedures for Active Armed Offender and Bomb Threats. Only using the internet as his/her guide and experience

Another example is a trainer who has no experience, training clients in Active Armed Offender and bomb threats. I find that when I visit these sites and provide the same training, the clients are confused because the previous trainer has got his/her information from the internet and adds material from other sources. I then have to explain to the clients that I have served in the Bomb Squad for a while and this is the safe, worlds best practice and correct way to manage these threats.  I use the same guidelines but I also use my practical and professional experience in the bomb Squad to present the facts.

As a general rule, a person can do whatever they like unless there is a law that says they cannot.  The flip side to that is a person is not required to do anything unless there is a law that says they must.

Law comes from two sources, the law made by parliament, and as part of that laws made by a person or department with delegated law-making power – most usually a regulation made by the Governor or Governor-General on the advice of a government department and acting under the authority given in an Act.   The second source of law is the law developed by the courts over time – the common law – but that depends on cases coming before the court where rules have to be interpreted and developed.

One can imagine that neither the legislature, nor a government department, nor a court is going to get into the sort of detail that would develop a rule that says ‘a name has to appear on the plan’ but to answer that question one has to consider what sort of emergency plan and is there any requirement to have an emergency plan.  Regulation of a hazardous industry may impose planning requirements that are different in workplaces not specifically regulated.

To answer this, I’ll look at the Work Health and Safety Act 2011 (ACT) and its regulations – the Work Health and Safety Regulation 2011 (ACT) (remembering that all states and territories other than Victoria and Western Australia have adopted a consistent model of WHS laws).  Regulation 43 says:

(1)        A person conducting a business or undertaking [a PCBU] at a workplace must ensure that an emergency plan is prepared for the workplace, that provides for the following:

(a)        emergency procedures, including—

(i)         an effective response to an emergency; and

(ii)        evacuation procedures; and

(iii)       notifying emergency service organisations at the earliest opportunity; and

(iv)       medical treatment and assistance; and

(v)        effective communication between the person authorised by the person conducting the business or undertaking to coordinate the emergency response and all persons at the workplace;

(b)       testing of the emergency procedures, including the frequency of testing;

(c)        information, training and instruction to relevant workers in relation to implementing the emergency procedures.

(2)        A person conducting a business or undertaking at a workplace must maintain the emergency plan for the workplace so that it remains effective.

(3)        For the purposes of subsections (1) and (2), the person conducting the business or undertaking must have regard to all relevant matters, including the following:

(a)        the nature of the work being carried out at the workplace;

(b)       the nature of the hazards at the workplace;

(c)        the size and location of the workplace;

(d)       the number and composition of the workers and other persons at the workplace.

(4)     A person conducting a business or undertaking at a workplace must implement the emergency plan for the workplace in the event of an emergency.

As I said, the regulator is not getting down in the detail.  The regulation says nothing about the form in which the emergency plan must be prepared.  Many plans won’t be written by an individual.  A PCBU may engage consultants but they may not, depending on the size of the business or undertaking there may be many people working on the plans.  In the case of small business, it may be the business owner.  The plan is ‘owned’ by the PCBU not it’s author regardless of how it came to be written.

In short there is no legal obligation for someone to be named as the author of an emergency plan.  A consultant may want to put their name on a plan they develop for a client to promote their business, but they’re not legally required to do so.

Being a consultant who writes emergency plans is not a regulated profession.  There is not legal requirement that the person must ‘have qualifications, skills, knowledge and education in this area’.  There may be areas of consumer protection law if a person claims to have ‘qualifications, skills, knowledge and education in this area’ that they do not have.  And there may be remedies in contract law and tort law if they do not provide a professional service that they promise to provide, but as a general rule this is not a regulated industry.  The governance is meant to come from the market – if you’re not providing a good service hopefully you won’t stay in business.   But a consultant is not legally required to possess prescribed ‘qualifications, skills, knowledge and education in this area’.

As for training, if the training is being provided by a Registered Training Organisation delivering nationally recognised vocational education and training then there are minimum qualifications but those relate to the delivery of teaching rather than being a subject matter expert.  If the training is not, and does not claim to be, part of nationally recognised vocational education and training then those limitations do not apply.  Again, the ultimate regulator is the market.

Conclusion

Speaking generally (and therefore subject to any industry specific regulation) the answers are:

No, if a person creates an Emergency Plan, he or she does not have to put their name on the document.

No, a person who offers to write an emergency plan does not have to have ‘qualifications, skills, knowledge and education in this area’ but if he or she does not there may be legal issues under contract law, tort law and/or consumer protection law depending on how they came to write the plan and what they promised. Further a plan written by such a person may not be effective and my therefore not meet the PCBU’s obligations to ensure the health and safety of people at work (Work Health and Safety Act 2011 (ACT) s 19) and to ensure an effective emergency plan (Work Health and Safety Regulation 2011 (ACT) r 43)).

Equally a trainer is not legally required to have ‘qualifications, skills, knowledge and education in this area’ unless the training is being offered by an RTO as part of nationally recognised vocational training.  Then he or she must have the necessary qualifications to be able to sign off on the various competencies.

Today’s correspondent says:

I have been sent your information via the Restart a Heart Day on the 16th October, I want to notify my staff to encourage them to actively engage with members in their community to spread the word on what to do in an emergency. I myself plan on delivering information within my community on that day also, this is where my queries come in and if you can guide me that would be great.

1. Can any member of the public remove an AED from let’s say the local shopping centre/Sports club and use it say two buildings away without it being classed as stealing? As this program states locate where your nearest one is in case of an emergency! You wouldn’t be able to take the casualty to the AED?
2. AED’s does not state on them not for use under one years old, what if someone used it on a casualty under the age of one, would that person be sued?
3. A casualty with NFR (Not for Resuscitation) tattooed on their chest and you use an AED, I teach you can’t be sued without sighting the legal document as this is First Aid not within your employed role such as an Age Care Facility where one might come into play.
4. Is there a recommendation to how many AED’s should be placed in any given location i.e. one per every twenty people?
5. CPR on an Infant states two fingers for compressions in the training package, Midwives like to use thumbs as opposed to fingers and this is much more productive. Are trainers allowed to teach thumbs if fingers are what is stated in the training package

Question 1

Larceny or stealing is defined by the common law (see Ilich v R [1987] HCA 1 ([10] Wilson and Dawson JJ) as:

… a person who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof.

An AED is not a single use item.  Provided the person intend to give it back after it’s been used, they are not intending to ‘permanently to deprive the owner thereof’.   To take something ‘fraudulently’ is to be dishonest (see Eburn, Howie, Sattler and Hood, Hayes and Eburn Criminal Law and Procedure in NSW (Lexis/Nexis, 5th ed, 2016) pp. 327-335).  A person taking an AED to use it as intended is not I suggest acting ‘dishonestly’.   Where it is a publicly accessible AED the consent of the owner to take it and use it as intended may be implied.  In other circumstances see Breaking, enter and take AED? (February 13, 2019).

Taking an AED and using it for the purpose for which it was made will not be stealing.

Question 2

Would that person be sued? Getting sued is not automatic.  Someone has to think there has been an injury that would not have been suffered if the defendant had not done what they had done.  They have to think that it is worth suing someone and it’s not worth suing someone with no money.  “Good Samaritans” are protected by law in every state and territory other than Queensland so if their actions were ‘in good faith’ there would be no liability (see Good Samaritan legislation – a comparison (February 22, 2017)).  One can never say never but would they be sued – I would say the chance of being sued is so low as to be as close to zero as one could imagine.  All you can do is your best and if you’re an untrained person who has received the advice to grab an AED and follow the instructions all you can do is grab an AED and follow the instructions.

Question 3

See all the posts that appear here: https://emergencylaw.wordpress.com/?s=tattoo

But a first aider, or a paramedic, or a doctor has to guess what NFR means – does the patient mean ‘not for resuscitation’ or are they their initials?  What do they mean by ‘resuscitation’?  NFR is much more ambiguous than ‘NO cardio-pulmonary resuscitation’ (see More on DNR tattoos (January 30, 2018)).

That ‘you can’t be sued without sighting the legal document as this is First Aid not within your employed role such as an Age Care Facility where one might come into play’ is not accurate. Of course, a person can be sued – but they are unlikely to be sued for the reasons given in answer to question 1.  There is no obligation to sight the ‘legal document’ because the concept of a legal document doesn’t mean anything – see What is a ‘legal document’? (February 23, 2017).  A tattoo on someone’s chest is as much a ‘legal document’ as a document prepared and witnessed by their lawyer, the difference is the confidence one may have in what it means (hopefully the one prepared by their lawyer is not ambiguous).

For a more complete answer see Withholding resuscitation in first aid (November 21, 2017).

Question 4

Not that I am aware of.  I can’t imagine any sensible recommendation (if there was one) would be as low as 1 AED for every 20 people.  In any given day in a room of 200 probably no-one will have a cardiac arrest. The chance of 10 people having a sudden cardiac arrest is far-fetched and fanciful.

For further discussion see

• Making the installation of AED’s compulsory (September 27, 2015);
• see also the posts that appear here https://emergencylaw.wordpress.com/?s=compulsory+aed

Question 5

That’s not really an emergency law question, that’s a question about the role of Registered Training organisations and their obligation to deliver training and to assess a candidate against the competencies.  One would hope that the training package has ‘best practice’ for the intended audience.  Midwives have different levels of skill and experience compared to your average ‘first aider’ and so just because they may use one technique does not mean it should be taught to others- doctors and paramedics no doubt do things differently to the way it’s taught in a first aid course too, but that doesn’t mean an RTO can or should encourage people to act like a doctor or a paramedic.

I suppose it really depends on how the competency is described and what’s being assessed but as I say they are not really questions for this blog.

Today’s question comes from a registered paramedic who was

… asked about the (assumed) requirement for paramedics, as registered health care professionals, to wear name tags so that patients are able to look them up on the register if they desire. I had assumed that this requirement existed. However, when I looked into it further, and discussed it with others, we were unable to locate a primary source that clearly articulated such a requirement.

Our discussion included the following:

• Access to the name of register health practitioner is one of the foundation values of the National Law is the public register (s225)
• It is consistent with almost all charters of patient rights
• The second reading speech for the National Law noted:
  • Each national board will be required, in conjunction with the national agency, to keep a public national register of health practitioners currently registered by that board and a public national register of practitioners who were registered by the board but whose registration has been cancelled by an adjudication body (clause 222). National boards for a health profession for which specialist recognition operates must keep similar registers for specialist health practitioners (clause 223). The information that must be included in such a register is specified in clause 225, and includes the suburb and postcode of the practitioner’s principal place of address, the type of registration the practitioner holds and information about any conditions that have been imposed on the practitioner’s registration. These registers will be available at the national agency for inspection, free of charge, by members of the public and will also be published on the agency’s website (clause 228).
  • Clause 226 sets out a number of mechanisms that will ensure that the public registers do not unreasonably limit the right of health practitioners to information privacy. Recognising that publishing information about a practitioner could place some individuals at risk because of their personal circumstances, a national board may decide not to record information about a practitioner in a register if a practitioner requests that the information not be published and the board reasonably believes that the inclusion of the information in the register would present a serious risk to the health or safety of the practitioner (clause 222(3)). A national board may also decide not to include information about a condition or undertaking relating to a practitioner’s impairment if it is necessary to protect the practitioner’s privacy and there is no overriding public interest for the conditions or the details of the undertaking to be published./
  • Similarly, the national board may decide to remove information that discloses a registered health practitioner has been reprimanded if it considers that is no longer necessary or appropriate for the information to be recorded on the register. Division 3 of part 10 does not limit a person’s right to privacy because it does not authorise an interference that is unlawful or arbitrary. This is because any interference serves the legitimate purpose of protecting the public and the clauses adequately specify the circumstances in which these interferences may occur.
• There is exemption to s28 of the UN Charter of Human Rights re rights to privacy if it is legislated – which is in the National Law
• There is nothing expressed in the code but I suppose it could be implied by principles around patient practitioner relationships and best practice
• There is also the Health care provider identification (data set specification)
• The scope of these data elements includes identification of individual and organisation health care providers. The data elements also allow for identification of an individual in a health care organisation. The definition of health care provider is:
  • ‘any person or organisation who is involved in or associated with the delivery of healthcare to a client, or caring for client wellbeing’.
• The data elements have been defined to enable a common, best practice approach to the way data are captured and stored, to ensure that records relating to a provider will be associated with that individual and/or organisation and no other. The definitions are proposed for clinical and administrative data management purposes.
• The ability to positively identify health care providers and locate their relevant details is an important support to the provision of speedy, safe, high quality, comprehensive and efficient health care. https://meteor.aihw.gov.au/content/index.phtml/itemId/356020
• In the 3.2 partnering and 3.3 communication section of the code of conduct (and also mentioned in the capabilities for paramedics) is an expectation on the practitioner to work with the patient, to provide clear, honest, accurate and respectful information, and provide full disclosure, so that the consumer can be involved in the decision making, choices and options, including risks and benefits, available to them in as far as they choose to be involved. It would be implied that identifying yourself to a patient would be necessary to do this, and necessary for them to verify your bonafides.

Are you able to shed any further light on this issue? Is there a requirement for paramedic to wear name tags with their full name (as appears on the register of practitioners) displayed?

I love it when my correspondent has done all the research for me.

As a general rule, an individual can do anything they want unless there is a law that says they cannot; and the flip side of that is you don’t have to do anything unless there is a law that says you do.   There is no law that says you have to wear a name badge with your full name on it even though as a registered paramedic your details are available on the Register of practitioners – see https://www.ahpra.gov.au/Registration/Registers-of-Practitioners.aspx.

What I would think is essential is that patients are able to identify who their treating paramedic is.  Paramedicine is different to say medicine.  With private medicine a person may be thinking of engaging the services of a doctor and may want to check their registration before consulting the doctor.  Paramedicine (at this stage) doesn’t work that way.  People come into contact with a paramedic usually in response to an emergency call or with the private profession the paramedic may be employed or engaged by their employer and they don’t really have a choice who they receive paramedic services from.  There is therefore less need to have those details available ‘up front’.  But employers and contractors may want to identify that a person is indeed a paramedic and after treatment a person may want to confirm that the person who treated them was a paramedic and may want to raise matters with the Board which would necessarily mean they have to identify the paramedic.

This can be done of course by, for example, a patient contacting the service that employed the paramedic and asking them to identify the paramedic concerned with their care.  Anything that could assist in that process would be helpful. I recall that, in the late 1980’s when I was in ambulance, I wore a name badge with my first name and my payroll number.  I suppose today’s paramedics could wear a badge with their first name and their registration number or some other identifying feature.  If the patient or a person responsible for the patient asked, the paramedic would have to give their name.

It would be, I would think, good practice to have a name badge on as patients and their loved ones may not take in a paramedic’s name as treatment is being provided and it will be better for everyone if they can refer to the paramedic by name.  It is impossible to imagine that one can have a proper professional relationship if the patient doesn’t know the paramedics name.   The factors identified by my correspondent set out very good reasons why that name badge should have the paramedics full name.  But in the absence of any ‘primary source that clearly articulated such a requirement’ it is not compulsory.  Paramedics should be aware, however, that they do not have a right to be anonymous. Any person who they treat or come into contact with in a professional setting, ultimately has a right to know who treated them and to be able to confirm via the Register that the person who did treat them, or who held him or herself out as a paramedic, is a paramedic in good standing.  Facilitating that information sharing and making sure patients and other professional contacts know your full name would strike me as being consistent with good practice but like my correspondent I can’t see that it is actually prescribed as a requirement.

 

This question came as a comment to an earlier post – Revisiting the role of police and paramedics when dealing with the mentally ill in NSW (September 14, 2019)

An issue has arisen where NSW Police have undertaken the initial transport of a person to a local hospital (not a Declared Mental Health Facility (DMHF)) using their Section 22(2) powers (including reference to Section 81) relying on the phrase “…may take to or from a mental health facility or another health facility …”. Section 80(3) did not appear to apply as they required no treatment for any physical condition. The patient was later transferred by NSW Ambulance to a DMHF under the relevant sections.

Given that the Division in which Section 81 appears is entitled “Transfer of patients” and seems to deal with interfacility transfers, and the rest of Section 22(2) requires that the patient is “…is authorised under that section [Section 81]…”, would the powers under Section 81 be available outside of interfacility transfers?

The police involved are very professional and we enjoy a good working relationship. I do not intend in any way to question their intentions or integrity as I have a great deal of respect for them.

Thanks once again for your time and interest.

Section 22 of the Mental Health Act 2007 (NSW) says

(1) A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that:

(a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and

(b) it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.

(2) A police officer may apprehend a person under this section without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

Section 81 appears in Chapter 4 – Care and Treatment; Part 1 – Rights of Patients or Detained Persons, Designated Carers and Principal Care Providers, Division 3 – Transfer of Patients.  The section says, relevantly:

(1) The persons listed below may take to or from a mental health facility or another health facility any person who is authorised by this Act to be taken, or transferred, to or from the facility:

(a) a member of staff of the NSW Health Service,

(b) an ambulance officer,

(c) a police officer,

(d) a person prescribed by the regulations.

(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.

…

It’s true that the headings would imply this section is limited. It is under a heading ‘Transfer of patients’ – what does that mean?  Is it just interhospital transfer or transfer from the street to a health institution?

It would certainly seem that s 81 is limited in its application.  Section 80(1) says ‘An involuntary patient or a person detained in a mental health facility may be transferred from the mental health facility to another mental health facility or another health facility’ and s 81, being in the same Division and Part of Chapter 4 talks about the powers of authorised persons who are giving effect to decisions made under s 80.  I would infer that ‘the powers under Section 81’ would not, normally, ‘be available outside of interfacility transfers’ save that s 22(2) specifically calls up those powers.   In other words a police officer acting under s 22 can exercise the powers under s 81 in particular to use force and restrain the person should that be necessary.

As for police taking a person to ‘a local hospital (not a Declared Mental Health Facility (DMHF))’ s 22(1) does say ‘A police officer … may apprehend the person and take the person to a declared mental health facility…’  It does not say to ‘a hospital’.   It may be the case that the hospital is a declared facility. NSW Health says (Declared mental health facilities (21 August 2019)):

The Secretary can designate classes of declared mental health facility, and the purposes for which they can be used. There are currently three classes of declared mental health facility:

1. Mental Health Emergency Assessment Class – this class provides for the short-term detention of persons for initial assessment, immediate care and to arrange transport to an inpatient unit. All declared emergency departments fall into this class.
2. Mental Health Assessment and Inpatient Treatment Class – this class allows for the full range of inpatient functions to be conducted. All declared mental health inpatient units and Psychiatric Emergency Care Centres fall into this class.
3. Community or Health Care Agency Class – this class provides for the administering of community treatment orders.

That document says ‘All declared emergency departments fall into’ the ‘Mental Health Emergency Assessment Class’.  It does not say ‘All emergency departments are declared …’ so there may be some emergency departments that are not declared mental health facilities but I imagine that most, if not all, are.

For those that are declared then yes, police can exercise the powers listed in s 81 when exercising their authority under s 22.

Paramedics

I have noted before that despite what is clearly conventional wisdom, s 20 (that deals with ambulance officers) does not say that ambulance officers may ‘apprehend’ or ‘detain’ a person who does not want to go with them, nor does it say that ambulance officers may exercise any powers under s 81.  It is not clear to me that s 20 allows ambulance officers to detain a person who is mentally ill but remains competent (noting that the presence of a mental illness does not mean the patient is not competent to make decisions (see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)).  The only support for that proposition is found in the fact that s 20 appears in

Chapter 3 – Involuntary Admission and Treatment in And Outside Facilities;

Part 2 – Involuntary Detention and Treatment in Mental Health Facilities;

Division 2 – Admission to and Initial Detention in Mental Health Facilities

Section 20 says that ambulance officers may take a person to a mental health facility and the staff at the facility may detain the patient, not that the officers can detain the patient outside the facility if he or she refuses treatment/transport. If ambulance officers feel the person needs to be detained against their will they should request police assistance (s 21) and police, not paramedics, can ‘apprehend and … assist in taking the person the subject of the … request to a declared mental health facility’.

If the patient is not competent then they cannot refuse or consent to treatment and treatment that is reasonably necessary and in the patient’s best interests can be given (The doctrine of necessity – Explained (January 31, 2017)).  No doubt deciding ‘whether the person has the ability to remember and use or weigh relevant information and communicate a decision, not whether the person has actually done so’ (PBU & NJE [2018] VSC 564 [206]) would be difficult in the best of times and made harder by a mental illness.  But if they are competent they can refuse treatment and their involuntary detention by ambulance, and police, is only justified if, in the opinion of an ambulance officer ‘there are serious concerns relating to the safety of the person or other persons’ (s 20(2)) or if in the opinion of police (s 22(1)):

the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person.

Neither s 20 nor s 22 allow detention on the basis that the person is mentally ill, and it would be in their best interests to be taken to a mental health facility.

Conclusion

The powers listed in s 81 are available to police acting under s 22 because s 22(2) says they are.

Arguably they are not available to ambulance officers as s 20 does not empower ambulance officers to ‘detain’ a person nor does s 20 specifically ‘call up’ s 81 as s 22 does.  If ambulance officers want to detain a competent patient they need to request police assistance and can only do so if ‘there are serious concerns relating to the safety of the person or other persons’.

If the patient is not competent paramedics can provide reasonably necessary treatment which may include restraint and sedation but that depends on the common law of necessity and the application of good paramedic practice rather than specific provisions in the Mental Health Act 2007 (NSW).

Following my post – Epipens in a Queensland workplace (September 18, 2019) I received two further questions that I will answer together, along with a further discussion on the legal regulation of these drugs.

The first question is

…  I was wondering whether you might be able address the Australia-wide regulatory requirements for a PCBU to procure and store Epipens (Adrenaline) and Ventolin/Asmol (Salbutamol) as part of their First Aid resourcing. In the ACT for example we have the attached clause – but I am uncertain whether this allows PCBUs to routinely procure and store these medications? Do other states have similar clauses and do they mention stocking these medications in First Aid kits or First Aid rooms?

The clause referred to is the Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT) cl 410 which says:

Part 9.2 Emergency supply and administration of adrenaline and salbutamol

410 Authorisations to supply and administer adrenaline and salbutamol—Act, s 26 (1) (b) and s 37 (1) (b)

(1) A person is authorised to do 1 or more of the following for someone else (the assisted person) who is in immediate need of adrenaline or salbutamol:

(a) supply authorised adrenaline or authorised salbutamol to the assisted person;

(b) supply authorised adrenaline or authorised salbutamol to someone else for immediate administration to the assisted person;

(c) administer authorised adrenaline or authorised salbutamol to the assisted person.

(2) In this section:

authorised adrenaline means adrenaline in a single use automatic injector delivering not more than 0.3mg adrenaline.

authorised salbutamol means salbutamol in, or for, a metered inhaler.

The second question is:

In relation to your post about Epipens in workplaces we work with a large portion of child care centres here in QLD. Some of these centres have purchased epipens ‘just in case” which I understand may not be okay. What about centres who have purchased an epipen as a secondary dosage to a child who attends who has anaphylaxis. There have been instances where a child suffering anaphylaxis has used their prescribed epipen but needs a second dosage before an ambulance arrives.

Scheduled medicines/drugs/poisons

When we talk of scheduled medicines, drugs or poisons (the term used varies from jurisdiction to jurisdiction) we are talking about drugs listed in the Poisons Standard, a legislative instrument made under the Therapeutic Goods Act 1989 (Cth).  The current version is the Standard for the Uniform Scheduling of Medicines and Poisons No. 24 also known as the Poisons Standard June 2019.

Although the Poisons Standard is an instrument made under Commonwealth law, it is state law that regulates how scheduled poisons are to be made available, used and stored.  The essential thing to keep in mind is that items listed in the poisons standard are restricted.  The level and type of restriction varies with the schedule, but all of the drugs are restricted.  There are 10 schedules (though Schedule 1 is not used).  In a medical/first aid context the relevant schedules are schedules 2, 3, 4 and 8. These are:

Schedule 2. Pharmacy Medicine – Substances, the safe use of which may require advice from a pharmacist and which should be available from a pharmacy or, where a pharmacy service is not available, from a licensed person. Schedule 3. Pharmacist Only Medicine – Substances, the safe use of which requires professional advice but which should be available to the public from a pharmacist without a prescription. Schedule 4. Prescription Only Medicine, or Prescription Animal Remedy – Substances, the use or supply of which should be by or on the order of persons permitted by State or Territory legislation to prescribe and should be available from a pharmacist on prescription. Schedule 8. Controlled Drug – Substances which should be available for use but require restriction of manufacture, supply, distribution, possession and use to reduce abuse, misuse and physical or psychological dependence.

Adrenaline (found in epipens) and salbutamol (found in asthma inhalers) are both listed in Schedule 3.   Adrenaline is also listed in Appendix H and is therefore a Schedule 3 Poison ‘Permitted to be Advertised’. Salbutamol when supplied ‘in metered aerosols or in dry powder formulations’ is listed in Appendix F.  Drugs in Appendix F must carry one, or more, of 110 prescribed warnings. The prescribed warning for salbutamol is warning number 32 – that is the drug must be packaged with a label that says: ‘This preparation should be part of an overall treatment plan regularly assessed with your doctor’.

The first step in thinking about the restrictions that are going to apply to these drugs is to look at the title of the Schedule.  Schedule 3 drugs are ‘Pharmacist Only Medicine’.  They are ‘available to the public from a pharmacist without a prescription’ not ‘available to the public from someone who bought the drug from a pharmacist’.  If you have a clinical need for the drug including if you are buying it as an agent for someone or as a carer for someone then you can buy it from a pharmacist and obtain professional advice.  But if you supply the drug to someone else, that is if you carry it in your first aid kit and give it to someone who presents to you but who you have never met before, then they are not getting the drug from a pharmacist – and it’s a Pharmacist Only Medicine.  One can infer, without reading further, that even though a person can buy a schedule 3 drug from a pharmacist, they cannot then go and give it out to someone else without an authority.  And then you have to turn to state legislation to find what authorities there are.

State legislation

I cannot do a complete jurisdiction by jurisdiction analysis but I’ll try to draw from legislation across the country in working out the next part of the answer.

There are key concepts in the drugs legislation- they are

• Possess;
• Supply; and
• Administer

scheduled drugs.

This question started in Queensland, so I’ll start there.  The Health (Drugs and Poisons) Regulation 1996 (Qld) uses the term ‘controlled drug’ to refer to drugs listed in schedule 8. A ‘restricted drug’ is listed in schedule 4.  Drugs and poisons listed in the other schedules, ie schedules 2, 3, 5, 6, 7 and 9 are called a ‘poison’.  Therefore, both salbutamol and adrenaline are included in the term ‘poison’.

possess, a … poison … includes—

(a)        have custody or control of the drug, poison or other substance; and

(b)       have an ability or right to obtain custody or control of the drug, poison or other substance.

supply … a poison, means give, or offer to give, a person 1 or more treatment doses of the drug or poison, to be taken by the person during a certain period.

administer … a poison means—

(a)        give a person a single treatment dose of the drug or poison, to be taken by the person immediately…

If you buy an epipen or salbutamol inhaler from a pharmacist and put it in your first aid kit you possess that poison.  If you give it to a person for them to use at some future time, then you have supplied a poison.  If you give it to them for immediate use, or in the case of an epipen you physically use it to inject the person with adrenaline, or you connect an inhaler to a spacer and press the button as you instruct the patient to breath, then you have administered the poison.

Possession, supply and administration of a scheduled substance is prima facie unlawful. If we move jurisdiction and go to New South Wales we can look at the Poisons and Therapeutic Goods Regulation 2008 (NSW).  Regulation 17 says:

A person who is not an authorised practitioner or a pharmacist may supply a Schedule 2 or 3 substance to another person if the supplier holds a licence or authority under Part 8 to supply the substance.

You might think that a first aider who has just completed a first aid course is unlikely to hold a licence or authority, but that may not be the case.  When it comes to Schedule 3 drugs, r 18 says:

(1) A pharmacist must not supply a Schedule 3 substance to any person unless the pharmacist:

(a)        personally hands the substance to the person, and

(b)       gives the person an opportunity to seek advice as to the use of the substance, including advice that the person may require in respect of the dosage, frequency of administration and general toxicity of the substance.

The regulation goes onto say

(3)       This clause does not apply to the supply of salbutamol or terbutaline in metered aerosols for first aid purposes to a person who holds a current emergency asthma management certificate issued by an organisation approved by the Director-General for the purposes of this subclause…

(5)       This clause does not apply to the supply of adrenaline for anaphylaxis first aid purposes if:

(a)        the adrenaline is contained in single use automatic injectors that have been filled by the manufacturer and that deliver no more than 0.3 milligrams of adrenaline each, and

(b)       the supply is to a person who holds a current first aid certificate issued after completion of a first aid course approved by the WorkCover Authority as referred to in regulations made under the Occupational Health and Safety Act 2000, and the person has received training on the symptoms and first aid management of anaphylaxis from:

(i)        a first aid training organisation approved by the WorkCover Authority, or

(ii)       any other organisation approved by the Director-General for the purposes of this paragraph.

Putting aside the problem that the Occupational Health and Safety Act 2000 has been repealed and replaced by the Work Health and Safety Act 2011 (NSW) and SafeWork, as the replacement to WorkCover, is not in the business of approving certificates you can see that if a person holds a certificate of competency approved by the Director General of Health then a pharmacist can sell them the drugs even though they are not intending to give them to a known individual ie they are for first aid.    I cannot possibly say what organisations or certificates are approved by the Director-General.

Just because you can buy the drugs doesn’t mean you can use them.  For that we look to appendix C clauses 12 and 13. They say:

12 ASTHMA FIRST AID

A person who holds a current emergency asthma management certificate issued by an organisation approved by the Director-General for the purposes of clause 18 (3) of this Regulation is authorised to possess and use salbutamol or terbutaline in metered aerosols if required in connection with the carrying out of first aid.

13 ANAPHYLAXIS FIRST AID

A person is authorised to possess and use adrenaline if:

(a)        if the person requires the adrenaline for use in connection with the carrying out of anaphylaxis first aid, and

(b)       the adrenaline is contained in single use automatic injectors that have been filled by the manufacturer and that deliver no more than 0.3 milligrams of adrenaline each, and

(c)        the person holds a current first aid certificate issued after completion of a first aid course approved by the WorkCover Authority as referred to in regulations made under the Occupational Health and Safety Act 2000, and the person has received training on the symptoms and first aid management of anaphylaxis from:

(i)        a first aid training organisation approved by the WorkCover Authority, or

(ii)       any other organisation approved by the Director-General for the purposes of clause 18 (5) (b) (ii) of this Regulation.

So, in New South Wales, a person who has received training from an approved organisation can buy, possess and use salbutamol and adrenaline but a person who has not, cannot even though the drugs may be useful.  If you want to carry those drugs in NSW you need to find out if the training organise was approved for the purposes of these clauses.

What if you don’t have that certificate?  One of my correspondents referred to the Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT) cl 410. That regulation (quoted above) says that in an emergency anyone can supply and/or administer salbutamol via an asthma puffer or adrenaline via an autoinjector (an epipen).  That doesn’t give that person the right to buy the drugs, but to use them. So if they have the drugs for their own use they can give them to someone else in an emergency, or they can administer the patient’s own drugs.

The Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) s 36 says that it is an offence to possess a pharmacy only medicine that has been listed in the regulations, unless a person has authority.  It turns out however that there are no pharmacy only medicines that have been listed, so in the ACT it is not an offence to possess salbutamol and adrenaline and to use them in an emergency.   It is however an offence to supply these drugs or to issue a purchase order for them (ss 26 and 38).

The ACT has a number of ‘off the shelf’ licences that a person can apply for. One is a first aid kit licence.  Each person authorised under the licence must be a nurse or a paramedic (Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT) cl 611).   A first aid kit allows the licences to issue a purchase order for the drugs listed in the licence and also allows anyone authorised under the licence to possess supply and administer the drugs listed in the licence.  The licence conditions include schedule 2 and 3 drugs and then any specific drug listed in the licence (r 450).  What follows is that for nurses and paramedics to be carrying schedule 2 and 3 drugs, and any other listed drug (ie schedule 4 and/or 8 drugs) they need a first aid kit licence.

What one can infer is that an individual could, arguable, buy an epipen or a asthma puffer to put in their first aid in the ACT, but an employer – a PCBU – could not as they could not issue a purchase order nor supply the drug to their staff first aiders.  Remember they are ‘pharmacy only medicines’ – to be supplied by a pharmacist not someone who bought them from a pharmacist.  Further a pharmacist may refuse to supply the drugs to someone who does not have a clinical need as that is inconsistent with the scheduling provisions but does not appear to be specifically dealt with in the Act or regulations.

Authorities

Where does one find authorities?  That’s problematic because in each jurisdiction the health authorities can issue licences to individuals or organisations and they are not generally available.  If you have done training with an approved organisation or are employed by or volunteer with an organisation that organisation may have an authority that allows you to possess, supply and administer those drugs.

There are some authorities in the regulations.  My second correspondent said ‘we work with a large portion of childcare centres here in QLD. Some of these centres have purchased epipens ‘just in case” which I understand may not be okay’.  But remember in that original post (Epipens in a Queensland workplace (September 18, 2019)) I listed who can buy epipens and that included Queensland Education and Care (ie child care) services and educational institutions. So they have an authority.  And if a person buys an epipen for a named child with a known allergy, then they are buying as that child’s agent and can get the necessary pharmacist’s advice.

Conclusion

Ventolin puffers and epipens are now standard first aid equipment but they remain restricted. They are schedule 3 drugs. Although you can buy them from a pharmacist you cannot simply buy them to put them in your first aid kit ‘just in case’.  Advice to NSW pharmacists from NSW Health confirms that ‘A pharmacy may only supply scheduled medicines to patients of that pharmacist for their personal treatment’ and must ‘personally hand the medicine to the customer and give him (or her) the opportunity to seek advice about its use, including dose and possible toxicity of the medicine.’

A person with first aid qualifications cannot simply stock up these drugs because it’s a good idea, they need an authority.  An authority may be found in the regulations in your state or territory (as in Queensland for child care centres or educational institutions). If that’s the case you can see it by looking at the regulations.  But authorities or licences can also be issued by health authorities and they may be issued to individuals, to organisations, to people who hold an approved certificate or position and may be issued to licensees and then allow them to authorise their staff or volunteers.  Those sorts of authorities are not generally publicly available so it’s not possible for me to say who can actually carry and use what drugs.  If you want to carry and use scheduled drugs you need to make sure that you, or the organisation you work or volunteer for, has that authority.

Having said that, it is unlikely that any drug authority would actually care that a person qualified in first aid has an epipen or salbutamol puffer in their kit. They may be concerned if however an organisation – like an event health services organisation – is putting teams in the field with scheduled drugs without appropriate authorities, licences and quality controls.

To answer my correspondents’ questions

…  I was wondering whether you might be able address the Australia-wide regulatory requirements for a PCBU to procure and store Epipens (Adrenaline) and Ventolin/Asmol (Salbutamol) as part of their First Aid resourcing.

No I can’t really do an Australia wide overview but in answering this question I’ve referred to legislation in Queensland, NSW and the ACT to show that the principles are the same.  Salbutamol and adrenaline are scheduled drugs so anyone needs an authority to possess, supply and administer those drugs.

In the ACT for example we have the attached clause [Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT) cl 410] – but I am uncertain whether this allows PCBUs to routinely procure and store these medications?

No it does not allow a PCBUs to routinely procure and store these medications.

Do other states have similar clauses and do they mention stocking these medications in First Aid kits or First Aid rooms?

Yes and some states specifically mention stocking various drugs in first aid kits or rooms, but you have to look at the regulations in each state.  AS noted Queensland educational authorities can use adrenaline and ‘A person who has completed an asthma management course approved by the Department of Health is authorised to administer S3 salbutamol…’ (Health (Drugs and Poisons) Regulation 1996 (Qld) r 256B; see also Queensland Department of Health Fact Sheet: Use of blue/grey reliever medication to provide asthma first aid at schools, workplaces and community events (January 2015)).

And

In relation to your post about Epipens in workplaces we work with a large portion of child care centres here in QLD. Some of these centres have purchased epipens ‘just in case” which I understand may not be okay.

It’s OK approved Queensland Education and Care (ie child care) services and educational institutions to buy and use epipens (Health (Drugs and Poisons) Regulation 1996 (Qld) r 277(8)).

What about centres who have purchased an epipen as a secondary dosage to a child who attends who has anaphylaxis. There have been instances where a child suffering anaphylaxis has used their prescribed epipen but needs a second dosage before an ambulance arrives.

As I said in my earlier post about epipens in Queensland (emphasis added):

A person who has a clinical need for adrenaline eg they have been diagnosed with anaphylaxis or care for someone who has, can buy it from a pharmacist without further authority (r 277(1)(b)).

For further discussion including some detailed analysis of specific questions relating to particular jurisdictions, see https://emergencylaw.wordpress.com/page/2/?s=scheduled+drugs

Mr Gaite is a senior firefighter with Fire and Rescue NSW who paid a high price for ‘hands-on’ first aid training – Gaite v Commissioner of Fire and Rescue NSW [2019] NSWIRComm 1070.

As well as being an employed firefighter, Mr Gaite was also a combat medic with the Australian Army reserve.  He provided basic life support (BLS) training as part of his army duties.  On 4 April 2018 Mr Gaite was asked to assist with the training of some recruit firefighters.   He was asked to deliver some BLS training. Mr Gaite was a Fire and Rescue trainer but he was not ‘validated’ as a BLS instructor.  Even so he was asked to assist in this training because of his experience in providing BLS training with the Australian Defence Forces (ADF) ([20]-[22]).  There were six recruits in the class, 4 women; 2 men.

In the Industrial Relations Commission Commissioner Sloan set out his findings as to what happened at [25]):

1. Mr Gaite informed the recruits that during the session there would be some physical contact.
2. During the course of the lesson Andrew Day was asked to lie on the floor to play the part of a “model patient”.
3. Mr Gaite spoke to the recruits about how to determine the level of consciousness of a person, which included a discussion of the acronym “AVPU”. That acronym stands for: Alert (where the patient can open their eyes and is aware of their surroundings); Verbal (where the patient responds to verbal stimuli); Pain (where the patient responds only to painful stimuli); and, Unresponsive/Unconscious (where the patient does not respond to either verbal or painful stimuli).
4. Mr Gaite asked the recruits to provide examples of pain stimuli that would be used on a patient. He claimed that their answers were incorrect and he decided to demonstrate techniques on some of them. He walked to Ms Matuzelis and without warning pinched her left triceps. He did the same to Ms Tight. He also demonstrated on Ms Tight and on Ms Hyslop a pain stimulus in which he pressed down on the nail bed of their thumbnails until it hurt and the recruit recoiled.
5. In each instance the demonstration elicited a strong pain response – that is, the jerking of the arm away. It is this pain response which the technique aims to produce, as it is indicative of a level of consciousness. It was indeed Mr Gaite’s intention in demonstrating the pain stimuli to elicit a pain response.
6. Each of Ms Matuzelis, Ms Tight and Ms Hyslop claim to have suffered significant pain as a consequence of the demonstration. In the case of Ms Matuzelis and Ms Tight, the incident led to them having bruises on their arms.
7. Ms Seamer asked Mr Gaite if she could demonstrate a pain stimulus on him, to which he agreed. It involved pressure being applied by Ms Seamer to Mr Gaite’s trapezius muscle, which provoked a pain response.
8. Mr Gaite did not tell the recruits that he might inflict pain on them. He did not seek consent from any of the recruits to him touching them or inflicting pain on them.

Another instructor (not the students) raised a question about the appropriateness of Mr Gaite’s training methods.   Ultimately Mr Gaite was asked to respond to allegations (at [29]) that he:

“… engaged in misconduct by:

1. Intimidating and/or threatening recruit firefighters prior to the commencement of training by saying words to the effect of ‘You had better be nice to me as I may be your assessor during the Qualified Firefighter Program.’
2. Victimising, humiliating, intimidating or threatening recruit firefighters by:
   1. pinching Lisa Matuzelis on the underside of her arm;
   2. pinching Alana Tight on the underside of the arm and also her fingernail.
   3. pinching Nadine Hyslop on the finger.
3. Sexually harassing and/or targeting a female recruit firefighter by walking past two male recruits in order to pinch female recruit Lisa Matuzelis on the underside of her arm.” (Emphasis in original)”

After an investigation the Fire and Rescue Commissioner (at [34])

…made a preliminary decision pursuant to reg 35(1)(i) of the Fire Brigade Regulation 2014 (NSW) (“Regulation”) in these terms:

“I find that allegations 2-3 are sustained. These allegations are very serious in nature and I am considering that misconduct has occurred and that disciplinary action up to dismissal is warranted.”

Then (at [38]) ‘By letter dated 15 January 2019 Commissioner Baxter informed Mr Gaite that his employment was to be terminated “effective with the delivery of this letter to you”.

Mr Gaite commenced proceedings alleging that the dismissal was ‘unfair’.  It was that application that had to be determined by the Industrial Relations Commission.  The Commission said:

There was no contest between the parties that AVPU is an appropriate means by which to assess the level of a patient’s consciousness, and that training in AVPU is properly a matter to be included in BLS instruction. Similarly, there was no dispute that the techniques demonstrated by Mr Gaite on 5 April 2018 are legitimate means by which to provoke a pain response in an apparently unconscious patient.

The question is whether there was a justifiable basis for Mr Gaite to have demonstrated those techniques on Ms Matuzelis, Ms Hyslop and Ms Tight (particularly without warning or consent) and, if not, whether in doing so Mr Gaite was guilty of misconduct warranting the immediate termination of his employment.

Critical to the Commission’s decision was the fact that Mr Gaite was not a Fire and Rescue BLS instructor, he was an ADF BLS instructor and he was asked to assist with this training because his ADF experience meant he could step in and help when Fire and Rescue was ‘short one trainer’ ([21]).  In evidence ([54]) Mr Gaite said:

I don’t know exactly how other validated Fire [&] Rescue BLS instructors taught lessons and what the correct methodology of teaching BLS in Fire [&] Rescue is, because I am not a validated Fire [&] Rescue BLS instructor. My skill and experience in teaching first aid comes from the Australian Army. Comes from the documents on courses such as the combat first aid course that I have put in my submissions. My experience in teaching BLS is several years’ worth of Army training and teaching lessons to soldiers in the Australian Army.

Dr Chambers, an experienced Army reserve medical officer who had acted as Chief Instructor for Combat First Aid Courses conducted for the 1st Commando Regiment and who had observed Mr Gaite’s work with the Army, gave evidence ([55]) that the methods adopted by Mr Gaite were both ‘valid’ and ‘reasonable’.

He did give further evidence ([56]) that

… attendees at the Army training would know that pain techniques would be demonstrated on them and that they were likely to hurt. Secondly, the method adopted is to apply a gradually increasing level of force on the student until such time as the pain response is demonstrated. Thirdly, Dr Chambers would expect that the techniques would be demonstrated on all attendees at the training, not just isolated individuals.

Commissioner Sloan noted (at [57] and [59]) that:

Mr Gaite’s conduct on 5 April 2018 was not in keeping with this description. Mr Gaite did not seek the consent of the recruits to conduct the demonstration on them or advise them that it would hurt. He appears to have applied an immediate, significant level of force on the recruits rather than gradually increasing the force until a pain response was achieved. This caused the recruits to suffer significant pain and in two cases bruising. He did not demonstrate on all of the recruits…

The fact remains, however, that there was uncontroverted evidence that through the Australian Army Reserve Mr Gaite had attended and conducted BLS training in which pain stimuli were demonstrated on the attendees. It was this experience which he brought to, and applied at, the training on 5 April 2018.

With respect to allegation 3 (sexual harassment) the Commission found that complaint could not be made out.  There was no evidence of any sexual element in Mr Gaite’s conduct. At [112]:

Obviously, Mr Gaite demonstrated some form of selection in deciding who he would demonstrate the pain stimuli on. It is not clear why he chose the three recruits he did, although the evidence tends to suggest proximity more than any other factor. The fact that they were all female is not of itself enough to demonstrate gender-based discrimination. The witnesses offered an alternative rationale based on size rather than gender. There is no sufficient basis on which to conclude that Mr Gaite’s selection of Ms Matuzelis, Ms Tight and Ms Hyslop was motivated by gender-based discrimination.

With respect to the other allegations Commissioner Sloan said ([125]-[130]):

I am satisfied that on 5 April 2018 Mr Gaite inappropriately inflicted pain on Ms Matuzelis, Ms Tight and Ms Hyslop through the demonstration of pain stimuli on them. I do not consider that he deliberately sought to cause harm or injury to them, or derived any form of improper enjoyment from doing so. I also do not accept that his behaviour amounted to the reckless infliction of injury on the recruits.

Mr Gaite’s conduct on 5 April 2019 was certainly ill-advised, and reflects poorly on his judgment. It is difficult to comprehend how he could have considered it sensible, let alone appropriate, to inflict pain on the recruits without warning or consent. The evidence of the recruits as to the pain that they felt and the bruising they sustained, suggests that Mr Gaite applied a significant amount of force in the demonstration.

However, the conduct must be considered in the context in which it occurred, namely a lesson which was interactive in nature. Mr Day had been required to assume the position of a “model patient” and he was used to demonstrate certain techniques (although I accept that no pain stimuli were demonstrated on him). Ms Seamer demonstrated a pain stimulus on Mr Gaite, albeit with permission. However misguided he may have been Mr Gaite was seeking to demonstrate techniques which arose directly out of the lesson he had been asked to deliver…

In the absence of evidence which demonstrated that Mr Gaite intentionally or recklessly inflicted harm or injury on the recruits, or was guided by unlawful or improper motivations, I do not accept that Mr Gaite’s behaviour is misconduct of a kind which would justify his dismissal at common law.

I accept that Mr Gaite’s conduct was in breach of the terms of the policies and procedures referred to at [15]-[18] [relating to delivering training with safety] above. The conduct was also contrary to regs 16(a), (c) and (e) [regarding a firefighter’s ‘Duty to obey orders and act fairly and responsibly’] and 17(1)(h) [‘Unacceptable behaviour’] of the Regulation. It would follow that the behaviour would be “misconduct” as defined by reg 33 of the [Fire Brigade] Regulation [2014 (NSW)].

Was the dismissal harsh, unreasonable or unjust?  Commissioner Sloan said it was.  At [137] he said:

Mr Gaite is 51 years old. He has more than 20 years of largely unblemished service with FRNSW. He tendered unopposed into evidence statements from colleagues at FRNSW attesting to his good character. Weighing these matters in the balance against the misconduct in which Mr Gaite engaged supports the conclusion that the dismissal was harsh. Further, I consider that the dismissal was disproportionate to the gravity of the conduct in which Mr Gaite engaged. I find that the dismissal was harsh.

The Commission made an order that Mr Gaite is to be reinstated to the position he held with Fire and Rescue NSW with effect from Tuesday, 8 October 2019.  The period between 15 January 2019 and 8 October 2019 is not to count as service but, even so, his employment is to be considered as continuous.  In effect he loses 9 months service and presumably seniority.

Lessons learned

In other posts I have quoted Collins v Wilcock [1984] 3 All ER 374 where Goff LJ said (at p. 378):

The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery… “the least touching of another is anger is a battery.” The breadth of the principle reflects the fundamental nature of the interest so protected.

In this case the issue was touching students and inflicting pain without warning them (or at least the first of them) and obtaining their consent to touching.  It doesn’t matter that the lesson being delivered may be useful, touching without consent is unlawful.

Further even though Mr Gaite was not validated as a Fire and Rescue BLS instructor he was a Fire and Rescue instructor and was familiar with and should have had greater regard to Fire and Rescue procedures. As he himself said (at [115]) ‘I can see that’s not right in today’s world. Need to be more conscious of how other people think about things.’

And the outcome was expensive. Mr Gaite may have been supported by the Fire Brigade Employees Union but even so there was no doubt significant costs, both financial and emotional, in being sacked and losing one’s employment for 9 months and having to go through these proceedings to obtain a remedy (and then having details published on this blog!)  And I imagine it will take significant work by both Mr Gaite and Fire and Rescue NSW to restore a relationship of trust and respect.

Whilst it may be hard to see one’s story on this blog, the lesson is however important, not just for firefighters but for anyone involved in training and first aid training in particular. First aid training necessarily involves physical contact and it is important to make sure that students know what is going to happen before they are touched either by instructors or other students and that training does not lead to injury.

Today’s correspondent is a

… paramedic in WA.

I was just reading about some cases from overseas where parents were treating children with prayer or homeopathic regimes, and how parents would try and refuse medical treatment.

Assuming I was called to such a patient, where do I stand legally on treating the child? Let’s assume the child is grossly unwell and needs urgent medical care, care which I am trained to provide and have appropriate equipment to deliver. Am I able to start treatment? Do I have to wait for police intervention? Does the parents’ rights overrule the needs of the sick child?

I think the best answer I can give is to quote from my own book – Emergency Law (4th ed, 2013, The Federation Press) pp. 58-59 where I said:

As a general rule parents have the right to give consent to the treatment of their children. With the right to give consent comes the right to withhold or refuse consent (Re Baby D (No 2) [2011] FamCA 176).  Where a parent consents to the treatment of their child there is no problem. Where a parent refuses to let a rescuer, particularly a trained rescuer, treat their child then the situation is more complex. If the child has suffered a minor injury it would be reasonable to respect the parent’s wishes. The volunteer first aid officer should not put a band-aid on the child’s cut hand if the child’s parent does not want them to.

The legal and moral difficulty will arise when the child requires treatment in order to save their life or prevent long-term harm and the parents object. Although parents may give consent for medical treatment to be administered to their children, they may only give consent if that consent is in the best interests of the child (Marion’s case (1992) 175 CLR 218).  It would follow that if a parent is to refuse consent for treatment that refusal must also be motivated by the best interests of the child (Re Baby D (No 2) [2011] FamCA 176).  A refusal that was not “in the best interests of the child” is unlikely to be binding.

The need for an understanding of the consequences before a refusal of consent can be considered binding is also relevant. In most cases it will be likely that when a parent says they do not want their child treated by, for example, a volunteer rescuer, they do not understand the nature of the child’s condition. If the child will die without the treatment, for example, if he or she is unconscious and needs to be turned onto their side for airway management, then the statement by the parent “don’t touch my child” will not be binding if the parent is not in a position to understand that the option is not between the first aid by the rescuer on scene and waiting for an ambulance; rather the choice that they are making is between life and death. In these circumstances, and given the urgency of the situation, the apparent refusal would not be “valid” and treating the patient would not be an assault (Re T [1992] 4 All ER 649).  (Even if the parent did understand the consequences, it is likely that the treatment is permissible on the basis that the parent can only refuse consent if that is in the best interests of the child, and that is unlikely in this scenario.)

Ultimately, for rescuers other than medical practitioners and perhaps members of professional ambulance services, the question of what to do in the face of a sick or injured child and a refusal by the child’s parents will be legally (and actually) very difficult. The law would appear to say that if the parents are not acting in the best interests of the child then their apparent objections may be ignored. This may, of course, come to a conflict between the parents’ honest belief as to what is in the child’s best interests and the rescuers’ equally honest, but conflicting belief. In these cases, the severity of the injuries will help determine the matter. A decision by a parent that they do not want the rescuer to bandage their child’s sprained ankle can probably be honoured. A decision by a parent that they do not want their child to be resuscitated after being struck by a car can probably be ignored. Between these two extremes lie a number of possibilities that will require the rescuer to consider how strongly they believe that some treatment should be given and what the consequences to the child will be if that treatment is not given.

There will, in these cases, also be extra legal considerations, in particular whether it is in fact possible to administer treatment in the face of parental objections. It will not be possible to treat a child whose parent has physically picked it up and carried it away. On the other hand, it may be possible to treat a child at a car accident where bystanders or police may be able to assist in restraining the distraught parent from intervening. In these cases, it is not the law, but tact, professionalism and a reassuring manner that will allow treatment to proceed.

If the matter were to come to court it is probable that the courts would find that, provided the treatment was necessary to save the child’s life or prevent serious long-term harm, then it may be legally given even though the child’s parents objected.

In context of this question my correspondent is a paramedic but there is no ambulance legislation in WA so there is no specific power or authority vested in a practitioner because he or she is a paramedic.  Should time permit the best approach would be to refer the case to child welfare authorities and/or police, but the scenario posited by my correspondent is that the child is ‘grossly unwell and needs urgent medical care’ so time does not permit.  My view would be that on the basis of the arguments above, ie that the decision by the parent’s is not being made in the child’s best interests, no-one would challenge the paramedic’s decision to save the child’s life.

 

 

Today’s correspondent holds

… a Diploma of Paramedical Science and I am in my 2nd year of a Nursing degree in NSW. I am not registered with AHPRA.

I have been asked by a community run, non-profit organisation to volunteer as the First Aider at their 3-day overnight camp for children with special needs. They have also asked me if I could store children’s medications in the First Aid room and disseminate them accordingly. Would this be legal? If not, would you know which additional qualifications I would need?

I won’t comment on whether it’s appropriate to act as the first aider at a 3-day overnight camp for children with special needs.  Conducting the relevant risk assessment is a matter for my correspondent and requires far more information that we have here.  Further that is not the subject of the question, the question is about the children’s medication and the question flows from my earlier post Epipens in a Queensland workplace (September 18, 2019).

The drugs in question are, I will assume, either schedule 3 or prescribed schedule 4 drugs.  In NSW s 4 drugs are ‘restricted substances’; a schedule 3 substance is a ‘poison’ (Poisons and Therapeutic Goods Act 1966 (NSW) s 4).  There are rules that limit who may supply and administer those drugs, but I will assume that they have been lawfully supplied to the child, or the child’s parent or guardian, by a pharmacist – they are the child’s drugs.

The Poisons and Therapeutic Goods Act 1966 (NSW) s 10(3) says:

A person who supplies a restricted substance [ie a S4 medication] otherwise than by wholesale is guilty of an offence.

That could suggest that my correspondent is committing an offence, but s 10(4)(c1) says that rule does not apply to

… a person who has the care of, or is assisting in the care of, another person (for or to whom the supply of the substance has been authorised by the prescription of a medical practitioner, nurse practitioner, midwife practitioner or dentist) and who administers the restricted substance to the other person in accordance with that prescription

My correspondent will be ‘assisting in the care of…’ the child who had had the medication prescribed. Provided my correspondent ‘administers the restricted substance to the other person in accordance with that prescription’ there is no offence.

My view would be that my correspondent is not supplying the drugs (see s 4, definition of ‘supply’) as they have been supplied to the patient by a pharmacist.  That too would mean that there is no offence.  In short if a person has lawfully obtained medication from a pharmacist, a person involved in their care can assist them to store and take their medication.

 

 

 

 

Today’s correspondent asks:

In QLD, can workplaces purchase, keep and administer an Epipen to a person who is not diagnosed as having anaphylaxis? What does the Health Drugs and Poisons Act allow and is there any other legislative considerations?

Epipens contain adrenaline, a schedule 3 drug. The Health (Drugs and Poisons) Regulation 1996 (Qld) r 243 says:

(1)       A person must not dispense, prescribe, purport to prescribe or sell an S2, S3 or S7 poison unless the person is, under this regulation, endorsed to dispense, prescribe or sell the poison.

(2)       A person must not administer an S2 or S 3 poison to someone else unless the person is, under this regulation, endorsed to administer the poison…

(5)       Subsection (6) applies to a person who may only administer, dispense, issue, prescribe or sell a poison, or write a written instruction or give an oral instruction for a poison, at a stated place or under stated conditions.

(6)       The person must not administer, dispense, issue, prescribe or sell the poison or write a written instruction or give an oral instruction for the poison at another place or in contravention of the conditions.

There is no specific authority for a first aider or an employer to supply or administer adrenaline. There is an authority for St John Ambulance to issue adrenaline to members (r 262A).

A person who has a clinical need for adrenaline eg they have been diagnosed with anaphylaxis or care for someone who has, can buy it from a pharmacist without further authority (r 277(1)(b)).   Further a pharmacist may sell adrenaline to a ‘relevant person for use for first aid’ (r 277(7)(b)). A relevant person is (s 277(8)):

(a) a person who may administer an [sic] S3 poison under an approval; or

(b) a Queensland approved provider of a QEC approved service; or

(c) a supervisor for a QEC approved service; or

(d) an approved provider of an education and care service; or

(e) a nominated supervisor for an education and care service; or

(f) a principal of an educational institution; or

(g) a person nominated by a principal of an educational institution.

The fact that the regulations makes provision for St John Ambulance (Qld) and educational institutions and those who may administer a S3 drug with an approval demonstrates that the regulator has consciously thought of the issue.  The regulator could give a general authority to any person who holds a first aid certificate, but they have not done so.

The conclusion is therefore that without a specific endorsement issued under the Health (Drugs and Poisons) Regulation 1996 (Qld) a workplace (other than an educational institution) cannot purchase, keep and administer adrenaline, in the form of an Epipen for the purpose of having it on hand ‘just in case’ a person who is not diagnosed as having anaphylaxis requires it.

 

Today’s correspondent lives

… in an area that has a body corporate (QLD). The community has been pushing for AEDs to be provided for the use of the community however the body corporate are unwilling to do so for fear of litigation / being sued. They have not provided any specific examples of their concerns. They have commented that their insurance would not cover any aspect of the use of an AED and as such are not willing to provide these. I have recommended the units be installed in public locations in the estate (Recreation clubs with pools etc)

Can you please provide details of any possible legal implications for the body corporate and your opinion on the body corporate not installing these devices.

I’m not quite sure what is meant by ‘an area that has a body corporate’ but I assume it’s some form of community operating under the Body Corporate and Community Management Act 1997 (Qld).   We don’t need to go into the details of that scheme to answer the question.  We need only infer that the Body Corporate is responsible for the management of the estate and presumably the ‘public locations’.

Without more information we cannot determine whether the Body Corporate is a PCBU for the purposes of the Work Health and Safety Act 2011 (Qld). If there are no employees, it is not a PCBU (Work Health and Safety Act 2011 (Qld) s 5(7)). Even if it is not a PCBU guidance of what might be a reasonable response to a risk can be found in the WHS legislation.

Even if it is not a PCBU the body corporate is, I infer the occupier of some parts of the community, eg the ‘recreation clubs with pools’ etc.   As an occupier the body corporate will owe a duty of care to those lawfully on the property as will the owners of the community.   A person conducting a business or undertaking (a PCBU) is required to have in place emergency and first aid procedures that reflect the risk of emergencies in the workplace and an occupier would have a similar expectation, noting that the risks may be different ina  workplace as opposed to a community centre.  Where there is a swimming pool the body corporate will need to have pool fencing and a compliant CPR sign (Queensland Building and Construction Commission Pool Safety (accessed 17 September 2019).  The CPR signs must comply with Australian Resuscitation Council Guidelines and must, therefore, refer to the use of a defibrillator (see Queensland Building and Construction Commission  Requirements for CPR and warning signs (accessed 17 September 2019)).

That does not mean AED’s are compulsory but any one managing property should at least think about installing an AED.

If one does install an AED what is the risk of liability?  The answer is ‘nil’.  One could only be liable if something done made the situation worse.  AEDs are used on people in cardiac arrest.  They increase the chance of survival. They are designed to be used by anyone, including people without training. They are designed to deliver a therapeutic electric shock when one is required, and to not shock the patient when a shock is not indicated.  Short of dropping the AED on the patient’s head, you cannot hurt a person or make the situation worse.

For related posts see:

• Making the installation of AED’s compulsory (September 27, 2015);
• Liability for failing to install an AED? (April 7, 2016);
• Choosing not to install an AED for spurious reasons (September 10, 2018); and
• Liability for installing, or not, an AED in a retirement community (December 1, 2018)

At the end of my post Choosing not to install an AED for spurious reasons I said:

It may be reasonable to choose not to install one on a cost-benefit basis, but it can’t be reasonable to choose not to install one for fear that ‘it will give rise to some additional duty of care that could wind up with them getting sued’.  It won’t.

That is still my view.

 

A correspondent has sent me a link to a video https://www.facebook.com/1610342069289340/posts/2443313849325487/ and said ‘This is an interesting one… Where do you think the young tradie stands in a situation like this?’

The gist of the matter is that the man the subject of the story was involved in a collision when he turned right in front of responding Queensland ambulance and was involved in a collision.  The ambulance had its warning lights on but there may be some dispute about whether the siren was on.  The young man was driving a vehicle that did not have comprehensive insurance and is concerned that the insurer for the ambulance ‘is not helping’ him.  A passenger in the vehicle has received advice that the CTP (compulsory third party) insurer has accepted liability with respect to his personal injuries.

This is in fact standard for any car accident. If you drive a motor vehicle without comprehensive insurance, you are accepting the risk that your car may be damaged, and you have to wear that cost.  You cannot guarantee that every accident will be due to someone else’s fault, that you will be able to identify that person, that they will be able to pay the damages and that they will do so when you first ask.    Legal Aid Queensland set out what to do if you are in a motor accident and want to claim the costs of damage from another driver – see ‘If you want to make a claim against the other driver’.   That’s the process whether the other car is a private car or an ambulance.

The role of the ambulance insurer is to protect their own interest and that of their insured. They do not represent the other party so the ‘other party’ cannot expect them to help. What the insurance company has to do is decide if their driver is legally at fault. That is complicated in a situation like this by the obligation on other road users to give way to emergency ambulances (Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld) rr 78 and 79) and the obligation on the driver of the ambulance to drive with reasonable care.   Courts can apportion liability so there can be much argument, and hence negotiation, on how much responsibility lies with each driver.  If that cannot be negotiated, then a court can decide.

So where does ‘the young tradie stand in a situation like this…’?  Just where he would stand in any accident.  His vehicle was not comprehensively insured so he has to carry the cost unless he can demonstrate that the other driver was negligent.  Demonstrating negligence does not mean convincing channel 9 (who are no doubt only interested because there was video and it was an ambulance) but convincing the other side’s insurer, or a court, that the other driver was at fault.  But they won’t be convinced just because the ‘young tradie’ says so, they will have to speak to their driver and also consider what defences are available to them at law.   We also have no idea what steps have been taken to get quotes and otherwise make a claim.  There’s nothing unique about the video and the story, it just another car accident.  I cannot imagine channel 9 running a story – person has car accident and it takes time to settle claim for property damage – but that’s all this story is saying.

As for the CTP insurer accepting liability, that is irrelevant. It’s another insurer (even if owned by the same parent company) making decisions under other law, in this case the Motor Accident Insurance Act 1994 (Qld).  The decision by the CTP insurer in one case has no bearing on the decision of the comprehensive insurer in the claim for property damage.

 

 

 

 

Today’s correspondent is writing

… in my role as first aid trainer in the ACT and NSW. I’ve recently come across a peculiar question about AED signage. The First Aid in the Workplace Code of Practice which applies to NSW and ACT mentions Australian Standard 1319 in regard to Emergency Signage. The question that arose was in regard to the AED signs that sometimes appear in red&white rather than white&green.

The questions were – is a standard mandated and would there be fines for not adhering to this standard?

I was given two photos to show the difference.

I was also provided with a copy of Australian Standard AS 1319—1994 Safety signs for the occupational environment (published 18 April 1994).    The standard defines emergency information signs as ‘Signs indicating the location of, or directions to, emergency related facilities such as exits, safety equipment or first aid facilities’. The standard goes on to say (at [2.3.5]) ‘Emergency information signs shall comprise a white symbol or worded legend, or both, on a green rectangular sign with white enclosure’.  Table B4 has some emergency information signs but they do not include an AED sign.   The sign for ‘first aid’ is shown in Table B4 as:

It would appear (without going into details of font and sign size etc) that the sign shown in the photo provided as a ‘Vivomed AED wall sign’ complies with the standard, the other one does not.

The SafeWork NSW Code of Practice First Aid in the Workplace (July 2015) says (at [3.2]) ‘Displaying well-recognised, standardised first aid signs will assist in easily locating first aid equipment and facilities. Further information on the design and use of signs is available in AS 1319 – Safety Signs for the Occupational Environment’.  It refers readers to the standard but does not say that signs must comply with that standard.

Even if it did, compliance with the Code of Practice is not mandatory.  A code may be admitted into evidence in any prosecution for breach of work health and safety duties, and a court may have regard to the Code when considering what is known about a risk and what constitutes a reasonable response to that risk (Work Health and Safety Act 2011 (NSW) s 275).   In context that means that a court could rely on the code to conclude that there is knowledge that failure to use signs can lead to difficulty in locating emergency equipment and a reasonable response to that risk is to display ‘well-recognised, standardised first aid signs’ but that does not mean that another response is not also a reasonable response to the risk.  In any prosecution it would be up to the Crown to prove that the use of the non-standard black, red and white sign exposed workers or others to an increased risk to health and safety.

Conclusion

There would be no fines for using the non-standard sign unless the Crown can prove that the use of that sign meant that workers or those at the work place were exposed to a risk to their health and safety by the use of the sign, eg that people would fail to recognise what the sign meant.  As noted, compliance with the Code of Practice and the Standard is not mandatory so whilst it would depend on all the circumstances, but I cannot imagine a WorkSafe inspector is going to be too concerned about the sign.  A prudent Person Conducting a Business or Undertaking (a PCBU) would no doubt prefer, and try to find, a sign that met the standard of being ‘green and white’ but if that was not available putting up the other sign would be better than no sign at all.

I tell my students that if a person doesn’t understand what you wrote, it’s the fault of the writer not the reader.  A correspondent sent me a screen shot with this member update from Australian Paramedics Association (NSW) (‘APA (NSW)’).      

 When sending it my correspondent said:

Hey Michael. I believe you’ve been misinterpreted. You might want to contact APA and correct. I can see this advice causing some conflict on the road.

So the question is ‘if a police officer applies Section 22 [of the Mental Health Act 2007 (NSW)] and requests a Paramedic to transport the patient without the patient’s consent and without a police escort, should we [paramedics] transport the patient if after your assessment a Section 20 does not apply?’

APA(NSW) quote me as saying the answer is ‘no’ but my correspondent thinks I’ve been misinterpreted.  They cannot both be right so either the APA(NSW) or my correspondent has misinterpreted what I’ve written.  APA(NSW) link to one of my posts but because all I have is a screen shot I cannot follow the link, but I assume they are linking to the post NSW Police, paramedics and the mentally ill (May 15, 2018).

In that post I posited the question ‘If police detain a person under s 22, are NSW Ambulance Officers required to transport the person?’  I then said:

My view is that the answer to that question must be ‘no’.  Anyone can call an ambulance if they believe an ambulance is required, but it does not compel the paramedics to treat the person or to treat them for the injury that the caller has identified.  Consider police who find a person who appears to them to have a brain injury. Paramedics are called and determine that the person is intoxicated, does not require medical attention and can be safely left in the care of their friends.  The mere fact that police called them, or police suspect a brain injury, does not compel the paramedics to treat the person as if they have a brain injury.  Paramedics have to form their own view.

In other words, and with due respect to my correspondent, I do not think APA(NSW) have misinterpreted my position.  I’ll try to sum up my thoughts:

1. Police can act under s 22 if the person appears to the police officer ‘to be mentally ill or mentally disturbed’ and the person has committed or is committing an offence, they have recently attempted to kill themselves or someone else or are attempting to cause harm to themselves or someone else.
2. Paramedics can take action under s 20 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.’
3. The difference between s 22 and s 20 is the person only needs to ‘appear’ to the police officer to be mentally ill or mentally disturbed. Paramedics on the other hand need to believe the person is mentally ill or mentally disturbed and must have reasonable grounds for that belief. The more stringent conditions for paramedics is because they are health professionals.  In State of New South Wales v Talovic [2014] NSWCA 333 Emmett JA said (at [136]):

…that an ambulance officer, who necessarily has some medical training, is more equipped to make reasoned decisions in relation to mental health issues than someone (such as a police officer) with no such training. Having regard also to the practical realities of the execution of police officers’ functions, it is likely that the legislature intended that police officers should not need to meet the same standard as ambulance officers when forming a view as to whether a person appears to be mentally ill or mentally disturbed.

4. If police called an ambulance because they ‘believed’ a person had broken their leg, that would not compel paramedics to treat that person for a broken leg if the paramedics formed the view that the person’s leg was not broken. Paramedics have to make their own clinical decisions before giving treatment.
5. The priority of a paramedic’s diagnosis can also be seen in s 20(2) and s 21. If a paramedic forms the view that ‘there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer’ they may request police assistance (s 20(2)).  Where a police officer receives that request, he or she ‘must, if practicable: (a) apprehend and take or assist in taking the person the subject of the … request to a declared mental health facility’.  That is if a paramedic forms the view that s 20 applies and police assistance is required, police are obliged to provide that assistance, they are not required, or even permitted, to form their own view of whether s 22 applies. There is no similar provision if police request ambulance assistance.

Conclusion

I agree with the APA(NSW) that:

To protect your registration and avoid unlawfully detaining a patient [you should not] … detain a patient unless you believe you are lawfully authorised to do so under Section 20. If in doubt, escalate to Control and insist that the patient be transported under Police detention, not yours.

POSTSCRIPT

After writing this post my correspondent wrote to say:

My interpretation of the email refers to the last bit RE transporting patients under s22.

It is quite common for police to write a s22, fill it out and handover to paramedics. If paramedics agree with the need for transport (ie or appears mentally ill or disturbed) then they can transport to hosp under a section 22 without police attending. It’s my interpretation that s81 allows for this. It is also allowed for within the MOU.

What APA are saying is that they believe Police should not be able to complete a s22 and not come with paramedics to hospital, as they believe Paramedics have no authority to do so. Which in fact they do under s81.

I see this situation no different to the transport of a patient by paramedics who have been placed under a schedule 1 by a local GP in the community.

Maybe it’s the wording of the APA email… but this is the interpretation of Paramedics on road.

My response is that if that’s what APA are saying then I agree with them. First there is no such thing as ‘a s 22’ or ‘a s 20’ – see Again revisiting the Mental Health Act 2007 (NSW) s 20 (April 18, 2017).

If police want to act under s 22 they can. If they call an ambulance, then it is up to the paramedics to form a view under s 20. If they form the view that they are entitled to detain and transport the patient well and good. If they do not form that view, then they should not do so.  Paramedics are health professionals with a duty to act in their patient’s best interests, they are not the servants or agents of police. The fact that police have acted under s 22 does not relieve the paramedics of their duty to their patient to make their own assessment given that they, and not police, are trained health professionals.  If paramedics agree with the need for transport, then they are exercising their power under s 20.

I see this as quite different from transport of a patient who has been seen by a medical practitioner and who has issued a certificate under s 19.  Section 20 says an ambulance officer can detain a person if he or she holds the relevant belief; section 22 says a police officer can detain a person if he or she holds the relevant belief.  Section 19 (and s 81) says a person may be taken and detained by someone other than the medical practitioner if the medical practitioner holds the relevant belief.

If paramedics respond to a person who has been detained by police, then it is my view that paramedics must make their own assessment of the patient and make their own determination under s 20 and record what are the grounds that give rise to the belief required by s 20.  In an action for false imprisonment and/or unsatisfactory professional conduct I don’t think any tribunal would accept a paramedic saying ‘I did not have to consider those things as the police had formed the view they are required to form under s 22’.    If a paramedic does not make his or her own assessment he or she is not acting as a health professional, but as a taxi driver.

Today’s correspondent has a

… question related to the evacuation of staff during an Emergency Evacuation (specifically a Fire Alarm).

I am a (voluntary) Floor Warden, but this morning during an evac, several staff chose not to leave – believing the staff kitchen toaster was the cause. And it was.

My question is this, do I have any authority in NSW to insist my colleagues to evacuate our workplace during an Emergency Evacuation (Fire Alarm)? The Fire Officer that visited our floor to check the cause asked my colleagues why they hadn’t evacuated. They naturally lied and said they had.

I’ve been told by Trainers that Wardens do have authority, and that any person that refuses to leave should be noted and reported to the Senior Warder and Fire Officers. Wardens are to relay the information on evacuation, noting any objectors/remainers.

Do you have anything on that specifically?

Fire wardens do not have any authority to insist that colleagues evacuate.  It’s true you should, if possible, note who has refused to evacuate and report that to the senior warden or fire brigade but that is not a power to insist on evacuation.

That information is important for the fire brigade who may have to make a decision to enter the building immediately to exercise their power under the Fire and Rescue NSW Act 1989  (NSW) s 19 and ‘cause to be removed any person, … the presence of whom … might, in the officer’s opinion, interfere with the work of any fire brigade’; or enter the building later to recover their bodies.

 

Today’s question is:

…  a query relating to the legalities of operating on a poison permit in QLD.

I am currently a Registered Paramedic working in the QLD resource sector… Naturally in the remote and isolated environment that we work there is a significant distance for additional ALS resources to respond if required.

My question relates to cardiac arrest management. All training I have undertaken in regards to ALS arrest management includes the use of IV Amiodarone administration for refractory VT/VF.

However on my employers poison permit only P4 or Critical Care Paramedics are authorised to administer. As we have no CCP personnel on site or near the area I work in I was wondering why we have them available in our drug bags.

So I have asked my Medical Director the following.

– what would the consequence be for a paramedic (P3) to use Amiodarone when indicated according to best practice, acknowledging that a P3 Paramedic is not authorised according to the permit?

– what would the consequence be for a paramedic who chooses not to use the medication when indicated in the same scenario?

– Could a P3 Paramedic request authorisation via the Medical Director for administration if clinically indicated?

My medical director replied and simply stated that the answer is no because it’s illegal.

I’m wondering if you could elaborate on this? I am curious to see for example in a coroners enquiry, if the Paramedic had the medication, was able to administer & knows it may have an impact on patient outcome, chooses not to administer. Would he/she be liable.

I know of no coronial inquiry where these issues have arisen.  Coroners do not investigate most deaths and this sort of matter is unlikely to attract a coroner’s attention.  We can however look at the law.

According to the Poisons Standard (June 2019) Amiodarone is a schedule 4 drug.  In Queensland the relevant law is contained in the Health (Drugs and Poisons) Regulation 1996 (Qld).   Amiodarone is a ‘restricted drug’ (ie a schedule 4 drug) that can be used by a ‘paramedic 4’ employed by Queensland Ambulance (Health (Drugs and Poisons) Regulation 1996 (Qld) Appendix 2A and Appendix 9, definition of ‘ambulance officer’).

If an employer has an endorsement to allow them and their staff to possess, supply and administer a schedule 4 drug and the terms of that endorsement do not include a person with qualifications below ‘P4 or Critical Care Paramedics’ then the ‘other’ paramedic who administers the drug is someone who is not endorsed.

A person must not possess, obtain, dispense, issue, prescribe, purport to prescribe, sell or administer a restricted drug without an appropriate endorsement (Health (Drugs and Poisons) Regulation 1996 (Qld) r 146).  The maximum penalty in each case is 60 penalty units. (A penalty unit is currently $133.45 so the maximum fine is $8007.00).   An endorsement is not required to deliver a drug to a person for whom the drug has been prescribed or to assist a person to take a drug that has been prescribed for them (Health (Drugs and Poisons) Regulation 1996 (Qld) r 183).

That does indeed beg the question of ‘why we have them available in our drug bags’?  If my correspondent is in control of the drug bag but does not have an endorsement to be in possession of amiodarone then he or she commits an offence by being in possession of that drug.

In terms of the other questions the consequence of using the medication is that prima facie the paramedic commits an offence.  That does not mean that he or she would be charged or that a defence of necessity would not prevail where the illegal conduct (supply and administer the drug) was proportional to the risk to the patient and reasonable in the circumstances.  It may be illegal to possess a handgun but that doesn’t make it illegal to use it in self-defence.  But the starting point is that it is an offence to supply and administer amiodarone without an endorsement.

There could be an argument that a paramedic that did not use the drug when indicated and according to best practice could be guilty of ‘unsatisfactory professional performance’ that is ‘the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’.  It would be very hard however to sustain an argument that the ‘standard reasonably expected’ including using drugs that the paramedic is not endorsed to use and where to do so would be an offence. Committing an offence is itself evidence of ‘unprofessional conduct’ and one can’t have it both ways – it cannot be both ‘unsatisfactory professional performance’ to not commit an offence and ‘unprofessional conduct’ to commit the same offence.  It follows that I don’t think there would be any consequences for a paramedic who chose not to use the medication in the scenario described but there may well be a defence if they did so choose – see also A duty to break the law? (July 25, 2019).

As for the medical director ‘A prescriber may give a dispenser an oral prescription for a restricted drug the prescriber is endorsed to prescribe’ (Health (Drugs and Poisons) Regulation 1996 (Qld) r 192(1)) but a paramedic is not authorised to dispense the drug nor is he or she authorised to be in possession of the drug.  It follows that the Medical Director cannot authorise the administration.  A doctor cannot override the law, the law says a person must not administer a restricted drug without endorsement.  See also Doctors delegating authority to carry drugs (August 20, 2014).

Conclusion

The medical director is right, it is illegal for a person to possess, obtain, dispense, issue, prescribe, purport to prescribe, sell or administer amiodarone without an endorsement issued under the Health (Drugs and Poisons) Regulation 1996 (Qld) Chapter 3, Part 2.

 

 

Today’s correspondent holds:

… registration as Nurse and Paramedic. I am employed as an Intensive Care Paramedic for the ACT Ambulance Service as well as a Clinical Nurse Specialist for NSW Health and work in a rural Emergency Department.

Often when working as a Nurse for NSW Health we do not have a Doctor on duty but still accept emergency patients. I believe it’s only a matter of time before a patient presents at the Emergency Department requiring life-saving skills that I am authorised to provide only as an Intensive Care Paramedic but not as a nurse.

It’s clear to me where I stand morally on the issue but legally and from an employment point of view I’m not sure what would happen if I were to use skills I’m authorised to use in the pre-hospital setting in the in-hospital setting where I am not authorised to use them.

Any advice you could offer would be much appreciated.

I have addressed this type of issue before – with respect to volunteers see

• https://emergencylaw.wordpress.com/?s=volunteer+scope+of+practice

See also

• Holding dual registration – EEN and paramedic (April 25, 2017);
• When is an Intensive Care Paramedic an Intensive Care Paramedic (August 26, 2019); and
• Don’t let the patient die (June 11, 2019).

I cannot say what an employer would do, but we can consider some issues.  First let me assume we are talking lifesaving treatment and that my correspondent is in fact (not just in his or her imagination) competent.

I will for the sake of the argument assume that the treatment is intubation, that there is an intubation kit available, that intubation is part of the standard practice of an ACT ICP but not a nurse with general registration employed in a rural emergency department (and don’t feel the need to correct me if those assumptions are wrong, I’m not saying any of those propositions are true, just that I assume to be true in order to tell the story).  I will also assume that a patient presents who requires intubation and is likely to die without that intervention.

The first point of view is the hospital. The patient has come to the hospital for emergency assistance. The hospital has a duty to provide reasonable care to those that present at the emergency department (Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428).   What is reasonable depends on all the circumstances.  One of the circumstances in this case would be that there is an ACT paramedic competent to perform the life saving measure.   If the measure is performed and the patient survives it will be accolades all ‘round.  If the patient dies and it is revealed that there is a person there who could have helped and saved the patient’s life but did not, how could that be defensible?    If the hospital did know my correspondence was an ACT ICP but gave specific directions not to use particular skills when indicated how could that be justified?

If we consider my correspondent as a registered nurse then he or she has a duty as a registered health professional to act in the patient’s best interest.  It is in the patient’s best interests to be intubated.  How can it be justified not to give treatment that is required and that the nurse is competent to perform?

The position as a nurse is the same if we consider my correspondent as a paramedic.

But what of the argument that today ‘I was employed as a nurse?’  That may be true but my correspondent is a paramedic, whether he or she is walking across the road, visiting a person in hospital, or working as a nurse.  Today a paramedic is not a person employed as a paramedic but a person registered as a paramedic.  An off duty paramedic may have no duty to rescue a stranger (Stuart v Kirkland-Veenstra [2009] HCA 15) but the person in the scenario described is not a stranger but a person in a therapeutic relationship.

One would have to ask ‘If I was employed as a paramedic what would I do…?  IS there a good reason not do to it now?’  A good reason not to do it now may be that the procedure is not appropriate in this environment, that there is someone else at the hospital who is employed to do that task (eg an emergency doctor but in this case we’re told there is no doctor).  If the answer comes down to ‘it’s me or no-one and if it’s no-one this person dies’ it is my view that the comment ‘but today I’m employed as a nurse and nurses aren’t trained to do this’ is irrelevant if you are also a paramedic regardless of what someone has told you on the employment contract.  You are a paramedic, the patient needs your skills or they’re going to do, treat them.  It would (to quote from the Industrial Relations commission and reported in When is an Intensive Care Paramedic an Intensive Care Paramedic (August 26, 2019)) ‘be “absolutely appalling” if an ICP was prevented from using their life-saving skills merely because of their position title’.

If you save a patient’s life and your employer wants to take some adverse action, that would not doubt be a matter that would entertain the Industrial Relations Commission and your relevant union.  The job of the hospital, a nurse and a paramedic is to save a patient’s life if they can.

As I said in my earlier post Don’t let the patient die (June 11, 2019).

If you can save the patient’s life, do so.  If you’re afraid to do so for fear or repercussions from your employer or because you’re afraid you may step out of the shield of vicarious liability it’s time to stop and rethink whether you believe you are competent and to ask why are you working for this company [or hospital]?  If you aren’t willing to back yourself, then maybe it’s time for a new profession.

 

 

 

 

 

‘“Please do not give me CPR”: ‘Do Not Resuscitate’ requests in retirement living‘ is an online article written by Anita Courtney and Melanie Tan from law firm Russell Kennedy.  You can read it by following the link, above.

Today’s correspondent asks an interesting question which I imagine is inspired by the decision from the Victorian Magistrate’s court and reported by the ABC as ‘Premier Daniel Andrews urges prosecutors to appeal after paramedic attacker avoids jail’ ABC News (Online) 28 August 2019.  The question is:

Could you please advise on your blog how AHPRA may view a conviction for ‘Contempt of Court’ or similar. For example, if a registered practitioner were to stand up during sentencing and state, “What a load of rubbish – clearly you are no longer in touch with the expectations of the community as you have failed to apply what is seen as an appropriate sentence”, and then be found In Contempt, what are the possible outcomes?

First courts are unlikely to convict anyone of contempt in those circumstances.   The Judicial College of Victoria’s Victorian Criminal Proceedings Manual (20 March 2019) says at [8.5(9)-(11)]

9. A person who wilfully insults a judge in the course of proceedings in court does something which necessarily interferes, or tends to interfere, with the course of justice (Lewis v Ogden (1984) 153 CLR 682, 689; [1984] HCA 28).
10. The power to punish for contempt of court exists to vindicate the authority of the court, and not to vindicate the personal dignity of the judge. It should be used ‘sparingly and only in serious cases’ (Lewis v Ogden (1984) 153 CLR 682, 693; [1984] HCA 28).
11. A contempt against the judge must be a “wilful insult”. Conduct that is “discourteous, perhaps offensive and deserving of rebuke” may still fall short of this standard (Lewis v Ogden (1984) 153 CLR 682, 693; [1984] HCA 28).

I would not think the behaviour described would meet any of those tests however contempt may also be shown by ‘loud screaming’ or ‘Protests or demonstrations in court’ ([8.5(10)].  The most likely consequence from the conduct suggested by my correspondent is that the person would be evicted from the court.  But let as assume that punishment for contempt in the face of the court is the outcome.

A conviction of contempt would no doubt be treated as any other criminal conviction and will form part of the paramedics’ criminal history.  How criminal history is considered in applications for registration is set out in the Paramedicine Boards Registration Standard: Criminal history (17 May 2018).

Further the Health Practitioner Regulation National Law says (s 5):

“unprofessional conduct“, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes— …

(c) the  conviction  of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession

It would be up to a panel or the relevant tribunal appointed in each jurisdiction (not AHPRA) to determine if the defendant’s conduct affected ‘the practitioner’s suitability to continue to practise’ paramedicine.  If they determined that it did affect the practitioner’s suitability, then they could apply any of the range of penalties provided for in the Health Practitioner Regulation National Law.  What that penalty may be would depend on all the circumstances and cannot be predicted here.

The more interesting issue is ‘what is an appropriate sentence and what is the relevance of community expectations?’  I have previously given my views on mandatory sentencing:

• Mandatory prison sentences – offering paramedics a placebo rather than protection (August 3, 2018);
• Mandatory gaol terms (or not) for assaulting police and emergency service workers in New Zealand (May 29, 2018); and
• Responding to calls for mandatory sentencing (April 3, 2016).

I don’t suppose anything I say here is going to change anyone’s mind on the issue, nor do I suppose anyone is going to change mine.  Even so, imagine:

A community whose members believe that only doctors are capable of providing definitive care and that providing treatment at the road side is a waste of time.  They claim governments are letting down communities by not ensuring that all ambulances are staffed by at least one medical practitioner and if they are not paramedics should simply ‘load and go’ or be backed up by helicopter medical retrieval team.  Everytime there is a report of a patient dying on scene they campaign that again the government and the ambulance service is failing to provide the level of service the community wants, expects and is entitled to. 

When the Minister tries to explain the position he or she is told ‘”What a load of rubbish – clearly you are no longer in touch with the expectations of the community as you have failed to apply what is seen as an appropriate” level or resourcing.

Paramedics, and the Minister, may rightly say –

Helicopter and road based medical retrieval teams are a vital part of the overall emergency response, but they are not warranted in every case (equally an ICP or even an emergency paramedic is not required in every case).  What is required depends on many things including the patient’s condition, the distance to hospital, the level of care that can be provided on scene providing more rapid and effective care than would be achieved by trying to get the patient to a medical practitioner.  And further, paramedics are highly qualified, experienced practitioners who are trained and competent to assess all the clinical indicators, not just the ones reported on the news or imperfectly perceived by ‘the community’ and are able to form a view of what is the best treatment for this patient in these circumstances.  It is a professional judgement and paramedics are there to make that call with a greater knowledge both of the patient’s condition and what services and resources are available.  

That the community might expect a doctor at every emergency response does not mean they can or should get one or even that it is the best response to any particular patient. Should, in that scenario, the ambulance service change its practice to meet community expectation when that expectation is not only not supported by evidence, it is contradicted by evidence?

As for the evidence, Jarryd Bartle (‘We know that prison doesn’t work. So what are the alternatives?’ The Guardian (Online) 16 August 2019) says:

… decades of research have shown that prison is the least effective place to rehabilitate offenders. Studies have indicated that a stint in prison increases the likelihood that inmates will reoffend…

Young people are particularly ill-suited to prison – detention renders them more likely to graduate from low-level juvenile offenders to lifetime criminals via a stint in corrections.

Moreover, despite being seen as the ultimate “stick” to ensure social order, prison is not a deterrent for most forms of offending. Crime is largely impulsive or driven by complex external factors on decision-making – the notion that offenders are “rational agents” weighing up the cost and benefits of offending has been largely debunked…

Ultimately, a shift in thinking away from imprisonment as a default solution for criminals can free up the public purse for more effective preventive measures.

(And see other reports with similar conclusions cited in my earlier posts).

A person who does not go to goal but who must, instead, undergo compulsory treatment over 18 months which may include detention in a treatment facility and regular testing is someone who is subject to a deprivation of liberty. They are not ‘walking free’ and the chances of making the community safer is increased if they can be forced to deal with the issues that lead to their offending, including drug taking, and can be supervised for 18 months rather than locked in a cell for six.

With respect to mandatory sentencing in Victoria, no matter what the Premier has told the community, a prison sentence for assaulting a paramedic is not required if the court finds that the circumstances set out in s 10A of the Sentencing Act 1991 (Vic) exist (see s 10AA(4)).    The circumstances in s 10A(2) are:

(c)        the offender proves on the balance of probabilities that—

(i) subject to subsection (2A), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender’s culpability; or

(ii) he or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or

(d) the court proposes to make a Court Secure Treatment Order or a residential treatment order in respect of the offender; or

(e) there are substantial and compelling circumstances that are exceptional and rare and that justify doing so.

Section 10A(2A) says ‘Subsection (2)(c)(i) does not apply to impaired mental functioning caused solely by self-induced intoxication’.  The ABC reports that the Magistrate found that the defendant’s ‘impaired mental state that day was not solely due to self-inflicted intoxication’ ie it was not ‘caused solely by self-induced intoxication’ (emphasis added).

I don’t know if gaol would have been, or will be seen to be, an appropriate penalty in this case. Further what is ‘is seen as an appropriate sentence’ by a particular observer and what is an appropriate sentence are not the same thing.  If all we have are media reports then we really know nothing about the offending or the offender, the Magistrate’s reasoning or whether the Magistrate correctly applied the law.  One can only make a sensible comment on the Magistrate’s reasoning if and when those reasons are published (but see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)) or they are subject to review by the Court of Appeal.