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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
Updated: 15 hours 55 min ago

A private emergency vehicle in SA

12 April, 2017 - 23:52

A correspondent

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

In South Australia an emergency vehicle is

… any vehicle driven by a person who is—

(a)         an emergency worker for the provision; and

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

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

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

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

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

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

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

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

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

Section 57(1) says

A person must not provide emergency ambulance services unless—

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

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

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

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

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

Clearly none of these apply to my correspondent.

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



Categories: Researchers

The ADF operating emergency vehicles

11 April, 2017 - 22:32

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

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

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

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

Any insight you held would be greatly appreciated.

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

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

The Defence Act 1903 (Cth) s 123 says:

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

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

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

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

Categories: Researchers

Obstructing access to a NSW RFS fire station

11 April, 2017 - 22:11

Today’s correspondent is from

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

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

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

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

Specifically, s 22A says:

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

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

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

Categories: Researchers

Yellow flashing lights on a private vehicle in WA

6 April, 2017 - 08:58

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

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

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

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

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

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

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

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

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

(a) an emergency vehicle;

(b) an Australian Protective Service vehicle;

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

(d) an Airservices Australia vehicle; or

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

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

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

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

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

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

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

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

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

(e) a transport enforcement vehicle;

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

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

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

A turn signal … must —

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

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

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

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

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

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

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


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

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

Categories: Researchers

No liability for Yarnell (Arizona, USA) fire

3 April, 2017 - 23:52

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

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

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

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

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

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

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

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

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

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

Alleged duty to prevent the spread of fire from state land

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

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

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

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

Voluntary undertaking

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

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

Abnormally dangerous activity

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

Duty Based on Precluding Local Firefighter Action

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


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

Categories: Researchers

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

3 April, 2017 - 22:39

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

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

What happened?

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

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

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

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

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

Matters in contention

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

In a poignant statement, Mr James Yean said:

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

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

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

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

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

The 3.15pm triple zero call

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

The assessment by paramedics at 4.30pm

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

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

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

He went on (emphasis in original):

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

Categories: Researchers

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

1 April, 2017 - 03:25

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

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

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

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

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

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

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

Categories: Researchers

CFA closing the road at a road accident

1 April, 2017 - 03:09

This question comes in response to an article that appeared in The Leader; Zoe Powell and Knox Leader ‘The Basin CFA slams ‘clown show’ drivers at serious Kilsyth car accident‘ (March 28, 2017).  I am asked:

What are the legal requirements for road blocks and following instructions if an agency other than Police are controlling the scene and traffic?

In Victoria, the Chief Officer of the CFA ‘may close any road or part of any road affected, or likely to be affected, by a fire or smoke from a fire and may direct traffic on any road in the vicinity of the closed road (or closed part of a road)’ (Country Fire Authority Act 1958 (Vic) s 30(f)).  That is related to fire and is part of a section headed ‘Powers of officers at fires’ (see also s 44A).

The CFA is also authorised to provide road rescue services (s 97B).  By virtue of s 97D:

The powers and immunities conferred by this Act on the Chief Officer extend and apply to the Authority with such modifications and extensions as are necessary to enable the Authority to perform its functions under section 97, 97A, 97B and 97C and the provisions of this Act apply with such adaptations and variations as are necessary to and in relation to the performance of those functions to the same extent as in the case of the prevention and suppression of fire or the protection of life and property in the case of fire.

So just as the CFA has the power to close a road to allow them to deal with fire, so too they have the power to close the road as part of their road rescue functions.

There is however no provision that says it is an offence to fail to comply with a direction by the CFA, so although they may close the road, a driver commits no offence if they ignore the road block.

There is an offence of driving so as to interfere with the brigade, s 107(4) says:

 A person must not, without reasonable excuse, drive a vehicle within such proximity to the place of a fire or to any apparatus in use at a fire as to interfere with—

(a) the operations of any brigade, group of brigades, interstate fire brigade or international fire brigade; or

(b) the use of the apparatus.

Penalty:     60 penalty units.

(In Victoria, a penalty unit is$155.46 (see Justice and Regulation, Penalty Units, 2 February 2017) so the maximum fine is $9327.60).

Again section 107(4) relates to operations at a fire, but by virtue of s 97D it would be argued that these provisions extend to apply to the scene of a road rescue so that driving so as to interfere with brigade operations at a rescue is also an offence.








Categories: Researchers

Giving feedback to paramedics

1 April, 2017 - 02:37

Today’s correspondent tells me that there is

… lots of discussion around the traps regarding legality/responses to paramedics enquiring about outcomes for patients they have brought in to hospital (e.g. asking nurses the next day for learning/education/debrief). It’s very variable within hospitals and even within departments (and I have found it the same when enquiring as nurse to nurse from accepting ED to transferring ED etc).  Legally, is this a breach of patient confidentiality?

It would be a breach if all that is being sought is salacious gossip – how did that accident really happen?  What was the reaction of the family when they saw/discovered/observed?

Let us assume that is not the case.  The paramedic wants to know both because they have an emotional investment in the outcome as well as a professional interest in knowing if their diagnosis was correct and their treatment efficacious.  There is privacy legislation in each jurisdiction and they all attempt to give effect to agreed privacy principles.  For that reason, I’ll refer to the Commonwealth Act that is mirrored in the state and territory legislation.

Under the Privacy Act 1988 (Cth), personal information ‘means information or an opinion about an identified individual, or an individual who is reasonably identifiable’ (s 6).  Health information means (s 6FA):

… information or an opinion about:

(i)  the health, including an illness, disability or injury, (at any time) of an individual; or …

(iii)  a health service provided, or to be provided, to an individual;

that is also personal information;

It follows that information about the actual diagnosis, prognosis and what was done and is being done for the patient’s benefit is ‘health information’.   It is also ‘sensitive information’ (s 6).

There are ‘Permitted health situations in relation to the collection, use or disclosure of health information’ (s 16B) including release for research but none of them apply in this context.

The relevant privacy principle is principle 6.  It says that an ‘entity’ (in this case the hospital represented by its employee or agent, ie the nurse) must not use or disclose personal information for a purpose other than which it was collected.  Information is recorded on hospital records for the hospital’s purposes and to facilitate treatment of the patient.  Giving that information to the paramedics is not about advancing the person’s treatment.  It would therefore be a breach unless the patient consents (Principle 6.1(a)) or (Principle 6.2(a)):

… the individual [patient] would reasonably expect the … entity to use or disclose the information for the secondary purpose and the secondary purpose is:

(i)  if the information is sensitive information–directly related to the primary purpose; or

(ii)  if the information is not sensitive information–related to the primary purpose …

I would think most people would reasonably expect health services to share information in the circumstances but that doesn’t answer the question of whether sharing the information with the paramedics is ‘directly related to the primary purpose’.

I think that’s the ‘out’.  If a person complained (and why would they) and the sharing of information really was just giving feedback to the paramedics one could argue that closing that information loop was directly related to the primary purpose of their health care.  On the other hand, it is also arguable that it’s not ‘directly’ related to the primary purpose for which information is collected as the paramedics have nothing more to do with the patient’s care.  It’s one of those situations where depending on what happened, and what information was shared, someone dealing with a complaint would have a way to find there was no breach.

Having said that it does seem to me that technically it is a breach of relevant privacy principle to tell the treating paramedics what the subsequent diagnosis and treatment was.


I’m surprised by the result but my conclusion is that technically it is a breach of the privacy principles. I say ‘technically’ as I can’t imagine most patients would object and would accept that the paramedics have an interest in knowing how the patient they treated has progressed and provided the release was reasonable and well-motivated, a decision maker could find that the disclosure was directly related to the primary purpose of obtaining and recording personal information.

Even so, on a strict reading of the Act, and subject to the hospital’s published privacy policy, it does appear that giving feedback to the paramedics would be a breach without the patient’s express consent.



Categories: Researchers

Detaining a voluntary patient in NSW

31 March, 2017 - 22:06

Today’s correspondent is a Paramedic with NSW Ambulance who asks about the Mental Health Act 2007 (NSW) s 20.  That section 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.

This section appears in Chapter 3, Part 2, Division 2 of the Act.  Chapter 3 is about ‘Involuntary Admission and Treatment in and Outside Facilities’.  Part 2 is ‘Involuntary Detention and Treatment in Mental Health Facilities’ and Division 2 is ‘Admission to and initial detention in mental health facilities’.   With respect to involuntary detention, s 12 says that a person:

… must not be involuntarily admitted to, or detained in or continue to be detained in, a mental health facility unless an authorised medical officer is of the opinion that:

(a) the person is a mentally ill person or a mentally disordered person, and

(b) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.

One of the objects of the Act is ‘to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis’ (s 3(c)).

My correspondent tells me that

… recently we have been receiving much grief from our local police regarding management of voluntary patients. It is my understanding that we can only enact a Section 20 if a patient refuses to be transported voluntarily.  Specifically, we had a patient last night who mentioned suicide during an argument with his girlfriend. We asked that he come to hospital with us for assessment and to get him out of a volatile situation. The man was quite happy to comply, did not need any convincing and walked freely to the ambulance for transport. At this point we were told that we would have to complete the Section 20 by the Police.  I advised that were unable to do that under the Act as the patient was Voluntary. The harassment continued for a further 5 minutes with the Officer insisting that their Barrister had advised them that we did have the right to Section voluntary patients. I still refused as it goes against my training and understanding of the Act. To me the wording is clear in the Act in this regard, but as it’s not my area of expertise I would really appreciate your interpretation of this.

I can’t understand what the police officer was talking about.  The aim of modern mental health legislation is to limit the use of involuntary treatment.   As an ambulance officer, you can transport a person to where health care is required.  I suppose someone might want to argue that you can only transport to a mental health facility by virtue of s 20 and s 20 is about involuntary treatment.  That argument would mean you couldn’t take a voluntary patient to a mental health facility but that would be rubbish.  If a person is willing to go with a paramedic, and the paramedic is willing to take them, the paramedic can lawfully drive them anywhere they want to go.  The fact that ambulances only transport people to hospital is a decision of the ambulance service not some legal rule.  So if paramedics want to take a person to a mental health facility and the person wants to go, so 20 is not relevant.

The question for the police officer is even if a voluntary patient can be sectioned, why would or should they be?   Treating them as a voluntary patient is the least restrictive approach.  If the police officer wants to ensure the person is not then free to leave the facility they can arrest them if they think an offence has been committed.

In the absence of some explanation as to why the police officer thought compulsory detention was warranted, I can’t see any reason to pretend to detain a person who is willing to go with the ambulance service on a voluntary basis.

Categories: Researchers

What professional standards for an Australian registered nurse, working for an Australian agency, outside Australia?

23 March, 2017 - 01:08

Today’s correspondent is

… a Paramedic and RN currently employed by a small business, contracted in Afghanistan. I’ve been advised that “[the company] is subject to the laws of all countries associated with the contract but ultimately it is our decision how we adapt to our environment”. This came about as Australian and New Zealand paramedic staff raised concerns about drug management practices and the lack of “Australian” standards being applied to our practice here. In other employment both in hospitals and in the ambulance service, we keep a drug register of all drugs, and whenever a drug is administered we record the details of administration in the book along with ePCRs or other clinical documentation. The company has decided that the drug register is no longer needed and that a simple “handover” sign off sheet is sufficient.

Given that I am an Australian registered nurse (and paramedic), employed for my Australian registration, and work for an Australian organisation, should Australian law and standards be applied here – given that the standard here is non-existent? Additionally given that I feel this practice is not in line with Australian standards – can my registration be at risk should something untoward occur due to poor accountability and drug management practices?

In answering this question I’ll focus on my correspondent’s status as a nurse as paramedics are not yet registered in Australia.

As an Australian registered nurse it must be the case that conduct when overseas would be relevant to professional registration.  An Australian registered nurse, working for an Australian organisation who demonstrated sub-standard skills or engaged in conduct that demonstrated that they were not a fit and proper person to be a nurse (eg offending against patients in their care) could and should expect that this would impact upon their registration.

Health Practitioner Regulation National Law

However the provisions of the drugs or poisons legislation in each state is not part of the nursing standard.  If we look at the Health Practitioner Regulation National Law (which is Schedule 1 to the Health Practitioner Regulation National Law Act 2009 (Qld) but which has been adopted in all Australian states and territories) it refers to ‘unprofessional conduct’ and ‘unsatisfactory professional performance’.  Unprofessional conduct 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;…

Unsatisfactory professional performance means ‘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.’

Handing out scheduled drugs, in Afghanistan, without completing the paperwork that would be required in one’s home state would not be contrary to the Australian law.  The relevant law would be the Afghan law (if there is one).   Assuming the conduct is not in breach of any Afghan law then paragraph (c) of the definition of ‘unprofessional conduct’ won’t be relevant.

The critical issue is what can be expected from a ‘health practitioner of an equivalent level of training or experience’ operating in those circumstances.  And the experience of being in Afghanistan is part of the relevant experience.   For example is completing a drug register and patient record helpful if the drugs aren’t recorded ‘in’ and ‘out’ and if no-one is ever going to read the patient record documents?

The Code of Professional Conduct for Nurses in Australia

There are professional standards.  The Code of Professional Conduct for Nurses in Australia (Nursing and Midwifery Board, effective date 7 May 2013) Conduct Statement 2[2]) says that:

Nurses practise in accordance with wider standards relating to safety and quality in health care and accountability for a safe health system, such as those relating to health documentation and information management, incident reporting and participation in adverse event analysis and formal open disclosure procedures.

And (Conduct Statement 2[3]) “Nurses’ primary responsibility is to provide safe and competent nursing care.”  But what is ‘safe’ and ‘competent’ has to take into account all the circumstances including, in my correspondent’s case, that they are working in Afghanistan and not Australia.  That would mean that as a nurse they still need to take responsibility for their own conduct in providing ‘safe and competent nursing care’ (Conduct Statement 1[1])) which in turn would require them to put the patient’s interests first and ‘practise nursing reflectively and ethically’ (Conduct Statement 10).   My correspondent is clearly practising ‘reflectively and ethically’ by actually reflecting on the practice in Afghanistan and considering whether or not it meets the relevant standard expected of a nurse.

Documents like the Code of Professional Conduct for Nurses in Australia are not meant to be prescriptive.  They do not say that a nurse must complete this or that record, rather they set out general principles that a reflective and ethical nurse has to consider and apply in the infinite number of circumstances in which nursing occurs.


Conduct Statement 3[1] says

Nurses are familiar with relevant laws and ensure they do not engage in clinical or other practices prohibited by such laws or delegate to others activities prohibited by those laws.

For my correspondent the relevant laws are the laws of Afghanistan.  If convicted of administering drugs contrary to those laws that could well impact upon Australian registration, but the implication of the question is that there are no relevant laws or perhaps no meaningful way in which to comply with them.  Let us assume that is not an issue.

In that case my correspondent still has to practice ethically and reflectively and try to maintain safe and competent nursing care.    If my correspondent is actually in a war zone and under fire, keeping records may be irrelevant.  If however they are somewhere where the facilities are sub-standard and nursing staff are coping as best they can, some minimal record keeping may be required but it won’t be the case that the nurse is expected to practice nursing as they would if they were in one of the tertiary teaching hospitals in any of the Australian capital cities.  The fact that nurse can’t provide the level of care or meet the standards that the Australian community would expect if they were in an Australian hospital cannot, of itself, represent unprofessional conduct in nursing.

Just as the standards for other areas of care cannot be imported into Afghanistan, there is no reason to think that the standards for patient and drug records can be imported.  Without having been to Afghanistan, it surely has to be the case that Australian law and standards cannot be applied there.

So the nurse has to consider what can be done to provide, to the best of their ability, ‘safe and competent nursing care’.   Merely transferring the drug register from an Australian state to Afghanistan won’t do that – that’s form over substance.

I would think the answer lies in the Code of Professional Conduct for Nurses in Australia, Conduct Statement 2[3] which says, in full:

Nurses’ primary responsibility is to provide safe and competent nursing care. Any circumstance that may compromise professional standards, or any observation of questionable, unethical or unlawful practice, should be made known to an appropriate person or authority. If the concern is not resolved and continues to compromise safe and competent care, nurses must intervene to safeguard the individual and, after exhausting internal processes, may notify an appropriate authority external to their employer organisation.

If the ‘company has decided that the drug register is no longer needed and that a simple “handover” sign off sheet is sufficient’ that is not the end of the matter if, thinking about all the circumstances, the nurses involved think that is not safe and competent. Here it would be for a nurse, practising ‘reflectively and ethically’ to consider what are the risks and is there a better way to deal with it.  If they think that there is a better way then they need to raise that with their employer.  A mere assertion ‘but we wouldn’t do it that way at home’ is, I expect unhelpful.  But a statement ‘this is unsafe because of ….  What is required is [some modified process, perhaps modelled on the practice in Australia but taking into account the reality on the ground]’ might well help.  If the nurse feels that the practice the employer is asking them to adopt is unsafe and unreasonable in all the circumstances then the nurse has to ‘after exhausting internal processes … notify an appropriate authority external to their employer organisation’ or reconsider their position as an employee of that agency.


The fact that my correspondent is practising nursing in Afghanistan does not mean that the Australian nursing standards do not apply.  As an Australian registered nurse, working for an Australian organisation, providing care in Afghanistan because of the Australian registration, the Australia Health Practitioner Regulation National Law and the Code of Professional Conduct for Nurses in Australia will continue to be relevant. Conduct that demonstrates lack of ethical practice or that the person is not a fit and proper person to remain registered as a nurse will be relevant whether that conduct occurs in Australia or in Afghanistan.

But that does not mean that the nurse in Afghanistan has to practice nursing as if they were in Australia.  What is appropriate conduct has to take into account all the circumstances and local laws.  To focus on the actual practice in Australia and try to apply Australian practice in Afghanistan is to miss the point of the code of conduct and what is meant by ethical practice.  It is impossible to apply Australian standards in Afghanistan – the hospitals are not the same, the nature of the practice is not the same, the access to drugs, technology, referral services etc cannot be the same. The overriding obligation is to practice safely, ethically and reflectively – so identify where the suggested practice is unsafe and how it can be improved.  The relevant question has to be not ‘Are we practising as we would in Australia?’ but ‘Are we practising in a way that is as safe and beneficial as we can make it?’

Categories: Researchers

Resuscitation of a premature newborn

22 March, 2017 - 01:11

This question comes from an ALS paramedic with Ambulance Victoria

… regarding the legalities surrounding the resuscitation of a premature baby around the 20-24 week mark please.

I was hoping to gather some information pertaining to our legal relationship with the resuscitation of the baby when the mother is refusing the baby being resuscitated? Are we legally required to attempt resuscitation even though the mother is refusing or are we legally allowed to follow the mother’s wishes?

The mother also does not have an NFR in place for the baby.

As I understand it, a baby born at 20-24 weeks is unlikely to be able to survive.  A quick google search (I know not really academic) found this article – Traci L. Powell, Leslie Parker, Cynthia F. Dedrick, et. al., ‘Decisions and Dilemmas Related to Resuscitation of Infants Born on the Verge of Viability’ (2012) 12(1) Newborn & Infant Nursing Reviews 27-32 (available at  The authors say:

The NRP [Neonatal Resuscitation Program] endorses the American Medical Association’s code of ethics and offers recommendations for decision making when faced with resuscitation of a newly born infant. Specifically, the NRP states that resuscitation should be withheld when the gestational age is less than 23 weeks, birth weight is less than 400 grams, anencephaly is present, or with a confirmed diagnosis of trisomy 13 or 18. The Nuffield Council on Bioethics recommends that resuscitation and intensive care should not be provided to infants at a gestational age of less than or equal to 22 weeks unless the “informed” parent requests it and clinicians agree it is likely in the best interest of the infant. For infants at 23 weeks, they recommend allowing the parents to choose whether to resuscitate, but the medical team is not required to resuscitate or provide intensive care if they feel it does not benefit the infant. At 24 weeks, resuscitation and intensive care should be provided but may be withheld based on the infant’s condition and if both the parents and medical team agree it is not in the infant’s best interest. At 25 weeks or more, it is recommended that intensive care be provided.

The first point to make is that a baby is born alive when it has an existence independent of its mother.  So if the baby is born and takes a breath, or has a heartbeat or other evidence of independent existence, even if it remains connected to its mother via the umbilical cord, it is has been born alive and is entitled to be treated with respect and with all the rights, including the right to life, that apply to all people (R v Hutty (1953) VR 338).

As it has been born alive, the baby deserves to be treated but treatment should be in the best interests of the child.  There is no obligation, and even a duty not to provide treatment that is futile or not in the child’s best interests (Airedale NHS Trust v Bland [1993] AC 789).   On that basis, and assuming that the dates discussed in Powell et. al. above still reflect current medical ability (ie that the date of viability hasn’t been brought forward with advances in medical practice) then it would be prudent to withhold resuscitation on a baby under 22 or 23 weeks even if the parents wanted the baby resuscitated.      That is of course too simplistic, because paramedics are unlikely to know the gestational age of the baby and if the parents are demanding that paramedics act it would be hard to refuse to do so, but as a matter of principle what I’ve said must be the legal position.

As for the mother’s refusal that is different again.  If the premature birth were expected I would again anticipate that she would be in hospital and paramedics wouldn’t be involved.  If the birth was unexpected and happened at home with paramedics, the normal rule is that a decision to refuse treatment must be honoured.   In the circumstances I have in mind, ‘do not resuscitate’ documentation is unlikely to be in place given the baby’s just been born so that is not an issue.

A refusal of treatment, including lifesaving treatment, is only binding if it is informed, made by a person with capacity and covers the situation that applies (In Re T [1992] EWCA Civ 18).  In this case the mother may be competent and want to make a decision that applies now, ie in refusing resuscitation she knows that this applies now, when the baby needs resuscitation, but is she informed? At this stage neither she nor the paramedics know what the baby’s prognosis will be.   A parent can make medical decisions for their children but they must be motivated by the child’s best interests, not their own (Secretary of Department of Health and Community Services v B (“Marion’s case”) (1992) 175 CLR 218).

There is no doubt this would be a hard case.  If the mother appeared competent and was able to confirm that she understood the implications both of a premature birth and the consequences of refusing resuscitation, that if there had been an identified risk of premature birth this has been discussed with relevant health practitioners etc and the gestational age was known with certainty then paramedics should feel comfortable withholding resuscitation and providing comfort to mother and baby whilst transporting them to hospital. Exposing the baby to vigorous resuscitation against the mother’s wishes with little or no prospect of success is ethically and legally dubious.

On the other hand, the baby is a human being and parents can’t refuse treatment because they’d prefer it if the baby died for their own sake.  If there was any doubt as to the gestational age of the baby, the understanding of the parents or what was in the child’s best interests that doubt would have to be resolved in favour of resuscitating the baby until it could be handed over to medical staff who could make decisions based on a better understanding of the circumstances and the prognosis.

I explored some of these issues in a paper I wrote in 1997 – ‘The Legal Status of a Living Abortus’ (1997) 4 Journal of Law and Medicine 373-378.  I attach a copy here as it might be of use, but remember it is old so there will have been case law developments and some of the legislation references may be out of date, but the principles remain.


Categories: Researchers

National Road Rules on giving way to emergency vehicles

21 March, 2017 - 08:33

This question comes from a volunteer who has asked that I don’t identify the jurisdiction or service. My correspondent has:

…  been asked to participate on a working group to look at policy around Urgent Duty Driving by our volunteers.  My question to you is around the Australian Road Rules in relation to emergency vehicles responding to incidents.

From my understanding under those rules, road users must give way to an emergency vehicle with lights and/or siren when safe to do so, can’t pull in front of them etc etc.  Looking at European rules, has there ever been such rules making it an actual offence not to give way to an emergency vehicle, that also provides immunity to those drivers who say, move through a red light to get out of the way of an emergency vehicle and trigger a red-light camera?

If there hasn’t what would your view be on national legislation compelling road users to stay clear of emergency vehicles, including provisions exempting those users from infringements should they break the road rules themselves so as not to impede an emergency vehicle?

Also, should there be a push to implement such amendments, would this be an opportune time to include national legislation around speed limits at locations where emergency service workers are undertaking activities on or near a roadway?

The Australian Road Rules refers to the model rules prepared by the National Transport Commission.   The Commission can’t make law, it merely drafts the rules, but it is up to the States and Territories to incorporate those rules into their law with any relevant additions or variations to deal with local conditions.  They have been adopted through the following Acts, rules or regulations:

It’s not clear that Western Australia has adopted the national rules.  The West Australian road rules are set out in the Road Traffic Code 2000 (WA).  That code doesn’t make specific reference to the National Road Rules but deals with the same subject matter.

Each state can make variations to the rules so section numbering isn’t always consistent.  For the sake of this post I will refer to the Road Rules published by the National Transport Commission (February 2012 version updated to include amendments to November 2015).   You will need to refer to the legislation in any particular jurisdiction to see if there are any variations.

The answer to my correspondent’s first question – ‘has there ever been such rules making it an actual offence not to give way to an emergency vehicle, that also provides immunity to those drivers who say, move through a red light to get out of the way of an emergency vehicle and trigger a red-light camera?’ – is ‘yes’.

Under the Australian Road Rules it is an offence to ‘move into the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm’ (rule 78(1)).  It is also an offence to fail to ‘move out of the path of the vehicle as soon as the driver can do so safely’ (rule 78(2)) and to fail to ‘give way to a police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm’ (rule 79(1)).

Rule 78 ‘applies to the driver despite any other rule of the Australian Road Rules’ so that the obligation to get out of the way of the emergency vehicle overrides the other road rules, thereby given an excuse to do things such as pull over and stop in a no stopping zone or even moving through a red traffic light.  For more details, including a discussion on the difference in the law between Western Australia and every other state and territory, see Making Way for Emergency Vehicles (May 18, 2015).

My correspondent next asked – what would be my view ‘on national legislation compelling road users to stay clear of emergency vehicles, including provisions exempting those users from infringements should they break the road rules themselves so as not to impede an emergency vehicle?’  My view is that those provisions already exist.

Finally, ‘should there be a push to implement such amendments, would this be an opportune time to include national legislation around speed limits at locations where emergency service workers are undertaking activities on or near a roadway?’  As explained above, the premise here is wrong as there is no need for ‘a push to implement such amendments’ as the amendments my correspondent wants to see are already the law.  As for speed limits around emergency workers, this has been implemented in South Australia (see No Special Speed Zones When Passing Emergency Service Vehicles Except in South Australia (January 4, 2017)).   No doubt other states will be influenced by the SA experience if they consider similar measures.

The Australian Road Rules are written by the ‘the Transport and Infrastructure Council. The Council consists of the ministers responsible for road traffic matters in each state and territory, and of the Commonwealth Minister responsible for transport matters’.  It is a cooperative exercise but the Ministers are advised by the relevant departments.  If the emergency services could persuade the relevant road transport authorities that the SA model should be adopted nationally that could be done.   Whether there is any desire to do it is a matter that I can’t comment on.
















Categories: Researchers

Parking to assist at an emergency

17 March, 2017 - 08:17

A correspondent sent me a link to an article in the Geelong Advertiser and reproduced in the Herald Sun online: ‘Parking fine anger: Snapped for two-minute’ (Alex Sinnott, March 15, 2017)  The article is a premium plus article so you may not be able to read it.  The gist of the story is that a fellow was driving when he saw a person ‘struggling to dispense of a window pane into a nearby rubbish skip’.  He stopped to help `and was snapped by council inspectors in the process. [He] later received a fine of $90 by mail.’  A spokesperson for the council is quoted as saying ‘The use of mounted cameras in vehicles has been in use for approximately five years and assist greatly in confined and/or unsafe situations’.

My correspondent says ‘Not EM related as such but where does a good Samaritan stand legally if helping at an incident for example?’

Under the Australian Road Rules, which are incorporated into Victorian law by the Road Safety Road Rules 2009 (Vic) the various parking restrictions do not apply to an ‘emergency vehicle’ (r 307) but that won’t help a private citizen who stops their private car and gets out to help.  For them, the relevant road rule is r 165 which says, amongst other things, that it is a defence if a:

… driver stops at a particular place, or in a particular way, to deal with a medical or other emergency, or to assist a disabled vehicle, and the driver stops for no longer than is necessary in the circumstances.

It is also a defence if:

… the driver stops at a particular place, or in a particular way, because the condition of the driver, a passenger, or the driver’s vehicle makes it necessary for the driver to stop in the interests of safety, and the driver stops for no longer than is necessary in the circumstances’.

A good Samaritan who stops to assist at an emergency therefore has a defence to an allegation of parking contrary to the relevant signs and parking restrictions. But note that it is a defence, it doesn’t mean that a ticket won’t be issued.    One would expect too much to believe that the parking inspectors will, or can, identify in each case what the driver of an illegal parked car is doing and when that driver is assisting at an emergency. No doubt in some cases it will be obvious, but in some it will not.  It will certainly be the case that they won’t identify what the driver was doing if the car is identified by ‘mounted cameras in vehicles’.  That is akin to red light and speed cameras, they will be triggered when the breach is observed, the camera can’t tell what the driver is doing or, in the case of red light and speed cameras, whether it’s an ambulance or other emergency vehicle that is responding to an emergency.

If a ticket is issued it does not mean the driver is guilty of the offence.  Whether you get a parking ticket or arrested for murder, it is just an allegation.  In either case the police must prove their case beyond reasonable doubt, should the defendant chose to deny the allegation.

The first thing a good Samaritan who has received a parking infringement notice should do is follow the instructions on the back of the ticket and write a letter to the police or enforcement agency explaining the situation and providing whatever details and evidence they can to identify the emergency and that they were assisting.   Information such as the identity of the police who were in attendance and a copy of any statement given to police that explains what they saw and their involvement in the event would help.  If other people involved in the event can provide a supporting statement that would also help.

If the police or council don’t withdraw the penalty the driver can elect to take the matter to court.   As the defendant, they have an evidentiary burden which means they have to give some evidence that they were stopped to assist at an emergency, but that could be nothing more than their own statement.  Once the matter is raised, the police or council must prove, beyond reasonable doubt, that they were not assisting at the emergency or that they stopped for longer than was necessary in the circumstances.

That is no doubt inconvenient but as noted, you can’t expect that in every circumstance the parking enforcement officers will correctly identify what is going on. They will see a car parked contrary to the relevant signs and rules.  If there is also a massive accident and lots of people helping they might infer that is what is going on but there are so many possibilities that it may well happen that even though the driver is assisting at an emergency, the parking officers, or the mounted camera, won’t identify that.  It is for this reason that we have the rule of law, and courts.  Police and council inspectors make allegations, ultimately it is courts, that have the chance to review all the evidence that everyone wants to bring, that determine guilt or innocence.




Categories: Researchers

Breaching a NSW levee bank to relive downstream flood pressure

11 March, 2017 - 01:09


A question from the NSW SES in the Murray/Murrumbidgee regions.

In this part of the world there are a great many raised irrigation channels criss-crossing the countryside and they make very effective levee banks which can and do impede the flow of flood water.  In the flood event last spring, as in previous events, it was suggested that an irrigation channel should be breached in order to allow flood water to escape, thus avoiding inundation of properties at threat.  Often the consequence, apart from the damage to the irrigation channel, will be inundation of properties downstream of the breach, but such inundation would cause less damage than if the channel were not breached.

In such circumstances Local Emergency Management Committees usually look to the SES Incident Controller to make the decision to breach an irrigation channel.  The questions I have on this are:

(1)    Does the SES Incident Controller have the legal authority to order such a breach?  If not, who does?

(2)    If the breach causes consequential damage downstream that would not otherwise have occurred, is the person who ordered the breach then liable to be sued for damages?

(3)    Who is responsible for repairing the breach after the flood has passed?

(1)    Does the SES Incident Controller have the legal authority to order such a breach?  If not, who does?

The critical issue here is that there is no power to order such a breach under the State Emergency Service Act 1989 (NSW).  Under that Act the Commissioner, acting through his or her delegate can exercise powers ‘to evacuate or to take other steps concerning persons’ (s 22) and ‘take other safety measures’ (s 22A).   The ‘other safety measures’ are:

(a) the shutting off or disconnecting of the supply of any water, gas, liquid, solid, grain, powder or other substance in or from any main, pipeline, container or storage facility in an emergency area or any part of an emergency area,

(b) the shutting off or disconnecting of the supply of gas or electricity to any premises in an emergency area or any part of an emergency area,

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

None of those powers would include a power to damage an irrigation channel.   Breaching a levee is not ‘shutting off’ the supply of water.  Further the levee is part of the land, that is ‘real property’ and it is my opinion that it would be not be covered by the term ‘any material or thing’.

Remember too that the Commissioner can only exercise those powers when dealing with an emergency caused by a flood (ss 8(1)(a) and 19).   Flood is not defined.  If we take the definition of flood that was adopted for insurance purposes after the Queensland 2011 floods (Insurance Contracts Act (Cth) 1984 s 37B and Insurance Contracts Regulations 1985 (Cth) r 29D), flood means:

… the covering of normally dry land by water that has escaped or been released from the normal confines of any of the following:

(a) a lake (whether or not it has been altered or modified);

(b)  a river (whether or not it has been altered or modified);

(c) a creek (whether or not it has been altered or modified);

(d) another natural watercourse (whether or not it has been altered or modified);

(e) a reservoir;

(f) a canal;

(g) a dam.

Water in an irrigation channel is not a flood though it may become a flood at some later point.  If the flood is occurring down river then the action of breaching the levee bank could be a response to the flood emergency but that doesn’t change the fact that there is no specific power in the Act to take that action.

Who does have such power?  The answer is the Minister in the event of a declared state of Emergency.  When an emergency has been declared (State Emergency and Rescue Management Act 1989 (NSW) s 33) then the Minister, through his or her delegate, can exercise various powers.  The Ministers powers (s 38) include the power to ‘take possession and make use of any person’s property’.  If the Minister took possession of the land (the ‘real property’) that included the levee he or she could use that property and the surrounding land as an ‘escape valve’ to release the water.

(2)    If the breach causes consequential damage downstream that would not otherwise have occurred, is the person who ordered the breach then liable to be sued for damages?

No, the person who, in good faith, ordered the breach will not be liable for damages.  The person appointed as the incident controller or otherwise exercising powers under either the State Emergency and Rescue Management Act 1989 (NSW) or the State Emergency Service Act 1989 (NSW) is not acting in his or her own affairs but, ultimately, as the delegate of the state of New South Wales.  Where they are an employee their employer will be vicariously liable and I have argued elsewhere that will also be true for volunteers.   That would be true even if they acted without lawful authority because the whole point of vicarious liability is to apply when there has been a default.   There is NO chance that it would be the individual that would be the source of damages, it would be the State of New South Wales.

Would the landowner be entitled to compensation? State Emergency and Rescue Management Act 1989 (NSW) says (s 33):

(2) If the property of a person is taken or used under this section that person is to receive such compensation as may be determined by the Minister, but is not entitled to receive compensation.

(3) Any such person may apply to the Premier for a review of any determination as to compensation made by the Minister under this section.

So if the Minister takes possession of a person’s land and uses that as a place to release waters to reduce the impact of the flood downstream, the Minister is to determine the amount of compensation paid but it is an ‘ex gratia’ payment, that is there is no ‘right’ to the payment.  An appeal from the Minister’s determination lies to the Premier.

But just because that is what the Act says there is no entitlement to compensation under the Act, it doesn’t mean that there are not other legal remedies the landowner could apply.  What’s happening is that the landowner is being asked to fund the mitigation of properties downstream.    In Whalley v The Lancashire and Yorkshire Railway Company (1884) 13 QB D 131 following unprecedented rainfall, water built up against and was threatening to destroy an embankment.  To protect their embankment, the defendant railway company cut trenches to allow the water to escape onto the plaintiff’s land doing more damage than would have been done if the water had been allowed to accumulate where it was.  It was held that the defendants had no right to protect their property by transferring the potential damage from their own land to that of the plaintiff, and they were liable.

The situation mentioned here is not quite the same as it’s not the downstream property owners that are seeking to damage someone’s land to protect their own, but the SES but the principle is similar.  If the land along the irrigation is not going to flood, being protected by the irrigation channels that are there, deliberately damaging the levee to release the water and thereby causing the land that was otherwise not going to flood to suffer damage, is to ‘transferring the potential damage from [the downstream] … land to that of the plaintiff’.

The presence of s 33 may give rise to an argument that a common law remedy was removed but if the SES purported to act, given no express statutory power, then the State of NSW would be liable to make good the damage.   There are arguments of necessity in the sense of acting for the greater good, but I don’t think they’d work.  Necessity may be a defence to say touching someone to act in that person’s best interests, or for breaking the law (see The Doctrine Of Necessity – Explained (January 31, 2017)) but it’s not going to justify harming A for the benefit of B where A is in no way responsible for the harm occurring to B.   One simply can’t justify prioritising one person’s interests over another to that extent.

(3)    Who is responsible for repairing the breach after the flood has passed?

Fundamentally whoever owns it but in light of the discussion above, they could expect the State to meet those costs, if not actually arrange the repairs.


I was asked three question.  My answers are:

  • Does the SES Incident Controller have the legal authority to order such a breach?  If not, who does?

No, an SES Incident Controller relying on the State Emergency Service Act does not have that power.  The only person with that power would be the Minister during a declared state of disaster (but that would be delegated to the relevant Incident Controller).

  • If the breach causes consequential damage downstream that would not otherwise have occurred, is the person who ordered the breach then liable to be sued for damages?

No the person who ordered the breach would not be liable. The State of NSW would be liable, subject to any limitation on the common law that may be implied by the State Emergency and Rescue Management Act 1989 (NSW) says (s 33).

  • Who is responsible for repairing the breach after the flood has passed?

The owner but he or she could look to the State of NSW to contribute to if not meet the costs.

Important disclaimer

I thought hard about whether I should answer this question.  My correspondent said these questions came up at a meeting and ‘we all thought we knew the answer.  However, I’m not absolutely confident that we have it right’.  I was not told what they thought the answer was, so I don’t know if what I’ve written will confirm their view of the answer, or confirm that they were right not to be confident.

I would not have answered it if I thought the SES Incident Controller did have the power to order a breach.  On the page ‘about’ I say ‘This is not a place for providing specific legal advice, so I won’t be able to answer questions that are based on actual events’ nor would I want to give advice that I thought may be acted upon to cause significant damage.  If I said there was authority and someone acted on what is meant to be no more than a coffee shop chat, that would be risky for them and for me.  Where the advice is ‘you don’t have the power’ I feel more confident as no-one’s going to go and cause thousands of dollars of damage on my say so.

Even so, it should be noted that the issues raised by these question have been glossed over here and in particular I don’t have time to explore the relevant common law principles in sufficient detail.

My answer is that there isn’t relevant authority (at least not with the SES), but if the region thinks that this should be an option then the matter needs to be referred for professional legal advice, not a blog discussion.  NSW SES these days have an in-house lawyer who would be the first person to raise this with to explore in more detail whether or not the common law would be relevant, whether the SES Act should be amended or whether a relevant power could be incorporated via the Local Emergency Management Plan.

No one should rely on this blog as the final answer or the basis for future action.


Categories: Researchers


9 March, 2017 - 01:54

After writing my post MFB First Responders and Withholding Resuscitation (March 7, 2017) I was sent copies of two relevant CFA guidelines – EMR A 180 00 Do Not Resuscitate Orders (Issue 3, November 2004) and EMR A 185 00 Withholding of Treatment (Issue 1, November 2004).  These formed the basis of my post CFA Emergency Medical Response Guidelines (March 8, 2017).   Because of that post I have now been sent the complete set of CFA Emergency Medical Response (EMR) Operational Guidelines.  In that document, there are two more guidelines that causes me concern.  They are:

  • EMR A 140 00: Medical practitioner at the scene (Issue 2, November 2004) and
  • EMR A 140 01: Medical practitioner at the scene (Issue 2, November 2004).

EMR A 140 00 says

1. Firefighters may only hand their responsibility for patient care over to an on-duty AV crew, or a qualified medical doctor.

1.1 Doctors who elect to provide care on scene are accepting legal responsibility for the care of the patient.

EMR A 140 01 says:

1. When a medical doctor offers to provide assistance at the scene of an incident, CFA personnel should adhere to the following:

1.1. Determine if the person is a medical doctor and whether they are licensed to practice medicine in Australia;

1.2. Are they willing to take responsibility for the patient?

2. If yes:

2.1. Document the doctor’s name, address and telephone number on PCR form;

2.2. Hand responsibility over

2.3. Familiarise the doctor with CFA procedures and equipment as required;

2.4. Request doctor to sign PCR form prior to leaving scene; and

2.5. Assist, under the direction of the doctor.

3. If no:

3.1. Respectfully decline offer of assistance

3.2. Continue patient care according to EMR procedures

3.3. Handover patient care to AV crew when they arrive

The problem, and error, with both guidelines is the claim that ‘Doctors who elect to provide care on scene are accepting legal responsibility for the care of the patient’.  There’s no basis to believe that.  First it assumes that someone has legal responsibility but responsibility can be shared.  A doctor who is assisting firefighters is doing just that, assisting.  Doctor’s are not magicians nor do they have some fantastic rank or authority over everyone else.  They are trained medical practitioners.  If firefighters and a medical practitioner are working together in the best interests of the patient they are responsible for their own decisions and actions.  Each, too, would have some responsibility to supervise the other, so if the firefighters thought the doctor wasn’t helping it would be incumbent upon them to ask the doctor to leave, and if the doctor thought the firefighters weren’t doing something right it would be incumbent upon them to mention their concern.

That’s how it should work with paramedics and nurses too.  In hospitals nurses are responsible for nursing and doctors for medical care but they also have to flag with each other concerns for the patient or their care.  Days of subservient respect for doctors and the belief, and fiction, that everyone is working at the direction of the whim of the doctor are long gone.

That is a team work approach to acting in the best interests of the patient.  So a Doctor who elects to provide care on scene must accept legal responsibility for his or her actions and decision making, and the firefighters remain responsible for theirs.

The only circumstance where it might be correct to say the doctor is ‘accepting legal responsibility for the care of the patient’ is where the doctor is the patient’s treating doctor.  Perhaps someone has found their ‘90 year old, cold, lifeless great grandmother’ and has called both triple zero and the family doctor.  In that case the doctor may appear, identify him or herself and satisfy the firefighters that they are the patient’s doctor, and ask the firefighters to cease resuscitation.  In that case one could rightly say that the doctor was responsible for the decision to withhold resuscitation.  That is however quite different from a doctor observing that firefighters are doing CPR and coming over and offering to help.

EMR A 140 01 builds on that misconception.  The first thing to note is that when considering a doctor’s offer of assistance, firefighters are not directed to consider whether or not they actually need any help.   Can you imagine being a doctor, seeing firefighters performing CPR, offering to help and being asked ‘are you willing to take responsibility for the patient?’  The shock of realising that the firefighters first thought was a legal issue and not the best interests of the patient would be shocking.

You don’t need to be a doctor to do CPR.  Imagine a scene with more than one casualty where firefighters are stretched and a person identifies themselves as an emergency physician on holiday from the UK.  There is no reason not to accept that doctor’s offer of assistance and perhaps get him or her to continue cardiac compressions to free up a firefighter to help with other patients or facilitate access by Ambulance Victoria.  The questions of whether or not the doctor is registered in Australia or willing to take on responsibility for the patient are simply irrelevant to the question of whether or not the firefighters and patients would benefit from his or her assistance.

The questions should be the same whether an offer of assistance comes from a police officer, an off duty paramedic (from Australia or elsewhere), a nurse (from Australia or elsewhere) or a doctor.  Those questions should be:

  • Do we need help? and
  • Do we think this person provide the help we need?’

If there is a single patient requiring CPR, there is a full fire crew that are experienced, used to working together, who have the situation in hand and with Ambulance Victoria only minutes away it’s quite reasonable to say ‘no thank you, we’ve got it under control’.  Trying to incorporate a new member into the team, when you don’t know who they are and what they can do, will just decrease the efficiency of the team and hamper the rescue effort.  It would not be in the best interests of the patient.

On the other hand, if there are multiple casualties and access to the site is compromised so firefighters are stretched to the limit, a person who produces their London Ambulance ID and offers to help could be welcomed with open arms.   Equally the New Zealand nurse and the South African doctor the local St John volunteer or just a bystander.  There is no law that says you have to be licenced or registered to do the sort of things that these people might do in this emergency – cardiac compressions, airway management, bleeding control etc.

There is no guideline about accepting assistance at an emergency from people other than a doctor, and the guidelines on doctors EMR A 140 01 falsely assumes that there has to be a hierarchy not a team approach.  An offer to assist is just that, not an offer to take over and there is no reason to think that ‘Doctors who elect to provide care on scene are accepting legal responsibility for the care of the patient.’


The statement ‘Doctors who elect to provide care on scene are accepting legal responsibility for the care of the patient’ in EMR A 140 00 is simply wrong.

EMR A 140 01 repeats and compounds that error.  It is unethical as the driving concern is some misplaced fear of legal implications rather than identifying procedures that are in the best interest of those in need of assistance.   It is foolish as it means a firefighter might be willing to accept assistance from a paramedic, a nurse, a good Samaritan, but not a doctor unless the doctor is willing to commit him or herself to ‘take responsibility for the patient’.  No one is ‘responsible’ for the patient, everyone is responsible for their own actions and decisions.  Doctors and firefighters should be able to work together, when required, to advance the patient’s best interests.


Categories: Researchers

CFA Emergency Medical Response Guidelines

8 March, 2017 - 11:53

In response to the post MFB First Responders and Withholding Resuscitation (March 7, 2017) I have been provided with a copy of two guidelines issued by the Country Fire Authority (CFA).  I am not sure if these are the same as those issued by the MFB but I imagine that they are at least similar.  The documents provided are:

  • EMR A 180 00 Do Not Resuscitate Orders (Issue 3, November 2004) and
  • EMR A 185 00 Withholding of Treatment (Issue 1, November 2004).

I assume that they are still the current documentation.

I am sure that the CFA and Ambulance Victoria have lawyers, and I would hope that lawyers looked over these documents before they were issued, but whether they did or did not these documents are very disappointing and do not reflect either law or the principles of bioethics that support and justify medical treatment including resuscitation.

EMR A 180 00 Do Not Resuscitate Orders says:

Pre-hospital personnel may be presented with a document or identification tag that is claimed to be a “Do Not Resuscitate Order.” Such documents may be signed by a medical officer or the patient and may be either handwritten or typed.  Verbal requests may be made by guardians, family members or friends and it may be claimed that these statements represent the wishes of the patient.

CFA personnel are not in a position to make a legal judgement regarding the validity of documents which are presented at the scene of an emergency.  Likewise, CFA personnel are not in a position to make judgements about the validity of verbal statements.  If an emergency call has been placed, it should be assumed that someone present is either unaware of the DNRO, or disputes it’s validity or applicability to the situation.


  1. Documents or statements that are claimed to be “Do Not Resuscitate Orders” are not acceptable grounds for CFA personnel to withhold any form of treatment including resuscitation when in the act of emergency response.
  2. CFA personnel presented with documents or statements that are claimed to be “Do Not Resuscitate Orders” should proceed to give resuscitation and/or supportive measures as the patient and incident require, unless there are other acceptable grounds for withholding treatment.
  3. Acceptable grounds for withholding resuscitation or other treatment are detailed in Operational Guideline “Withholding of Treatment” – A 185 00.

EMR A 185 00 Withholding of Treatment says:

In the case of extreme age, debility or terminal disease, death may be expected and even desired. In such cases, a patient and their medical carers may have agreed that, in the event of death, no active resuscitation should occur. Emergency Services response should not normally be requested in such situations. Firefighters may, however, be dispatched to such situations as a result of initial panic or misunderstanding on the part of the caller or because of limitations to the information available to dispatchers.

Upon arrival at the scene, CFA personnel will not initially be in a position to judge that the call for Emergency Services assistance was invalid. As detailed in Guideline A180 00, written or verbal “Do Not Resuscitate Orders” are not in themselves valid grounds for withholding treatment.

Acceptable grounds for CFA personnel to withhold treatment are listed below.


  1. Treatment should only be withheld if:

1.1. Attempting to provide treatment would involve excessive danger for responding crew members or others present.

1.2. The patient fits the “obviously dead” criteria (see A-175-00 “Obvious signs of death”)

1.3. A conscious and oriented patient refuses treatment (see A-100-00 “Refusal of treatment”). Formally confirm the situation by having patient sign the “refusal of treatment” section of the PCR.

1.3.1. If a patient loses consciousness, treatment should be instituted)

1.4. Someone else takes responsibility for treatment not proceeding. This may be

1.4.1. AV (if prior to ambulance arrival this may be obtained vial clinical advisor).

1.4.2. Medical practitioner at the scene (see A-140-00 “Medical Practitioner at scene”). Formally confirm the situation by having Medical practitioner sign the ‘handover to doctor’ section of the PCR.

1.4.3. Person who initiated call (see A-090-01 “Denied patient access”). Formally confirm the situation as a “denied patient access” situation by having the person sign the ‘refusal of treatment’ section of the PCR.

1.4.4. Another person who physically or verbally actually denies access to the patient, or who agrees to technically deny access by signing the “refusal of treatment” section of the PCR (see A 090 00 “Denied Patient Access”)

1.5. If none of the above can be established, then CFA personnel should proceed to provide treatment as the patient and incident requires until handover to AV.

1.6. Ensure the situation has been fully documented on the PCR, signed and witnessed.

(I note that the material above has been typed by me from the document, it is not a photo or scanned copy.  The various errors and inconsistencies, eg in EMR A 180 00 “it’s” instead of “its” and in in EMR A 185 00 the close parenthesis at the end of [1.3.1] with no opening parenthesis, the inconsistent use of hyphens when referring to other guidelines and the inconsistent use of capital letters all appear in the original).

Do Not Resuscitate documentation

With respect to the claim that CFA personnel are in no position to judge the validity of a Do Not Resuscitate order or equally an advance directive refusing consent, this argument was raised by Dr Shulman when he gave a blood transfusion to a member of the Jehovah’s Witness who was carrying a card saying that she did not want blood under any circumstances (Malette v Shulman [1990] 67 D.L.R. (4th) 321). Notwithstanding that he treated her, with a blood transfusion, and saved her life but was still liable for assault.  He argued that he could not determine whether or not there was a valid refusal as he could not communicate with the patient.  The court said that she had done all that she could do to convey her wishes by signing and carrying the relevant card.  In the circumstances her wishes should have been honoured.  The Ontario (Canada) Court of Appeal held that ‘While in an emergency the doctrine of necessity may protect the physician who acts without consent, the doctor is not free to disregard a patient’s advance instructions. The plaintiff had conveyed her wishes in the only way possible’, further ‘Any doubts about the validity of the card were not rationally founded on the evidence’.   Robbins JA, on behalf of the court said

Unless the doctor had reason to believe that the instructions in the Jehovah’s Witness card were not valid instructions in the sense that they did not truly represent the patient’s wishes, in my opinion he was obliged to honour them. He has no authorization under the emergency doctrine to override the patient’s wishes. In my opinion, she was entitled to reject in advance of an emergency a medical procedure inimical to her religious values.

A DNR or other advance directive refusing CPR may not be based on religious grounds but that is not to the point.   As the court said:

The right of self-determination which underlies the doctrine of informed consent also obviously encompasses the right to refuse medical treatment. A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. Regardless of the doctor’s opinion, it is the patient who has the final say on whether to undergo the treatment. The patient is free to decide, for instance, not to be operated on or not to undergo therapy or, by the same token, not to have a blood transfusion. If a doctor were to proceed in the face of a decision to reject the treatment, he would be civilly liable for his unauthorized conduct notwithstanding his justifiable belief that what he did was necessary to preserve the patient’s life or health. The doctrine of informed consent is plainly intended to ensure the freedom of individuals to make choices concerning their medical care. For this freedom to be meaningful, people must have the right to make choices that accord with their own values regardless of how unwise or foolish those choices may appear to others…

In Hunter and New England Area Health Service v A [2009] NSWSC 761, McDougall J said:

A person may make an “advance care directive”: a statement that the person does not wish to receive medical treatment, or medical treatment of specified kinds. If an advance care directive is made by a capable adult, and is clear and unambiguous, and extends to the situation at hand, it must be respected. It would be a battery to administer medical treatment to the person of a kind prohibited by the advance care directive.

In Brightwater Care Group (Inc) v Rossiter [2009] WASC 229, Martin CJ set out

… a number of well-established principles.

23 The first is that a person of full age is assumed to be capable of having the mental capacity to consent to, or refuse, medical treatment: Re MB (Medical Treatment) [1997] EWCA Civ 1361; (1997) 2 FCR (UK) 541 (per Lady Justice Butler-Sloss); Ms B v An NHS Hospital Trust [2002] EWHC 429 (Fam); (2002) 2 FCR (UK) 1 [10] (per Dame Butler-Sloss); and Hunter and New England Area Health Service v A [2009] NSWSC 761 [23] (per McDougall J)…

24 Another principle well established at common law is the principle which has been described in the cases as the right of autonomy or self-determination. Lord Hoffmann has described this right as being related to respect for the individual human being and in particular for his or her right to choose how he or she should live his or her life: Airedale National Health Service Trust v Bland [1992] UKHL 5; [1993] AC 789, 826. Included within the right of autonomy or self-determination is the right, described as long ago as 1914 in the United States by Justice Cardozo, as the right of ‘every human being of adult years and sound mind … to determine what shall be done with his own body: Schloendorff v Society of New York Hospital 211 NY 125 (1914) , 129.

25 That right has been recognised in Australia and referred to with approval by the High Court: F v R (1983) 33 SASR 189, 192 – 193 (per King CJ); Rogers v Whitaker[1992] HCA 58; (1992) 175 CLR 479, 487. That right also underpins the established legal requirement that the informed consent of the patient is required before any medical treatment can be undertaken lawfully. That principle has been affirmed by the High Court on a number of occasions: Secretary of Department of Health and Community Services v B [1992] HCA 15; (1992) 175 CLR 218 (Marion’s case), 233 and Rogers v Whitaker, 489. Also see the English case of Airedale NHS v Bland, 857.

26 The corollary of that requirement is that an individual of full capacity is not obliged to give consent to medical treatment, nor is a medical practitioner or other service provider under any obligation to provide such treatment without consent, even if the failure to treat will result in the loss of the patient’s life [emphasis added]. That principle has been established by decisions in each of the major common law jurisdictions, including the United States (Bouvia v Superior Court of Los Angeles County 179 Cal App 3d 1127(1986), 1137 and 1139 – 1141); Canada (Nancy B v Hotel-Dieu Quebec (1992) 86 DLR (4th) 385; Malette v Shulman (1990) 67 DLR (4th) 321, 328); the United Kingdom (Airedale NHS Trust v Bland, 857 (Lord Keith) and 864 (Lord Goff); Ms B v An NHS Hospital Trust [16] – [21]); New Zealand (Auckland Area Health Board v Attorney General [1993] 1 NZLR 235, 245) and Australia (Hunter and New England Area Health Service v A, [9] – [15]).

27 The principle is applied without regard to the reasons for the patient’s choice, and irrespective of whether the reasons are rational, irrational, unknown or even non-existent: Re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18; (1993) Fam 95, 113 (cited with approval in Ms B v An NHS Hospital Trust [18] and Hunter and New England Health Service v A [15]).

So a person has a right to refuse CPR and that has to be respected.  If they communicate that to potential rescuers, perhaps through formal DNR documentation then they have ‘chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes’ of what those wishes are.   In the absence of some reason, some evidence, to doubt the validity of the document it must be honoured (see also Ignoring a medic-alert bracelet (July 19, 2015) and Medical tattoos offer important health information’ (March 3, 2012)).

Where a DNR order is made on the basis that the treatment is futile, that is given the patient’s underlying conditions it will not advance their interests, that too must be honoured.  Necessity only justifies treatment that is in the best interests of the patient and if the treating medical staff in consultation with the patient (to the extent that they can take part) and the family have decided that treatment is futile then it may be a battery to continue with that treatment; Airedale National Health Service Trust v Bland [1993] AC 789.

Requiring some reason to doubt the validity of a document is not the same as being unable to confirm its validity.  In guideline EMR A 180 00 Do Not Resuscitate Orders the CFA says “If an emergency call has been placed, it should be assumed that someone present is either unaware of the DNRO, or disputes it’s validity or applicability to the situation.”  The implication is that the very fact that emergency services have been called is itself reason to doubt the validity of the document. But in EMR A 185 00 Withholding of Treatment it says “Firefighters may, however, be despatched to such situations as a result of initial panic or misunderstanding on the part of the caller or because of limitations in the information available to dispatchers.”  These positions are clearly inconsistent.  There may be a valid DNR document that everyone agrees with but still emergency services are called ‘as a result of initial panic or misunderstanding on the part of the caller’.  The mere fact that a call has been made is not evidence to doubt the validity of the document.

The fact that the CFA is based in Victoria is even more problematic as the Parliament of Victoria has specifically made attempts to recognise and give effect to a person’s wishes.  Where a refusal of treatment certificate has been completed in accordance with the Medical Practice Act 1988 (Vic) the patient and their doctor have attempted to communicate their wishes in a way provided for by law.  A doctor would have to accept and honour such a certificate and so should the CFA.

As a matter of law, Do Not Resuscitate Orders” are valid grounds for withholding treatment in accordance with the terms of those documents.  That’s the very point of them. Failure to do so is to dishonour a patient’s right to self-determination and/or to impose futile treatment that is not in the patient’s best interest.  It is not justified by the common law of necessity or any other doctrine.

Denied patient access

The paragraphs on ‘denied patient access’ are also concerning because they are encouraging CFA firefighters to make decisions on fictitious grounds.   If a person says ‘the patient has a DNR order’ firefighters are meant to treat the patient unless the patient who made the call or any other person at the scene (but not necessarily their care giver, or attorney) ‘denies patient access’.  But the person may not deny access, they may say, ‘Come in, thanks for coming, we weren’t really expecting the CFA, we rang the ambulance because we thought we had to. Here’s mum’s DNR paperwork’.   To say ‘we’re going to resuscitate this person unless you pretend you’ve denied us access’ is just silly.  It gets worse at [1.4.4] where it refers to a person “who agrees to technically deny access by signing the “refusal of treatment”’.  Either access to the patient is denied or it isn’t.  If it is I would expect the CFA to be calling for police assistance because if someone has rung triple zero and someone else is denying the responders access to the patient, something is going on that needs urgent investigation.  No doubt the CFA could even use force to access the patient.

For someone to sign a refusal of treatment certificate they are not actually or technically denying access.  This is akin to the situation where paramedics advise people they don’t need to go to hospital and then say they ‘refused treatment’ (see Transport everyone or act as a professional? A question for paramedics (May 6, 2013)).  Trying to fit a story into a situation that relieves the responders of responsibility – I couldn’t treat as I was refused access (when you weren’t) or I couldn’t treat as I offered but the patient refused (when in fact the patient was advised treatment was not required) – is a terrible example of trying to shift responsibility and risk.  It is unprofessional.  People should be willing to stand by their decisions and record on patient records what actually happened or the records are meaningless.

If the person’s appointed guardian or other substitute decision maker has refused treatment it should be record as that, not as ‘denied patient access’.  And if the CFA is going to accept that the person who initiated the call or any other person at the scene can refuse treatment, they should record that and not pretend that they have been ‘physically or verbally’ or ‘technically’ (whatever that means) denied access.  And if they accept that the person who initiated the call, or any other person can refuse treatment they should also accept that the patient can refuse treatment by communicating that decision through their DNR paperwork.

Accepting that a person can refuse treatment if they sign off on the PCR is to say ‘we will accept the DNR order if you sign this form’ as if that absolves the CFA from all responsibility. It doesn’t.  The CFA is responsible for what the CFA does and a decision to accept the refusal of treatment by anyone who is prepared to pretend that they have denied patient access (see [1.4.4]) is worse than acknowledging that the CFA is giving effect to the DNR order.  It is one thing to say ‘we withheld resuscitation as we were presented with a DNR order, apparently signed by the patient, and their doctor and supported by the people there where we had no reason to doubt its authenticity’; quite another to say ‘a person, any person, at the scene agreed to ‘technically deny patient access’ by signing the form so we stopped treatment’.

Pretending that the person has ‘denied patient access’ is just that, a pretence, and a pretence doesn’t change the legal situation or the fact that the decision to withhold resuscitation is a choice of the CFA.  Such attempts at fiction brings the conduct of the CFA and the value of its PCR as evidence into disrepute.


Failure to honour an advance directive or DNR order is a failure to respect the person’s right to make decisions about their medical care and is contrary to law.    There is nothing in the CFA Act or the common law to justify the blanket refusal to consider DNR documentation set out in the CFA guidelines.

The CFA, in conjunction with Ambulance Victoria should be rewriting these to make the two guidelines consistent with each other, and with the current state of Victorian law.  Failure to do so is a failure to provide an appropriate and professional service to the Victorian community and is also a failure to properly prepare CFA members for the situation they may face.  It may also leave them vulnerable to cross examination and criticism in rare but foreseeable circumstances where their actions and decision making are reviewed by a coroner, a court or police and they claim they were ‘denied access’ when that is not what really happened.

Categories: Researchers

MFB first responders and withholding resuscitation

7 March, 2017 - 21:13

This question comes from a fire fighter with Victoria’s Metropolitan Fire Brigade (the MFB).  The MFB provide an emergency medical first response to provide immediate care pending arrival of Ambulance Victoria paramedics (see Metropolitan Fire Brigade, Emergency Medical Response (2009)).   The question relates to Do Not Resuscitate (DNR) documentation.   My correspondent says:

I work as a firefighter with the MFB in Melbourne. As such, we are dispatched along with the ambulance service to 000 calls for emergency medical where CPR may be required.

When we arrive before the Ambulance Service, we are trained to assess if the patient is “Obviously Dead” and, if not, to commence treatment. “Obviously Dead” is much more definitive than “no signs of life”.

In a formal setting, perhaps a nursing home, if the staff have a DNR that they recognise and there are no signs of life, we might not commence treatment.

In a less formal setting: a home with the family around, a squat with drug users, a public place with random “friends”; someone might say that the patient has a DNR. They might even produce a document.

While it is relatively easy to carry on and commence CPR and ignore a “perhaps DNR” is some cases; starting CPR on a 90 year old, cold, lifeless great grandmother, dragging her out of bed, exposing her chest and cracking her ribs with her grandchildren in the next room while her daughter says “but, this is her DNR!” is a stressful moral decision to say the least.

These are emergency responses and the facts are not often clear.

The person holding the DNR may be the only other person present. They may be the beneficiary of the estate. They may have just smothered the patient. They may have legal power of attorney, or, they may be seriously psychologically damaged by the knowledge that their loved one’s peaceful death was unnecessarily marred by a gross physical intrusion.

We are not lawyers, or notaries or judges. And we are only there because seconds count; we have no time to play detective.

In the best of all possible worlds, we would not be called to such cases, but we are.

So, how do we recognise a “valid” DNR? And what legal authority do they carry?

I have addressed some of these issues with respect to Victorian ambulance officers in an earlier post – Withholding Resuscitation in Victoria (April 8, 2013) but there are some further issues here.

Victoria has led the way in giving effect to these principles with the Medical Treatment Act 1988 (Vic).  That Act provides for a prescribed form for a Refusal of Treatment Certificate (see s 5 and Schedules 1 and 3).  Where there is a certificate, s 9 says that a medical practitioner:

 … or a person acting under the direction of a registered medical practitioner who, in good faith and in reliance on a refusal of treatment certificate, refuses to perform or continue medical treatment which he or she believes on reasonable grounds has been refused in accordance with this Act is not—

(a) guilty of misconduct or infamous misconduct in a professional respect; or

(b) guilty of an offence; or

(c) liable in any civil proceedings—

because of the failure to perform or continue that treatment.

Let me assume that a member of the MFB is not also a registered medical practitioner, nor are they acting under the ‘direction’ of a medical practitioner so this section doesn’t apply to them, but that doesn’t matter because the Act says (at s 4) ‘This Act does not affect any right of a person under any other law to refuse medical treatment.’

As noted in earlier posts ‘except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’ (see, most recently, Institutionalised Patient Refusing Paramedic Transport for Booked Treatment (March 6, 2017)).  In an emergency, the doctrine of necessity justifies treatment that is reasonable and in the patient’s best interests, but it does not justify treatment that is contrary to the known wishes of the patient (see The Doctrine of Necessity – Explained (January 31, 2017)).  Where DNR documentation has been completed that is evidence both that the treatment is contrary to their wishes and is not in their best interests (see “A straight forward answer to a DNR” (March 6, 2017)).   It follows that a clearly expressed wish that a person does not want DNR is legally binding (see ‘Medical Tattoos Offer Important Health Information’ (March 3, 2012)) and is binding without reference to the Medical Treatment Act.

It is certainly the case that it would be better not to be called to such cases and one does wonder why a family member in possession of a DNR order would call triple zero upon discovering their ‘90 year old, cold, lifeless great grandmother’ but it maybe that they simply didn’t know who else to call or what else to do (though ideally that should have been discussed when the DNR documentation was being completed).

The reality is that it is indeed difficult and that these are ‘emergency responses and the facts are not often clear’ so the answer is the fire fighters and then the paramedics have to make the best judgment that they can.  If there is a signed certificate that appears to have been executed under the Medical Treatment Act 1988 (Vic) then that should be honoured.  If the circumstances are consistent with a prior refusal, so the person is at home or in an institution with evidence perhaps to confirm that they were at the end stage of their life then it would be easier to accept their written DNR.  On the other hand, you would not accept the words of a bystander if there is a young person collapsed after a hard night partying and the unidentified bystander says ‘they always said they didn’t want to be resuscitated’.

As a fire fighter, the member can be sure that if there is an allegation of battery (for providing CPR that had been refused) or for negligence (for withholding CPR that had not been refused) any liability will belong to the MFB (see Metropolitan Fire Brigades Act 1958 (Vic) ss 54A and 55D) but I appreciate liability is not really the issue, it’s what to do in the patient’s best interests.

To answer that question is, as my correspondent says, difficult.  The short answer is that if the patient has refused CPR, or if they are not competent to do so, their lawfully appointed agent or guardian has refused treatment, that refusal decision should be honoured.   The best way to identify a valid DNR order is to see a certificate that meets the requirements set out in the Medical Treatment Act 1988 (Vic) but a valid refusal does not have to comply with that form.    Ultimately what to do is a judgement call, to be made on a case by case basis, with due regard to the fact that seconds count so not a lot of time can be spent addressing the issue.

Categories: Researchers

Level of first aid care expected from a non-emergency patient transport officer

7 March, 2017 - 00:05

This is another concerning question; concerning because the agency for which my correspondent works should have answered this and the fact that they have to ask me makes me question the professionalism of the agency.  Today’s correspondent works

… for a hospital as a Patient Transport Officer.  I have a position description which is silent on what interventions with patients is required of me.

The vehicle is fitted with a defibrillator and a first aid kit.  If a patient requires CPR, am I required to ventilate the patient? If so, by what method as a minimum would this entail (‘Laedal’ type mask with filter, Bag Valve mask)?

I also transport 2 day old infants to another facility with the mother. If the infant was to respiratory arrest, what actions would be required of me apart from requesting an emergency ambulance?

I presume that a patient transport officer has, at least, a current first aid certificate and ideally a Certificate III in Non-Emergency Patient Transport which would include advanced first aid training (see  Failure to have that sort of training makes the person a ‘driver’ but not a ‘Patient transport officer’.

As the driver of people with a medical condition and as part of the hospital the driver, and the hospital, have a duty of care to their patient.  That duty must be a duty to provide ‘reasonable care’.  If the driver doesn’t know what that means, you have to ask what sort of training and quality assurance does the employer hospital have?

Whether CPR requires ventilation is a matter of what is reasonable.   The Australian Resuscitation Council Guideline 8 on Cardio-Pulmonary Resuscitation says ‘All rescuers should perform chest compressions for all those who are unresponsive and not breathing normally … those who are trained and willing to give breaths do so for all persons in cardiac arrest’.  It is noted that this is a ‘weak recommendation [with] very low quality of evidence’ ([3.1]).

But what is concerning is that my correspondent doesn’t feel trained or confident trained to give breaths nor trained and equipped with appropriate PPE whether that is a face mask, a soft bag or an oxygen resuscitator.

So the answer to the question ‘am I required to ventilate the patient?’ depend on the training received and equipment supplied.  At the end of the day it’s not going to make much of  a difference,  If the patient has a cardiac arrest and dies it’s going to be impossible to say that the absence of ventilations made a difference; but it’s a bad look if patient transport officers aren’t willing to provide the best care for their patients which prima facie includes ventilation.  Patient transport officers should be trained and drilled to ensure that they are both competent and proficient in such basic skills and they should also be equipped to ensure that they can provide optimal care.

With respect transporting a 2 day old infant who has a respiratory arrest, what would be required is the application of appropriate first aid in accordance with the officer’s training, which should include first aid and resuscitation.   Standing by and watching the child die, whilst saying ‘I’ve run triple zero, that’s all I have to do’ is not going to pass the tabloid test of acceptable care, even if it wouldn’t have made a difference.

To return to my starting point, what really concerns me is that this correspondent had to ask the question.  If he or she doesn’t have appropriate training then he or she is a taxi driver not a ‘Patient Transport Officer’ (and even taxi drivers probably have a first aid certificate).       Their employer should not only require them to have the training they should be given opportunities to practice their skills (refresher drills) and equipped to ensure that they are confident to perform CPR and other first aid should it be required.     Patients wouldn’t expect the transport officer to just look on whilst patient’s die and that would not be ‘reasonable care’ from a hospital which includes the hospital operated patient transport service.

If my correspondent isn’t trained, confident, equipped and given a position description or procedures that does explain what is required of him or her, of have someone other than me they can turn to for answers, it makes me question the professionalism of the institution he or she works for.


Categories: Researchers

Identifying hospital patients to issue ‘on the spot’ fines

6 March, 2017 - 23:37

This question comes from

… a security officer (authorised officer) at a hospital in South Australia. We periodically issue expiation notices under the Health Care Act 2008 (SA) for breach of by-laws.

We have the power to require a person to provide their name and address when they have committed an offense under the by-laws.

However, if a person refuses to provide their name and address, are we allowed to obtain their name and address from nursing staff?


The Health Care Act 2008 (SA) s 42 says that ‘An incorporated hospital may make … by-laws for’ a number of purposes such as regulating traffic and parking and to regulate access to and behaviour on hospital premises.  The maximum penalty that can be provided for in a by-law is a fine of $1000 or an ‘expiation fee’ of $200.

The concept of an ‘expiation fee’ and ‘expiation notice’ seems unique to South Australia.   According to the Oxford dictionary (online) expiation means ‘The act of making amends or reparation for guilt or wrongdoing; atonement.’  If you receive a notice it says you can ‘expiate’ (or make amends) for your ‘guilt’ by paying the fee rather than go to court.  It is, in effect, an ‘on the spot fine’ with a fancy name.   The management of expiation notices is governed by the Expiation Of Offences Act 1996 (SA).

The power to ‘require the person to provide the person’s name and address’ is found in the Health Care Act 2008 (SA) s 42(2)(a).    A person who ‘without reasonable excuse, fails to answer, to the best of the person’s knowledge, information and belief, a question put by an authorised officer’ is guilty of an offence that carries a maximum fine of $10000.  An authorised officer may also ‘restrain a person to the extent necessary to exercise a power under subsection (2)’; in effect an authorised officer may arrest a person who fails to provide their name and address when required to do so.   Given the failure to comply with s 42(2) is itself an offence, it is a matter that can be dealt with by police.

We now get to the question ‘if a person refuses to provide their name and address, are we allowed to obtain their name and address from nursing staff?’   The first thought I have is how would you identify the person to the nurse to make sure they were giving the correct details.  If the nurse saw whatever it was they might know who the person was, or I suppose a security guard could follow the person back into the ward and ask the nurse – who is that person?  But that would hardly be sufficient information on which to issue an expiation notice.

But putting that aside let’s assume the nurse knows, or can look up the medical record to find, the patient’s name and address.  Let us also assume the only reason the nurse knows the person’s name is because they have been treating them.  A person’s name is not the same as confidential medical information but the principal is still that the person gave their name to the staff for medical care, not law enforcement.  I think it would put the nursing staff in a difficult position to ask them to identify a patient so they could receive a fine.

The hospital’s records, on the other hand, are maintained for reasons beyond patient care including invoicing for health care.   It may be more appropriate to seek the information from admissions staff rather than nursing staff.  If I was a nurse I would certainly be uncomfortable about giving you that sort of information as it is inconsistent with the purpose for which the information is given.

A person’s name and address is not confidential information in the same way that details of their condition and treatment is; but it would be ethically dubious to ask nursing staff to release that information to security so that they can issue an expiation notice.  Given we have to be talking about a patient (the staff aren’t’ going to have the details of a visitor) the appropriate course would be remind the person that they must provide details of their name and address and if they don’t, call the police.   Whether the security officer or admissions staff can access the patient’s record is really a question that should be directed to the hospital as they write the by-laws, employ the staff and own the records.

Categories: Researchers