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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD, Australian Lawyer. Email: meburn@australianemergencylaw.com
Updated: 17 hours 48 min ago

Conviction for hindering QAS officer upheld

20 July, 2019 - 18:29

The Ambulance Services Act 1991 (Qld) s 46 says ‘A person must not wilfully obstruct or hinder any person acting under the authority of this Act’.  The maximum penalty is a fine of 16 penalty units.  (In Queensland a penalty unit is $133.45 (Penalties and Sentences Regulation 2015 (Qld) r 3).  That means the maximum penalty for this offence is a fine of $133.45 x 16 or $2135.20).

On 14 May 2018 Mr Gebicki was convicted of this offence.  He appealed to the District Court (Gebicki v Commissioner of Police [2019] QDC 108).  The appeal was heard by His Honour Devereaux SC DCJ.    His Honour (at [3]-[4]) set out the evidence of the two paramedics involved.

Queensland Ambulance Service ambulance officer, Mr Thompson, gave evidence that [on 27 September 2017] he and his partner, Ms Bayntum, responded to a call to help the appellant’s wife, who was 36 years old and pregnant.  They drove to the appellant’s property at Mount Perry.  Ms Bayntum, who was the designated treating officer, decided the patient should be taken to hospital.  The appellant’s child seemed to the officers to be in such a poor state of health that she, too, should be taken to the hospital.  At talk of getting a bag ready for the child, the appellant said, “nobody’s leaving without me.”  He grabbed a CB radio and spoke into it, “Lock the gates. Secure the premises, nobody is to enter or exit.”  The ambulance officers put the mother and daughter into their vehicle.  Mr Thompson drove towards the gate but found it locked with two bike locks.  An elderly woman, the appellant’s mother, came out of a makeshift house at the top of the driveway.  She ignored his demand that she open the gate.  He took a bolt cutter and cut through both locks.  The ambulance officers took the patients to a hospital at Bundaberg.

Ms Bayntum gave evidence to similar effect…

The magistrate accepted that the two paramedics were acting under the authority of the Ambulance Services Act, that the gate was locked and was locked as a result of Mr Grecki’s command and that the officers were thereby hindered in their duty.

At the appeal, the appellant sought to introduce new evidence in the form of bodycam video from Acting Senior Constable Moxley taken on the 28th September.  The appellant argued that the footage did not show the officer taking a photo of the gates as he claimed in evidence.  Rather the photo that the officer produced was taken on 3 October.  His Honour refused leave to allow the appellant to rely on the video.  At [15] the judge said:

The thrust of the appellant’s attack was that the prosecution did not have sufficient evidence of the charge because it could not be proved that the locks were cut.  Ambulance officer Thompson swore to cutting the locks.  The appellant did not put to Moxley that the locks were not cut when he saw them, but suggested they had been cut at an earlier time.  In the result, Moxley’s possible inaccuracy about when he took his photo, whether a lie or a mistake, went to his credibility but not to any issue in the trial. I am not satisfied there are special grounds for leave to rely on that recording on the appeal.

Having dismissed the application to tender new evidence, the judge went on to deal with the grounds of appeal, that is the various claims of legal error by the Magistrate.  The first ground was that the Magistrate had refused the appellant’s application for an adjournment.  After the Crown case had finished the appellant asked for an adjournment in order to allow him to bring to court a former local police officer who would give evidence that he had cut the locks to the appellant’s gate in January 2017, the ‘implied relevance of the evidence was that it precluded the cutting of the locks by Thompson’ ([19]).   The magistrate refused to allow the adjournment.  Devereaux DCJ found no error in the Magistrate’s refusal to allow an adjournment.  He said (at [20]) ‘That discretionary decision was open to the magistrate.  It was for the appellant to have witnesses ready on the day that had been set for his trial’.

The appellant also argued he was not allowed to call his mother to give evidence.  This matter was not raised with the Magistrate until after the closing addresses and after the appellant had declined to lead evidence.  In any event Judge Devereaux invited the appellant to file an affidavit with the evidence that Mrs Baker would have given had she been called.   In fact, he filed a document signed by himself saying Mrs Baker ‘did not see an ambulance officer obtain or use a cutting device on the property’.  The statement did not address whether Mrs Baker received instructions from the appellant to lock the gate or secure the property’ ([22]).  His Honour held that this document did not contain any evidence that would or could raise a doubt about the accused’s guilt.

At [25] the appellant argued that he was not allowed to play a video to the court or produce documents.  His Honour said:

.. upon the appellant’s request, the court played the recording of the Queensland Ambulance Service radio communications during Thompson’s evidence.  This allowed the appellant to cross examine on it.  There was no other request by the appellant to admit or play video or audio evidence.  There was also no attempt to admit into evidence material, including reports, produced by Bundaberg Base Hospital or any government department.

This ground of appeal fails.

The appellant had been given, prior to the hearing in the Magistrate’s court, a document entitled ‘Unrepresented Defendant Trial Information’.  He claimed, on appeal, that he had been unable to read the document.   Unfortunately for the appellant (at [28]):

The learned magistrate asked the appellant prior to his arraignment to confirm that he had received a copy of this document and that he understood what the document outlined, and the appellant confirmed that he understood. No issue of procedural unfairness arises in the circumstances.

The appellant further argued that because Queensland police elected not to continue with a prosecution of the appellant’s mother, his conviction should not be allowed to stand.  At [31] Devereaux DCJ said ‘This matter is irrelevant to the guilt of the appellant…  I do not consider it as a ground of appeal’.

Unlawful actions of the paramedics

This ground of appeal, although unsuccessful, will be of most interest to the readers of this blog.  In essence the argument was that there no need and therefore not right for the paramedics to take the child to hospital. To support this ground the appellant sought to introduce letters from the Department of Communities, Child Safety and Disability Services that confirmed that the Department did not consider the appellant’s children were in need of protection.  Devereaux DCJ said (at [35]-[38]):

The two letters from the Department confirm the result of its officers’ assessment of the appellant’s children was “[u]nsubstantiated” as “children not in need of protection”.  The letters are consistent with the appellant’s assertions from the bar table that the child was under treatment at the relevant time.  In the circumstances, he may well have felt it unnecessary or wrong for the ambulance officers to take the child, but that did not mean the officers’ actions were unlawful.

The Queensland Ambulance Service’s functions are set out in s 3D of the Act and include, “to protect persons from injury or death, whether or not the persons are sick or injured” and “to provide transport for persons requiring attention at medical or health care facilities”.

The appellant put to Thompson in cross-examination that the witness was unaware the child was already under treatment and that Thompson assumed the child was not being treated.  While Thompson accepted that the appellant had told him at the time that the child was under treatment and that he was shown a cream used for that purpose, he said he could not read the medical label on the cream in the lighting conditions and said, ‘no amount of [indistinct] cream that you had was going to fix this problem that your daughter had.’

Although Thompson appears to have been overwhelmed by the circumstances of the appellant’s residence, and this might have affected his judgment, the ambulance officers were nevertheless entitled to form the view that the child required medical attention.  In my opinion, and as the learned magistrate found, the transporting of the child was lawful, based as it was on the professional assessments of the officers in all the circumstances they were presented with.

Outcome

The appeal was dismissed.   We are not told what the penalty, imposed by the Magistrate was, but there was no appeal against sentence ([33]) so whatever that penalty was, it would stand as the final penalty in the matter.

Discussion

This case does not create a significant precedent but it is worth reporting here as these sorts of prosecutions are rare, and appeals are even rarer.  As a (former) legal practitioner it was not uncommon for people to come to court and tell you that they had all sorts of witness who could discredit the police but that evidence has to be at court on the date of the hearing.  An accused doesn’t get to hear the Crown case and then decide how they want to respond.   Further, it is common for people to believe all sorts of irrelevant material goes to their guilt, eg whether someone else is prosecuted or not or, as the appellant said at [32] ‘… that his conviction has had consequences for his family and wife’s health care’.  As Devereaux DCJ said ‘These submissions, and the submission that no consideration was given to the appellant’s anxiety, cannot have any bearing on the soundness of his conviction’.

Further just because you say something (as in this case, that the gate was not locked) that does not mean a court cannot be satisfied beyond reasonable doubt that the opposite is true.  In this case the appellant had argued, before the Magistrate (see [19]), that

… there was no case to answer because, among other things, there was no proof the gate was actually locked, there was no evidence of the state of the locks before the ambulance arrived and no scientific evidence matching the bolt cutters to the condition of the locks.

This sort of argument comes from watching too many episodes of CSI and thinking everything has to be, and can be, supported by scientific evidence.   The evidence that the gate was locked came from Ambulance Officer Thompson who said, on oath, that it was locked and that he cut the locks open.  More is not required.

The important thing was the recognition of the right and capacity of the ambulance officers to make a clinical judgement in the circumstances presented.  It is however important to note that the judge did not address the Ambulance Service Act 1991 (Qld) s 38 which says:

(1) An authorised officer, in providing ambulance services, may take any reasonable measures—

(a) to protect persons from any danger or potential danger associated with an emergency situation…

(2) Without limiting the measures that may be taken for a purpose specified in subsection (1) (a) or (b), an authorised officer may, for that purpose—…

(h) administer such basic life support and advanced life support procedures as are consistent with the training and qualifications of the authorised officer.

We might infer that His Honour did not address s 38 as the issue of consent was not raised.  We are told that the original call was to assist Ms Bayntum, the appellant’s wife.  We are told that the ‘ambulance officers put the mother and daughter into their vehicle.’ so we can infer that Ms Bayntum was the mother of the child concerned and either expressly or by implication she consented to the child’s treatment and transport if she cooperated with or was capable of cooperating with the paramedics when the daugther was also put in the ambulance.  We are told that the appellant said “nobody’s leaving without me” and ordered the gates locked and it was that action that was said to hinder the officers.  It is therefore not clear whether the judge would hold that transporting the child would have been lawful if both parents objected ‘based as it was on the professional assessments of the officers’.   All one can infer is that the appellant did not argue that the decision to transport was unlawful because of his refusal of consent.  That may have been because Mr Gebicki was unrepresented and did not think of it, or because Ms Bayntum was the child’s mother and gave either express or implied consent to the child’s treatment and transport.

For whatever reason it appears that he argued that the decision was unlawful because it was not necessary.  In response to that argument, Devereaux DCJ confirmed that the decision of whether treatment and transport is necessary in order to ‘…to protect persons from injury or death, whether or not the persons are sick or injured’ and ‘to provide transport for persons requiring attention at medical or health care facilities’ (Ambulance Service Act 1991 (Qld) s 3D and Gebicki v Commissioner of Police [2019] QDC 108, [36]) is a matter for the clinical judgement of the ambulance officers.

Categories: Researchers

Working with children check for QRFS and SES

12 July, 2019 - 15:19

A correspondent with Queensland’s Rural Fire Service has written to me regarding the requirement for fire service and SES volunteers to obtain a working with children’s check – a blue card.  I have also been provided with an email from the QFES Commissioner addressed to all staff and volunteers and a copy of the Queensland Crown Law’s advice.

The critical issue is the requirement to hold a blue card as set out in the Working with Children, (Risk Management and Screening) Act 2000 (Qld).  For the purposes of this Act a volunteer is equated to an employee (s 161) so it does not matter whether the members are employees or volunteers.   The Act applies to any employer engaged in regulated employment.  What is regulated employment is set out in Part 1 of Schedule 1.  TWhat is regulated employment is set out in Part 1 of Schedule 1.  The Crown Law office identified that the relevant provision is cl 6(1)(b), Health, Counselling and Support Services.  That clause says:

Employment is regulated employment if the usual functions of the employment include, or are likely to include, an employee providing 1 or more of the following—…

(b) a health service to a child other than at a health facility—

(i) that, by its nature, requires physical contact with the child; or

Example for subparagraph (i)—

a person providing massage services to children

(ii) if the employee is physically present with the child while no-one else is present;

The Crown advice says:

The term ‘health service’ is defined in s 6(4) of schedule 1, part I of the Act. Paragraph (b) of the definition is not relevant as there are no services prescribed under the Working with Children (Risk Management and Screening) Regulation 2011. Accordingly for the employment of QFES and SES employees and Volunteers to be ‘regulated employment’ it must be a ‘service for maintaining, improving, restoring or caring for a person’s health or wellbeing‘ within the meaning of s 6(4)(a) of schedule 1 of Act.

There is a reference error there, the relevant clause is 6(5), not 6(4).  Section 6(5) says:

In this section—

health service means any of the following—

(a) a service for maintaining, improving, restoring or caring for a person’s health or wellbeing, including, for example, the following—

(i) a service providing personal care to a person who is ill, injured or otherwise infirm;

Examples of providing personal care

help with personal hygiene

help with dressing

services provided by an assistant in a ward of a hospital, including lifting and turning bedridden patients and moving patients from a place to another place

The solicitor writing on behalf of the Crown is of the view that first aid is ‘a service for maintaining, improving, restoring or caring for a person’s health or wellbeing’.  The term ‘personal care’ is not defined.  As for the examples given, the Crown’s opinion is:

An argument exists that s 6(4)(a) [sic] ‘must be interpreted in the context of the section as a whole and that the provision of first aid by QFES and SES ‘officers is not squarely consistent with other services identified in s 6(4)(a) [sic] of schedule l of the Act. However in my view an alternative reasonable argument exists that the list of services set out in s 6(4)(a)(i) to (v)[sic]  of schedule 1 are merely examples used to expand on the otherwise broad meaning of s 6(4)(a) [sic]. The intention not to limit the general operation. of the term ‘health service’ is evident from the inclusion of the words ‘including, for example.

I would go so far as to suggest that first aid is consistent with 6(5)(a)(i) in that first aid is ‘providing personal care to a person who is ill, injured or otherwise infirm’ but it does not fall withing the examples given to expand on the meaning in either s 6(5)(a)(i) or s 6(1)(b)(1).

With respect to the question of whether ‘the usual functions of the employment [with QFES or SES] include, or are likely to include’ providing first aid to children the Crown solicitor says:

I am of the view that the term ‘usual function’ is broad enough to encompass functions that may not be frequently performed but which are likely to be a common or customary function of the particular employment. In this regard, we note your instructions that there is an expectation that QFES and SES employees and volunteers may be required to provide first aid or attend to an injured person (including a child).  We also note your instructions that, whilst the functions set out in ss 53 and 130 of the F&ES Act may not be an everyday occurrence, they are a normal part of the QFES and SES employment or job description.

On this basis, I consider the ‘usual functions’ of QFES and SES employees and volunteers are likely to include the provision of first aid and other services to an injured child.

She then considered whether ‘the usual functions of a QFES or SES employee or volunteer’s employment are “a health service to a child other than at a health facility”.’  She said:

… whilst the matter is by no means beyond doubt, I am of the view that a sound argument exists that the definition of ‘health service’ set out in section 6(4) of schedule 1, part 1 of the [Working with Children, (Risk Management and Screening)] Act, is broad enough to cover some of the functions and activities undertaken by both QFES and SES employees and volunteers in the course of their employment, such as the provision of first aid to children.

Finally, it is relevant to note that police officers, corrective service officers and ambulance officers are specifically exempt from the application of Chapter 8 by s 30, schedule 1, part 3 of the Act.  Arguably, the services provided by police officers, corrective services and ambulance officers, are somewhat comparable to those provided by QFES and SES employees and volunteers (although it is clearer that the services provided by ambulance officers are ‘health services’).  The exception of police, correctional and ambulance officers from the requirement to have a Blue Card under the Act indicates that functions provided in an emergency response situation that involve providing a ‘health service’ to a person (including a child), such as the provision of emergency first aid, would ordinarily constitute ‘regulated employment’ for the purposes of the Act.

For completeness, given the issue is not beyond doubt, we would recommend the Act be amended to make express provision at schedule 1, part 3 for exemption QFES and SES officers from the application of the Act, similar to the manner in which police officers, correctional officers and ambulance officers are exempted.

She further considered whether the work of QFES and SES would require members to have physical contact with children or be physically present with children whilst no-one else is present.  She said:

Actions undertaken by QFES or SES employees or volunteers to protect persons or help injured persons in emergency situations may require physical contact with a child in some circumstances.  For instance, the provision of first aid or rescue services, in most cases, will require physical contact between the person providing the service and the person (or child) who is being provided with the service.

Further, as both QFES and SES provide services in response to emergency situations, it is likely that in some case the actions of QFES and SES employees and volunteers will occur in the presence of a child whilst no-one else is present.  However, the frequency of this situation occurring is not clear and is difficult to quantify due to the nature of emergency response services.

Accordingly, I am of the view that a sound argument exists that the ‘usual functions’ of QFES and SES employees and volunteers are likely to include ‘a health service to a child other than at a health facility’ which either ‘requires physical contact with the child’ or may occur ‘whilst no-one else is present’.  Therefore, the requirements in chapter 8, part 4 of the Act will in my view likely to apply to both employees and volunteers of the QFES and SES.

On that basis she concluded the work of QFES and SES did constitute regulated employment with the consequence that members would be required to have a ‘current positive notice’ that is a ‘blue card’ (s 188).

My correspondent says:

…it would appear that through interpretation of the Fire Act, brigades are now a health service and/or support service to children. This would then imply that 1st aid would need to be a requirement for all brigade membership? Currently only 2 brigade members from each brigade are supplied with 1st Aid Training at state expense.

I’m pretty sure that when the Act says

(3) In this section—

fire prevention includes taking measures in readiness for fire so as to reduce potential danger to persons, property or the environment.

They weren’t thinking about anything apart from defending people and stuff from fire.

So my initial questions are 4:

  1. Was the intent of the Fire Service Act 1990 to have Rural Fire Brigades considered as providing a health service and/or support service for children?
  2. What extra obligations will non-PPB brigade now have if they are providing a health service and/or support service for children?
  3. Is it a reasonable argument that the ‘usual function’ of a Rural Fire Brigade include or are likely to include providing a health service to a child?
  4. As a brigade member who is not an active firefighter, rather a member of the brigade who attends meetings to take minutes or as treasurer or other non-outward facing roles, are they now providing a health service and/or support service for children?
Answers Question 1

I think we can safely say that when the Fire and Emergency Services Act 1990 (Qld) was passed, no-one had in mind the provisions of the Working with Children, (Risk Management and Screening) Act 2000 (Qld) given that the second Act was passed 10 years after the first.  That is not however, the relevant question.  The question is whether when passing the second Act the legislature intended to capture the sort of work done by QFES and SES.   The answer to that question does not however, determine the matter.  Whether the legislature realised they would, or would not, capture the sort of work done by QFES and SES is irrelevant if the plain meaning of the words does in fact capture that work.

The obligation is to give effect to the words used.  If and only if there is ambiguity does one look to see what the supposed purpose may have been in order to give a meaning that is most likely to advance that purpose (Acts Interpretation Act 1954 (Qld) s 14A).  The Act that is being interpreted is the Working with Children, (Risk Management and Screening) Act 2000 (Qld). The object of that Act (s 5) is:

… to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring— …

(b) the screening of persons employed in particular employment or carrying on particular businesses.

Further (s 6):

This Act is to be administered under the following principles—

(a) the welfare and best interests of a child are paramount;

(b) every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.

Accordingly the Working with Children, (Risk Management and Screening) Act 2000 (Qld) including schedule 1 cl 6 should be interpreted in a way that most advances those objectives.  It’s noted that the Crown’s interpretation is not ‘beyond doubt’ but given the alternatives the Crown’s view may be the interpretation that is  most likely to advance the purpose of the Working with Children etc Act.

Question 2

A non PPB brigade is a non Primary Producer Brigade.  I’m told

… primary producer brigades are landholder brigades that use slip on units on the back of private vehicles to quickly fight fire when it happens. Most don’t have a truck, fire shed or bank account. The fire service provides them with PPC, limited equipment and the legislative and workers comp support. It is a really effective way of meeting bushfire needs in broad acre areas across much of Queensland. They only need to have a meeting every 3 years to stay compliant with the fire service.

Non PPB are the other classifications of brigade such as I – zone, rural and village who are more active, most have 1 vehicle or more and over many have a fire shed station. These brigades need only meet a minimum of once every 2 years if they do not collect a levy or raise under $5,000 in fundraising per year and if you do collect a levy or raise over $5k then you need to meet every year.

The 1st Roll out of blue cards are to the non ppb brigades with the second round looking to include them.

The only obvious obligation that will be added is an obligation to ensure volunteers have obtained their working with children check (s 188). It does not increase any other obligation upon the Brigade, the Crown’s advice is based on the obligations the brigades already have to provide first aid to children if they are first on scene at a fire or other task.

Question 3

I have quoted from rather than reproduced the Crown Law advice.  Given it was sent to me I assume that this advice has been circulated so that interested parties can read it.

‘Is it a reasonable argument that the ‘usual function’ of a Rural Fire Brigade include or are likely to include providing a health service to a child?’  Yes, I think it is a reasonable argument.  It is however, just an argument and not necessarily a persuasive argument.

There is a factual issue that should be resolved.  The Crown solicitor says

Both SES employees and volunteers and QFES employees and volunteers are – trained in first aid responses and there is an expectation that that they may be required to provide first aid or attend an injured person (which could include a child), should they be first on scene.

My correspondent says that is not the case.  I am told that ‘Currently only 2 brigade members from each brigade are supplied with 1st Aid Training at state expense’ and that a first aid qualification ‘is not a requirement to be a brigade support member or active brigade member’.   Clearly that makes a difference.

The Crown’s solicitor saw the fact that everyone had to have first aid qualifications and may be expected to provide first aid as evidence of what might be considered a ‘usual function’.  But if it is the case that there only needs to be one or two first aiders in each crew that presents a different picture.  In particular the presence of limited, nominated first aiders may suggest that they are there to ensure that QFES as the person conducting the business or undertaking is meeting its obligation to have first aid services available for the workforce (Work Health and Safety Act 2011 (Qld) s 19; Work Health and Safety Regulation 2011 (Qld) r 42).   If the first aiders are there to provide first aid to the crew then it is not a usual function to provide that care to others.

If the Crown’s advice is correct presumably everyone engaged as a first aid officer at any workplace would be required to have a ‘blue card’ as it is expected that they would provide first aid to anyone in the workplace and regardless of the nature of the workplace, children may be there, eg if a worker has to bring a sick child to work or even if a child trespasses onto the worksite.

Further the nature of fire and SES work would suggest that even if they were providing first aid to a child, no member is likely to be alone with that child. Fire and SES crews work as a team and it is inconceivable that anyone doing first aid on a child would be left to work without colleagues so even if rural fire or SES volunteers are likely to provide ‘personal care to a person who is ill, injured or otherwise infirm’ they are unlikely to do so in circumstances where ‘the employee [or volunteer] is physically present with the child while no-one else is present’.  As the Crown says, ‘the frequency of this [providing first aid to children in circumstances where the first aider is ‘physically present with the child while no-one else is present’] situation occurring is not clear and. is difficult to quantify due to the nature of emergency response services’.  If evidence could be found as to whether in fact this has ever happened and if so how often that may lead to better informed advice.

There would or could also be a question as to whether providing first aid to a person is providing a health service where first aid is entirely incidental to the task at hand such as firefighting or even rescue.    A shopkeeper may provide first aid to a person who is ill in their shop, but it could hardly be said that they are providing a health service.

The duties of the RFS to protect persons from fire or to effect a rescue or to protect persons trapped in a car (Fire and Emergency Services Act 1990 (Qld) s 8B) are about firefighting and cutting the person out of the car.  If the person needs medical care that will nearly, if not always, be provided by Queensland Ambulance.  Providing first aid to that person is as much a part of the duty of QFES as it is part of the duty of the shopkeeper described above.  QFES is not providing a health service even if a QFES member, like any person, would provide first aid and comfort if they can.    The SES is required to ‘help injured persons’ (s 130) which makes the argument from the Crown that their work is to provide, inter alia, a health service, stronger.

The critical thing to note from the Crown’s advice is that ‘the matter is by no means beyond doubt…’ Neither the argument put forward by the Crown, nor the one put forward by me, are axiomatically correct.  They are just arguments.   The ultimate answer can only be provided by a court or perhaps by the Chief Executive managing the Working with Children, (Risk Management and Screening) Act 2000 (Qld).

The Crown, and rightly so, is looking at this from a risk assessment perspective where the risk that the Crown is advising on is legal risk.  In simple terms, there are two possible conclusions:

  1. A blue card is required;
  2. A blue card is not required.

If QFES accepts that a blue care is not required, but the unthinkable happens and the matter ends in a court and the court holds that a blue card should have been required then QFES may be criminally liable and will be condemned in the court of public opinion.

If, on the other hand, QFES accepts that a blue card is required and later a court holds that this was not the case there are no legal implications.  There is no harm in having a blue card if you don’t need one; there is not having one when you do.

The Crown having identified an argument that leads to conclusion ‘1’ rightly, and cautiously advise that the best way forward is to assume that a card is required and act accordingly.  That may impose significant costs to QFES or brigades but the Crown lawyer is not advising on that issue.  One might hope that legal advice does actually take a balanced view and also consider the risk – so where the Crown admits that the matter ‘is not beyond doubt’ a private solicitor may say ‘on balance and given the cost it’s such a low risk you may be justified in not acting as if a card is required’ but I’m not sure the Crown can say that.

The government and therefore QFES, unlike a private operator, has I suspect no risk appetite in this area.  If a public sector agency is found not to have complied with the Working with Children, (Risk Management and Screening) Act 2000 (Qld), in particular if the unthinkable happens, the consequences would be more dramatic than for a private sector operator.  And the argument ‘we knew we might, but we thought on balance the argument that we were not required was stronger and it was too expensive to comply ‘just in case’’ would not, I suspect wash with the voting public.

As the Commissioner says in her email to members:

The Queensland Government takes the safety of children extremely seriously and as a result Queensland is recognised as having one of the strongest working with children check systems in Australia. This system is continuing to be strengthened with a series of reforms…

QFES has a legislative and shared responsibility to achieve the Government’s commitment and I know the QFES workforce shares this position with me along with our various unions and associations.

Even if it turns out that QFES or SES don’t require such a check, getting them is consistent with that approach and of course QFES is part of the Queensland government.

The question I was asked was ‘Is it a reasonable argument that the ‘usual function’ of a Rural Fire Brigade include or are likely to include providing a health service to a child?’  I think it’s a reasonable argument but I’m not persuaded by it.  I’m not sure the Crown solicitor is persuaded by it either but that’s not the point.  The question is whether the QFES Commissioner and/or the government is willing to take the risk that the argument identified by the Crown is wrong.  I can imagine that they would not be and the Crown lawyer’s job is to protect the Crown’s legal interests hence her advice which is, in effect ‘the matter is not clear so you should act as if the answer is your staff and volunteers need a blue card’.

I think that is reasonable advice and, having received that advice, I think it is reasonable for QFES to act accordingly.  I don’t think I would give the same advice but that is not to the point.  I am an academic who can say what I believe (the joys of academic freedom) without having to consider the consequences for a ‘client’.  As I note I do think the Crown Law officer is in a different position and not unreasonably takes a more conservative approach.  Noting that the Crown identified that there are factual issues that she could not know and which, if addressed could change the opinion, in particular

  • is it the case that every QFES and SES member has first aid qualifications, or not?;
  • if it’s only some members are they trained to ensure that the PCBU meets its obligations under the Work Health and Safety Act 2011 (Qld) or is it perceived by QFES/SES as necessary to meet its obligations under the Fire and Emergency Services Act 1990 (Qld) ss 8B and/or 130?; and
  • how often, if ever, has a QFES or SES member had to provide first aid to a child in circumstances where they were not in the presence of someone else?

I do note that the Crown’s lawyer did suggest an alternative.  She said:

For completeness, given the issue is not beyond doubt, we would recommend the Act be amended to make express provision at schedule 1, part 3 for exemption QFES and SES officers from the application of the Act, similar to the manner in which police officers, correctional officers and ambulance officers are exempted.

Whether that is politically possible is another matter and amending the Act is certainly beyond the powers of the QFES Commissioner.

I note that if members of the QFES and SES are engaged in regulated employment then it must follow that the QFES and SES are conducting a regulated business (Working with Children, (Risk Management and Screening) Act 2000 (Qld), Part 2, Schedule 1, cl 16).  If that is correct the person carrying on the business needs to have a positive prescribed notice (s 197).  It’s not clear whether the ‘person’ carrying on the business would be the Commissioner or the Crown in Right of Queensland.

Question 4

The definition of regulated employment is given above.  It refers to ‘the usual functions of the employment’.  Employment even within an organisation can be varied.  Consider for example a company that runs child care centres.  The workers at the child care centre may require a check but the accountant who works at head office is not working with children and would not, in my view, required a blue card check.

If a QFES or SES volunteer was engaged in circumstances where he or she would not be in a position to provide care to children, eg he or she was an office administrator or communications officer, then I would suggest that he or she is not engaged in ‘regulated employment’ and a check would not be required.

Equally if it is the case that ‘only 2 brigade members from each brigade are supplied with 1st Aid Training at state expense’ then it would appear that only those members would be expected to provide first aid to children so there would be an argument that only those members require a blue card.

Conclusion

The questions and my short answers are:

  1. Was the intent of the Fire Service Act 1990 to have Rural Fire Brigades considered as providing a health service and/or support service for children?
  2. No, when writing the 1990 Act the legislators could not have had in mind what would be included in an Act of 2000 but that is not the point. The more relevant question is whether the intent of the legislative authors when writing the Working with Children, (Risk Management and Screening) Act 2000 (Qld) was to capture the work of the rural fire brigades, but again that is not strictly to the point. What is to the point is whether the language does capture the work of the rural fire brigades.  The Crown thinks it might and has advised accordingly subject to the limitations and provisos in that advice.
  3. What extra obligations will non-PPB brigade now have if they are providing a health service and/or support service for children?
  4. An obligation to ensure volunteers obtain a blue card before they commence their volunteer duties.
  5. Is it a reasonable argument that the ‘usual function’ of a Rural Fire Brigade include or are likely to include providing a health service to a child?
  6. I think it’s a ‘reasonable argument’ which is not to say I think it’s right, but neither I nor the Crown can determine what’s right; but it is a reasonable argument.
  7. As a brigade member who is not an active firefighter, rather a member of the brigade who attends meetings to take minutes or as treasurer or other non-outward facing roles, are they now providing a health service and/or support service for children?
  8. In my view, no.

For earlier posts on fire fighting and working with children checks, see:

Categories: Researchers

Are St John (NSW) volunteers deemed employees of NSW Ambulance?

10 July, 2019 - 15:21

That seems like an odd question but is a question that had to be considered by the NSW Workers Compensation Commission in Secretary, Ministry of Health v Dawson [2019] NSWWCCPD 30.  With respect to those involved the case appears to have been run by people who did not have any idea about ambulance services in NSW.

The facts

The application, Ms Dawson was (or is) a volunteer with St John Ambulance Australia (NSW).  Whilst setting up for a duty at the Broadmeadow Racecourse she was injured.  She suffered a fracture dislocation of the ankle and was transported to John Hunter Hospital where she underwent surgery.   She spent 5 nights in hospital and had further surgery. She sought compensation for her losses.  Her solicitors directed her claim to QBE as the workers compensation insurer for the Secretary, Ministry of Health.  Not surprisingly the insurer denied liability.  The matter was heard by an arbitrator who found in favour of Ms Dawson. An appeal to the Presidential Division of the Commission was heard by Deputy President Snell who allowed the appeal but did not resolve the issue, instead referring the matter back to the arbitrator to redetermine the matter.

How did the issue arise?

The Workplace Injury Management and Workers Compensation Act 1998 (NSW) deems that certain people who are not employees are to be treated as if they were employees and are entitled to workers compensation accordingly.   Relevantly cl 16(1) of Schedule 1 says:

A person who (without remuneration or reward) voluntarily and without obligation engages in any ambulance work with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation constituted by the Health Administration Act 1982 is, for the purposes of this Act, taken to be a worker employed by that Corporation.

The Health Administration Corporation is a corporation that consists only of the Secretary of the Ministry of Health (Health Administration Act 1982 (NSW) s 9). In essence cl 16 says that a voluntary ambulance worker is deemed to be an employee of the health secretary and is entitled to workers compensation as if they were an employee.  Ms Dawson sought to rely on that provision to obtain compensation from the workers compensation insurers for NSW Health.

Given the definition of ambulance services in the Health Services Act 1997 (NSW) (that is ‘services relating to the work of rendering first aid to, and the transport of, sick and injured persons’) the Arbitrator who heard the case had no difficulty in finding that Ms Dawson’s work the ‘erection of the marquee was a necessary preparation for the provision of first aid, and fell within the meaning of being “in connection” with the rendering of first aid. Ms Dawson was involved in ‘ambulance work’ at the time she suffered injury’ ([11]).  There was also no question that Ms Dawson’s work with St John was undertaken ‘voluntarily and without obligation’ ([12]).

Therefore Ms Dawson was ‘A person who (without remuneration or reward) voluntarily and without obligation engages in any ambulance work…’  The question was whether that work, conducted as a volunteer with St John Ambulance (NSW) was done ‘with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation’ or, for all practical purposes, ‘in co-operation with’ NSW Ambulance.

The outcome at arbitration

The Arbitrator found there was cooperation with NSW Ambulance because, according to the arbitrator, there was evidence that St John received payments from the Health Administration Corporation and that there was general cooperation between St John and NSW Ambulance evidenced by the use of casualty record forms that were handed to treating paramedics to form part of the patient record when patient care was transferred from St John to NSW Ambulance.

The outcome on appeal

Given the findings, above, it’s not surprising that the appeal was allowed.

The basis of finding that there was payment and therefore cooperation between St John and NSW Ambulance was a gazette setting ambulance fees, made pursuant to the Workers Compensation Act 1987 (NSW).  The Workers Compensation (Ambulance Service Fees) Order 2015 (Ambulance Order), the Workers Compensation (Private Hospital Rates) Order 2015 and the Workers Compensation (Public Hospital Rates) Order 2015 set the fees that authorised providers, including St John Ambulance Australia (NSW) could charge if providing services such as ambulance transport.  The fees, if charged, were charged to the injured person’s employer (or more accurately, their workers compensation insurer).  Those orders do not indicate that the Health Administration Corporation was paying St John Ambulance (NSW) to provide ambulance services ([20] and [28]).  At [28] Deputy President Snell said:

The reasoning that led the Arbitrator to his finding [based on the Ambulance Order], that Ms Dawson engaged in any ambulance work with the consent of the HAC, was based on a false premise and was erroneous.

The remaining issue is what does the Act mean when it says ‘in co-operation with’ NSW Health and in particular NSW Ambulance?  At [46] Deputy President Snell said:

The basis on which the Arbitrator dealt with the issue of ‘co-operation’ was essentially found at [23] of his reasons. The Arbitrator said that “co-operation existed between St Johns [sic] and the HAC and [Ms Dawson’s] work fell within the umbrella of that general cooperation”. The evidence on which the Arbitrator apparently relied in making this finding was that of Ms Dawson, that a pro forma document, setting out a patient’s complaints, treatment and advice was completed by St John volunteers such as Ms Dawson, and “this document was provided to officers within the HAC and became part of the HAC’s records”. The Arbitrator said “[t]hat arrangement in my view is powerful evidence of co-operation between St Johns [sic] and the HAC”.

In running the case, the lawyers for the respondent relied on the evidence of Ms Murphy, NSW Health’s Manager – Insurance and Risk.  She gave evidence (at [56]-[57]) that:

… the HAC, to her knowledge, had no relationship, formal or informal, with St John. St John’s workers and volunteers were not included in the HAC’s workers compensation policy. St John was not identified in the HAC Annual Report as a NSW Health Organisation or part of NSW Ambulance. It did not receive financial support or grants from NSW Health. The HAC did not exercise control over it. She was unaware of any affiliation between St John and NSW Ambulance. The HAC did not provide indemnity or approval for St John to attend events. If Ms Dawson worked as a volunteer with St John, this was at the direction of St John, not with the consent, supervision or authority of the HAC.

Ms Murphy said the provision of a pink copy of the Confidential Patient Record, on transferring a patient, was an internal procedure of St John, and was not required by NSW Health. NSW Ambulance have their own paperwork and patient records, which are used when a patient is treated or transferred to hospital. She said the financial statements of NSW Health did not indicate reimbursement or payment to St John.

The Arbitrator simply did not deal with Ms Murphy’s evidence ([63]).  Deputy President Snell said (at [64]):

… the use made of the pink copy of the Confidential Patient Record was potentially important in various ways. The Arbitrator attached significance to it; it appeared to be the dominant reason he reached the view he did on ‘co-operation’…

And at [77]:

Whether the evidence established that Ms Dawson engaged in the ambulance work in cooperation with the HAC depended, at least in part, on the view that was taken of the lay evidence of Ms Dawson and Ms Murphy. The Arbitrator relied essentially on Ms Dawson’s evidence dealing with the pink copy of the Confidential Patient Record, that it was “provided to officers within the HAC and became part of the HAC’s records”. The evidence of Ms Murphy was that the HAC had its own paperwork that was used in patient transfers, and it had no need of the pink copy of the Confidential Patient Report generated by St John. If this were accepted, it is difficult to see that the other evidence about the pink copy could lead to a conclusion that the relevant work was “in co-operation with” the HAC. ‘Co-operation’, in the sense of working or acting together or jointly, would not be present.

The failure of the Arbitrator to consider the evidence led by the respondent to show why the use of the St Jon record form did not constitute relevant cooperation was a failure that warranted allowing the appeal.

Deputy President Snell did not resolve the issue but referred the matter back to be heard by a different Arbitrator ([79]).

Discussion

It is my view that the applicant’s arguments are fatally flawed but not for reasons given in the tribunal.

Health Services Act 1997 (NSW) s 67E

One issue that was touched on ([9]) is that it is an offence to operate ambulance services in NSW without the permission of the secretary (Health Services Act 1997 (NSW) s 67E(1)).  Exempt from that rule is St John Ambulance Australia (NSW) (s 67E(3)(a)).  It is inferred (see [22]) that Ms Dawson relied on s 67E(3) as evidence of cooperation or consent by the Health Secretary to the conduct of ambulance work by St John Ambulance.

In my view that argument (if that was indeed the argument being made) fails to make the distinction between the legislative and executive arm of government. The NSW Parliament is the author of the Health Services Act and it is the Parliament that has provided the permission to St John Ambulance to provide ambulance services.  It is the Parliament that has determined the scope of the Secretary’s discretion and they have said that the Secretary’s permission is not required for St John Ambulance.  Whether the Secretary approves or endorses the work of St John is not relevant as the Secretary’s permission is not required.

Section 67E in particular s 67E(3) is not, in my view, evidence that the work of St John is done ‘with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation’.  Rather it shows that the work of St John is independent of the Corporation and they are entitled to do their work without the consent of the Secretary.  The Secretary has no role in approving, or not, the operations of St John (NSW).

Health Services Act 1997 (NSW) s 67H

None of the parties addressed the Health Services Act 1997 (NSW) s 67H.  That section says:

(1) The Health Secretary may appoint such persons as the Health Secretary thinks fit to be honorary ambulance officers.

Note: Honorary ambulance officers are not members of the NSW Health Service employed under Part 1 of Chapter 9.

(2) Honorary ambulance officers:

(a)        may carry out, without remuneration, such of the functions of the Health Secretary under this Act as the Health Secretary may from time to time direct, and

(b)       are subject to the control and supervision of the Health Secretary.

Honorary ambulance officers are persons ‘who (without remuneration or reward) voluntarily and without obligation [engage] in … ambulance work with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation’.  With respect, it appears to me that the intention of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) cl 16 was to ensure honorary ambulance officers are deemed employees of the corporation so that they obtain workers compensation if they are injured in the course of their honorary service with NSW Ambulance.

Others who cooperate with NSW Ambulance

Others who provide ambulance services (that is ‘services relating to the work of rendering first aid to, and the transport of, sick and injured persons’) ‘with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation’ would be those SES and RFS volunteers who work as community first responders, but their rights to Workers Compensation are likely to be dealt with under the Workers Compensation (Bush Fire, Emergency And Rescue Services) Act 1987 (NSW) as they are volunteering with the SES or RFS and it is the SES or RFS that has the agreement with NSW Ambulance.

Implications of the applicant’s argument

There will be times when St John volunteers and others will be working in cooperation with NSW Ambulance.  A mass casualty event where NSW Ambulance/NSW Health is taking the lead in managing the casualties and St John volunteers are deployed to run first aid posts for the walking wounded or to help crew NSW Ambulances would be, in my view, examples of relevant cooperation for the purposes of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) cl 16.  Equally a good Samaritan at an accident who starts first aid and remains on the scene helping paramedics may fall within the section.  But doing first aid, calling an ambulance and giving a handover even with paperwork would in my view be outside the section. If it is not everyone who does first aid could be a deemed employee.

If the applicant is right, and cooperation evidenced by handing over some patient record to ambulance paramedics is enough to bring a person under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) cl 16 then everyone who does first aid is potentially included.  First aid courses encourage people to make notes about what they observed and to pass them onto paramedics to form part of the complete patient record.  Completing a form, or scribbling a note, is surely not sufficient to bring a person within the contemplation of a deemed employee.

Where there are private ambulance providers in NSW, they may have permission both to operate and to carry and use scheduled drugs.  They too would have patient care records that would be handed to ambulance.  To the extent that any members of those services are volunteers rather than employees, then on the appellant’s arguments they too would be deemed employees of NSW Health.

If that were the case NSW Health would have no capacity to know how many people, it is at risk for or the circumstances in which they work.  There is no way any premium could accurately reflect the risk as the risk is unknowable.

Editorial

As with other cases involving this sector it is also of interest and comment that no-one actually called witnesses from either St John or NSW Ambulance to discuss how they work together and the links between them.

If Ms Dawson is looking to get compensation from someone other than St John Ambulance she would, in my view, be better off looking to the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).  Whilst not specifically directed at St John, that Act does extend compensation to ‘a person who, in the opinion of the Self Insurance Corporation [that is the NSW Self Insurance Corporation constituted by the NSW Self Insurance Corporation Act 2004] having regard to all the circumstances, should be deemed to be an emergency service worker for the purposes of this Part.’  One could try to argue that a St John volunteer ‘should be deemed to be an emergency service worker’. The difference there is that the risk is carried by the insurance managed fund rather than a particular agency.

Ms Dawson’s best route for compensation would be to direct her claim to St John Ambulance which, hopefully, has insurance to provide workers compensation type cover for injured volunteers.

Conclusion

When this case came across my desk, I confess to being surprised that anyone would consider that a St John volunteer fell within the definition of a deemed employee as provided for in the Workplace Injury Management and Workers Compensation Act 1998 (NSW) cl 16.  Either it’s clever legal argument to try to find a remedy, or it’s evidence of a lack of understanding of the ambulance sector and someone found the section and thought ‘that looks right’ and did not really look any further.

The matter is back before an arbitrator who may again find that there is sufficient cooperation between St John and NSW Ambulance to make all St John volunteers deemed employees of NSW Ambulance.  If that is the result, I think it would come as a surprise to both St John and NSW Ambulance and their insurers.

My bet is that the applicant will lose; but I’ve been wrong before.

 

 

 

Categories: Researchers

Do paramedics need to see the advance health directive in WA?

8 July, 2019 - 08:58

Today’s correspondent from Western Australia raises an:

… often repeated question … in relation to advanced care directives (ACD) – which are becoming more widely used and known in the prehospital environment. My understanding is that ACDs do not have to be on a particular ‘form’ (https://emergencylaw.wordpress.com/2016/04/08/not-for-resuscitation-in-western-australia/). The ambulance service CPGs I have access to indicate that for an ACD to be followed, the paramedic must actually sight the form/document.

However, the question I am often asked is whether having to sight the document is always a strict requirement?

To use a relatively straightforward example. Let’s say you are called to a patient in cardiac arrest in their home at 9pm at night. The family present all agree that the patient did not want resuscitation, and all are adamant that the patient has an ACD, but they are unable to find it in the house but a copy is held at the GP surgery. Given the late hour the GP surgery has closed and you have no way of accessing the GP to verify the ACD.

There are all sorts of scenarios where you may start resuscitation and ask questions later on – where it isn’t clear what the wishes of the patient are for instance (A DNR tattoo – https://emergencylaw.wordpress.com/2018/01/30/more-on-dnr-tattoos/) or where the family disagree as to what the patient’s wishes are. But in the example given, all the family agree – it’s just the document which can’t be physically sighted.

Perhaps you could argue the doctrine of necessity would indicate resuscitation until the form can be found (the next morning when the GP surgery opens), however would this be considered an assault given the information that the family has provided? Equally, if the family all agree there is an ACD would it be acceptable to form a reasonable belief as to the patient’s wishes and withhold resuscitation?

I have answered that question in a Victorian context see Withholding Resuscitation in Victoria (April 8, 2013).

The law is not complex – see Withholding resuscitation in first aid (November 21, 2017). What’s complex is trying to decide in a very short time what the facts are because the law has to be applied to the facts.

The relevant principles are:

  • Consent is required before treatment (Rogers v Whitaker [1992] HCA 58, [14]);
  • People can refuse consent even where the treatment that is refused is necessary to save their lives;
  • Where a person cannot consent treatment that is reasonably necessary and in their best interests can be administered but not where that is contrary to their known wishes (In Re F [1990] 2 AC 1; see also The doctrine of necessity – Explained (January 31, 2017); and
  • There is no duty, in fact there is a duty not to provide futile treatment (Airedale NHS Trust v Bland [1993] AC 789; see also Paramedics withholding futile treatment (June 14, 2019).
  • Legislation that provides for advanced care directives or the like is simply providing a form to allow people to express their wishes in a way that is recognised by health professionals but it does not limit a person’s right to communicate their wishes in any way they want; that is the common law right to refuse treatment is maintained (see Guardianship and Administration Act 1990 (WA) s 110ZB).

Ethically respect for autonomy says health care professionals must aim to give effect to a patient’s informed wishes.  The principles of beneficence and non-malfeasance say that treatment should be directed to benefiting, not harming, the patient.  Applying active resuscitation in cases where it is not wanted or futile brings no benefit and in fact brings a harm to patients.

Let us then turn to the example – ‘you are called to a patient in cardiac arrest in their home at 9pm at night. The family present all agree that the patient did not want resuscitation…’  It begs the question ‘why were you called?’  I note that the QAS Clinical Practice Guidelines on Palliative Care instruct paramedics to ‘Determine the reason for requesting ambulance services’ and provides ‘a list of common health problems associated with terminal illness’ that may be why an ambulance was called.  In those circumstances they do not call for active live saving measures that would indeed be contrary to the very principles of palliative care.

I’m not sure what the WA CPGs say but they are likely to be, or should be, similar.  So it’s a matter of context.  Perhaps the person fell out of bed and ambulance were called as carers could not get them back into bed but, before ambulance arrived, they had a cardiac arrest.  if the family are adamant that the patient has an Advanced Care Directive is the story consistent with what you are observing?  If there is indication that the person is receiving palliative or chronic care at home that may give some confidence that the views being communicated to you are the patient’s views.

If you have to consider what is actually in the patient’s best interests, you need to consider the advice of those around you as they are in the best place to determine the matter.  Death is inevitable so we not only cannot but should not strive to delay it for as long as possible nor is there a duty to try and save people’s lives when that is clearly not going to succeed or advance their best interests (again see Airedale NHS Trust v Bland [1993] AC 789).

The clear problem is that paramedics simply don’t have the time to determine those issues in detail.  Doctors, in hospitals, can take time to consider issues and if necessary withdraw life sustaining treatment.  Paramedics cannot.  What that means is that if there is real doubt about the situation, then clearly treat and transport has to be the appropriate course.  If the person is unconscious with a head injury suggesting violence and everyone is saying ‘he just fell but he doesn’t want resuscitation’ you would ignore that and no doubt call police.  If the person is surrounded by at home medical equipment, a drug cabinet full of restricted end of life type medication, with obvious clinical signs of growing degeneration, you may feel very confident that what you are being told is correct.

The critical answer in WA lies in the Guardianship and Administration Act 1990 (WA) s 110ZB.  The Act sets out how to make an Advanced Care Directive and the form it is to take abut at 110ZB says:

This Part does not affect the common law relating to a person’s entitlement to make treatment decisions in respect of the person’s future treatment.

The common law does not require any particular form. We encourage people to discuss their end of life decisions with their family both so the family understand that decisions have been made and that they can communicate those decisions to health practitioners when required.  If you cannot or will not listen to the family at the very moment when it most matters that need for discussion becomes irrelevant.

Further persons responsible can make decisions for those that cannot make those decisions themselves (s 1110ZD).  Again if you are satisfied (recognising the limitations) that the people in the room include the ‘person responsible’ and they are acting in the patient’s best interests (not their own) then you could be satisfied that the decision being communicated is an appropriate treatment decision to be respected.

Conclusion

In short, the answer is ‘no, you don’t have to see the ACD’.  Having said that I recognise the difficulty that must put paramedics in.  The ACD is a sure way to have confidence that treatment referred to in that Directive can and should be withheld in accordance with that Directive.

In its absence the common law says a patient can refuse treatment and if the family are communicating those wishes and, further, the family are giving information that helps to understand what is or is not in the patient’s best interests, then that should be taken into account.

If there is any doubt however, then the paramedic should commence treatment pending resolution of that doubt and if that means transport to hospital to allow the doctors’ there to communicate with the family and treating medical staff then that may be the appropriate course.

Categories: Researchers

Review of Queensland SES decision to terminate volunteer membership

7 July, 2019 - 13:38

The issue of ‘natural justice’ and how volunteers can seek review of decisions to discipline them or terminate their membership has arisen before on this blog- see:

See also, with respect to paid staff

The latest decision in this area is Gilmour v Waddell & Ors [2019] QSC 170.  (I expect that applicant was the correspondent who asked the questions that led to the post Revoking appointments – Queensland SES (October 19, 2014)).

In this case the applicant was a member of the Brisbane Metro Group of the Queensland SES ([28]).   The applicant’s ‘appointment as a volunteer member of the State Emergency Service was terminated after an investigation into allegations about his conduct’ ([1]).  He sought a judicial review of that decision.  Her Honour Ryan J (at [116]) identified that the applicant’s arguments raised issues of:

  • denial of natural justice;
  • that the decision was beyond the decision maker’s authority;
  • that the applicant was unlawfully prejudiced for making a disclosure under the Work Health and Safety Act 2011 (Qld) and/or the Public Interest Disclosure Act 2010 (Qld); and
  • that the decision’s made were so unreasonable that no agency vested with similar authority would have made that decision (a ground referred to as ‘Wednesbury unreasonableness’ after the decision in Wednesbury Corporation v Ministry of Housing and Local Government (No 2) [1966] 3 WLR 956).
Background

The catalyst for the action that ultimately led to the applicant’s termination arose during a training night.  At [29]-[31] Ryan J said:

The Metro Group scheduled a training exercise for new recruits on the HMAS Diamantina, a ship in dry dock, to be held on the evening of 20 May 2013.

A few years earlier, in October 2010, the applicant had attended a similar training exercise on the HMAS Diamantina and noticed that certain cladding on the ship looked like asbestos cladding. At the time, he warned his team members about it and passed on his concerns to Deputy Group Leader Glenn Hedges.

On 13 May 2013, a week before the Diamantina exercise, in the course of training new recruits about emergency lighting, the applicant told them to be aware of the asbestos cladding on the ship and not to disturb it. He told the recruits that they should take dust masks to the exercise. One of the recruits, Stephanie Keeley, asked where she might find dust masks. The applicant told her where he had last seen some and Ms Keeley went to look for them.

The applicant was taken aside by the Group Leader and Deputy Group Leader and ‘was criticised … for causing alarm to the recruits. Their conversation became heated’ ([34]). The next day the applicant posted ‘a caution about the asbestos on the ship on the internal discussion page of the SES volunteer portal’ ([36]).  He was directed to remove or correct the post ([37]).  On 15 May the applicant was told, by email, that he could not attend the training exercise as the Group Leader could not ‘trust you to work in a team and to not undermine the exercise and management team by following your own agenda” ([39]).  At [40]-[41]

A few days later, the applicant posted commentary on the portal which was intended for those participating in the Diamantina exercise. He said he had been suspended from the SES – the “true intention” being to stop him from passing on his safety concerns to other members of the group.

He repeated his warning about asbestos and the need to use masks. He also attached correspondence between himself and [the Group Leader] and others – some of which related to the 2013 Diamantina exercise and some of which related to the 2010 Diamantina exercise.

A complaint was made to the Local Controller.  Without going into all the details, the complaints related to the applicant’s behaviour toward others being aggressive and disruptive, and failing to comply with the SES Chain of Command (see [43]-[52]).  A Local Controller does not have the power to suspend or terminate a person’s membership.  At the time of these events the unit controller was required to raise concerns with the Emergency Management Queensland Area Director who in turn reports to the Regional Director.   An inquiry if one was required was to be conducted by the Ethical Standards Unit of EMQ (see [22]).

The complaints made their way to the Regional Director of the South Eastern Region of Emergency Management Queensland who advised the applicant, on 16 May 2013, that his membership was suspended pending further investigation.  His suspension was to remain in force until 18 August 2013 ([53]).  A person was appointed to conduct the investigation.   The applicant’s suspension was extended until 16 August 2013 ([71]).

Prior to an interview the applicant made further posts regarding the Diamantina where he said, inter alia ([62]):

… The reason I visited was to find out what they were trying to hide by suspending me from the SES following my advice to members to wear a face mask and not to disturb any pipe or cladding with a material coating. I feel sorry for the volunteers…

The terms of the investigation were expanded (at [63]):

… to include further allegations “as a result of” the applicant’s actions since the initial complaints were made. The revised terms of reference were as follows:

  1. The complaints made by [named persons] that Edward Gilmour behaved inappropriately towards them on 13 May 2013;
  2. The complaint made by [the unit controller] that Edward Gilmour failed to follow a reasonable direction given to him by on or around 14 May 2013;
  3. Mr Gilmour posted items on the SES Volunteer Portal that were of a confidential nature, undermined the authority of the Group Leader and Local Controller in a public forum, and compromised the privacy of certain members of the Metro SES Group;
  4. Mr Gilmour failed to follow the chain of command, despite being counselled to do so on two previous occasions;
  5. Mr Gilmour discussed elements of the investigation into complaints against him with others not involved in the investigation, despite written directions from the Regional Director and Investigating Officer not to do so.

There were further efforts in September 2013 of the applicant to raise his concerns about the exercise on the Diamanitina including ‘what he claimed was a Public Interest Disclosure to Mr Anderson (the Director General), members of Parliament and other SES volunteers’ ([72]-[74]).

On 3 September 2013 the appointed investigator produced a report finding some, but not all, of the allegations were substantiated.  In particular (at [76]):

… he did find evidence which, if accepted by the decision-maker, would substantiate the allegations that the applicant –

behaved inappropriately towards [named persons] on 13 May 2013;

posted items of a confidential nature on the SES Volunteer Portal which undermined the authority of the Group Leader and Local Controller in a public forum;

failed to follow the change of command; and

discussed elements of the investigation with those not involved in it, despite being directed not to do so.

In the investigator’s opinion ‘that conduct would constitute breaches of the Code of Conduct applicable to the applicant. He recommended that the decision-maker give consideration to what further action, if any, ought to be taken against the applicant’ ([77]).

Following that report senior members of EMQ met with the applicant to discuss alternatives to disciplinary action in particular whether he would agree to move to another unit because (at [81]) ‘there was “no appetite” for his return to the Metro Group or any other Brisbane group and the hope was to find a “space” for the applicant which allowed him to “contribute” to the SES’.  The applicant’s ‘suspension was extended until 31 December 2013, pending his placement elsewhere’ ([89]).  Then (at [90]-[93]):

On 16 December 2013, Mr Waddell [Regional Director EMQ] informed the applicant that he was considering extending his suspension until 31 December 2014, explaining that the purpose of temporary suspension was “to temporarily remove an SES Member from active service whilst there remains a risk that the proper and effective management of the SES may be prejudiced if that SES member were to remain in that role”.

Mr Waddell informed the applicant that he had been seeking an alternative placement for him since 11 October 2013. None was available. Mr Waddell sought submissions from the applicant about his proposed suspension from the SES until 31 December 2014.

Ultimately, the applicant’s suspension was extended until 31 December 2014 by letter from Mr Waddell dated 21 January 2014. The applicant was informed that Queensland Fire and Emergency Services would continue to seek a suitable placement for him elsewhere.

On 21 February 2014 the applicant filed an application for a statutory order of review of Mr Waddell’s decision to extend his suspension until 31 December 2014.

In March 2014 the applicant sent an email to 790 SES members critical of the SES and advising them ‘that he had decided to run “a low volume email blog of issues (safety or conduct) you tell me about where you fear some reprisal for raising them” ([94]).  Mr Roche Acting Deputy Commissioner, Operations and Emergency Management, Queensland Fire and Emergency Services wrote to the applicant and advised that rather than proceed with the approach of trying to find him an alternative place to contribute to the SES, he was ‘reinstating the investigation report because the applicant sent the bulk email to 790 SES members on 10 March 2014, despite having been directed not to send group emails without approval’ ([96]).  Details of the investigation report were provided, and the applicant was invited to show cause why he should not be subject to disciplinary action ([97]-[98]).

The applicant made submissions which were considered.  He was then advised that Mr Roche was considering terminating his appointment as a member of the SES and he was again invited ‘to make submissions as to why his appointment should not be revoked’ ([100]).  ‘On 21 August 2014, Mr Roche advised the applicant that he had decided to revoke the applicant’s appointment as a member of the SES’ ([101]).

If should be remembered that back in February 2014 the applicant had filed proceedings in the Queensland Supreme Court for a review of the decision to extend his suspension.  In light of these further developments the application for review was extended ‘to include all aspects of the decision of Mr Roche to revoke the applicant’s appointment as a volunteer member of the SES’ ([102]).  It was that application that was determined by Ryan J.

The issues

The judge reminded the applicant that her job was to determine whether the decisions made were made in accordance with the law and the authority given to the decision makers by Parliament.  It was not her job to determine whether it was the ‘right’ decision or the decision she would have made had she been the original decision maker, rather ‘the court is concerned with the lawfulness of the exercise of administrative power – not with the correctness of its outcome ([114] see also [3]).

Was the applicant’s termination unlawful because it was “in excess” of the Public Sector Ethics Act 1994?

It was argued that the decisions made were made beyond power in the Public Sector Ethics Act 1994 (Qld).  Under that Act the Code of Conduct for public sector employees extended to SES volunteers (see [120]; see also the comments that follow my post Revoking appointments – Queensland SES (October 19, 2014)).   Although the Code of Conduct applied the disciplinary provisions of that Act did not, but Mr Roche (he Acting Deputy Commissioner, Operations and Emergency Management, Queensland Fire and Emergency Services who made the decision to terminate Mr Gilmour’s appointment) was not and did not purport to exercise any power under that Act – ‘He did not therefore act in excess of the PSEA or otherwise apply the PSEA unlawfully in deciding to revoke the applicant’s appointment to the SES’ [122].

Was the applicant’s termination an offence under the Work Health and Safety Act 2011 and therefore unlawful?

Mr Gilmour argued that he was being disciplined and terminated in his role as punishment for raising genuine work health and safety concerns and that this constitutes an offence contrary to the Work Health and Safety Act 2011 (Qld) s 104 and 106(h) ([119]-[127]).

Even if the court accepted the applicant’s argument that those provisions of the Act were relevant ‘the difficulty faced by the applicant is that he must persuade the court that the reason his appointment to the SES was revoked was because he had raised concerns about asbestos’ ([133]). Her Honour was not so satisfied.  She was satisfied that his termination was not due to the nature of his concerns but about the way he chose to raise them ([134]-[135]).

Was the applicant’s termination a reprisal for a public interest disclosure and therefore unlawful?

This faced a similar problem to the argument about the Work Health and Safety Act.  Even accepting that giving a warning to the recruits did constitute a disclosure on a safety issue, it was not protected because he did not comply with the requirements of the Act with respect to making a disclosure in that he did not use the procedures provided for by the SES to raise his concerns (Public Interest Disclosure Act 2010 (Qd) s 17(2)).  Her Honour said (at [148]):

… even if the applicant’s warning to the recruits was a public interest disclosure in a general sense, the protection of the PIDA did not apply to him.  Nor did the evidence suggest that the applicant’s termination was a reprisal for the fact of his warning the recruits about asbestos.  As discussed above, his warning the recruits may have triggered everything which followed but that is not to say that his warning the recruits was the reason for the termination of his appointment.

Breach of Natural Justice

There were multiple issues under this heading including a failure by the investigator to provide to Mr Gilmour the written statements of those that had complained about him at an early stage of the proceedings. Her Honour explained (at [150]-[153]):

The rules of natural justice are concerned with procedural fairness.

Natural justice requires a fair hearing, not a fair outcome (as judged by a person in the applicant’s position).  The focus is on the process not the actual decision.

Natural justice requires someone in the applicant’s position to be informed of the accusations made against them and to be given an opportunity to state their case.  It also requires the decision maker to be free from bias.

The demands of natural justice depend on all of the relevant circumstances, including the nature of the process and its likely consequences.  The expected standard of fairness rises as issues become more serious.

The SES, in argument, submitted that Her Honour should apply the principle from Ainsworth v Criminal Justice Commission, in which it was said:[162]

“It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if ‘the decision-making process’ viewed in its entirety, entails procedural fairness”.

Her Honour reviewed the process that had been adopted by the SES and found that there had been no denial of natural justice.  The applicant was fully informed of the allegations against him and was given the opportunity to address the relevant decision maker at steps throughout the process.

Was the decision unreasonable?

The argument that a decision is ‘unreasonable’ is a limited one as courts are there to ensure that authorities who are given decision making power by legislation exercise that decision according to the legislation, not that they make the decision the judge would have made.  At [207] and [209] Her Honour said:

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances…

A court considering an argument that a decision is unreasonable is not undertaking a merits review.  If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.

She concluded ([216]-[220]):

I am of the view that the decision to revoke the applicant’s appointment to the SES was not unreasonable in the relevant sense.

The particular misconduct alleged against the applicant occurred against the background of previous warnings.

In his statement of reasons, Mr Roche explained that he had taken into account that certain other members of the SES were not prepared to work with the applicant in the Metro Group. He also took into account that attempts to transfer the applicant to another SES group had not been successful for reasons which included the applicant’s unwillingness to accept certain conditions which had been placed upon his transfer to a certain group. The applicant argues that those considerations were irrelevant.

Having regard to the statutory context and the serious nature of the work of the SES, it was open to Mr Roche to take into account the risks to the operational effectiveness of an SES group were the applicant placed with it. The risks to teamwork and authority were very relevant ones.

In my view, it cannot be said, having regard to the challenging nature of the applicant’s conduct, that the decision to revoke his appointment to this voluntary organisation, which undertakes important emergency work and which depends for its efficiency on respect for authority and adherence to direction from superiors, was not intelligently justified.

Outcome

The result was that Mr Gilmour failed to establish any grounds for a review of the decision and his termination was confirmed.

Discussion

This case raises many problematic issues. First as noted, volunteers do not have recourse to the relatively simple and cheap ‘unfair dismissal’ procedures that are open to employees (see Volunteers, unfair dismissal and the SES (June 27, 2019)).   Where a volunteer does want to seek review of their decision, they need to go to either the state or territories Civil and Administrative Tribunal or the Supreme Court.  Whether it’s the Tribunal or the Court that has jurisdiction depends on the legislation governing the Tribunal and the legislation under which the decision is made (see Natural Justice and the SES (September 28, 2015)).

Second, anyone who is willing to take a matter to the Supreme Court must have a great deal of faith in their own cause.  The process is slow, gruelling and potentially very expensive. No-one takes that course of action lightly, but the problem is that level of commitment, made worse by the time taken to prepare and dwell on a case, makes it hard to see the other side’s point of view and to therefore reach a compromise.  If you truly believe in your cause, and your view of the world, then the only explanation for the other sides failure to recognise the justice and rightness of your cause is that they are corrupt, acting for ulterior motives or acting out of malice.    A judge (and hopefully a lawyer if you are represented by a lawyer) is not so involved and can better see the other sides perspective and identify what can and cannot be proved.

It is not sufficient to assert that decisions are made for reasons other than those given by the decision maker.  If you believe you are right and the other side must know you are right, then a rational explanation is that there must be ‘more to this than meets the eye’.   But an impartial observer has to be persuaded that this is the case and where the witness confirms that he or she acted for the reasons given that can be sufficient.  As Her Honour said (at [136]):

I do not doubt that the applicant had some genuine (even if invalid) concerns about the asbestos risk associated with the exercise which triggered his conduct on 13 May 2013 and everything that flowed thereafter, including his ultimate removal from the SES. But that is not to say that the applicant’s appointment was revoked because he raised an issue about safety.

It was not the subject matter that led to his dismissal but the way in which he raised and continued to raise it posing a risk to the operational effectiveness of the SES (see [214]).

Becoming focussed in one’s view and one’s cause has implications for others.  Mr Gilmour chose to take the matter to court and one might say that a person in the position of Mr Roche an Acting Deputy Commissioner of the Queensland Fire and Emergency Services may be expected to, and understand that he may have to, defend his decisions in a court.  Also joined in these proceedings were the Regional Director EMQ, the EMQ Area Director, the Local Controller and Mr Gilmour’s Group Leader and Deputy Group Leader.   I infer that the Local Controller and Group Leaders are volunteers too.  They may volunteer for leadership roles but did not volunteer to be joined as defendants in proceedings that meant a matter that began in May 2013 did not end until June 2019.  People express concern that if they volunteer for the emergency services they will be caught up in litigation for years (noting that the trial arising from the Canberra 2003 bushfires finished nearly 10 years to the day after the fires).  It is argued, frequently, on this blog that the risk of legal issues arising from emergency response is low.  Here the risk was not an emergency but a choice by these volunteers to take on a leadership role.   They may never have been at real risk as the SES must have met the legal costs and the remedy that was being sought was not money damages but a review of a decision, but even so being named defendants for some 5 years is a big burden to bear.

I’m not sure what the answer is. One answer is to make sure that there are procedures in place to make decisions and that these are followed. The problem with putting it that way is that is what happened in this case.  The court found that the decision makers did make the decision they were entitled to make in accordance with the law, but equally Mr Gilmour was entitled to seek a review to put his argument that this had not happened.  I don’t know any solution.  There needs to be a process to review important decisions and for emergency service volunteers their status in the organisation and their belief in themselves are put at risk by disciplinary decision making.  And no-one likes to be subject to recriminations if they really believe they did the right thing and acted in good faith.  But people can never be effective judges in their own cause.

Finally, I do note that in my blog post Revoking appointments – Queensland SES (October 19, 2014) I was asked

Accepting that the power to appoint includes the power to revoke that appointment of an SES volunteer the how might the phrase ‘“only if satisfied the person has the appropriate abilities to bean SES member” in Fire and Emergency Services Act 1990 (Qld) s 132 be qualified or clarified?

I’m pleased to say that I think Her Honours findings were consistent with the views I expressed in that post.

In the discussion that followed I was asked:

Can the disciplinary portion of the Qld Public Sector Ethics Act (Particularly Section 23A) in regards to claimed breaches of the Code of Conduct claimed via the Commissioner of QFES be applied to SES volunteers?

My answer was ‘Yes in my view they can.’  Her Honour took a different view holding that although the Code of Conduct applied, the disciplinary provisions did not (see [121]).  In making that finding she relied on s 23A of the Public Sector Ethics Act 1994 (Qld) which says ‘This part does not apply to a person mentioned in section 11 (1) (c) or 13(1)(c)’.  The persons listed in 11(1)(c ) and 13(1)(c) are ‘persons who are not public officials of a public service agency who have a contract or other agreement with the public service agency’ and that includes volunteers.  It follows that my conclusions there were incorrect.

Conclusion

This is another case where a volunteer has unsuccessfully challenged a decision to terminate their membership.  Whether the decision was a good decision or not is impossible for us to judge and, more importantly, was not what the judge was asked to do.  The lesson for those who may want to take similar action in future is to understand that on judicial review, the judge’s job is to determine whether or not the decision maker acted within the scope of the authority vested in him or her by Parliament, not to make a new decision.  As Brennan J’s said in Attorney General (NSW) v Quin, quoted at [114]:

… the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise …

 

 

Categories: Researchers

Victoria Police and Ambulance Victoria MoU determines maximum speed for responding ambulance

4 July, 2019 - 20:12

Today’s correspondent has sent me an email ‘ … sent out by an Ambulance Victoria manager’.  My correspondent says ‘It’s a new on me, do you have any thoughts on Emergency Service speed limits in Victoria?’  The email says:

… I am not sure if the current conditions in relation to driver standards are understood. Therefore, could you please pass the following on to your teams.

  1. AV are a signatory to a Memorandum of Understanding as are all Emerg services with the Traffic Camera Office of VICPOL.
  2. That agreement gives us an exemption under Road Rules Victoria – 2009, of any speed limit plus ’25 kms’ only.
  3. To exceed the limit by more than 25 kms, the driver of any emergency vehicle can be seen to then cross over into ‘Road Safety Act’. There are no exemptions in that Act and deemed excessive and dangerous by the ‘Act’
  4. The TCO [Traffic Camera Office] are losing patience with AV drivers, and may start to prosecute the driver, as they are with Police drivers currently over 25kms and would be seen to be ‘Careless Driving’ or ‘Manner Dangerous’ under the Road Safety Act.
  5. The potential is a substantial fine, loss of points on licence, and ‘loss of licence’ for a period of time. That could have implications on complying with maintaining a valid licence as in AV Policy.

This seems perfectly reasonable to me.  Rule 306 of the Road Safety Road Rules 2017 (Vic) says:

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

(a)        in the circumstances—

(i)     the driver is taking reasonable care; and

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

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

The critical question is what does a(i) and (ii) actually mean?  They have to be determined by police.  Without seeing the actual memorandum, we can infer from the email quoted above that Ambulance Victoria and Victoria Police have agreed that it is never reasonable to travel more than 25km/h over the posted speed limit.  If you are travelling that fast clause (a)(ii) does not apply.

It is not their final say, it is up to a magistrate, but if a speed camera detects an ambulance travelling more than 25km/h over the limit this MoU tells you that police will not withdraw the infringement notice.  If the driver wants to challenge that then he or she would need to elect to go to court. Whilst the onus of proof is always on the prosecution to prove their case beyond reasonable doubt, the presence of this MoU between Victoria Police and the employer of the paramedic driving the ambulance would go a long way to proving that the speed was not reasonable.  As I say the driver can attempt to argue that in the particular circumstances their driving was reasonable but they’re certainly ‘behind the 8 ball’ from the start.

Further this email is warning that police won’t simply charge a person with exceeding the speed limit. Failing to comply with the speed limit is an offence contrary to r 20 of the Road Safety Road Rules 2017 (Vic) and accordingly there is the possibility of taking advantage of the exemption in r 306.  Driving at a speed or manner dangerous to the public is an offence contrary to the Road Safety Act 1986 (Vic) s 64.  What this email is warning is that if paramedics drive in excess of 25km/h over the posted speed limits police will prosecute for these more serious offences.  Whilst it still the case that the prosecution must prove the case beyond reasonable doubt, the defendant would not be able to rely on r 306. \

The email says that if police do choose to proceed under the Road Safety Act ‘The potential is a substantial fine, loss of points on licence, and ‘loss of licence’ for a period of time’.  Drivers should also be reminded that in some circumstances (eg where that driving causing death) they can expect a gaol sentence – see Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017).

Conclusion

In any case where paramedics drive in excess of the speed limit, police must consider whether they were taking reasonable care and whether their driving was reasonable in the circumstances. This MoU, at least as described in the quoted email, gives details of one factor that police will consider – the recorded speed – and note that both Ambulance Victoria and Victoria Police have agreed that travelling more than 25km/h over the posted speed limit is never ‘reasonable’.  That is not the final word on the matter, any individual case can be determined by a Magistrate, but a paramedic or any emergency worker bound by the MoU would be putting their neck and licence on the line by ignoring this direction.

 

Categories: Researchers

Operation on low tyre pressure

3 July, 2019 - 17:19

The interesting thing about legal questions is that sometimes they come as a complete surprise, as this one did and it forced me to look for laws that I didn’t know existed.  My correspondent wrote:

I write to ask the legality of reducing tyres on fire appliances to drive on sand for four wheel driving (4WD) in Queensland…

The QFES is about to introduce a new Fuso Canter with 2nd stage modification plates, of which the mods have nothing to do with the tyres or their pressures.

The vehicles have been badged with both road tyre pressures and sand driving pressures despite no mention on the compliance sticker for tyre pressures to be reduced to the level they profess.

The compliance sticker I refer to is the one in the door-well on the driver’s side of the vehicle.

The vehicles I talk about are Fuso Canters with cross ply tyres and the vehicle states the need to reduce from 415 KPa to 325 KPa when driving in sand.

I recall the need for heavy trucks to inspect the internal wall of tyres should they reduce below 80% of their specified pressures.  I don’t believe these vehicles would be regarded as heavy vehicles.

I believe that the Department of land water environment and parks (DELWP)  in Victoria got exemptions on their G Wagons to do so. I also believe it took DELWP a considerable time to get the exemptions from the tyre manufacturers but it came with very stringent caveats which made it virtually useless for them to do so.

This being the ability to reduce tyre pressures only to recover a vehicle and then only for the length of distance to become recovered. This being fairly useless when trying to get out of the way of a fire front.

They decided to go for nationally accredited training by way of safe driving practices to separate ‘weekend warrior’ 4WD thinking to that of a professional fire service using 4WD’s.

My questions are:

  1. Is it legal to reduce tyre pressures on vehicles for the purpose of emergency response in a 4WD situation?
  2. Is there are requirement to inspect the internal wall of tyres after they have been reduced in pressure?
  3. What is the actual law around reduction of tyre pressures when disregarding the specific pressures defined on the vehicle compliance plate?

I don’t understand many of those details but I don’t think the details of the types of vehicles etc are important.  I’m going to accept that the vehicles in question are not heavy vehicles within the meaning of the Heavy Vehicle National Law and RegulationsThe relevant laws therefore will be found in the Queensland road traffic legislation.

The Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld) doesn’t mention tyres.   The Vehicle Standards set out in the Transport Operations (Road Use Management–Vehicle Standards and Safety) Regulation 2010 (Qld) Sch 1 do mention tyres – cll. 35-43 but most of those clauses don’t mention tyre pressure, and the one that does, cl 38 is not relevant to this discussion.  I can find no relevant regulation on tyre pressure.

The Commonwealth Department of Infrastructure, Transport, Cities and Regional Development says:

Before a new vehicle can be registered for the first time in Australia, it must meet the requirements of the Motor Vehicle Standards Act 1989 (the Act). The Act applies to all new vehicles—whether road motor vehicles or road trailers. Under the Act, new vehicles are required to be fitted with an identification plate (formerly known as a compliance plate). The identification plate provides a clear indication to the state or territory registering authority—and to the owner and the general public—that the vehicle is ready for use in transport on public roads in Australia.

The Administrator of Vehicle Standards’ Circular 0-3-2 Identification Plates And Approved Supply To The Market Vehicle Plates set out what has to be on an identification or compliance plate.  It does not include details of tyre pressure.

Vehicles must be fitted with a tyre placard (Vehicle Standard (Australian Design Rule 42/05 – General Safety Requirements) 2018, r 20). The placard must include:

… at least the manufacturer’s recommended:

(a)       tyre size;

(b)      tyre load rating;

(c)       speed rating; and

(d)      cold inflation pressure.

A reasonable presumption in law is that you can do whatever you like unless there is a law that says you cannot.  As far as I can tell the answers to the questions are:

  1. Is it legal to reduce tyre pressures on vehicles for the purpose of emergency response in a 4WD situation?

I can find no law to suggest that it is not legal.

  1. Is there are requirement to inspect the internal wall of tyres after they have been reduced in pressure?

Not that I can find (noting that I have not looked at the Heavy Vehicle laws).

  1. What is the actual law around reduction of tyre pressures when disregarding the specific pressures defined on the vehicle compliance plate?

I can find no obligation to have tyres inflated to the manufacturer’s recommendation. Where tyres are under-inflated and that creates a danger in that it impacts upon the vehicle’s handling then that may be evidence to support a conclusion that a driver was driving in a manner dangerous to the public or some such offence. For example, see the discussion in Suspended jail sentence for firefighter involved in a fatal accident (October 24, 2009)) which related to a driver’s conviction for the manner in which he drove a vehicle that ‘was top-heavy when filled with water’.  It was that impact upon the vehicle’s handling, coupled with the driver’s knowledge, that meant he was guilty of ‘dangerous driving causing the death’ even though he was driving within the road rules (ie on the correct side of the road, within the speed limit etc).  Equally driving a vehicle that cannot be properly managed because of low tyre pressure could be dangerous or negligent driving.

This post is not really about emergency law but about vehicle standards and I don’t claim any expertise in that area so I’d welcome any references to law that suggest a contrary conclusion.

Categories: Researchers

Discussion paper on licensing of first aid providers in Victoria released

2 July, 2019 - 17:45

Further to my post on plans by Victoria to regulate the first aid sector (see Report on regulating first aid forum – Melbourne (May 16, 2019), a relevant discussion paper has now been released.  You can download the paper from the website of health.vic.

Submissions are invited and will be received until 28 July 2019, which is not very long for those intending to make submissions.

The website says:

This discussion paper has been prepared to inform the NEPT and first aid sectors, and other stakeholders of the likely direction of the Regulations and the thinking that has informed that direction. Feedback and further information is sought from stakeholders and the public. To that end, the discussion paper includes a number for questions. Submitters are requested to answer only those questions that are relevant. Submitters are not expected to respond to all questions.

The discussion paper does not canvas potential amendments to the Act other than those that have already been announced by the government. The only exception is the flagging of the proposal to licence first aid providers under the Act.

Feedback received from this consultation paper will inform the framing of the NEPT Regulations and the development of new First Aid Regulations…

Licencing and regulation of the first aid sector will replace stand-by accreditation of NEPT licencees.

The Regulations will be drafted to provide for the licencing scheme for NEPT and first aid providers as required by the Act. The Regulations will set minimum standards and will be drafted to ensure they are outcome-based where possible, rather than being prescriptive.

Submissions are invited and will be received until 28 July 2019.

Submissions may be made can be made via email to privatehospitals@dhhs.vic.gov.au.

Categories: Researchers

ACT Ambulance not guilty of unlawful discrimination in employment

29 June, 2019 - 17:02

In [The Applicant] v ACT Ambulance Service (Discrimination) [2019] ACAT 61 the applicant claimed that the respondent unlawfully discriminated against her in her employment as a paramedic.

[The Applicant] joined ACT Ambulance in 1994 ([5]).  She was diagnosed with PTSD in 2012. In January 2013 and was assigned to the Communications Centre ([6]).  At [7]:

The applicant took her dog … to work on 20 and 21 August 2017. On being advised that she was unable to bring [her dog] again, the applicant learnt that her dog needed to pass the public access test in order to be considered a service dog within the terms of the Discrimination Act 1991 (the Act).

On 17 April 2018 [The Applicant] was advised that it was proposed to transfer her from the Com Cen to the Non-Emergency Patient Transport Service.

The applicant advised that she did not want to move to the NEPT and secondly, wanted to bring [her dog] to work… Mr Wren [Chief Officer of ACT Ambulance] emailed the applicant on 23 May 2018 advising that she could not bring her support dog to work until a number of processes were worked through. He also asked the applicant to provide any relevant information regarding the proposed transfer that she wished him to consider by 6 June 2018.

On 2 August 2018 Mr Wren wrote to confirm that [The Applicant] could remain in the communications centre and that he was consulting with staff regarding [her dog]’s attendance at the work place. [Her dog] ‘passed the public access test’ ([12]). The consultation with the Com Cen staff identified that one member had an allergy ‘to dog fur and dander’ ([16]).

On 13 August 2018 the applicant lodged a claim with the Human Rights Commission.

On 30 August 2018 the applicant attended a meeting with her caseworker and a representative of the Justice and Community Safety Directorate (JACS) to discuss her roster in ComCen going forward.

On 7 September 2018 the applicant returned to work in ComCen with [her dog] after being advised that her shift had been moved forward one day so she was not working with the employee with the dog allergy.

Section 8 of the Discrimination Act 1991 (ACT) says:

A person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.

Senior Member Brennan said (at [59]):

The issues for determination by the Tribunal are whether it should find that the respondent discriminated against the applicant in the proposal to transfer the applicant to the NEPT and due to its alleged delay in permitting the applicant to bring [her dog] to work. The issue of indirect discrimination arising from the transfer due to [her dog] being unable to join the applicant in the role is also at issue.

The argument was that the decision, or proposal, to transfer the applicant to the NEPT service was discriminatory if it fell within s 8.  At [68]-[69]:

For there to be discrimination, the Act requires that the treatment is unfavourable. In Prezzi and Discrimination Commissioner [1996] ACTAAT 132 (Prezzi) the then Discrimination Tribunal reasoned at paragraph 22 that in considering the Act:

… All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with. If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person.

The applicant gave evidence for why she considered the move to NEPT was unfavourable to her, which included: “it would be quite detrimental to me and I don’t think I could operate even after the first or second patient because hidden suffering is one thing that I can’t cope with anymore.”

At [71]:

The respondent rejected the categorisation of the proposal to move the applicant to the NEPT as unfavourable. It referred the Tribunal to sections in the INA which opined that ComCen was not the appropriate workplace for the applicant and noted further, the self-reported evidence from the applicant and Ms O’Sullivan that the applicant was deteriorating in being exposed to events which caused trauma and exacerbation of her symptoms.

At [75] the Senior Member said:

There is conflicting evidence before the Tribunal as to whether the proposed move was unfavourable to the applicant. While her strong preference for remaining in ComCen is clear, comments within the INA, including those attributed to Dr Morvai, that the applicant’s ongoing employment within ComCen and ESA has “risks” for increasing her anxiety and exposing her to “triggering events” provide a contrary view. Given the conflicting evidence, on balance, the Tribunal does not consider the applicant was treated unfavourably and/or subjected to a detriment by the proposed transfer.

In writing to the applicant Mr Wren also raised the issue of her safety and that of the community. There was evidence regarding concerns of the applicant’s ability to cope with the pressure in the ComCen.  At [81]-[84] the Senior Member said:

It is evident that in such a crisis environment, the applicant’s colleagues and the wider community need each ComCen member to be able to perform their critical functions at all times…

In his role Mr Wren has responsibility for “the general management and control of the ambulance service” (section 28(3)). The Tribunal is satisfied that this overriding responsibility to the wider community to ensure that ComCen was running to its optimum level was also a consideration in the 29 April 2018 letter.

Additionally, the Tribunal also notes section 30 of the Act which provides that “This Act does not make unlawful anything done necessarily for the purpose of complying with a requirement of – (a) A territory law; …’’. Clearly, this defence to a potential claim of discrimination could extend to provisions in legislation such as Work Health and Safety Act 2011 and Emergencies Act 2004 identified above.

On balance, when considering all the reasons for why the proposal was made, the Tribunal finds there were additional reasons beyond the applicant’s disability and section 30 leaves no doubt that the respondent has obligations to comply with other ACT legislation, such as the two Acts detailed above.

As for the delays in confirming that the applicant could bring [her dog] to work, the Senior Member said ([86]-[87]):

Once the applicant provided evidence of the dog’s accreditation on 17 July 2018, there is no doubt that the respondent could have acted more promptly in undertaking the steps detailed in section 4 of the Animals in the Workplace Guideline … different JACs Directorate employees were responsible to have progressed the workplace’s response to a service dog being at work. While the process was arguably poor, particularly given the prompt and proactive action taken by Ms Lundy in August 2017, the Tribunal does not find that this equates to unfavourable treatment of the applicant due to a protected attribute. In short, the delay of approximately seven weeks, was not so significant such as to give rise to such a claim.

Further, the Tribunal does not consider the failure of the respondent taking action, prior to being notified of [her dog]’s accreditation, equates to discrimination within the terms of the Act. Clearly, it was possible that the dog may not have passed the accreditation requirements.

Finally, at [89] ‘It follows that having regard to the requirements of the Act in this case, the Tribunal dismisses the application’.

Discussion

It is unlawful to discriminate on prohibited grounds, including disability.  But an employer, such as ACT Ambulance, also has to ensure that it can meet its statutory duties and that the conduct of the workplace does not expose workers and others to unreasonable risks to their health and safety.  Balancing those demands is clearly complex.  Actions taken to comply with another Act of the ACT are not unlawful even if they do constitute discrimination under the Discrimination Act.

The Discrimination Act does not require an employer to meet the employee’s subjective demands or address their perception of discrimination ([74]).  Whether a person has been discriminated against is an ‘objective’ test taking into account both the actions (or inactions) of the employer and the legal obligations upon that employer.

Categories: Researchers

Dismissal of Queensland paramedic for unlawful drug use on duty confirmed

29 June, 2019 - 16:09

In Costello v State of Queensland (Department of Health – Queensland Ambulance Service) (No. 2) [2019] QIRC 094 the applicant sought an order for reinstatement after he had been dismissed from Queensland Ambulance for misappropriation and self administration of methoxyflurane whilst on duty.   Mr Costello argued ‘that his termination was harsh, unjust and unreasonable’.

What happened

On 2 June 2016 Paramedic Costello, an Advanced Care Paramedic, was working with a paramedic student and a graduate paramedic of 6 months experience. They were called to assist an elderly lady who had fallen and suffered a shoulder injury.  The patient was given two doses of methoxyflurane and 5ml of morphine.  Whilst at hospital, waiting to hand their patient over to the hospital’s care, Mr Costello excused himself to go to the bathroom.

Mr Costello’s partner, Mr Hoey recorded (at [7]) that a nurse observed Mr Costello stumble out of the bathroom. The nurse approached Mr Costello who said he was fine but out of concern for his welfare he raised it with Mr Hoey.  Mr Hoey along with another paramedic went looking for him.   They found him in a toilet cubicle.  He was sitting on the toilet.  The lid was closed and Mr Costello was fully dressed.

Officer Costello did not notice the other two officers standing at the door, there was the distinct smell of Methoxyflurane surrounding Officer Costello.

Officer Costello had a Penthrox whistle in his hand, with the wrist strap around his wrist, he appeared glassy eyed and emotional as well as having bloodshot eyes.

The matter was reported to a senior officer who spoke to those involved and asked them all to make notes of what they had observed.  The second paramedic who assisted Mr Hoey in his search for Mr Costello reported (at [9]) that:

I saw Jay [Costello] sitting on the toilet, leaning forward, elbows on knees, hands together holding a Penthrox/Methoxyflurane whistle.  The room smelt strongly of methoxyflurane, I did not see him put the whistle to his mouth, he did appear heavily under the influence.  Jay repeated to Patrick [Hoey] that he did not use it, he’s just really stressed at the moment in regard to his daughter.  Patrick and I stayed with him, talking with him and explaining that he needs to go home…

In an interview with a senior officer at the hospital, Mr Costello (at [11]) ‘denied that he had used the whistle and he explained he had found this whistle in his pocket whilst having a moment on toilet trying to de-stress over his child’s news’ (news that related to his child’s medical condition).

Officer Costello was suspended on fully pay pending further investigation ([14]).  There were further interviews with everyone involved ([15]-[20]).

Mr Costello gave an explanation for his behaviour insisting that he had placed the methoxyflurane in his pocket when it was dropped in the ambulance and when sitting on the toilet, reflecting on his daughter’s diagnosis and prognosis, he had felt it stabbing into him and so took it out of his pocket and held it in his hand intending to dispose of it when he returned to his colleagues.

The investigator’s assessment of the evidence was that the allegations against Mr Costello were established on the balance of probabilities and ‘that Officer Costello’s version lacks credibility’ ([28]).  Mr Costello was invited to show cause why disciplinary action should not be taken against him ([30]).    In his response Mr Costello submitted that given the serious nature of the allegations and the potential impact upon him, the investigator had to be satisfied to a level higher than ‘more probable than not’.

(In making that submission Mr Costello relied on the decision in Briginshaw v Briginshaw [1938] HCA 34.  In earlier post, Misfeasance in public office (June 18, 2013) I said this about the decision in Briginshaw:

Where an allegation is of fraud or other serious misconduct further, more convincing proof may be required to satisfy the court that, on the balance of probabilities the allegation is made out. In Briginshaw v Briginshaw (1938) 60 CLR 336 Dixon J said:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved … It is often said that such an issue as fraud must be proved “clearly”, “unequivocally”, “strictly” or “with certainty”…)

After considering Mr Costello’s submissions, Mr Hammond, Assistant Commissioner, Gold Coast Local Ambulance Service Network wrote to Mr Costello saying that he was satisfied the allegations had been made out and that he would be recommending disciplinary action which may include termination of employment.  Mr Costello was invited to respond again to argue why that action should not happen. ‘He was also invited to provide an alternative outcome if he considered the proposed disciplinary action was inappropriate‘ ([36]).

Mr Costello noted ([38]):

… if Mr Hammond genuinely believed that he self-medicated methoxyflurane, then the termination of his employment, as opposed to rehabilitation back into the workforce, would be harsh, unjust and unreasonable…

Mr Hammond wrote ([40])

I consider that the disciplinary finding I have made is appropriate.  Further I believe that in all the circumstances a disciplinary response is warranted and that the substantiated behaviour constitutes misconduct.  I remain of the view that termination of employment is an appropriate response.

Therefore I am referring this matter to the relevant delegated authority, Deputy Commissioner Craig Emery for his determination …

Deputy Commissioner Craig Emery conducted further interviews with the two paramedic witnesses.   He did that, he said (at [44]) because:

I was conscious of the seriousness of the proposed penalty of termination of Officer Costello’s employment, and considered that the onus was more heavily on me to ensure my decision was correct and proportionate to the conduct.  In particular, I wanted to be sure that Officer Garrett and Officer Hoey were sure about the information they had provided.

Finally (at [47]-[48]) Bloomfield DP said:

… “having read the material very carefully and considering the matter, including evaluating all the material provided to me and facts presented to me”, he [Mr Emery] agreed with Mr Hammond’s recommendation that termination of Mr Costello’s employment was the appropriate remedy.

As such, on 31 October 2016, he finalised and signed a letter addressed to Mr Costello which informed him that he (Emery) had made the decision to terminate his employment and his reasons for having reached that decision.  In advising Mr Costello of his termination, Mr Emery acknowledged the significance of the proposed action and its impact on him.

Queensland Industrial Relations Commission

The matter finally ended up in the Queensland Industrial Relations Commission.  There were 8 hearing dates between 17 March and 8 December 2017 and the final decision was handed down on 25 June 2019- that is three years and three weeks after the event and 18 months after the last hearing date!

There were four witness called for Mr Costello and 11 for QAS.    Details of the evidence called and submissions made go on for many paragraphs and pages and I cannot explore them all here, suffice to say arguments as to why the Commission should, or should not have found the allegations were proved and, if proved, why dismissal was or was not harsh, unjust and unreasonable were all forcibly presented.

Deputy President Bloomfield said [at [111]):

Having considered the matter at great length, I am satisfied that the Respondent has established, to my reasonable satisfaction, to the Briginshaw standard … that Mr Costello did misappropriate and use methoxyflurane in (at least) the toilet in which he was found by Mr Hoey and Ms Garrett on the evening of Thursday 2 June 2016.

He accepted that Mr Costello may not have deliberately taken methoxflurane into the bathroom in order to take it, but when in the bathroom he found the inhaler in his pocket and took it out.   He said (at [132]):

My conclusion is that Mr Costello decided to use the Penthrox whistle to inhale some of the methoxyflurane in order to settle himself down before he returned to the triage area. As a qualified paramedic, he understood that methoxyflurane would reduce his anxiety and distress about the images he had seen on his mobile phone [regarding his child’s recently diagnosed medical condition]. Given the strength of the smell of methoxyflurane that both Mr Hoey and Ms Garrett smelt, it is also possible that he increased the dosage level by placing his finger over the diluter hole of the inhaler…

(There was also an allegation that Mr Costello has failed to comply with QAS procedures with respect to disposal of opioid drugs.  Deputy President Bloomfield said he did not consider those allegations and restricted his ‘consideration of the merits of the Respondent’s decision to terminate Mr Costello’s employment to those matters contained in Allegations 1 and 2’ ie the misappropriation and self administration of methoxyflurane (see [109] and [144])).

As for the impact on Mr Costello of his dismissal the Deputy President said (at [159]):

… while relevant, the consequences for Mr Costello as a result of his loss of employment is but one matter which needs to be considered in deciding this Application. The primary consideration though, in my opinion, is the fact that the Respondent found, on the balance of probabilities, that Mr Costello used methoxyflurane while on duty, against a background where he denied (and continued to deny) that he had done so. If Mr Costello had admitted its use and explained the circumstances which led him to take that action, then the outcome (as Mr Emery indicated) might have been much different. Unfortunately, that is not what happened.

Ultimately, he decided (at [164]) that

… there was a sound or valid reason … for the summary termination of Mr Costello’s employment and that the procedures it [QAS] adopted which led to that decision were fair and reasonable.

Mr Costello’s application to return to his employment as a paramedic was refused.

Discussion

It is hard to discuss the facts of this case as the arguments and evidence were long and contradictory.  What we do know is that front line responders are subject to stresses that most of us are not (see The Senate Education and Employment References Committee The people behind 000: mental health of our first responders (February 2019, Commonwealth of Australia 2019)).

One would hope that an agency like QAS that became aware that a paramedic misappropriate and self-administered methoxyflurane after receiving news that their child was subject to poor medical diagnosis would focus on the paramedics well-being at the first instance.  There could, one hopes, be steps to provide supervised practice and care to help the paramedic return to service rather than dismiss them.  Such therapeutic action would however require the person to acknowledge that they had indeed taken the drugs and that was always in contest in this case.

With paramedic registration the issue will, to some extent be taken from the hands of the ambulance services.  Whilst ambulance services will still be able to hire and fire staff, the question of registration will remain issues for relevant committees or tribunals acting under the Health Practitioner Regulation National Law.  Under that law there are procedures to deal with paramedics who for whatever reason are impaired in their practice, and that reason may be their reaction to the stresses in their life and/or from drug use (see definition of ‘impairment’ Health Practitioner Regulation National Law s 5).  The law is meant to be used such that ‘restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality (Health Practitioner Regulation National Law s 3(3)(c)).  If this really was a one-off event (and there was no evidence to the contrary) then there was also no evidence that this conduct impacted upon Mr Costello’s practice or posed a risk to patient safety. Ongoing drug usage may have but having identified that he did take this drug it was possible to provide some ongoing care- but of course that again would require him to admit that he had taken the methoxyflurane, something he consistently denied.

Conclusion

At the end of the day it is not for me to judge the position. The tribunal reviewed all the circumstances and found that it was more likely than not that Mr Costello did misappropriate and self-administer methoxyflurane and the decision to terminate his employment was not harsh, unjust or unreasonable.

I would say that regardless of what appears to be an unforgiving response, the time taken to resolve the matter adds to the feeling of disquiet over the whole event.  Of course it’s hard to be forgiving if the person does not admit their error.  If Mr Costello did use the methoxyflurane his original denials put him in a position where he may have been committed to a story no matter how the evidence develops; if he did not use the drugs no doubt his sense of injustice will continue.

Categories: Researchers

Paramedic’s opinion admissible in murder trial

29 June, 2019 - 12:32

The issue of paramedic observations and the admissibility of their opinion as to the cause of the patient’s injuries has again arise in R v Mahony [2019] QCA 131.

In Lithgow City Council v Jackson [2011] HCA 36 the issue was how did the plaintiff come to suffer his injuries.  The High Court held that one could not infer that when the paramedics wrote ‘? Fall from 1.5 metres onto concrete’ on their case sheet that they were intending to express an opinion as to the cause of the patient’s injuries and, in any event,  they were not relevant experts so any opinion would not be admissible evidence to establish the cause of injuries. One problem in that case was, given the issue was what did the paramedics intend, no-one actually asked them to give evidence on what they saw or observed or what they intended to convey by the entry on the case sheet (see the discussion on this blog at Lithgow Council v Jackson [2011] HCA 36 (28 September 2011) (October 5, 2011)).

In R v Mahony the defendant was convicted of murder.  The evidence was that the deceased died as a result of a depressed fracture to the back of her head.  She had no other injuries.  The defence case was that the deceased sustained the injury by falling several metres out of a tree. Three pathologists gave evidence that, in their opinion, the deceased’s injuries were inconsistent with the defendant’s version of events, that is if she had fallen out of a tree, they would have expected to see multiple injuries.  Further a paramedic who treated the deceased at the scene also gave evidence that it was unusual for someone to fall from a height and only sustain the one injury to the head. There were many issues raised on appeal, this post will deal only with the issue of the paramedic evidence.

The paramedic gave this evidence:

“All right.  Now, how long have you been in the Ambulance Service?—That was 2009.  So I’d been in the service at that time about 7 years.

Okay.  And you’d had quite a deal of experience with falling incidents?—Yes, that’s correct.

And you have come across people that have fallen a great distance?—Yes, I have.

On other occasions?—Yes, I have.

Yes.  And with suffering head injuries?—Yes.

Yes?—Yes, I have.

And would it be correct to say that in your experience, that some of those people you’ve come across have fallen great distances and, yet, have no injuries?—Um—

Other than maybe the head injury?—To the best of my recollection, I’ve always noticed that there are other sort of bruisings or other factors or some sort of involvement with that —

I see?— I – with an injury of that significance, I would assume there’s something else.

You’d think there’s – should be something else?—Yeah, potentially.

Okay.  Well, you expected there would have been more injuries to the limbs or something.  Is that about it?—Yeah, I would.”

A nurse who treated the deceased at the hospital when she was first admitted gave similar evidence as did three examining pathologists.  The pathologists were allowed to give evidence of their opinion – that if a person fell 6m from a tree you would expect to see more than a single head injury – without having to refer to relevant scientific literature or detail how their CV gave the particular expertise in the area.  With respect to the pathologists, Sofronoff P said (at [52]):

They were eminently qualified, by their experience of actual observations that they had personally made over many years, to say that it was unlikely that [the deceased] could have fallen the distance claimed and, yet, have suffered only the single observed injury to her skull.

With respect to the evidence from the treating paramedic, His Honour said at [69]:

For the same reasons that the similar evidence of the pathologists was admissible, so too was this evidence.  The evidence about an expectation of more than a single injury was based expressly upon the witnesses’ experience.  It was, in truth, evidence of fact, namely past observations and present observations coupled with the unremarkable opinion that, having regard to that past experience, the present observations were unusual.

As noted there were many grounds of appeal, the admissibility of the paramedic’s evidence was just one.  All were rejected by Sofronoff P (ie President of the Court of Appeal). The other two judges Morrison and McMurdo JJA) agreed with the President, the appeal was dismissed and the conviction for murder affirmed.

Discussion

The crucial issue that, in my view distinguishes this case from Lithgow City Council v Jackson is that the paramedic was actually called to give evidence. This was not reliance on a case sheet that must have limited information.  Here the paramedic was able to give evidence of his years of service and his observations over time and that allow the court to assess his ‘past observations and present observations’ in a way that simply couldn’t be possible from a case sheet alone.   In Lithgow City Council the comment ‘? Fall from 1.5 metres onto concrete’ given it was recorded on the patient care record, did not record what the paramedics saw to draw a conclusion (if they did draw a conclusion) as to the cause of the plaintiff’s injuries.

In my post discussing Lithgow City Council v Jackson I said (emphasis added):

For paramedics the case confirmed that their records are ‘business records’ and therefore can be used to prove the facts that they record, so that an entry that a drug was given is evidence that the drug was in fact given.  But that does not allow what is otherwise inadmissible to be admissible.  The paramedics were not allowed to give evidence as to the causation (if that is in fact what they intended to do) but rather could give evidence as to what they observed.  Of course they don’t write every detail on their case sheet.  That is neither practical in terms of the need to actually treat the patient, not record matters of evidence for later litigation nor is it why details are recorded on the case sheet.  The comment ‘? Fall from 1.5 metres onto concrete’ is recorded to help inform all those involved in health care what may have happened and what injuries to look out for.

The paramedics could have given evidence of what they observed, they perhaps could even have been qualified as experts to allow them to give an opinion if they had been called…

In this case that is what happened. The treating paramedic was called to give evidence as to his experience and what he observed and it is that evidence that allowed the court to accept his ‘unremarkable opinion that, having regard to that past experience, the present observations were unusual’.

Conclusion

Good records can avoid the need to go to court as they are admissible as evidence to prove what they record, but in this context, patient care records cannot record everything that may be important in a trial.  Inferring facts in issue, such as what was the cause of a patient’s injuries, may not be possible by reading the patient care record alone. But where paramedics are called to give evidence they can report on what they saw and observed and in relevant cases, draw an opinion based on their professional standing.

 

 

 

Categories: Researchers

Volunteers, unfair dismissal and the SES

27 June, 2019 - 17:56

In Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 the applicant commenced proceedings alleging he had been the subject of unfair dismissal when he was ‘relieved of his volunteer duties’ with the Sydney Gay & Lesbian Business Association.  The application was dismissed as Mr Williams refused to take part in the proceedings of the Commission.  In the course of dismissing the application Deputy President Sams said (at [17]) ‘it must be observed that the jurisdictional objection of the respondent concerning the status of the applicant, as a volunteer, was almost certainly bound to succeed’.  In support of that proposition the Deputy President referred to the decision in Grafton v NSW State Emergency Service [2017] FWC 4057 and it is that case that I will now discuss.

In Grafton’s case, the applicant made an application for orders relating to alleged ‘unfair dismissal by NSW State Emergency Service (NSW SES).’  The applicant, Mr Grafton, was a volunteer with ‘the Canterbury and Marrickville SES Units’ ([4]).  The SES objected to the Fair Work Commission’s jurisdiction on two grounds.  One was that the SES was not a ‘national system employer’. The other was that Mr Grafton was not an employee and the unfair dismissal provisions only apply between employer and employee.

With respect to the first ground the Fair Work Commission is established by the Fair Work Act 2009 (Cth).  The Commonwealth is a parliament of limited jurisdiction and can only make laws within the areas permitted by s 51 of the Australian Constitution.   To bring employers within the jurisdiction of the Fair Work Commission there has to be a link to a Commonwealth power, most usually the power of the Commonwealth to make laws with respect to corporations (s 51(xx)).  The Fair Work Act only applies to national system employers.  A ‘body established for a public purpose by or under a law of a State or Territory…’ is not a national system employer.   At [12] Deputy President Dean said:

The NSW SES, established in 1955, is a New South Wales State Government Agency and is operated under the State Emergency Service Act 1989. I am therefore satisfied that it is not a national system employer. It follows that Mr Grafton cannot be a national system employee.

Mr Grafton’s application was dismissed.

The consequence of finding that the NSW SES is not a national system employer is that a staff member of the SES cannot seek a remedy for unfair dismission from the Fair Work Commission.  If they were dismissed, and if they did think it was unfair, they would have to look to the NSW Industrial Relations Commission for any remedy.

Interestingly the Deputy President did not address Mr Grafton’s volunteer status. That is the application was not dismissed because he was a volunteer but because the SES was not a national system employer. Whether Mr Grafton could allege unfair dismissal was not tested because even if he could claim unfair dismissal, he could not do it before the Fair Work Commission.  It follows that this case does not support Deputy President Sams conclusion that ‘the jurisdictional objection of the respondent concerning the status of the applicant, as a volunteer, was almost certainly bound to succeed’.

Deputy President Sams also relied on Grinholz v Football Federation Victoria Inc [2016] FWC 7976.  That case also involved a volunteer seeking a remedy for unfair dismissal.   In that case the objection to the Commission’s jurisdiction was upheld because the applicant ‘was a volunteer and not an employee’ ([13]).

Discussion

It is no surprise that a volunteer cannot bring an action for unfair dismissal under the Fair Work Act 2009 (Cth). That Act is clearly directed to regulating the employer/employee relationship.

Even so, in both Williams v Sydney Gay & Lesbian Business Association and Grafton v NSW State Emergency Service it was not the applicants volunteer status that determined the outcome. In Williams, having filed the application the applicant failed to take part in the Commission’s proceedings.  In Grafton the application was dismissed as the SES was not a national system employer and so the Commission had not jurisdiction to hear the matter. (It should also be noted that Mr Grafton refused to take part in proceedings or answer requests for his argument on the question of jurisdiction).  It was in Grinholz where the fact that the applicant was a volunteer determined that there was no jurisdiction.

Accepting however that a volunteer cannot bring an action for unfair dismissal in the Fair Work Commission the decision in Grafton v NSW State Emergency Service is informative as it explains why no-one, volunteer or employee of the NSW SES can bring such an action.  The SES is not a national system employer, so anyone’s remedy is to be found outside the Fair Work Act.  For employees that would mean the Industrial Relations Commission, for volunteers their only remedy for alleged unfair termination would be in the New South Wales Civil and Administrative Tribunal or the Supreme Court – see Castle v Director General State Emergency Service [2008] NSWCA 231 and the following blog posts:

 

Categories: Researchers

Practice as a paramedic pending registration outcome

26 June, 2019 - 19:35

Today’s correspondent raises the issue of:

Someone holding a Diploma of Paramedical Science, has applied for Paramedic registration, prior to December 2018, based on the fact that their application is still in process, they are still using the title of Paramedic.  It’s nearly been 10 months since the original application has been logged and it appears there is no way for a current organisation to check the status of such an application.

Should a medical incident occur, whereby this person performs below the expected level of a registered paramedic, and it leads to negative consequences for a patient, would there be any implication for the company they currently work for as a paramedic?

Since 1 December 2018, only a person registered as a paramedic can use the title ‘paramedic’ but, as my correspondent has noted, when paramedic registration was introduced there was a transition period.  As a result any person who applied for registration before 1 December 2018 is entitled to use the title until their application is finalised (see Paramedicine Board, Fact sheet: Using the title ‘paramedic’ after 1 December 2018 (9 April 2019)).

The person the subject of my correspondent’s question is entitled to use the title paramedic but that does not, yet, define the scope of practice of the reasonable ‘paramedic’. The Health Practitioner Regulation National Law is about protection of title, not about scope of practice.  With many people obtaining registration under the grandparenting clauses there will be many paramedics with qualifications and experience quite different from a new graduate seeking registration.    Over time, as the profession is filled with graduates from University courses approved by the Paramedicine Board there will develop an identifiable minimum level of competence of registered paramedics but that is not yet the case.

What follows is that this person is entitled to call themselves a paramedic but what might be reasonably expected of them will depend on all the circumstances including their training.  If, taking all that into account they were to provide care to a patient that was not ‘reasonable in all the circumstances’, or to put that as my correspondent did, they failed to provide the care that could be expected of a reasonable paramedic with similar training in the circumstances, and if that contributed to an adverse outcome for the patient, then the patient could sue in negligence.  If the patient did sue the employer would be vicariously liable for the negligence of its employee.

Conclusion

The question was ‘Should a medical incident occur, whereby this person performs below the expected level of a registered paramedic, and it leads to negative consequences for a patient, would there be any implication for the company they currently work for as a paramedic?’ and the answer is ‘yes, they company would be vicariously liable’.

Categories: Researchers

South African paramedic seeking to register in Australia

23 June, 2019 - 13:36

Today’s question comes from a South African registered paramedic who has:

… applied to register with AHPRA, and [is] waiting on decision. …  [My correspondent is] not working at an ambulance service in Australia, and never had, I work offshore in Malaysia safety/medic, FIFO Gold Coast. I have practiced as Intensive Care Paramedic equivalent in South Africa until 2006, but have always kept my HPCSA registration, and CPD updated. I am under the impression they may want me to work under a mentor via grandfathering, but I am finding it difficult to get the ambulance service to assist me in this. Any idea how to go about this? I have a lot to offer, and am willing to volunteer, but it seems it is difficult for me as professional to offer my services for free, perhaps due to potential litigation, I am not sure. The AHPRA registration is long overdue compared to internationally. This however prevents me from applying locally for work, because I need to be AHPRA registered.

I cannot answer most of that, in particular I cannot give advice on how to ‘get the ambulance service to assist me in this’.  There is no obligation upon the service to provide work or volunteer opportunities just because someone wants them.

With respect to registration a paramedic can register if they hold an ‘approved qualification’ (ie an approved degree from an Australian university), an ‘accepted qualification (ie Diploma qualification issued by the NSW Ambulance Service’).  The Grandparenting provisions apply if the applicant does not hold an approved or accepted qualification but can demonstrate that they:

  1. hold a qualification or have completed training that the Board considers adequate; or
  2. hold a qualification or have completed training in paramedicine and have also completed further study, training or supervised practice required by the Board; or
  3. have completed five years of practice over the past 10 years and satisfy the Board that you are competent to practise paramedicine.

It is up to the Board to assess my correspondent’s South African training and experience in South Africa and elsewhere to determine if he or she falls within (1), (2) or (3) above.

The requirement to undertake supervised practice in Australia appears to be only relevant where the application is relying on option (2) above, that is the applicant holds ‘a qualification or have completed training in paramedicine and have also completed further study, training or supervised practice required by the Board’ (see Paramedicine Board of Australia, Grandparenting Pathways (24 August 2018)).

Conclusion

My advice would be wait for the Board to make a decision.  They may allow registration under options (1) or (3) above.  If they do require supervised practice in Australia, then it will be up to my correspondent to discuss with the Board and relevant jurisdictional ambulance services as to what is required and what can be done.  The ambulance services do not, however, have an obligation to make opportunities available to someone just because they want to register in Australia

Categories: Researchers

Presumptive workers compensation law for Victorian firefighters

23 June, 2019 - 13:08

Today’s correspondent asks about presumptive workers compensation legislation for firefighters in Victoria.  My correspondent

… was wondering if now that the bill has passed, [I] would … provide comment specifically on the Victorian presumptive legislation. There appears to be much opinion to the effect that Volunteers would be treated differently in that they would still have to provide evidence to prove their cancer was a result of fire fighting operations in circumstances where a claim has been made.’. How does this law compare with other states and in your opinion, is it truly presumptive for volunteers?

The Bill was the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Bill 2019 (Vic).   According the Victorian Parliament’s website (as at 20 June 2019) the Bill ‘will now go to the Governor for royal assent’ so it is not yet law, but Royal Assent is a mere formality so it will soon become part of the law of Victoria.

The Bill not only introduces presumptive legislation it will, according to Adam Carey, State Political Correspondent for The Age (see ‘A lot of pain’: Labor’s contentious fire services reforms pass into lawThe Age (Online) June 20, 2019) also mean that:

… the Country Fire Authority will be devolved into a volunteer-only organisation while maintaining its 1220 volunteer brigades.

A new professionals-only agency called Fire Rescue Victoria will run metropolitan fire services, replacing the Metropolitan Fire Brigade. It will take control of the 38 professional CFA brigades at “integrated” stations that are currently shared by the professional CFA firefighters and CFA volunteers.

The state’s fire services boundaries will be changed, bringing outer suburban areas of Melbourne that are served by the CFA under the control of Fire Rescue Victoria.

The model will come into effect in mid-2020, meaning there will be no change to the status quo until after the 2019-20 fire season.

Presumptive legislation

Presumptive legislation is legislation intended to reduce fights over compensation.  It says that if firefighters are diagnosed with certain prescribed conditions it is assumed that those conditions were caused by their firefighting service and they are entitled to workers compensation without having to prove an actual connection between their work and their illness.   Such legislation already exists at the Commonwealth level and in every state and territory other than the Australian Capital Territory.

The Victorian presumptive provisions

Section 1 says:

The purposes of this Act are to—

(a)        provide a rebuttable presumption for—

(i)         career firefighters suffering from specified forms of cancer that the cancer is presumed to be due to the nature of their employment for the purposes of claiming compensation under the Workplace Injury Rehabilitation and Compensation Act 2013; or

(ii)        volunteer firefighters suffering from specified forms of cancer that the cancer is presumed to be due to the nature of their service as a firefighter for the purposes of claiming compensation under the Workplace Injury Rehabilitation and Compensation Act 2013…

The first thing to note is that it is a ‘rebuttable presumption’, that is if the defendant insurer can show that the cancer is not caused by the firefighter’s service, then the fire service’s insurer can avoid liability to pay workers compensation.

Career firefighters

A career firefighter is ‘a person who is or was employed by a fire service as a firefighter in a role in which firefighting duties are or were a substantial portion’ (s 4).

A career firefighter who:

  • develops one of the listed diseases;
  • whilst employed, or within 10 years after ceasing employment as a firefighter;

is presumed to have contracted that disease as a result of their firefighting work provided,

  • they were engaged in firefighting for the relevant qualifying period (s 6(1)) and
  • they contracted the disease on or after 1 June 2016

The qualifying period is both volunteer and employed firefighting combined (s 7).  The relevant diseases and the qualifying periods are:

Column 1 Column 2 Disease Qualifying period Primary site brain cancer 5 years Primary site bladder cancer 15 years Primary site kidney cancer 15 years Primary non-Hodgkins lymphoma 15 years Primary leukemia 5 years Primary site breast cancer 10 years Primary site testicular cancer 10 years Multiple myeloma 15 years Primary site prostate cancer 15 years Primary site ureter cancer 15 years Primary site colorectal cancer 15 years Primary site oesophageal cancer 25 years

For example, a person who was a volunteer firefighter for 10 years and then joins the employed staff for 5 years and who, within 10 years of leaving the fire service, contracts Primary site bladder cancer is presumed to have contracted the cancer due to their firefighting and they are entitled to workers compensation.

A firefighter can claim compensation even if he or she does not meet the qualifying period if it can be shown that there was ‘an exceptional exposure event in a firefighting capacity’ (s 13).

Volunteers

The rules for volunteers are the same as for career firefighters with the one difference.  A volunteer must have ‘attended fires to the extent reasonably necessary to fulfil the purpose of their service as a firefighter’; that is a person cannot enrol in a CFA brigade, attend two fires in their first year but not attend any more and claim to have met the qualifying period.  In determining whether a fire fighter has  ‘attended fires to the extent reasonably necessary to fulfil the purpose of their service as a firefighter’ the Victorian WorkCover Authority, responsible for meeting the compensation payments, must (s 12) ‘seek an expert opinion from the advisory committee’ (established under s 20).

In providing the expert opinion to the Authority, the advisory committee must have regard to—

(a)       any relevant records, brigade records, CFA data, employer data and local knowledge; and

(b)       any other matter prescribed by the regulations.

Where a volunteer meets the presumptive requirements, he or she is to receive compensation as if he or she were an employee (s 18).

Discussion

My correspondent said

There appears to be much opinion to the effect that Volunteers would be treated differently in that they would still have to provide evidence to prove their cancer was a result of fire fighting operations in circumstances where a claim has been made.

I cannot see on what basis anyone would draw that conclusion.  There is no requirement for a volunteer to ‘provide evidence to prove their cancer was a result of fire fighting operations’.  Volunteers are treated like employed firefighters with the only extra requirement being that the WorkCover authority must be satisfied that the firefighter ‘attended fires to the extent reasonably necessary to fulfil the purpose of their service as a firefighter’.  For a volunteer with many year’s service who regularly turns out with their brigade that is not going to be an issue.  It will be an issue for the firefighter who signs up, never turns up and for who it takes time to remove them from the books.   That is not going to be a significant issue in most cases and it is not the case that the volunteer has to ‘provide evidence to prove their cancer was a result of fire fighting operations’.

I was also asked ‘… in your opinion, is it truly presumptive for volunteers?’.  In my opinion, yes it is truly presumptive for volunteers.

How does this law compare with other states?

The law is virtually identical with other states see:

  • Workers Compensation Act 1987 (NSW) s 19A (for employees) and Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 10A (for volunteers);
  • Return to Work Act 1986 (NT) s 50A;
  • Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 36B-36E;
  • Return to Work Act 2014 (SA) Sch 3;
  • Workers Rehabilitation and Compensation Act 1988 (Tas) s 27;
  • Workers’ Compensation and Injury Management Act 1981 (WA) ss 49A-49E (for employees) and Fire and Emergency Services Act 1998 (WA) ss 36ZM-36ZPN for volunteers)

The Commonwealth legislation (the Safety Rehabilitation and Compensation Act 1988 (Cth) s 7(8)) does not refer to volunteers.  Presumably Commonwealth firefighters are employed by the Australian Defence Force, Aviation Rescue and Fire Fighting and agencies responsible for managing Commonwealth land.  It may be that the Commonwealth does not engage volunteer firefighters.

Categories: Researchers

Keeping audio ‘notes to self’

21 June, 2019 - 17:32

Today’s correspondent is a

… deputy Group captain and sometimes need to be able to provide information after an incident.  As I age I find it more difficult to recall details of incidents as they unfold. Particularly in the first few minutes and extending to hours if it is a multi-day incident. Sometimes the early information is important.  I have discovered my Phone will record hours of stuff on voice recording and it seems to me that this could be useful.  Where do I stand from a legal point of view sound recording all that is happening? Do I need a sign on my front? I am far too busy to advise everyone. If I don’t advise can I use the sound recording as my electronic notes? Does the lack of advice just mean that I can’t use it as evidence

Little if any of what would be captured would be considered “private conversation” but would be Radio messages, instructions to others, Planning conversations, and would have a great advantage of “notes to self”.

Recording the information as ‘notes to self’ is probably a very good idea, but legally fraught. For a related discussion see Dash cams and NSW SES (February 25, 2018).

As noted elsewhere in this blog, it is an offence to record a private conversation except where the recording ‘is reasonably necessary for the protection of the lawful interests’ of the person making the recording and the recording’ or it ‘is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation’ (Surveillance Devices Act 2007 (NSW) s 7).   Recording any private conversation is probably not ‘reasonably necessary’ to protect the ‘lawful interests’ of the group captain just because it is intended to rely on them to make notes at a later time.  Further if the purpose is to make notes for the purposes of after action reviews etc then the purpose is to publish the conversation or a report of the conversation to someone who is not a party to that conversation.  As for the consequences see the article by Mark Reddie and Lorna Knowles, ‘William Tyrrell case detective Gary Jubelin charged with misconductABC News (Online) 21 June 2019.

Recording a private conversation is not an offence if the recording is incidental that is ‘the unintentional hearing of a private conversation by means of a listening device’ (s 7(2)(c)).  To the extent that the purpose is not to record private conversations but it does record one say between two people, not including my correspondent, then that is not an offence.

Putting aside the issue of private conversations the issue is complicated by who owns the recording.  If my correspondent is recording in his or her capacity as an RFS Group Captain then arguably the recording forms part of the RFS’ records with the result that it should be produced in response to a subpoena, notice for discovery, application under the Government Information (Public Access) Act 2009 (NSW) or other legal proceedings.  That is not objectionable save that the RFS won’t know it exists and so may not be able to meet its obligations to produce the recording.

Making those sort of recordings may be a good idea but it would be ideal if it was done using a recording device provided by the RFS where the RFS could manage the storage of the recording.  Having said that there must be many records that are produced that the RFS doesn’t know about, any notes written in anyone’s notebook would fall into that category.   Hopefully when the RFS gets requests for documents it does ask those that were there if they have any documents – an organisation the size and distribution of the RFS cannot possibly believe that they capture all information recorded about an event.  If that is the case my correspondent could produce the recording and could also ensure that it is downloaded onto RFS servers should that be required.

An alternative, which really is to create ‘notes to self’ is not to have the recorder on all the time recording everything, but to use to indeed record ‘notes to self’, ie turn it on when talking through options and ‘thinking out loud’ and then capture his thoughts alone.  That still creates record keeping problems but would be less problematic.

Conclusion

It’s not a new idea that constant audio recording is an excellent way to capture what is happening, what is being said and thought, but recording is not without its problems.  Apart from the Surveillance Devices Act 2007 (NSW) there are issues with workplace surveillance and public record keeping.  To a certain extent the issue is, like so much, one of risk management and considering the potential benefit against the potential risk.  The recording itself is not illegal but how will the record be kept, maintained and made available as a record of a public institution.  The ideal response would be to raise it with the RFS and seek a service response either to provide recording equipment or at least provide a way to log records that are made if officers chose to do so.

 

 

Categories: Researchers

Refusing transport to a particular hospital

21 June, 2019 - 15:08

A correspondent says:

When patients refuse treatment paramedics are now being in encouraged to use the VIRCA assessment. This is to ensure the decision is voluntary, informed, relevant, made with capacity and the patient is left with adequate advice.

There are some occasions when crews will be directed to transport a patient to a hospital which is significantly further away from the patient’s home than the nearest available hospital. This decision is usually made based on patient flow statistics. There is a cohort of patients who this presents an issue for, as it takes them away from their support network and locality.

VIRCA suggests that the decision to refuse treatment should be relevant and relate to the treatment being recommended. This suggests that a refusal to be conveyed to hospital based solely upon the destination alone does not meet this criteria.

As a registered paramedic the professional standards code of conduct states:

2.1 (a) assessing the patient or client, taking into account their history, views and an appropriate physical examination where relevant; the history includes relevant psychological, social and cultural aspect

2.1 (e) recognising and respecting the rights of patients or clients to make their own decisions

2.2 (d) practicing patient/client-centered care, including encouraging patients or clients to take interest in, and responsibility for the management of their health and supporting them in this

2.2 (f) considering the balance of benefit and harm in all clinical management decisions

It will often be an instruction that if the patient refuses to be taken to the designated hospital they should be left at home with the appropriate paperwork completed. If the paramedic makes a decision to ignore this directive because the VIRCA assessment cannot be met and the patient cannot be safeguarded, one would assume that could lead to potential disciplinary action from the employer? Conversely, if the patients is left at home, as per the employer’s instruction, after a refusal based solely on location of hospital and later came to harm, it appears the code of conduct may have been breached and this could impact on the paramedic’s registration? In this situation the employer is making decisions based on operational constraints however, as a registered clinician decisions need to be clinical and patient focused. It appears a paramedic in this situation can be left in a vulnerable position regardless of how they proceed? Your thoughts around this would be interesting to hear.

The High Court in Rogers v Whitaker said ‘except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’.  What factors a person takes into account in deciding whether to accept treatment, including location, is a matter for them and for their values.   Advice can be rejected ‘for reasons which are rational, or irrational, or for no reason’ (PBU & NJE v Mental Health Tribunal [2018] VSC 564, [145]). The idea that ‘the decision to refuse treatment should be relevant and relate to the treatment being recommended’ is quite wrong.  It is not for the ambulance service to say what factors a person has to consider relevant.  If the option is go to hospital B (instead of hospital A) or don’t go at all, it is the patient’s decision based on whatever factors the patient wishes to take into account.  A ‘refusal to be conveyed to hospital based solely upon the destination alone’ is entirely valid and a matter for the patient.

The right of a patient to make decisions for their own health care is not a right to insist that those decisions are honoured.   I can insist that a doctor prescribe antibiotics for my viral infection but the doctor is under no obligation to meet that demand.  I could demand that I receive a particular treatment at my local hospital but if that hospital doesn’t provide that treatment I cannot complain that they are not ‘recognising and respecting’ my right to my ’own decisions’.  Equally if a hospital is overloaded or closed the patient cannot insist that they be taken there, an ambulance is not a taxi.  They can accept, or reject, the treatment and care that is being offered.  Within limits a paramedic or ambulance service should consider views and social history and consider whether the patient’s preferences can be accommodated but it does not mean they must be.

If a paramedic were to ignore an employer’s directive to take a patient to hospital B and instead go to hospital A one would hope that was based on clinical grounds – that is the patient’s condition including their social position meant that the benefit in going to hospital A including waiting time for the patient and the paramedic exceeded the potential harms.  I cannot speak for any ambulance employer but it’s hard to imagine that there could be disciplinary action if that was an informed and documented clinical decision (though one may be asked to explain that decision).

Making decisions on operational constraints has to happen all the time.  The decision of what clinical level paramedic to send to a job, how jobs are prioritised etc are all decisions based on ‘operational constraints’.  If the nearest hospital cannot receive patients then there is not point transporting a patient there.

Assuming that a direction ‘to transport a patient to a hospital which is significantly further away from the patient’s home than the nearest available hospital’ is made on clinical grounds – eg that the nearest hospital has advised it cannot take patients or only those with life threatening emergencies – then that is a legitimate position.  If a patient is advised that they can only be transported to hospital B they are entitled to refuse transport on that ground alone.  Taking into account the patient’s social standing and the value of being supported at a local hospital may require the paramedic to consider contacting a supervisor to discuss the paramedic’s concerns and why transport to A is clinically indicated and also, perhaps, contacting hospital A to see if they can accept this patient and why that request is being made.

If it is simply not possible to go to hospital A then that is the reality.  And just as a patient cannot insist that they be taken past the nearest hospital and instead be taken to one closer to home, nor can they insist to be taken to the closer overworked hospital.  If the patient’s wishes can be accommodated then they should be, but if they can’t be then they can’t be.

I cannot see that the paramedic is in a vulnerable position if he or she listens to the patient’s concerns and considers them.  If at the end of the day the patient does not want to go that is his or her right.

 

 

Categories: Researchers

WA ambulance in a bus lane

21 June, 2019 - 13:04

Today’s correspondent asks

Are ambulances in WA allowed to use bus lanes when responding to calls other than priority 1 (lights and sirens)? I suppose at the heart of the matter would be whether a priority 2 or 3 call with a response time target of 25 minutes and 60 minutes respectively, would be considered ‘urgent call’ under the Road Traffic Code 2000?

The relevant law is indeed found in the Road Traffic Code 2000 (WA).  Regulation 133 says:

A person shall not drive a vehicle along or into a bus lane unless —

(a) the vehicle is a public bus, an emergency vehicle or a special purpose vehicle; or

(b) the driver is permitted to do so under regulation 136.

Regulation 136 is about entering a bus lane in order to avoid an obstruction, a vehicle turning right, to exit the road etc and is not relevant to this discussion.

As with so many of the road rules the issue becomes ‘when is an ambulance an emergency vehicle?’  In WA an emergency vehicle includes ‘an ambulance, answering an urgent call or conveying any injured or sick person to any place for the provision of urgent treatment’ (r 3).

To enjoy the benefit of r 281 (the exemption of emergency vehicles from the road rules and generally r 306 in other jurisdictions) an ambulance must be responding to an ‘urgent call’ and must also be displaying ‘a blue or red flashing light or sounding an alarm’.  The requirement to display the warning lights or use the siren is not part of r 133.

My correspondent is, therefore, entirely correct, it depends ‘whether a priority 2 or 3 call with a response time target of 25 minutes and 60 minutes respectively, would be considered [an] ‘urgent call’…’

Who decides?  The first person to make that decision will be either the coordination centre that will identify the case as ‘urgent’, or the treating paramedic.  If they think it’s urgent the next person to be involved will be police – a police officer who issues the traffic infringement notice (TIN) will have to consider if he or she agrees the case was urgent (assuming that there is an officer who talks to the driver and the TIN isn’t just sent in the mail due to some form of automatic detection).    If a ticket is received (either handed to the driver by a police officer or sent in the mail) then the paramedic/driver could exercise their right to make submissions to police or the relevant authority where a review officer would have to consider whether, in his or her view, they accept the service’s, or the paramedic’s assessment, that the case was urgent.   If they reject that argument then the paramedic/driver could put the matter before a court for a magistrate to determine.  If the magistrate did not accept the argument there could be appeals, theoretically (but unlikely) all the way to the High Court!

One class of vehicles that can use a bus lane is a ‘special purpose vehicle’.   The definition of special purpose vehicle (r 3) includes ‘a vehicle duly authorised as a special purpose vehicle for the purposes of these regulations, by the CEO’.  If the CEO of the relevant department has, say, declared that an ambulance operated by St John Ambulance (WA) is a ‘special purpose vehicle’ then they could use a bus lane.

Categories: Researchers

Trauma or mental illness – WA

19 June, 2019 - 20:14

Today’s question is

… another question relating to police powers under the Mental Health Act 2014 (WA).

The Mental Health Act 2014 defines a mental illness as follows:

   3.1 A person has a mental illness if the person has a condition that:

          3.1.1 is characterised by a disturbance of thought, mood, volition, perception, orientation or memory; and

           3.1.2 significantly impairs (temporarily or permanently) the person’s judgment or behavior

As paramedics we occasionally find ourselves in situations where a patient refuses transport to hospital, but we feel they probably lack capacity to do so. In such situations (and lacking any powers under the Mental Health Act) we will request police attendance, with a view to compelling the patient to hospital.

My question is, would a traumatic head injury, which results in a ‘temporary’ significant ‘disturbance of thought’ fall within the definition of Mental Illness, and therefore enable police to compel such a person to hospital, under police powers under the Act.

My feeling is that it would, in much the same way as heavily intoxicated patient could also lack capacity under the Act, however some colleagues and some police officers seem to think otherwise.

Just wondering what your thoughts are.

The Mental Health Act 2014 (WA) was enacted (s 10) to:

… to ensure people who have a mental illness are provided the best possible treatment and care —

(i)         with the least possible restriction of their freedom; and

(ii)        with the least possible interference with their rights; and

(iii)       with respect for their dignity…

Section 11 says “A person or body performing a function under this Act [eg police] must have regard to the principles set out in the Charter of Mental Health Care Principles” (see https://ww2.health.wa.gov.au/About-us/Child-and-Adolescent-Health-Service/Child-and-Adolescent-Mental-Health-Service/About-us/Mental-Health-Act).

Section 6 of the Act says:

A person has a mental illness if the person has a condition that —

(a)        is characterised by a disturbance of thought, mood, volition, perception, orientation or memory; and

(b)       significantly impairs (temporarily or permanently) the person’s judgment or behaviour.

(Having quoted s 6, I’m not sure what my correspondent is quoting with paragraph numbers 3.1, 3.1.1 and 3.1.2 but it’s not the official version of the legislation found on the WA Legislation website maintained by the Parliamentary Counsel’s Office – https://www.legislation.wa.gov.au/legislation/statutes.nsf/law_a147019.html).

Accepting that ‘a disturbance of thought, mood, volition, perception, orientation or memory’ could be caused by a traumatic head injury then that might, prima facie, look like a mental illness but the section has to be read in context.  Section 6(4) says “A decision whether or not a person has a mental illness must be made in accordance with internationally accepted standards prescribed by the regulations for this subsection.”  The prescribed standards are (Mental Health Regulations 2015 (WA) r 4):

(a)        the International Statistical Classification of Diseases and Related Health Problems published from time to time by the World Health Organisation;

(b)         the Diagnostic and Statistical Manual of Mental Disorders published from time to time by the American Psychiatric Association.

I note that the International Statistical Classification of Diseases and Related Health Problems (ICD-10 Version 2016 (Online)) lists ‘Unspecified mental disorder due to brain damage and dysfunction and to physical disease’ under the heading ‘Mental and behavioural disorders’.  Other relevant head injuries – Concussion, Traumatic cerebral oedema, Diffuse brain injury, Focal brain injury, Epidural haemorrhage, Traumatic subdural haemorrhage, Traumatic subarachnoid haemorrhage, Intracranial injury with prolonged coma, Other intracranial injuries and Intracranial injury, unspecified – are listed under the broad heading Injury, poisoning and certain other consequences of external causes, not a mental health disorder.  Without accessing the DSM, I find it hard to believe that it would record a traumatic head injury as being a mental illness either.

On the same point I don’t think a heavily intoxicated patient is mentally ill.  I note that s 6(2)(i) provides that a person is not to be taken to be mentally ill just because ‘the person uses alcohol or other drugs’.  Even so ‘the serious or permanent physiological, biochemical or psychological effects of the use of alcohol or other drugs [may be]… regarded as an indication that a person has a mental illness’ (s 6(3)).  The long term effects of alcohol or drugs may be evidence of or give rise to a mental illness but immediate intoxication does not equate to a mental illness.

With respect to police powers, section 156 says:

(1)        A police officer may apprehend a person if the officer reasonably suspects that the person —

(a)        has a mental illness; and

(b)       because of the mental illness, needs to be apprehended to —

(i)         protect the health or safety of the person or the safety of another person; or

(ii)        prevent the person causing, or continuing to cause, serious damage to property…

(3)         A police officer —

(a)         must, as soon as practicable after apprehending a person under subsection (1), arrange for the person to be assessed by a medical practitioner or authorised mental health practitioner for the purpose of deciding whether or not to refer the person under section 26(2) or (3)(a) for an examination to be conducted by a psychiatrist…

Section 538 says:

A mental health practitioner is a person who, as one of the following, has at least 3 years’ experience in the management of people who have a mental illness —

(a)      a psychologist;

(b)         a nurse whose name is entered on Division 1 of the Register of Nurses kept under the Health Practitioner Regulation National Law (Western Australia) as a registered nurse;

(c)          an occupational therapist;

(d)         a social worker.

A person is an authorised mental health practitioner if they have been authorised by the Chief Psychiatrist under s 539.

A person has a traumatic head injury they do not need to be treated by an ‘authorised mental health practitioner’ or a psychiatrist, they presumably need to be treated by a neurologist or neurosurgeon or at least an expert in emergency medicine.  They need to go to the emergency department not a mental health service.

Other justifications for treatment

The Mental Health Act 2014 (WA) is not an Act to justify the treatment of a person who lacks capacity.    If the person lacks capacity to the power to treat is found in the common law and in the Guardianship and Administration Act 1990 (WA) s 110ZI.

Under common law, if a person is not competent then the doctrine of necessity applies (The doctrine of necessity – Explained (January 31, 2017)) and treatment that is reasonably necessary and in the patient’s best interests can be given which may include restraint and transport to hospital.

The Guardianship and Administration Act 1990 (WA) s 110ZI says that a health professional (which includes a registered paramedic; s 110ZH and Civil Liability Act 2002 (WA) s 5PA) may treat a patient where:

(a)            … [the] patient needs urgent treatment; and

(b)           the patient is unable to make reasonable judgments in respect of the treatment; and

(c)            it is not practicable for the health professional who proposes to provide the treatment to determine whether or not the patient has made an advance health directive containing a treatment decision that is inconsistent with providing the treatment; and

(d)           it is not practicable for the health professional to obtain a treatment decision in respect of the treatment from the patient’s guardian or enduring guardian or the person responsible for the patient under section 110ZD.

Discussion

The definition of mental illness in s 6 is not test of competency.   The Mental Health Act 2014 (WA) allows police detain, and then mental health professionals to treat, a person who is mentally ill even if they are competent to and do refuse consent.

Where a person is injured and not competent as a result of their injuries, then they need medical, as distinguished from mental health, services.  The justification for that treatment is not in the Mental Health Act but the common law and the Guardianship and Administration Act.  The power to make the decision on competence rests with the health professional not the police.

Where a person is injured and retains competence (or at least the capacity ‘to make reasonable judgments in respect of the treatment’) they can refuse treatment even where that is not in their best interests.  The Mental Health Act is not a tool to compel a person to undergo treatment except in the circumstances described in the Act which, in context, would not include ‘a traumatic head injury, which results in a ‘temporary’ significant ‘disturbance of thought’.

Conclusion

In context it is my view that ‘a traumatic head injury, which results in a ‘temporary’ significant ‘disturbance of thought’ [WOULD NOT] fall within the definition of Mental Illness, and therefore enable police to compel such a person to hospital, under police powers under the Act.’

Categories: Researchers

Exploring paramedic professional indemnity insurance

15 June, 2019 - 18:46

This post is in response to these comments that were made in response to my earlier post Workplace first aider, paramedic or both? (June 14, 2019).

Indemnity insurance is a requirement of registration – I feel that point should be made again in this circumstance…

and

Could you please provide some clarification on PII? My understanding was that to be registered you must have PII.

PII is not ‘a requirement of registration’, it is a requirement of practice and they are not the same. The Health Practitioner Regulation National Law s 129(1) says

A registered health practitioner must not practise the health profession in which the practitioner is registered unless appropriate professional indemnity insurance arrangements are in force in relation to the practitioner’s practice of the profession.

If indemnity insurance was a required in order to obtain or renew registration, s 129 would be meaningless because a registered health practitioner would have to have insurance in order to be registered.  What follows is that you can be registered without insurance, you just can’t practice without registration.

In the context of that earlier post the discussion was about rendering first aid where a person is not employed as a paramedic, in that case in a supermarket, but is paid a first aid allowance.  Equally there is the issue of simply rendering assistance at an accident or emergency whether at a workplace or on the street.  Is that ‘practising’ the profession of paramedicine?  As noted by Walton J in Attia v Health Care Complaints Commission [2017] NSWSC 1066, (quoted in AJP article, p. 5)):

 ‘The word ‘practice’ … is not defined in the National Law. Nor is the phrase [‘the practice of the practitioner’s profession’] itself. There appeared to be common ground that the word and the phrase were attended by some ambiguity’.

The Paramedicine Board’s Professional indemnity insurance arrangements registration standard (17 May 2018)) says:

Practice means any role, whether remunerated or not, in which an individual uses their skills and knowledge as a health practitioner in their profession. For the purpose of this registration standard, practice is not restricted to the provision of direct clinical care. It also includes using professional knowledge in a direct non-clinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles, and any other roles that impact on safe, effective delivery of services in the profession.

Being a ‘first aid officer’ is a ‘role’; merely stepping up at an accident would not, in my view, fit the description of ‘any role’.  Putting that issue aside, Ambulance Victoria in its response to the Victorian Ombudsman (see Ombudsman investigates Ambulance Victoria’s practice of charging for non-transport services (June 13, 2019)) said (at [52] of the Ombudsman’s report):

The definition of ‘treatment’ is critical from a clinical perspective. A paramedic’s taking of a patient’s vital signs such as blood pressure, oxygen saturation, temperature, heart rate/pulse, blood sugar, electrocardiogram (ECG), and other observations including the external physical condition or injuries are all core to the work and duty of care of paramedics. A targeted clinical history and a thorough physical examination are the cornerstones of good emergency health care.

A paramedic paid a first aid allowance or who just steps up at an accident will use his or her skills to examine the patient and form a view of whether an ambulance is required, whether urgent lifesaving first aid is required, or whether all that is required is ‘the humane provision of comfort and reassurance in a patient that doesn’t need transport to hospital and may or may not need ongoing medical care at all’ ([52], Ombudsman’s report).

In the circumstances under discussion however they cannot be expected to, nor be equipped to measure ‘blood pressure, oxygen saturation, temperature, heart rate/pulse, blood sugar, electrocardiogram (ECG)’ etc.

If however a paramedic equips him or herself with the tools associated with the practice of paramedicine, such as ‘an AED (Defibrillator), Glucometer for testing sugar levels, advanced airways such as Igels, blood pressure cuffs’ then it is much more likely that they will be seen to be practising their profession (see What equipment can an off duty paramedic carry? (June 11, 2019); Legal Services Commissioner v Walter [2011] QSC 132 and Eburn, M ‘Registered paramedics, insurance and first aid – looking for coherence in law’ (2019) 16 Australasian Journal of Paramedicine) (‘AJP article’, p. 5).  Having said that I would say that using a publicly accessible or employer provided AED is not really using advanced equipment but is, today, standard first aid procedure, but not doubt there are AEDs and advanced defibrillators used by paramedics.  And a paramedic who choses to buy an AED and if they put that with other equipment such as that listed above, then they look more and more like someone who is practicing their profession.

So there are two possibilities, the paramedic providing first aid, paid or not, is using ‘their skills and knowledge’ as a paramedic suggesting that even in the first aid scenario they are practising the profession of paramedicine. But if they are not doing that sort of assessment that would be expected when turning out with their ambulance they are not doing a ‘paramedic’s assessment’ (to again quote from AV’s response to the Victorian Ombudsman, [52]) which would suggest that they are not practising their profession.

Who, then, is to decide?  The question is ultimately not a matter for the Paramedicine Board. The Act says that practising without insurance ‘does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken’ (s 129(4)). Health, conduct or performance action is action that ‘a National Board or an adjudication body may take in relation to a registered health practitioner or student at the end of a proceeding under Part 8’ (s 5).   If the Board somehow became aware that a paramedic administered first aid when they were not insured and assuming that the Board did not dismiss that as either ‘frivolous, vexatious, misconceived or lacking in substance’ (s 151(1)(a)) or determines that ‘the health practitioner to whom the notification relates has taken appropriate steps to remedy the matter the subject of the notification and the Board reasonably believes no further action is required in relation to the notification’ (s 151(1)(f)) then the matter has to ultimately end up before Performance And Professional Standards Panel or a responsible tribunal.  It would be that panel or tribunal that would have to determine whether the conduct in question constituted practising the profession.

Notwithstanding the definition in the Insurance Standard, I have argued in the AJP article and with reference to case law that there is more to practising the profession that just using the skills that one obtained in training for that profession.  There (at p. 5) I quote from the decision in Legal Services Commissioner v Walter [2011] QSC 132 where Daubney J said:

In Legal Services Commissioner v Bradshaw [2009] LPT 21, Fryberg J… explained:

‘One would look for evidence of continuity, of repeated acts; one would look for evidence of payment for those acts; one would look for evidence of seeking business from members of the public, or at least from other lawyers; one would look for evidence of a business system; one would look for evidence of maintaining books and records consistent with the existence of a practice; one would look for evidence of a multiplicity of clients. None of those things is in evidence before me’.

Those indicia may be present with the first aid officer in particular ‘repeated acts’ and the business system of the PCBU, but they would be absent from a person who just steps up and helps.

If the panel or tribunal did decide that the paramedic was practicing the profession, they would then have to consider whether rendering first aid in those circumstances was unsatisfactory professional conduct.  Unsatisfactory professional performance is conduct of ‘the practitioner … below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’.  If other paramedics say that they, too, would have rendered assistance in those circumstances even without insurance it may be held not to constitute ‘Unsatisfactory professional performance’ and that there is no case to answer.

The conclusion is that it is not ultimately for the Paramedicine Board to decide what constitutes ‘practising the profession’ that will in the very unlikely case that it arises in a first aid context and is not dismissed out of hand, be a matter for a Panel or Tribunal. Further it will be up to a Panel or Tribunal to determine if rendering assistance without insurance is unsatisfactory practice in all the circumstances.

Conclusion

The point of this post is to confirm that PII insurance is not a requirement for registration – a paramedic doesn’t need to be covered by PII insurance to be registered.  It is a requirement for practice of the profession.

What ‘the practice of the practitioner’s profession’ means is undefined and ambiguous.  In my view a person who renders first aid as a good Samaritan, and probably as a person employed in a non-paramedic role but who is paid a first aid allowance is not practising the profession of paramedicine if they render first aid, unless they have chosen to equip themselves with advanced equipment such as ‘an AED (Defibrillator), Glucometer for testing sugar levels, advanced airways such as Igels, blood pressure cuffs’.

For paramedics concerned about what side of the line they fall ‘… the easiest solution… is … to obtain appropriate ‘top up’ insurance to cover them whenever they are not covered by an employer’s or other third party PII arrangements. Such insurance is available’ (AJP Article, p. 7).

Categories: Researchers