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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
Updated: 13 hours 39 min ago

Institutionalised patient refusing paramedic transport for booked treatment.

6 March, 2017 - 22:20

These two questions are related.   Both are from paramedics, one from NSW, I’m not sure of the jurisdiction of the other.

We are regularly called to rural/regional hospitals to transfer  patients to the referral hospital of our area. Occasionally as we are packaging our patient for transfer they will say to you, ‘I don’t want to go’. Sometimes their refusal is based on a particular hospital they don’t like or it’s simply that they don’t want to leave their town.

This often happens in front of the doctor who has authorised the transfer and sometimes it becomes clear that the patient has been making their feelings known for some time and have been overridden. The appearance of a new face spurs them to keep trying to make their feelings clear. Bearing in mind that the patient can often be extremely unwell and is therefore physically unable to get up and leave (but may still meet competency and capacity criteria).

My question regarding this circumstance is what are our legal and ethical responsibilities in these instances?   At the moment we hear a patient make a statement like that are we obliged to cease the patient handover and transfer on to our stretcher until the patient’s consent has been either fully obtained or refused?

The other question, building on the discussion that followed my post ‘A Straight Forward Answer To A DNR (March 6, 2017) is

…what paperwork is involved when patients are in ‘locked facilities’ but not dementia or lacking competency. What paperwork should we be looking for to confirm that they are in fact non competent and in ‘locked care’ legally?

These questions are related as they are about consent and a paramedic’s professional responsibilities.  Let me set out some guiding principles:

  1. First, as the High Court said in Rogers v Whitaker (1992) 175 CLR 479, [14] (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ) ‘except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’. (It is my view that the terms ‘emergency’ and ‘necessity’ are being used as synonyms not to suggest that there are two different doctrines; see Eburn, M., Emergency Law (4th ed, 2013, Federation Press for a more detailed defence of that proposition).
  2. Second necessity does not justify treatment that is contrary to the known wishes of the patient (In Re F [1990] 2 AC 1).
  3. However, to be a binding, a refusal of treatment must be informed, cover the situation that has arisen and the person must be competent (In Re T [1992] EWCA Civ 18).
  4. A person has decision-making capacity if they are able to understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision (In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 169).
  5. A paramedic, like a nurse or a doctor, has a duty to act in the patient’s best interests. Health care is provided to benefit the person in need of care, not for the convenience of the health care providers or an institution.
  6. Finally, one can only be responsible for the things that one is actually responsible for.

With those (somewhat cryptic) comments, let’s consider the given hypothetical.

In the situation described the patient appears to be competent; so what’s the paramedic to do?  As a (soon to be registered) professional a paramedic has to consider the patient’s wishes and consent.  The fact that a doctor has authorised the transfer does not deny the patient’s right to consent, or refuse consent and does not empower the paramedic to provide treatment that has not been consented to.   But has treatment been refused?    We’re told that that patient says ‘‘I don’t want to go’ – is that a refusal of treatment or a mere statement that they wish the world were other than it is.  Lots of people might say ‘I don’t want to go’ to work, or to the doctors, or away from home.  That does not mean that they don’t realise the need to go.  Perhaps there is an inconsistent position – the patient may say that they understand that they have a condition that requires treatment, that they want the treatment, they just don’t want to have to travel for that treatment.  That is not a refusal of consent that’s just a wish that they didn’t have to travel.   Further, if they say that they understand that they have a condition that requires treatment, that they want the treatment but they refuse to travel for that treatment (not just wish it wasn’t required) even though the desired treatment can only be provided elsewhere, then that may be evidence that they are not in fact competent as they are not able to understand that if they want the treatment, they have to travel.

The first thing I would suggest a paramedic has to do, if a patient says ‘I don’t want to go’ is stop and talk to the person about what they mean and clarify whether, if they don’t want to, they are in fact willing to go.  That may resolve the matter.  If, however, the paramedic comes to the conclusion that the patient is clear – that they want to refuse transport and they are competent – then that decision has to be honoured.  Before making that decision however, one would expect a paramedic to recognise that they are part of the health team and to raise those concerns with their colleagues.  If you think the patient is refusing treatment and transport, but the doctors have booked an ambulance, it would be prudent to raise concerns with the nursing staff that have the long term care of the person, and the medical staff to resolve the issue.    It may become clear that the patient is refusing treatment in which case you’ve advanced their interests, or it may become clear that despite appearances or even a short lucid moment, they are not in fact competent.

At the end of the day howver, if the paramedic is convinced the patient is competent and refuses transport, the doctor’s authorisation is irrelevant.   Refusing to transport the patient is, no doubt, likely to be difficult and perhaps personally costly to the paramedic but that’s where professional standards and behaviour come in.  A professional is expected to put the patient’s/client’s interests ahead of his or her own interests.  So if satisfied the patient is refusing treatment/transport it’s incumbent on the paramedic to document the issue, raise it with the health care team and at the end of the day, honour the patient’s wishes.

How is that related to the second question?  The second question was ‘…what paperwork is involved when patients are in ‘locked facilities’ but not dementia or lacking competency. What paperwork should we be looking for to confirm that they are in fact non competent and in ‘locked care’ legally?’  The paramedic is responsible for the task he or she is there to do, escort the person to further care.  They are not responsible for all aspects of their care and it would seem to me it would be going further than required to insist on determining whether or not the person is being lawfully detained in a locked unit.  That is where they are and the paramedic won’t have access to all the information as to how and why that decision was made.  If there is a concern it would be appropriate to record it on the patient record and mention it to the receiving hospital.

That last point is also true if the paramedic has transported someone who said they don’t want to go or have treatment.   If the receiving health care team are going to provide holistic care they need to know the whole story so if the patient, during transport, suggests that they don’t’ actually want the treatment they are being sent to receive, that should be communicated so that the doctors, nurses, social workers and others at the receiving intuition can be alerted to the concerns and take the time to ensure that the patient’s position is understood and appropriate care is given.

Let me acknowledge that as a legal academic sitting at a desk writing about general principles, it’s very easy to say this.  I don’t for a moment deny that acting on some of this would be very difficult.  A paramedic who has been called to a nursing home where the patient has been ‘packaged’ for transport and the medical and nursing staff expect them to go, expect them to get treatment that they think is in the patient’s best interest and believe either that the person has consented, or is not competent to either consent or refuse consent, are not going to take kindly to a paramedic forming a different view.  And a paramedic is likely to feel on ‘insecure’ ground either asserting the patient’s rights as he or she perceives them or refusing to take the person and thereby throwing both the institution and ambulance service into chaos as resources are tied up.    That it’s difficult doesn’t make it wrong.     A person is entitled to refuse treatment and paramedics can only provide care that is consented to or where consent can’t be obtained, is justified by necessity or some other legal rule.  If the person really is competent and really does refuse treatment, that has to be honoured by everyone in the health care team.


Categories: Researchers

‘A straight forward answer to a DNR”

6 March, 2017 - 03:40

This question comes from ‘… a community support worker I am caring for a patient who has a “Do Not Resuscitate” order’.  They ask

If this client becomes unconscious what should I do?

Start CPR because I am not a medical professional and can’t make those decisions or just make client comfortably until ambulance arrives and handover the DNR document for them to decide?

Just wondering if there is a straight forward answer to a DNR.

There is a ‘straight forward answer’ and what is worrying is that a person who is working as a ‘community support worker’ hasn’t been trained by their agency on how to deal with this matter.

First let me say that I am assuming that the DNR documentation has been seen and it should be copied into the client file.   I’m also assuming that the DNR documentation has been signed off with at least the knowledge of the client’s family.

Where a person needs CPR, the legal justification is necessity – see The Doctrine Of Necessity – Explained (January 31, 2017). The relevant quote, taken from the case law, is the quote from Lord Goff in In Re F [1990] 2 AC 1:

The basic requirements, applicable in these cases of necessity, that, to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

Where there is DNR documentation completed with the client’s consent, CPR can’t be justified.   We usually think CPR is in the patient’s best interests and someone who has suffered a sudden cardiac arrest would rather live than die.  A person who is approaching the end of their life has to face that reality and may have decided that given the underlying conditions – whether it’s a terminal illness or just the manifestation of old age – that CPR is not in their best interests.  If that is the case and they have recorded that in consultation with their doctor and family, we know that CPR is NOT in the patient’s best interests.  In that case commencing CPR on a person who has gone to the effort of recording their wishes on a DNR document is NOT ‘action … a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.’

Secondly, regardless of best wishes, if the person has indicated that they do not want CPR, then the treatment cannot be justified as it is ‘contrary to the known wishes of the assisted person’ (emphasis added).

DNR documentation can also be completed without the consent of the patient if the treatment will, given the person’s conditions, futile.   There is no obligation to provide treatment that will not advance the patient’s best interests or achieve a therapeutic outcome (Airedale NHS Trust v Bland [1993] A.C. 789].

If the patient is unable to give consent to the DNR order then it must be made by the medical team and family acting in the best interests of the person in need of care.  Again, if that has been done and recorded, a care worker should not commence CPR as that is NOT ‘action … a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.’

As a community care worker who honours DNR documentation you are not making decisions, you are giving effect to decisions that have already been made.

If you are not willing to honour a DNR decision, one has to ask ‘what is the purpose of consent in medical care?’  People are allowed to make decisions about their care even if it will lead to their death. If we are not willing to honour that, if we are going to assist that people receive treatment whether they want it or not, we are going back to paternalistic health care, or worse.  What’s worse is that people provide care, like CPR, not because it is in the patient’s best interests but because it makes the carer feel better or more comfortable.  Health care is not (or should not) be provided in the best interests of the care provider but in the best interests of the person in need of that care.   Where DNR documentation has been completed the inference is that the interests of the person have been considered and it’s been determined that withholding CPR is in the patient’s best interests.

In some states, there is statutory protection to ensure people that honour DNR type documentation are legally protected (see for example Advance Personal Planning Act 2013 (NT) and Medical Treatment Act 1988 (Vic)).  Even where that is not the case the common law still applies to say that people are entitled to refuse consent and that futile treatment may be withheld.

One has to concede that is unlikely a community support worker will be sued or prosecuted for battery for doing CPR but if one is planning to provide care in the client’s best interests and in accordance with the client’s wishes, providing treatment contrary to the terms of a DNR decision is unethical and will expose the client and their family to unnecessary and undesired trauma.

As noted earlier, what is worrying is that a person who is working as a ‘community support worker’ hasn’t been trained by their agency on how to deal with this matter.  If support is being provided to a person who is terminally ill or otherwise likely to require CPR, such that decisions have been made to withhold that treatment, the the agency should have procedures to ensure that DNR decisions are recorded and communicated to carers. If necessary discussion should be had with the client, their family and their medical practitioner to ensure that the terms and consequences of the documentation are clear and clearly understood.  And staff who are providing care have to be confident to honour their client’s wishes.  If that isn’t occurring I would worry about the conduct of the agency that is providing ‘community support’.


Categories: Researchers

Is an escort motorcycle a “Special Use” vehicle in Queensland

4 March, 2017 - 22:04

A correspondent, along with

… numerous other motorcycle riders provide motorbike escorts during cycling road races. These events are under special permits and we ride under the supervision of QLD Police.

During these events the motorbike riders use numerous warning lights as a safety measure as we are frequently in hazardous situations. The lights we use are similar to Police only amber. We have been instructed by the Police not to use our hazard lights as we are then not able to use them to indicate turns. – All good so far.

These events are frequent and most of the riders have the lights permanent fixed to the bikes but only use them when appropriate. Much the same as a large number of trucks on the road today.

Police have advised me today that none of us can have these permanently fitted to our bikes without our vehicles being deemed “Special Purpose”. The alternative of removing and reinstall them multiple times a year is just not viable.

The Police have suggested that we obtain a “Special Purpose” status however for the life of me I have been unable to find out how. I have even spoken to QLD Transport and they stated that they have never struck this type of request, especially for a motorbike and are unsure where to direct me.

A second email added:

I have since been able to obtain advice from the Vehicle Standards area of QLD Transport and they advised me (over the phone) that our vehicles are deemed “Special Purpose” (a determination was made some time ago after a similar call) and the use of the lights is legal and providing we are using them in accordance with the regulation. They declined to put this in writing which I am still perusing as the Police have stated without written documentation they want us/me to go to court. I have pointed them to the relevant section of the regulation, however they have further stated it is up us to prove the lights are legal.

The relevant provisions are the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld).  These rules require vehicles to comply with the Vehicle Standards set out in Schedule 1.   Rule 99(1)(b) says ‘a special use vehicle may be fitted with 1 or more flashing yellow lights’   A ‘special use’ vehicle (r 99(6)) is

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

(b) an oversize light vehicle authorised to be driven on a road under a guideline or permit issued under part 3;

(c) a vehicle built or fitted to accompany—

(i) a vehicle mentioned in paragraph (b); or

(ii) a heavy vehicle that—

(A) is an oversize vehicle within the meaning of the Heavy Vehicle National Law (Queensland); and

(B) is being used on a road under a mass or dimension exemption within the meaning of that Law;

(d) a vehicle, whether or not a school bus, fitted with warning lights and warning signs under the Transport Operations (Passenger Transport) Standard 2010, schedule 1, part 4, section 19 or 25(1).

The relevant definition in this context is ‘a vehicle … fitted for use in hazardous situations on a road’.

The problem then becomes what is a ‘special permit’.  The Transport Operations (Road Use Management—Accreditation And Other Provisions) Regulation 2005 (Qld) provides for special event and special circumstances permits.     I would infer that bicycle races are probably subject to a special event, rather than special circumstances, permit.    A special event permit is issued to allow event organisers to use the road in circumstances where ‘conduct of the event involves, or may reasonably be expected to involve, some inconsistency with the requirements of any of the following— the Vehicle Standards and Safety Regulation; the Queensland Road Rules’ (r 102).    One of the inconsistencies may be that escort motorcycles will be fitted with flashing yellow lights. To actually determine the position, it would be necessary to see the terms and conditions of any permit that has been issued and whether it says anything about escort vehicles.  A special event permit may include conditions regarding ‘the display of warning signs and warning lights’ (r 103(5)).

If the permit refers to the need for escort vehicles and allows or requires the fitting of yellow flashing lights it may be inferred that it is understood that this is permission contrary to the the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld) (r 104) in which case it would equally be inferred that the intention is not to allow the yellow lights to remain on the bikes after the special event.

Where does that leave my correspondent?  The advice ‘that none of us can have these permanently fitted to our bikes without our vehicles being deemed “Special Purpose”’ is correct but the question is who is to decide that?  The definition is set out in the regulation, the DoT may issue a permit or registration to that effect but clearly they are not prepared to do so.  It then becomes the unhelpful conclusion that if the bikes are ‘fitted for use in hazardous situations on a road’ they are a special purpose vehicle, if they are not so ‘fitted’ then they are not.  The ultimate judge is … a judge.  If the police and/or the DoT don’t think the bikes fit that definition they could issue a fine and it would be necessary to go before a court and ask a judge or magistrate to rule on the matter.

A critical piece of evidence would be the special circumstances permit. If both the obligation, and permission to, install the yellow lights is set out in the permit, then prima facie the person issuing that permit thinks that fitting the lights would, otherwise, be contrary to the Vehicle Standards and that is why they are now giving permission.  That again would not determine the matter but would certainly be evidence.

It is of course wrong for the police to say that ‘is up us to prove the lights are legal’.

 Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner … the prosecution has not made out the case and the prisoner is entitled to an acquittal.  (Woolmington v DPP [1935] AC 462).

Unless there is a specific statutory provision shifting the burden of proof (and there may be hidden in some traffic legislation somewhere) then the burden of proof will be on the prosecution. If the matter went to court they would have to prove, beyond reasonable doubt, that the fitting of the lights contravenes the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld), not the other way ‘round.

 

 

 


Categories: Researchers

What is a ‘legal document’?

23 February, 2017 - 22:05

My correspondent, a first year nursing student asks if I

… could please explain the difference between a legal document and evidence taken at the time.  For example, when you have an operation you sign a document first and it is countersigned by a witness. I would assume this is an example of a legal document.

But as a nurse, I will be required to fill out a lot of information, for example, generic hospital forms etc which are either not signed or are only signed by a single person.

Are these considered to be a legal document or are they considered as written evidence taken at the time and would be produced just as that in a court.

The truth is I can’t explain the difference as I don’t know what people mean when they say ‘a legal document’ – usually when I’m being contrary I say something like ‘you mean that, at law, it is a document’.

The Oxford dictionary (online) defines document as ‘A piece of written, printed, or electronic matter that provides information or evidence or that serves as an official record’.   I think that goes too far, a notation in your private notebook is also a document even if it isn’t an official record.

So what then is a legal document?  I can think of several possible meanings.

First a document that has legal repercussions, usually penalties, if you knowingly lie on it.  Your passport application (Australian Passports Act 2005 (Cth) s 29) or a statutory declaration (Statutory Declarations Act 1959 (Cth) s 11) would be examples.

Second, a document where the form of the document is set out in legislation – so you have to use the ‘prescribed form’.  For example if you want to extend the time to hold the annual general meeting of a company you need to complete the ‘prescribed form’ (Corporations Regulations 2001 (Cth) Schedule 2).  Just writing a note won’t do.

Third would be a document that is intended to effect legal relations and to be relied upon.  For example a contract or a medical consent form where you know the person relying on the document (the surgeon, hospital etc) are going to act on the basis that the consent evidenced by the form is effective, but not that the form is just evidence of consent, it is not itself ‘consent’.

Finally a business record that can be used in evidence (see for example, Evidence Act 1995 (Cth) s 48(1)(e)).  This provision is the ‘business records rule’.  The logic is that businesses (including hospitals; Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 and ambulance services; Lithgow City Council v Jackson [2011] HCA 36) record things on documents because they are true.  So a hospital record can be presumed to accurately record the observations noted, treatment given etc because the record would be pointless if it wasn’t assumed to be accurate – whether that accuracy is for patient care, making sure the bills are correctly issued, keeping track of the scheduled drugs etc.   Where a document is produced in the normal case of business it can be tendered in evidence to prove that what is recorded actually happened.   But it is just evidence, if there is other evidence that the entry on the document was wrong, things didn’t happen that way, the court is not required to accept the version recorded in the document.

To return to the question, a consent form signed by a patient is evidence that the patient did in fact consent to the treatment proposed and the things that the document says were done, were in fact done.  So the document could be tendered to prove that the person did in fact consent if later they say that they did not or that the risks were not explained.  It would put a burden on them to explain why they signed it, but there could be lots of reasons – despite what it says it wasn’t explained to me; I wasn’t given the chance to read it; I couldn’t read it; I was in no fit state to understand it etc.   The point of the countersignature is again simply evidence so that if the person says ‘I didn’t sign it’ you can find the witness to say ‘yes they did, I saw them do it’.    The process (eg one signature or two) doesn’t change the ‘legal’ nature of the document; which is the hospital, surgeon etc are going to rely on it as giving them authority to operate so it is intended to impact upon the legal nature of the relationship between the parties and it is evidence that what it records actually happened.

‘Generic hospital forms etc which are either not signed or are only signed by a single person’ are also legal documents in the way described above, that is if they are produced in the normal course of the hospital’s operations so the hospital can record what is happening, then they can be admitted as evidence that what is recorded is true.  They are in that sense a ‘legal document’.  And there would also be legal repercussions for knowingly entering the wrong data.  Those repercussions could range from action by the employer to professional discipline in the case of registered health care professionals.

I think what is meant by ‘written evidence taken at the time’ would be the notes a person makes in their personal notebook, not a hospital or employers or anyone else’s form.   A ‘contemporaneous note’ (ie one written at the time something happened) may be used by a witness to refresh their memory if they are called upon to give evidence about an event that they no longer recall.   For more details see The Value of File Notes (June 10, 2016).

For other discussions on the use of notes see

Refusing Treatment Documentation (June 9, 2016); and

Completing Paramedic Case Records (September 3, 2015).


Categories: Researchers

Good Samaritan legislation – a comparison

22 February, 2017 - 01:51

A correspondent wrote:

I am a first aid trainer in Victoria. While I know the Good Samaritan law in Victoria (Wrongs Act of Victoria 1958), what are the various acts around Australia, and how are they different from each other? What are the similarities?

I have written extensively on the good Samaritan laws but that’s OK.  I know what’s been written on this forum over 8 years but people who are new to it do not and finding relevant earlier posts isn’t easy.  The answer below is, however, largely a cut and paste from earlier posts.

Every State has good Samaritan type legislation:

These provisions were introduced following the Ipp Review into the Law of Negligence even though the Review did not recommend that any such legislation was necessary. The Review’s final report said:

The Panel understands that health-care professionals have long expressed a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations. However, the Panel is not aware, from its researches or from submissions received by it, of any Australian case in which a good Samaritan (a person who gives assistance in an emergency) has been sued by a person claiming that the actions of the good Samaritan were negligent. Nor are we aware of any insurance-related difficulties in this area.

Under current law, the fact that a person (including a health- professional) was acting in an emergency situation is relevant to deciding whether the person acted negligently. It may be reasonable in an emergency situation to take a risk that it would not be reasonable to take if there was no emergency, provided that precautions appropriate to the circumstances are taken to prevent the risk materialising.

Also relevant to the issue of negligence is the skill that the good Samaritan professed to have. Suppose a passenger on an aircraft has a heart attack, and in response to a call for assistance by the cabin staff, a 60 year old specialist dermatologist goes to the passenger’s aid. The standard of care expected of the doctor would be set not only taking account of the emergency nature of the situation, but also of the fact that a doctor who has practised as a dermatologist for many years could not be expected to be as well-qualified and able to provide emergency treatment for a heart-attack victim as a cardiac surgeon or even, perhaps, an active general practitioner.

The Panel’s view is that because the emergency nature of the circumstances, and the skills of the good Samaritan, are currently taken into account in determining the issue of negligence, it is unnecessary and, indeed, undesirable to go further and to exempt good Samaritans entirely from the possibility of being sued for negligence. A complete exemption from liability for rendering assistance in an emergency would tip the scales of personal responsibility too heavily in favour of interveners and against the interests of those requiring assistance. In our view, there are no compelling arguments for such an exemption. (Ipp Review of the Law of Negligence, Final Report (Commonwealth of Australia, 2002), [7.21]-[7.24]).

Even though the Ipp Review saw no need for this type of legislation the states and territories all moved to solve the problem of community fear of legal liability.  Today a good Samaritan enjoys legal immunity for actions that are alleged to have been negligent, provided the good Samaritan was acting ‘in good faith.

In the Australian Capital Territory, New South Wales, Tasmania and Victoria, a Good Samaritan provides assistance to a person who is, amongst other things, ‘at risk of being injured’ (ACT and NSW) or ‘apparently at risk of death or injury’ (Tas and Vic).   In the Northern Territory and South Australia, ‘emergency assistance’ means ‘emergency medical assistance’ or ‘any other form of assistance to a person whose life or safety is endangered in a situation of emergency’.   The Western Australia legislation provides protection for a person ‘at the scene of an emergency’ who assists ‘a person in apparent need of emergency assistance’.

The exception is Queensland. The Law Reform Act 1995 provides that a medical practitioner, a nurse or a member of an organisation listed in the regulations is not liable for acts done in good faith and without gross negligence. There are no regulations (and so no prescribed organisations) under the Law Reform Act 1995.  The Civil Liability Act 2003 (Qld) also provides legal protection for people who provide first aid as part of their duties as a member of an organisation listed in the regulation (s 26).  The organisation also benefits from legal protection (s 27).   The list of protected organisations is set out in the Civil Liability Regulation 2014 (Qld) schedules 1 and 2.  That does mean that in Queensland there is no statutory immunity for a person who just steps up out of the crowd, maybe having completed a first aid certificate, but who is not a registered health professional or a member of one of the listed organisations.

For posts on the law and good Samaritans see


Categories: Researchers

Employment protection during a NSW s 44 fire – amended

20 February, 2017 - 09:20

The ‘s 44’ in the title of this post is a reference to the Rural Fires Act 1997 (NSW) s 44.  That section says, amongst other things:

(1) The Commissioner [of the Rural Fire Service] is to take charge of bush fire fighting operations and bush fire prevention measures and to take such measures as the Commissioner considers necessary to control or suppress any bush fire in any part of the State if, in the opinion of the Commissioner:

(a) a bush fire has assumed or is likely to assume such proportions as to be incapable of control or suppression by the fire fighting authority or authorities in whose area or locality it is burning, or

(b) the prevailing conditions are conducive to the outbreak of a bush fire likely to assume such proportions, or

(c) a bush fire is not being effectively controlled or suppressed by the fire fighting authority or authorities in whose area or locality it is burning, or

(d) a bush fire is burning in a place that is not the responsibility of any fire fighting authority.

Today’s correspondent is a member of the Rural Fire Service and asks about employment protection during a fire where the Commissioner has taken overall responsibility for the fire fighting effort under this section.  My correspondent writes:

I am currently employed in NSW by a private multi-national company who have previously been fantastic in allowing myself and others some flexibility to attend operational tasks as a volunteer fire fighter with the NSWRFS.  In fact, my employer has encouraged staff participation in such volunteer work.  Although there has never been any wording within my employment contract to accommodate this, they have always been happy for me to use whatever leave entitlements that may apply under standard employment statutes in NSW (i.e.: I’m not under any particular award).  Two weeks ago, our company was acquired by another company and the new general manager that I report to is of the opinion that this type of emergency services leave will not be supported.  This has coincided with recent section 44 declarations for large fires in NSW…I spoke to my new manager … and [he] informed me that “if you ever get on a fire truck in work time, you will be out of a job”.  Could you please advise if employees who are volunteer members of the RFS are afforded any protection from this type of threat to their employment, particularly under the coverage of a section 44 or otherwise.  Also, do employers have any legal obligation to release staff who are RFS members when it is in relation to the direct response to a section 44 event.

There is some protection for volunteers in NSW but not related to s 44.  Section 60B of the State Emergency and Rescue Management Act 1999 (NSW) says:

An employer must not victimise an employee of the employer for being absent if the absence was due to the employee taking part in emergency operations as a member of an emergency services organisation and the absence occurred while this Part applied to the operations (pursuant to an order of the Premier under this Part).

Victimise means much more than just dismiss.  According to s 60C:

An employer victimises an employee if the employer:

(a) dismisses the employee from employment with the employer or terminates the engagement of the employee by the employer, or

(b) alters the employee’s position in his or her employment with the employer, or alters the circumstances of the employee’s engagement by the employer, to the employee’s prejudice, or

(c) otherwise injures the employee in his or her employment with, or engagement by, the employer.

The ‘part’ to which the section is referring to is Part 3A ‘Employment Protection for Volunteer Emergency Workers’ but it only applies to an emergency where the premier has made a declaration that the part applies.   The emergency does not have to be a declared state of emergency under other parts of the Act.  So, the employment protection can apply during a s 44 fire, but only if the Premier makes the declaration.  The declaration by the Rural Fire Service Commissioner does not, on its own, bring those provisions into operation.

The other relevant provisions are Fair Work Act 2009 (Cth) s 772. That section says an employee’s employment must not be terminated due to ‘temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.’  Voluntary emergency management activity means, amongst other things, responding as a member of ‘an emergency management body’ in circumstances where the member has been asked to respond or if no formal request has been made, it is reasonable to assume that the request would have been made if circumstances permitted.    An emergency management body would include all the traditional emergency services such as the volunteer fire brigades and State Emergency Services (see s 109).  That’s a long way of saying you can’t be sacked for responding as a member of an emergency service in circumstances where that is reasonable.  The Fair Work Act is a Commonwealth Act and so will apply across Australia.   Employment law is not my field, but from what I can see the remedy, if you are sacked, would be to bring proceedings with Fair Work Australia (see s 773 to 783) which could take time and may or may not lead to you getting your job back.

Community service leave

(And thanks to Steve Cliffe for bringing these provisions to my attention).

The Fair Work Act does set out National Employment Standards. These ‘are minimum standards applying to employment of employees’ (s 61).   The minimum standards relate to, amongst other things, community service leave (s 61(2)(f)).  ‘An employee who engages in an eligible community service activity is entitled to be absent from his or her employment’ during the period of that community service activity, and for a reasonable amount of time for travelling to and from that activity and resting after that activity (s 108).

An eligible community service activity includes a ‘a voluntary emergency management activity’ that in turn would include responding as a member of the Rural Fire Service.  For more details read the Community Service Leave webpage from the Fair Work Ombudsman.

Conclusion

Employees who are volunteer members of the RFS are afforded any protection from threatened termination of their employment if the Premier has declared that the fire emergency is an emergency to which part 3A of the State Emergency and Rescue Management Act 1999 (NSW) applies.  That could be, but is not automatically, a s 44 fire.    Employees do have some protection against dismissal based on the Fair Work Act 2009 (Cth) s 772 but often remedied under that Act are less than effective.

Employers do have a legal obligation to allow members of the RFS to take community service leave to take part in an emergency response.


Categories: Researchers

Requiring a bystander to assist a Queensland paramedic

18 February, 2017 - 07:07

A correspondent has:

… been speaking with some paramedics who work for the Queensland Ambulance Service and they explained that they have the power under the QLD Ambulance Act to instruct a member of the public to do whatever they deem necessary in order to provide assistance to them during an emergency.  Examples that have been cited range from the benign, such as asking a citizen to help carry equipment, to using a citizens cell phone, or even ordering a member of the public to drive the ambulance to the hospital in an emergency.  I’ve scanned through the Act, but don’t see anything that specifically says this.  I’ve asked a few of the paramedics for the section that states this, and one has said that it’s implied under the Doctrine of Necessity.  However, that isn’t my understanding of that principle. I’m curious if you see any language pertaining to this and what your impression of this is.

Specifically, I have three questions arising from these discussions. To what extent are paramedics legally authorised to ‘order’ members of the general public to assist them in an emergency?  What rights do members of the public have to refuse such an offer?  And, what legal repercussions might a member of the public expose themselves to if they did refuse such an order?

The power to request assistance

There relevant provision is the Ambulance Service Act 1991 (Qld) s 38.  That section sets out the powers of ‘authorised officers’.  An ‘authorised officer’ is an officer authorised by the Commissioner.  A person may be personally authorised or the authority may be given to all ambulance officers of a particular ‘class’ (eg officers with particular qualifications or employment level).  An authorised officer:

(1) … may take any reasonable measures—

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

(b) to protect persons trapped in a vehicle, receptacle, vessel or otherwise endangered; and

(c) to protect themselves or other officers or persons from danger, potential danger or assault from other persons.

(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—

(a) enter any premises, vehicle or vessel; and

(b) open any receptacle, using such force as is reasonably necessary; and

(c) bring any apparatus or equipment onto premises; and

(d) remove from or otherwise deal with, any article or material in the area; and

(e) destroy (wholly or partially) or damage any premises, vehicle, vessel or receptacle; and

(f) cause the gas or electricity supply or motor or any other source of energy to any premises, vehicle, vessel or receptacle to be shut off or disconnected; and

(g) request any person to take all reasonable measures to assist the authorised officer; and

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

(3) Without limiting the measures that may be taken for a purpose specified in subsection (1)(c), an authorised officer may, for that purpose, require any person not to enter into or remain within a specified area around the site of the danger to a patient.

Readers will see that the relevant provision for this discussion is s 38(2)(g).  The section doesn’t say that the officer may compel a person to provide assistance, only that the officer my ‘request’ assistance.  Of course anyone can request assistance, legal authority is not required.   So what is the point of s s 38(2)(g)?  The section has to be read along with s 39, which says:

(1) The State is to indemnify every service officer against all actions, proceedings and claims in relation to—

(a) acts done, or omitted to be done, by the officer under section 38; or

(b) acts done, or omitted to be done, by the officer in good faith for the purposes of section 38.

(2) For the purposes of subsection (1), a service officer includes a person required under section 38(2)(g) to assist an authorised officer.

Taken together ss 38(2)(g) and 39 confirm that if a person is assisting a paramedic, the state, and not the person, is liable to deal with any claim or allegation of negligence arising out of the treatment.  It provides legal protection to the person who agrees to help the paramedic.

To return to the question posed by my correspondent, the section does not give authority to ‘instruct a member of the public to do whatever they deem necessary’ or extend to ‘ordering a member of the public’ to do anything.   A paramedic may ask for help, and if a person agrees to help that person enjoys the same liability protection offered to the ambulance officers.  Nothing more.

What legal repercussions might a member of the public expose themselves to if they did refuse such a request?

Basically, none.  There is no obligation to accede to a request for assistance.

It is an offence to ‘wilfully obstruct or hinder any person acting under the authority of this [Ambulance Services] Act (s 46)’.  The offence of ‘wilfully obstruct or hinder’ a Queensland paramedic does not depend on s 38(2)(g).   A person can obstruct an officer regardless of whether the officer requests them to do anything or to stop doing anything.

The Oxford dictionary (online) defines obstruct as ‘Block (an opening, path, road, etc.); be or get in the way of; Prevent or hinder (movement or someone or something in motion); Deliberately make (something) difficult.’   Case law on similar phrases says that ‘obstruct or hinder’ requires action by the accused which makes it more difficult for the person to perform their duties (Evans v Powell [2012] NSWSC 1384; Hayward-Jackson v Mason-Walshaw [2012] WASC 107; Semaan v Poidevin 2013] NSWSC 226; Hinchcliffe v Sheldon [1955] 3 All ER 406).

In Semaan v Poidevin [2013] NSWSC 226, the court had to consider whether the defendant was guilty of hindering police when he refused to hand over his mobile phone which police wanted for fear that he was going to call others to come and cause a breach of the peace.  We don’t need to consider the details of that case, but in coming to his conclusion that the accused was not guilty of the offence charged, Rothman J considered this hypothetical

Assume a police officer stops the driver of a car for a random breath test. Assume that the driver has not been drinking and does not register any, or any prohibited, content of alcohol on the device utilised. At that point in time the officer, who is in uniform, observes an occurrence a distance away that is either a breach of the peace or that would give rise to a breach of the peace. The officer directs the owner of the vehicle to alight from the car, and to give the officer the keys, so that the officer can seize the car and use it temporarily in order to go to the location of the breach of the peace and to prevent it.

In those circumstances, the officer is taking a step that the officer reasonably believes is to prevent a breach of the peace … Is the owner of the vehicle hindering a police officer in the execution of duty if the owner refuses to allow the police officer to take the car and to drive it? …

In my view, it is not resisting a police officer in the execution of duty to assert a right to possess one’s own property, if that property is not to be used directly in the breach of peace or criminal conduct, other than in circumstances where the person is under arrest.

In Bombala Council v Smith [2005] NSWSC 382 the defendant refused to remove stock from his paddock to allow an authorised officer to spray noxious weeds on the property.  Master Malpass held that in the circumstances anticipated by the Act, ‘The failure to remove stock in the circumstances may be seen as impeding or hampering.’

Can refusal of a request, such as that suggested by my correspondent constitute an obstruction or hindrance.   Generally speaking, I would answer that ‘no’.  The request can’t convert an innocent act into a guilty one.    An example may help.  Assume a paramedic is treating a patient and would be assisted if someone were to hold the drip.  A person who is standing a reasonable distance from the scene, watching but doing nothing is not obstructing or hindering the paramedic.  If the paramedic then asks that person to help and they refuse, their inaction that was not an obstruction or hindrance isn’t now making the paramedics job harder, it just isn’t making it easier.

Now consider a request to use ‘a citizens cell phone, or even ordering a member of the public to drive the ambulance to the hospital in an emergency’.  To require the person to hand over their phone is exactly the hypothetical that Rothman J considered in Semaan v Poidevin.   He said ‘In my view, it is not resisting a police officer in the execution of duty to assert a right to possess one’s own property…’ and equally how can it be an obstruction or hindrance to refuse to hand it over to a paramedic.  If there’s no duty to rescue then a person is under no duty to go to the aid of the patient and they’re under no duty to go to the aid of the paramedic (and s 38(2) doesn’t impose such a duty).

The situation must be even clearer where the ‘command’ is to ‘drive the ambulance to the hospital in an emergency’ because that represents a deprivation of liberty. Whatever interest we have in our private property we have even greater interest in being at liberty to move about as we please.  To compel a person, to make it clear that they are no longer free to go about their business is in effect to arrest the person.  Ambulance officers have no such authority.     Take my example of the person watching the event and who is asked to assist but who says ‘no I’ve got to go’ and who then walks off. The exercise of their right to freedom of movement when there is no legal authority for anyone to detain them, can’t be a hindrance or obstruction.

I can imagine one circumstances where there might be, and that is drawing a parallel with Bombala Council v Smith.  Imagine paramedics attend in response to a triple zero call and find the door locked.  They ask the key holder to assist them by unlocking the door.  The key holder refuses.  The paramedics explain that they need to access the patient and they are being delayed and if the keyholder doesn’t open the door, no doubt the fire brigade will happily remove it from the door frame.   That sort of failure to act, where it is intended to make the paramedics job harder, could I think be a wilful obstruction or hindrance but again that doesn’t depend on s 38(2).  The obligation to assist by unlocking the door, if it exists, is because it is an offence to wilfully obstruct or hinder a paramedic, not because he or she asked.

A request or direction in this context is relevant as it may make it clear to a person that what they are doing is making the paramedics job harder.  Given the offence requires a ‘wilful’ obstruction a person who does not realise that they are getting in the way would not be guilty of the offence. But if they are told they are getting in the way and are asked to stop, or leave, or move their car, or unlock the door, then that may be evidence that they are not ‘wifully’ obstructing or hindering the paramedic.  But that direction or request does not depend on s 38(2)(g).

Necessity

A power to compel would not be justified by necessity.  Necessity, when it applies, may give rise to a defence if a paramedic commits a tort but it doesn’t impose an obligation upon anyone else to assist.   And asking, or even demanding, that someone provide assistance isn’t a tort, but equally the person isn’t required to provide that assistance.    Necessity, or self-defence, may be a doctrine that could be relied upon if a paramedic physically removed a person who was getting in the way of the provision of care but that would not extend to requiring them to drive the ambulance.   It might be reasonable and proportionate response to a risk to physically remove or restrain a person who is threatening the paramedic’s or patient’s safety but it would be quite another to forcibly detain a person and require them to drive an ambulance.   As noted above, there is no power of arrest and an arrest occurs when a person is led to believe they are no longer free to go about their business (Eburn and Hayes Criminal Law and Procedure in NSW, 5th ed, 2016, Chapter 11).  Necessity could not justify that sort of compulsion.

Conclusion

I was asked three questions.  In my view the answers are:

To what extent are paramedics legally authorised to ‘order’ members of the general public to assist them in an emergency?  

Queensland paramedics are not allowed to order members of the general public to assist them in an emergency.  They are authorised to ‘request’ assistance.

What rights do members of the public have to refuse such an order? 

There is no obligation to comply with the request for assistance. If a person does comply with that request, they are to be indemnified by the state of Queensland should any legal claims arise from their assistance.

And, what legal repercussions might a member of the public expose themselves to if they did refuse such an order?

In some circumstances, refusing to do what a person is asked to do could, conceivably, constitute the offence of ‘wilfully obstructing or hindering’ a paramedic, but in my view mere failure to refuse a request for assistance would not usually meet that test.   Where a person is hindering or obstructing a paramedic and they don’t stop when asked to do so, may be evidence that their actions are ‘wilful’.  But if they are not obstructing or hindering a paramedic, refusing a request to assist won’t convert a legal action into an illegal one.


Categories: Researchers

Qualifications for registration as a Paramedic

8 February, 2017 - 20:04

The process to see paramedics as registered health professionals moves along  – see this post from ‘The Paramedic Observer’ https://www.facebook.com/ParamedProf/posts/1308854855824931.

The Summary of the Draft Health Practitioner Regulation National Law Amendment Law 2017 attached to that post says:

  1. Approved qualifications for paramedicine will be decided by the National Board in accordance with the usual arrangements for accreditation functions in the National Law

  2. However, in addition to the approved qualifications, and as agreed by the Ministerial Council on 7 October 2016, the Bill recognises that a person who holds a Diploma of Paramedical Science, Diploma of Paramedical Science (Ambulance), Advanced Diploma of Paramedical Science (Ambulance), Diploma in Paramedical Science (Pre-Hospital Care) or Advanced Diploma Paramedical Sciences (Pre-Hospital Care) issued by the Ambulance Service of NSW will be qualified for general registration in paramedicine under the National Law.

A correspondent has written and asked:

I note that the various incarnations of the Diploma of paramedical science will be accepted for registration but only if awarded by ambulance NSW.

My questions…

  1. Is it ok to discriminate against identical qualifications issued by another RTO, that was delivered to a standard defined by a government agency?…

The first proposition isn’t necessarily true.  The Bill, should it become law, will provide that the Diplomas and Advanced Diplomas issued by NSW Ambulance will be acceptable for paramedic registration but it does not mean that Diplomas offered by other RTOs will not be accepted.  Whether they are, or are not, will be a matter for the Paramedicine Board. Having said that it is however unlikely that other Diploma’s will be accepted as they are not currently identified by the Council of Ambulance Authorities as qualifications for employment as a paramedic – see http://www.caa.net.au/paramedic-education/accredited-courses.

Assuming then that the NSW Ambulance Diplomas and Advanced Diplomas will be the only accepted diplomas for accreditation, is it OK to discriminate against other RTO issued Diplomas?  ‘OK’ begs the question of whether we mean morally, intellectually or legally?  The answer is that it is OK on a legal basis.  Discrimination is a matter of making choices, it is only unlawful if the discrimination is made on prohibited grounds, eg gender, marital status, race etc.  That is not the case here.

One could make arguments regarding the notion of ‘competitive neutrality’ in government services and that what this is doing is anti-competitive by denying other RTOs the option to offer paramedic diplomas that lead to registration.   But politics is the ‘art of the possible’ and if this concession was required to get NSW on board then the Parliament can make those laws.

Further the anti-competition provisions of the Competition and Consumer Act 2010 (Cth) only applies to a State to the extent that the state is carrying on a business (s 2B).  I don’t see that NSW Ambulance is a ‘business’, though the point could be argued (see United Firefighters Union of Australia (‘UFU’) V Country Fire Authority (‘CFA’) [2014] FCA 17 (31 January 2014) (February 12, 2014).  I can’t resolve the intricate details of the Competition and Consumer Act 2010 (Cth) but I’ll boldly suggest that I don’t think that it will prove a barrier to this provision.

Further, I imagine that there will be a significant difference to a diploma offered by an ambulance service and any other RTO.  An ambulance service can put their students on the road from day one.  It will still be the case that NSW Ambulance will have a virtual monopoly on emergency ambulance services so graduates from NSW Ambulance will have opportunities for significantly more clinical exposure than students of any other RTO.  If that’s correct the distinction isn’t merely protecting the NSW Ambulance diploma from competition but reflects and actual difference in qualification.

And, as noted, another RTO will be able to apply to the Paramedicine Board to have its qualifications recognised and if it can show equivalency that may be accepted.

  1. How does this help the cause of finding alternative career paths for qualified people, outside the state ambulance services?

Qualified people will be registered as paramedics and will be able to move across the industry.  What changes is what ‘qualified people’ means.  A person with a diploma, rather than a degree, will not be ‘qualified’.

Having said that I do not that there are ‘grandfathering’ provisions.  To return to the Paramedic Observer’s page and a powerpoint presentation that is attached. It there says

  • During the first three years of the scheme provisions allow paramedics who are already practising but do not hold a qualification approved by the Board for general registration under s53 to be granted general registration,

Persons currently working as a paramedic will be registered and they too will be able to move across the industry.  Future students who want to be paramedics will have to have regard to the approved qualifications.

 

 

 

 


Categories: Researchers

Compensation for loss of personal effects

7 February, 2017 - 06:27

This question comes from a NSW emergency services volunteer:

I’m wondering if this is something you can look into. I’ve recently been advised that personal items lost/damage etc are not covered by agency insurance.

Compensation for volunteers in NSW emergency services is governed by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).  This Act not only ensures that volunteers with the Rural Fire Service, the NSW State Emergency Service and other rescue workers receive workers compensation even though they are not employees.  The Act also provides for compensation for the loss of personal effects.

A volunteer firefighter is entitled to compensation for the loss of personal effects whilst fighting a fire or on a relevant journey with respect to firefighting.   Generally speaking, the damage has to occur at or near the place of the fire or whilst proceeding to a place to perform one’s duties (s 12). A firefighter cannot obtain compensation if there is access to other insurance, so if a firefighter’s car is lost and it was insured, they are expected to claim on their vehicle insurance rather than from the Bush Fire Fighters Compensation Fund (s 13(4)).   An insurance company cannot increase the firefighter’s subsequent premium on the basis of that claim (s 28B).  Similar provisions apply for members of the State Emergency Service and other rescue workers (ss 28 and 28A).

With respect to firefighters, the Self Insurance Corporation can allow a claim even where the equipment wasn’t with the firefighter if ‘it was necessary or reasonable for the article to be where it was at the time of the destruction, damage or loss’ (s 14).   There does not appear to be an equivalent provision for emergency and rescue workers.

In other circumstances, for example if equipment is lost by theft or damage of the depot or station, the liability to pay compensation would depend on whether it is possible to allocate ‘fault’ to anyone.  If it is not, then any compensation would depend on the good will of the agency or the terms of the building or contents insurance (if any).

 


Categories: Researchers

Unlicensed driver of an emergency vehicle

6 February, 2017 - 09:25

This question comes from NSW but the answer will be the same nationwide.   The question relates to

… NSW RFS driving SOPS and law on the potential use of an driver for a truck whereby the driver doesn’t have an adequate licence level (e.g. the driver may only have a car licence).

While it may seem common sense that only drivers qualified and trained to use the trucks do so each time, my questions are in relation to the more obscure and very rare situations that may occur.

The underlying question is, is there a scenario where an unlicensed driver may legally operate or drive an RFS truck?

Scenarios where this may arise include:

  • the truck is on a fireground and the driver is unable to drive the truck due to injury or some sort of emergency medical situation, the truck needs to be moved off the fireground for safety reasons.
  • the truck needs to be moved from inside the station to the awning (not on the public road) so it can be checked/serviced, or vice versa where a driver may not be available or otherwise occupied.
  • If the truck remains off public roads, is there some level of RFS officer that can authorise an unlicensed driver to drive the vehicle?
  • Is there some sort of emergency situation where an unlicensed driver can operate a vehicle such as this on a public road?
  • A parallel question is at what point is a person considered to be driving a vehicle, is it when they sit in the driver’s seat, start the vehicle or when the vehicle is moving?

The simple answer is ‘no a driver must have the relevant licence because of the risk to themselves and to everyone else’.   But, having said that, I would anticipate that it would not be considered an issue in a true, life threatening emergency such as that described above, that is ‘the truck is on a fireground and the driver is unable to drive the truck due to injury or some sort of emergency medical situation, the truck needs to be moved off the fireground for safety reasons’. In most cases the appropriate thing to do will be get on another truck or get someone sent to you to drive it home.  If an unlicensed driver does drive it because of an urgent and immediate threat to life, they need to stop as soon as they can, that is as soon as they are out of the immediate danger.    In that case, provided they don’t crash, it is unlikely that anyone would take action and one could make a ‘necessity’ argument (see The Doctrine Of Necessity – Explained (January 31, 2017)).

I would think the appropriate test for any firefighter (or anyone else) would be – ‘am I prepared to wear the prosecution?’  So if the fire appliance is in the path of the fire, the only licensed driver has had a heart attack, you might say – this might be illegal but I’m not going to wait here to die, and let my mate die too – in which case drive it and be prepared to wear the consequences. If nothing happens, or the police take no action, or a magistrate acquits well and good.  But if not, you need to be happy with the decision and say ‘that was a price I was prepared to pay’.   Equally if you are asked to move the appliance onto the driveway ask yourself ‘am I prepared to be prosecuted for this’ and if the answer is ‘no’, don’t do it.

You need a licence to drive on a public road or road related area.    A ‘road related area’ is (according to the Road Rules 2014 (NSW) r 13):

(a) an area that divides a road,

(b) a footpath or nature strip adjacent to a road,

(c) an area that is not a road and that is open to the public and designated for use by cyclists or animals,

(d) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles.

A road or road related area includes a service station and car park. If it did not idiots could use them to drive unregistered and unsafe cars and people injured in accidents could not get compensation from the motor accidents scheme.    It will also include the driveway in front of the fire station.

If a vehicle is not on a road or road related area, you don’t need a licence to drive it.  That is why farmers have unregistered paddock bashers and farm kids can learn to drive.  Whether the RFS wants to allow someone to drive their appliance in those circumstances is a matter for the RFS.

There is no emergency situation where an unlicensed driver should be driving an emergency vehicle.  We’ve noted in earlier posts regarding the need to take reasonable care, and that whatever the emergency it does not warrant risking other lives.  A fire, flood, road accident etc are not emergencies for the emergency services, they are their daily work and they need to be planned for and that includes having relevant drivers.  If there is no-one licensed to drive the truck, that brigade or station must be ‘off line’.

The Road Rules 2014 (NSW) say ‘”drive” includes be in control of’.  The Road Transport Act 2013 (NSW) says ‘drive includes: (a) be in control of the steering, movement or propulsion of a vehicle…’  The Roads Regulation 2008 (NSW) r 3 says ‘“drive includes ride or draw (in relation to a vehicle) and ride or lead (in relation to an animal)’.

A person who attempts to exercise any control over the vehicle, whether they are in the driver’s seat or not, is a driver, so a passenger who steers the vehicle or applies the handbrake may be considered the driver.   In Cordwell v Carley (1985) 31 A Crim R 291 Grove J found that a person who was asleep in the driver’s seat was a driver.  He said “The test of whether a person is driving a vehicle is whether he has the means of control of the vehicle at his disposal.” In the course of his judgement he quoted Langman v Valentine  [1952] 2 All ER 803

… where a pupil sat in the driver’s seat and had her foot in position to use, and did use, the accelerator, foot brake and steering wheel whilst the instructor sat in the front passenger’s seat with one hand on the hand brake and the other on the steering wheel, the ignition being in convenient reach. Lord Goddard CJ said:

“ … on those facts (the justices) could find … that (the instructor) was a driver. I do not think it is impossible either in law or in fact to say that there can be two drivers at the same time, two people controlling the car. One may be controlling the starting and one may be controlling the stopping and they both may be controlling the steering, although that may be rather a perilous thing to do.”

Other cases cited, where people were found to be the driver, included pushing a vehicle with no-one in the driver’s seat, steering a vehicle down an incline with the engine off, a person in the passenger’s seat who woke to find the car rolling down the hill so attempted to steer it.

In Westlaw’s Motor Vehicle Law (NSW) the authors say:

… the courts have not developed a single test with which to determine whether a person was driving a vehicle. Instead, the courts have, depending on the circumstances, had regard to a number of factors, including:

  • the extent of control in fact exercised by the defendant over the movement of the vehicle,
  • the extent of the defendants capacity to control the vehicle,
  • the source of the vehicles propulsion,
  • the position of the defendant in, or in relation to, the vehicle,
  • the perceived legislative policy underlying the statutory scheme in question, or
  • a combination of some or all of those matters.

The determination of the question involves a finely balanced decision and a question of degree and circumstances.

I would suggest if you are in the driver’s seat and the engine is on, then you are a driver.  Merely sitting in the driver’s seat, eg when at open days children are allowed to sit in the driver’s seat, without more, would in most circumstances not constitute being the driver. But if the engine’s on, or the vehicle’s moving, then anyone who is exercising control over the vehicle is a driver.

 

 

 

 

 


Categories: Researchers

Meeting the demands of the event organiser – a question for event first aid providers.

3 February, 2017 - 04:47

This question comes from an event first aid provider in South Australia.  My correspondent is required to:

  … look at “high risk” event bookings that come into the organisation and review the relevant regulations, assisting us to determine what resources we need to supply to comply with the regulations (and more importantly the clinical needs of the competitors).

One of the major issues I have found when reviewing these is that many regulations appear poorly worded, with seemingly little understanding of the differences in clinical scope of different personnel. I have included some of the more obvious regulations for you to see what I mean.

2015 SA Conditions of Rallying

http://sarally.net.au/wp-content/uploads/2015/01/SA-Conditions-of-Rallying-2015.pdf (2.9.a Safety)

  • One or more of the following must be provided, must be incorporated in the safety plan, and must be stationed appropriately.
  1. First Aid Accredited person
  2. Medical Intervention Vehicle
  3. St John Ambulance Medical Vehicle (equipped to the highest level available in the region where the event is being held)
  4. Ambulance

Per this regulation, you can provide anything from a solitary first aider (with no mention of a vehicle) to an ambulance (I assume they mean staffed with 2 paramedics but it doesn’t say).

Pony Club Association of SA

http://www.ponyclub.asn.au/files/documents/rule-book/3eventing.pdf

 2.3 MEDICAL A doctor should be present at least during the Show Jumping and Cross Country phases. If it is impossible to obtain the services of a doctor, the minimum alternative is for a current holder of a Senior First Aid certificate to be present. Fall check list to be used by first aider in the event of a fall of rider. (form can be found at rear of this rule book) An ambulance or designated vehicle properly equipped from the doctor’s or first aid personnel’s resources must be in attendance during jumping events.

 Per this regulation a doctor is recommended – but if “impossible to obtain” then a first aider is acceptable. Almost all pony clubs are not able to/will not pay for a doctor to be present.

 Australian Speedway

http://speedwayaustralia.net.au/uploads/Australian%2BSpeedway%2BRacing%2BRules%2B%26%2BRegulations%2B-%2BSeptember%2B2015%2B%28Final%2Bin%2Bamendment%2Blines%29%2BRHYS%2BCHANGE%2BFINAL.compressed.pdf (3.3.3)

 3.3.3 At any Race Meeting or Event, the minimum requirements are (for practice sessions for Sprintcars & Speedcars, Refer to Rule 3.3.5):

(a) Regular Race Meeting standard quantity of fire extinguishers and fire crew

(b) Race Meetings and official practice sessions require:

* a minimum of two (2) first aid personnel (paramedics, ambulance service, doctor or qualified first aid personnel);

* a station wagon capable of transporting minor injury cases; and

* an appointed person equipped with an operative mobile phone and supplied with the phone number of the nearest road transport ambulance service.

(c) It is compulsory that an approved State Service road going ambulance is present at all Sprintcar & Speedcar Race Meetings and is highly desirable at all other Race Meetings.

3.3.5 For all Sprintcar and Speedcar Drivers, minimum safety requirements for practice are:

(a) a minimum of two paramedic personnel or persons with a current first aid certificate issued by St John Ambulance Australia;

(b) suitable trained, attired and equipped fire fighters;

(c) a station wagon or vehicle capable of transporting minor injury cases;

(d) an appointed person equipped with an operative mobile phone and supplied with the phone number of the nearest road transport ambulance service;

There is a large difference between the capabilities of paramedics, a doctor and first aiders.

When it comes to determining what level of medical coverage is required, I’m interested to know where a medical provider stands in the event of regulations being so non-specific or varied and determining liability in the event of an incident?

Using the 2015 Conditions of Rallying SA as an example, sending a first aider along without a vehicle is in my mind completely inadequate to deal with a high speed accident that might occur 10km from that person on a country road. But this would seemingly still meet the regulation.

I do believe that it is an important one as inadequate regulation or interpretation of them by providers may cause patients competing in various high risk events to be receiving insufficient medical coverage. Through personal experience involved in these discussions every day, club organisers often have very little knowledge of the regulations and when confronted with a choice of either paying for a health professional (doctor/paramedic) or a first aider they usually only want the cheapest option they can get away with without understanding the clinical reasons behind it. It is always somewhat of a balancing act to satisfy the customer, comply with regulation and provide a sufficient level of coverage to ensure competitor safety.

Let me first deal with some issues of language. As a lawyer, I think of a ‘regulation’ as a subordinate piece of legislation.  That is the parliament passes an ‘Act’ but the Act can’t deal with all the details so they authorise someone, the Governor, a Minister or a public official to ‘make regulations’ to fill in the gap.  There is a formal process to make a regulation and when it is made it has the force of law.

But regulation includes more than just formal laws.  According to the Oxford dictionary (online) regulation means ‘A rule or directive made and maintained by an authority’.  In this case the authority can be the Pony Club or speedway association.  What they have is a regulation but if it’s not made as subordinate legislation, it is not ‘law’ more like ‘club rules’.   I assume the regulations cited above fit that description.

What that means is the regulations don’t bind the event first aid provider, they bind the event organiser.  That is it is the organiser who has to plan (which requires actually thinking about the issues) and ensure that the requirements of the regulations as well as the needs of participants, are met.  Hopefully the prudent organiser would take advice from the event first aid provider as to the difference in skill levels and the risks involved in their event.

I would suggest the regulations are written the way they are so as not to be too prescriptive as prescription can impose obligations that can’t be met or are unnecessary or that are insufficient.  The answer here is that it’s all about risk assessment.  Who’s competing? What’s the event? Where is it?  In some cases a first aider may be sufficient or the best that can be achieved, in other cases it won’t.

The event first aid provider’s obligations must be:

  1. Do a risk assessment and form an opinion what skill level is required.
  2. Communicate with the organiser and work with them, and their own risk assessment, and come to an agreement as to the level of care to be provided.
  3. If there is a disagreement the event provider must consider whether it will cover the event considering the potential needs of patients and their own staff. If the event first aid provider thinks paramedics will be required, but the organiser only wants to pay first aiders, you have to think ‘what will be the impact on our first aid team if they face the injuries that we think are foreseeable and likely and have to try to deal with those injuries pending the arrival of the state ambulance service?’  If it is unreasonable to put first aiders into that position, then you may have to refuse to provide cover.
  4. On the other hand, you may consider that participants will be better off with some cover, rather than none, and that the social benefit of being there to allow the event to run is sufficient. That may well be true for a small event in a country town where the cost of bringing paramedics from some other town will be prohibitive.

Conclusion

In my opinion whether the level of cover meets the requirements of the event organiser’s parent body is a matter for the event organiser, not the event first aid provider.  The event first aid provider must consider whether the level of skill that the organiser wants to engage is sufficient to deal with the foreseeable risks.  If it is not, then the event organiser should advise the event organiser, and consider whether they are being allowed to operate to the professional standard that they think is appropriate.  If they are not, or if they think the risk to participants or their own staff is too great, they should consider withdrawing their services.

 

 


Categories: Researchers

NT Paramedics and the mentally ill

2 February, 2017 - 07:12

A paramedic from the Northern Territory writes:

I’ve had a number of Mental Health patients recently and still have some confusion on involuntary detainment, treatment and emergency management.  As it stands in the NT, Paramedics treat mental health patients, however we cannot section them, initiate a Section 9 nor 42, and need Police assistance if the patient is to be taken to hospital.

I’m confused only by what Paramedics can lawfully do with mental health patient treatments.  There is also confusion in how the Act influences the management of Minors

We have had limited training or introduction to the changes on the new Mental Health Act, unfortunately.

The relevant Act is the Mental Health and Related Services Act 1998 (NT). I note that my correspondent says the ‘new’ Mental Health Act and I’m not sure what that refers to.  The Mental Health and Related Services Act is the current Act.  It has been in place since 1998 and the sections I discuss, below, were last amended in 2012. There does not appear to be a Mental Health Bill or any other relevant Bill before the NT Parliament.

Section 9 of the Mental Health and Related Services Act says: 

Principles relating to provision of treatment and care

When providing treatment and care to a person who has a mental illness, mental disturbance or complex cognitive impairment the following principles apply:

(a) the person is to be provided with timely and high quality treatment and care in accordance with professionally accepted standards;

(b) where possible, the person is to be treated in the community;

(c) as far as possible, the person’s treatment and care is to be designed to assist the person to live, work and participate in the community and to promote and assist self-reliance;

(d) the person is to be provided with appropriate and comprehensive information about:

(i) the person’s mental illness, mental disturbance or complex cognitive impairment; and

(ii) proposed and alternative treatment and services available to meet the person’s needs;

(e) where possible, the person is to be treated near where he or she ordinarily resides or where relatives or friends of the person reside;

(f) as far as possible, the person’s treatment and any service to be developed for the person is appropriate having regard to the age and gender of the person;

(g) as far as possible, the person is to be involved in the development of any ongoing treatment plan or any discharge planning;

(h) the person is to be given medication only for therapeutic or diagnostic purposes and not as a punishment or for the convenience of others;

(j) except as provided by this Act, the person is not to be given treatment without his or her consent;

(k) the person’s treatment is to be carried out, wherever practicable, within a multi-disciplinary framework;

(m) the person’s treatment and care is to be based on an individually developed plan that is discussed with the person, reviewed regularly and revised, as necessary, and is provided by qualified professional persons;

(n) the person’s treatment and care is, as far as possible, to be appropriate to and consistent with the person’s cultural beliefs, practices and mores, taking into account the views of the person’s family and community;

(p) any assessment of the person to determine whether he or she needs to be admitted to an approved treatment facility is to be conducted in the least restrictive manner and environment possible.

The most important part for the purpose of this discussion is s 9(j) which says ‘except as provided by this Act, the person is not to be given treatment without his or her consent’.  Having said that, section 9 is a statement of general principles, it doesn’t authorise anyone to do anything.  Accordingly it is not possible to ‘initiate a Section 9’.    There is nothing to initiate.

Section 42(1) says “A person admitted to an approved treatment facility as an involuntary patient on the grounds of mental disturbance may be detained for up to 72 hours on those grounds.”  Section 42(2) then provides circumstances where that detention can be extended up to 7 days.   Section 39 makes similar provisions in relation to the involuntary detention of a person because of a mental illness (rather than mental disturbance). Neither section here is relevant to paramedics.  These sections set time limits for the detention of a person ‘admitted to an approved treatment facility as an involuntary patient’ but say nothing about how they might come to be admitted. Again, it is not possible to ‘initiate a … Section 42’ (or 39).

My correspondent said ‘As it stands in the NT, Paramedics treat mental health patients, however we cannot section them… and need Police assistance if the patient is to be taken to hospital’ but that is wrong.  Section 31 provides for the detention of mentally ill and mentally disturbed person by an ambulance officer.  That section says:

(1) An ambulance officer may detain a person being conveyed in an ambulance for up to 6 hours where the ambulance officer believes, on reasonable grounds, that the person may fulfil the criteria for involuntary admission on the grounds of mental illness or mental disturbance.

(2) When detaining a person under subsection (1), an ambulance officer may use reasonable measures, including the use of restraints, on the person:

(a) to prevent the person causing serious harm to himself or herself or to someone else; or

(b) to prevent behaviour of the person likely to cause serious harm to the person or to someone else; or

(c) to prevent further physical or mental deterioration of the person; or

(d) to relieve acute symptomatology.

(3) An ambulance officer who detains a person under subsection (1):

(a) must convey the person to the nearest approved treatment facility or, if that is not practicable, to the nearest hospital, as soon as practicable after the person is detained; and

(b) on arriving at the approved treatment facility or hospital, must complete the approved form and send it to an authorised psychiatric practitioner.

(4) For subsection (3)(b), the form may be sent by fax or email.

In the absence of any ambulance service legislation, the term ‘ambulance officer’ must be defined. For the purposes of the Mental Health and Related Services Act, ‘ambulance officer’ means any person ‘employed as an ambulance officer, or engaged as a volunteer ambulance officer, by an approved ambulance service at the level of qualified ambulance officer or above’ or a person appointed as an ambulance officer by the Chief Health Officer (ss 4 and 24).

The ‘criteria for involuntary admission on the grounds of mental illness or mental disturbance’ are set out in s 14 (mental illness) and s 15 (mental disturbance).

What follows is that if an ambulance officer who believes that the person they are treating:

… has a mental illness; and

(b) as a result of the mental illness:

(i) the person requires treatment that is available at an approved treatment facility; and

(ii) without the treatment, the person is likely to:

(A) cause serious harm to himself or herself or to someone else; or

(B) suffer serious mental or physical deterioration; and

(iii) the person is not capable of giving informed consent to the treatment or has unreasonably refused to consent to the treatment; and

(c) there is no less restrictive means of ensuring that the person receives the treatment.

Then the ambulance officer can detain the person and take them ‘to the nearest approved treatment facility or, if that is not practicable, to the nearest hospital’.  Equally they may be detained and transported to an approved treatment facility or hospital if the person is not suffering from a mental illness but:

… (b) the person’s behaviour is, or within the immediately preceding 48 hours has been, so irrational as to lead to the conclusion that:

(i)     the person is experiencing or exhibiting a severe impairment of or deviation from his or her customary or everyday ability to reason and function in a socially acceptable and culturally appropriate manner; and

(ii) the person is behaving in an abnormally aggressive manner or is engaging in seriously irresponsible conduct that justify a determination that the person requires psychiatric assessment, treatment and care that is available at an approved treatment facility; and

(c) unless the person receives treatment and care at an approved treatment facility, he or she:

(i) is likely to cause serious harm to himself or herself or to someone else; or

(ii) will represent a substantial danger to the general community; or

(iii) is likely to suffer serious mental or physical deterioration; and

(d) the person is not capable of giving informed consent to the treatment and care or has unreasonably refused to consent to the treatment and care; and

(e) there is no less restrictive means of ensuring that the person receives the treatment and care.

If the ambulance officer does not have the appropriate authority, then a mentally ill or mentally disordered person may be detained on the authority of a treating medical or nursing practitioner (s 30) the police (s 32A).  Section 32A will be most relevant where the person is not already in a health facility, that is they are in the community and police are called because of concerns about the person’s behaviour.  Where

… a police officer believes, on reasonable grounds:

(a) a person may require treatment or care under this Act having regard to the appearance and behaviour of the person; and

(b) the person is likely to cause serious harm to himself or herself or to someone else unless apprehended immediately; and

(c) it is not practicable in the circumstances to seek the assistance of an authorised psychiatric practitioner, a medical practitioner or a designated mental health practitioner.

(2) The police officer may apprehend the person and bring the person to an authorised psychiatric practitioner, a medical practitioner or a designated mental health practitioner for an assessment …

With respect to the voluntary treatment of children, that is people under 18, there are some particular considerations (s 26).  There are no provisions with respect to the involuntary treatment of people under 18 so the provisions, above, apply whether the person is a child or not.  The difficulty will be where a child is unable to give consent due to their mental illness and their parent or guardian refuses consent.  If that refusal is ‘unreasonable’ (ss 14(b)(3) or 15(b)) then the person may be detained.

Conclusion

My correspondent wrote ‘I’m confused only by what Paramedics can lawfully do with mental health patient treatments’ and with respect, his comments did confirm that and would also appear to confirm that paramedics in the NT have had ‘limited training or introduction to the … Mental Health Act’.

Under the current law ambulance officers who believe that the person under their care is mentally ill or disturbed, and the conditions set out in ss 14 or 15 apply, may detain the person and take them to ‘to the nearest approved treatment facility or, if that is not practicable, to the nearest hospital’ for an assessment and possible detention as an involuntary patient.   They do not need to rely on the police, but it would be common experience that often police are first on scene if a person’s behaviour is causing concern or appears to be criminal.

The Act applies regardless of the age of the patient.

 


Categories: Researchers

Right of Way on Foot?

31 January, 2017 - 08:57

A correspondent writes:

Your recent post regarding emergency driving and the privileges attached prompted me to wonder –  Do emergency personnel have any additional privileges regarding their general movements and access to areas that they might otherwise be barred from?   For example, can a security guard stop a paramedic from going somewhere that the paramedic says they need to go?  Assume here that this paramedic has, at least, reasonable grounds for believing that they must pass this guard to reach a patient in need.   Is the answer any different if the guard has no evidence of the patient? Contrary evidence? Are there general provisions which prevent emergency services personnel from being obstructed?  That is to say, would harm have to be caused by the act of obstructing for it to become something that the obstructer could he held to account for?  If it is different between states, then I am most interested in the law of WA, although the differences between jurisdictions are also fascinating.

There are exemptions from the road rules for emergency workers as pedestrians. Rule 283 of the Road Traffic Code 2000 (WA) says:

(1)       A provision in Part 14 does not apply to a police officer or an emergency worker acting in the course of his or her duty if, in the circumstances —

(a)         the police officer or emergency worker is taking reasonable care; and

(b)         it is reasonable that the provision should not apply.

Part 14 deals with the rules relating to pedestrians on a road way.  So emergency workers and police officers do have ‘additional privileges regarding their general movements and access to areas that they might otherwise be barred from’ if the ‘bar’ is that ‘pedestrians are prohibited’ from any area.  That does not, however, deal with the majority of issues raised by my correspondent.

The owner of a property may choose to exclude a person for whatever reason he or she sees fit.  Denning LJ put it this way in Southam v Smout [1964] 1 QB 308, 320:

“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.” So be it—unless he has justification by law.

A security guard who has been engaged to restrict access to private property is the property owner’s agent. He or she can restrict access to the same extent that a property owner can. The belief of the security guard has no relevance with respect to his or her right.

In Western Australia, where there is no ambulance service legislation, any property owner could refuse to allow paramedics onto the property.   If the paramedics believed they needed access they may choose to attempt to force their way in (see The Doctrine Of Necessity – Explained (January 31, 2017).  Ideally, if time allowed, they would call police.

It is in different in other states. In Queensland and Tasmania, paramedics have specific authority to force their way into premises where that is required to protect a person from death or permanent injury (Ambulance Service Act 1991 (Qld) s 38; Ambulance Service Act 1982 (Tas) s 14A).    In New South Wales the power of police to enter in an emergency is also set out in legislation (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 9)).

There is a general offence of obstructing an emergency service worker.  The Emergency Management Act 2005 (WA) s 85 says:

A person must not obstruct or hinder a hazard management officer or an authorised officer in the exercise of a power under this Act.

A hazard management officer is a person appointed by a hazard management agency (s 55). St John Ambulance (WA) is not listed as a ‘hazard management agency’ (Emergency Management Regulations 2006 (WA) Part 3) so that section would not apply to a St John paramedic.    It is different in different states.  In some states, it is an offence to obstruct a paramedic in the course of his or her duties (Health Services Act 1997 (NSW) s 67J; Ambulance Service Act 1991 (Qld) s 46 and Ambulance Service Act 1982 (Tas) s 39B).

If a security guard negligently refused access to a paramedic, for example if a person had called an ambulance, the ambulance crew are on one side of the door, the person who rang is on the other and both are asking the security guard to let them in, it may well be that the security guard is acting negligently in not allowing the paramedics to enter the building.

 

 

 

 

 

 

 

 

 

 

 

 

 


Categories: Researchers

The doctrine of necessity – Explained

31 January, 2017 - 05:12

I’ve written two ‘omnibus’ posts to review some key legal issues.

In response to the post on driving and rule 306, a correspondent wrote ‘Would you consider a general post about Necessity?’  I’m happy to do that but note that much of the text below does appear in earlier posts and in my book Emergency Law (4th ed, 2013).

Necessity is a common-law doctrine (that is it has been developed by the judges on a case by case basis) rather than the subject of legislation.  The gist of necessity is that where a person is caught on a dilemma of obeying the law and allowing some harm to occur, or to befall them, they can be excused from obeying the law.    The problem with a doctrine put as boldly as that, is that it is a licence for everyone to be judge in their own cause and to decide for themselves if the circumstances warrant disobeying the law.     That cannot be the law so the judges have developed tests as to when ‘necessity’ will apply, usually captured by that difficult concept of ‘reasonable’, to which there is added a concept of ‘proportional’.

Necessity is a defence to both the criminal law and the civil law, that is, if an action was ‘necessary’ to prevent a greater harm, that can be used to avoid both criminal charges and civil actions for negligence.  That can be seen to be relevant in context of this blog.  If necessity applies it can be a defence to criminal charges that might arise if you were to cut the roof off someone’s car, or touch them without consent.  It can also be a defence to a claim for damages arising out of the same conduct.

We can then look at the tests for necessity.

Criminal law

The starting point for most cases appears to be Stephen’s Digest of the Criminal Law (1st ed, 1887).   He said:

An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained.

In R v Davidson [1969] VR 667 Menhennit J said ‘The principle of necessity as stated by Stephen contains within it the two elements of necessity and proportion’.   The accused has to believe, upon reasonable grounds, that it is necessary to take the action and that the harm done is not disproportionate to the harm to be avoided.

In R v Loughnan [1981] VicRp 43 Young, CJ and King, J said:

It will be seen from the statement by Sir James Fitzjames Stephen that there are three elements involved in the defence of necessity. First, the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect… The other two elements involved … can for convenience be given the labels, immediate peril and proportion…

In R v Dudley v Stephens (1884) 14 QBD 273 it was said that ‘necessity’ could not be a defence to murder.  In that case the accused was shipwrecked and along with his ship mates they drew straws whilst on the lifeboat.  The loser was killed and eaten. When the survivors were rescued they had survived because of they had eaten their shipmate but the fact that their death was otherwise imminent was no defence.

Even that rule has been doubted.  In Re A (Conjoined Twins) [2000] EWCA Civ 254 doctors and judges were faced with a dilemma.  Ward LJ described the facts:

Jodie and Mary are conjoined twins. They each have their own brain, heart and lungs and other vital organs and they each have arms and legs. They are joined at the lower abdomen. Whilst not underplaying the surgical complexities, they can be successfully separated. But the operation will kill the weaker twin, Mary. That is because her lungs and heart are too deficient to oxygenate and pump blood through her body. Had she been born a singleton, she would not have been viable and resuscitation would have been abandoned. She would have died shortly after her birth. She is alive only because a common artery enables her sister, who is stronger, to circulate life sustaining oxygenated blood for both of them. Separation would require the clamping and then the severing of that common artery. Within minutes of doing so Mary will die. Yet if the operation does not take place, both will die within three to six months, or perhaps a little longer, because Jodie’s heart will eventually fail.

The court authorised the surgery with the sure and certain knowledge that Mary would die and her death would be sooner than it would be without the operation.  The doctrine of necessity allowed that action in circumstances where the death of Mary would save Jodie but there was no sense of choice.  Whether the surgery went ahead or not, Mary would shortly die.  Without the surgery, Jodie would also die, with it she had good prospects.  This is not a situation like R v Dudley and Stephens where the person to die could have been anyone, and a person is not entitled to put their lives above others, that is no-one’s life in the life boat was more important than anyone else’s.  But where one person is fated to die regardless, hastening that person’s death to save others may be justified.  The court gave some examples. Brooke LJ said:

At the coroner’s inquest conducted in October 1987 into the Zeebrugge disaster, an army corporal gave evidence that he and dozens of other people were near the foot of a rope ladder. They were all in the water and in danger of drowning. Their route to safety, however, was blocked for at least ten minutes by a young man who was petrified by cold or fear (or both) and was unable to move up or down. Eventually the corporal gave instructions that the man should be pushed off the ladder, and he was never seen again. The corporal and many others were then able to climb up the ladder to safety.

In his third lecture, “Necessity and Duress”, Professor Smith evinced the belief at pp 77-78 that if such a case ever did come to court it would not be too difficult for a judge to distinguish R. v Dudley and Stephens. He gave two reasons for this belief. The first was that there was no question of choosing who had to die (the problem which Lord Coleridge had found unanswerable in R. v Dudley and Stephens at p 287) because the unfortunate young man on the ladder had chosen himself by his immobility there.

Robert Walker LJ said:

Of the many real and imagined examples put before the court it is worth mentioning two incidents which really did happen, although neither was the subject of a court decision. One is the awful dilemma which faced the commander of an Australian warship, in peacetime, when a very serious fire occurred in the engineroom. He ordered the engine room to be sealed off and flooded with inert gas, in order to save the ship and the rest of the crew, although the order meant certain death for anyone who was still alive in the engineroom. The other is the equally awful dilemma of a mountaineer, Simon Yates, who held his fellow-climber, Joe Simpson, after he had slipped and was dangling on a rope over a precipice at 19,000 feet in the Andes. Yates held Simpson for an hour, unable to recover him and becoming increasingly exhausted. Yates then cut the rope. Almost miraculously Simpson landed on a snowy ice bridge 100 feet below, and survived. When they met again Simpson said to Yates, “You did right”. This incident is mentioned in Professor Smith’s 1989 Hamlyn Lectures, Justification and Excuse in the Criminal Law, p.79.

At the end of Brooke LJ’s long and detailed judgment, His Honour referred again to Stephen’s text and said:

According to Sir James Stephen, there are three necessary requirements for the application of the doctrine of necessity:

(i) the act is needed to avoid inevitable and irreparable evil;

(ii) no more should be done than is reasonably necessary for the purpose to be achieved;

(iii) the evil inflicted must not be disproportionate to the evil avoided.

The point of this (from an academic point of view) simplified discussion of the principle is to show that it is a principle of law and can be applied to all offences, up to and including deliberate killing.   And although it is impossible to set out with certainty when it applies, the principles from 1887 remain the guide.

Discussion

What does this have to do with the emergency services who do not go around deliberately killing people?  The point of mentioning in Re A is not that the emergency services have such terrible choices (but like the captain of the ship mentioned by Robert Walker LJ they may do) but to confirm that the principle is part of the common law of England and, I suggest, Australia.

And the principles will be relevant.  This often arises in the context of getting children out of locked cars – see Getting Children Out Of Locked Cars (February 23, 2016).  You can see the application.  A child is in a car in 40 degree heat.  Getting the child out is required to ‘avoid inevitable and irreparable evil’ ie the death or permanent injury of the child.  ‘No more should be done than is reasonably necessary for the purpose to be achieved’ which presumably involves breaking a window and unlocking the door, unless the road service organisation are there and can unlock the car.   And damaging the car is not disproportionate to the harm averted.    In that case, there’s a defence even though, prima facie, deliberately breaking someone’s car window is an offence.

For those in rescue squads you should realise that this is the same rule that allows you to cut the roof off the car that’s wrapped around the tree.  The driver isn’t consenting and you’re not allowed to just cut the roof off someone’s car, but if you do it to allow access to save their life all, of those principles again apply. If a child’s locked in a hot car, they need rescue as much as someone trapped in a mangled wreck.

Necessity might also be a defence to blocking a road.  It may be an offence to obstruct traffic but putting your car across the road and telling people that the road’s washed away, or blocked by an accident or fire because such an action is necessary to stop the next driver suffering harm, and the ‘harm’ done (obstructing traffic) is not disproportionate to the harm averted (stopping the driver going off a cliff or whatever).

So necessity is, in the right circumstances, a defence to a crime.

Tort

It is also a defence to a civil claim for damages.   Again it must be shown that there was a real and imminent danger and that the conduct of the defendant was such that “any reasonable man would, in the circumstances of the case, have concluded that there was no alternative to the act of trespass if the property [or life] endangered was to be preserved” (Cresswell v Sirl [1948] 1 KB 241, 247.

The doctrine can be traced back to Maleverer v Spinke (1538) 73 ER 79, 81 where the court said:

Yet we will well agree that in some cases a man may justify the commission of a tort, that is in cases where it sounds for the public good … a man may justify pulling down a house on fire for the safety of the neighbouring houses …

The doctrine of necessity can apply where the defendant reasonably believes that some action is necessary even if it turns out later that it was not. In Cope v Sharpe (No 2) [1912] 1 KB 496 the defendant was not liable for setting fire breaks that were not, as it turned out, necessary to control a fire that was extinguished by others before it got to the breaks.

In Proudman v Allan [1954] SASR 336, the South Australian Supreme Court summed up the application of the principle in cases where a person was taking action to save another’s property and in fact did more damage than would have happened if he hadn’t tried at all. It was said (at p 340):

In principle, there seems no reason why the common law should not recognise an exemption from liability to pay damages for trespass to goods of “volunteers” or strangers who, from no other motive than the same desire to save the property of others from damage or destruction as they would feel if it were their own property which was in jeopardy, take reasonable steps on an occasion of urgent necessity to remove that property out of the way of danger or safeguard it by some other means. It would seem that in principle the present respondent should not be absolutely liable for damage caused by his interference with the property of another when he acted in the reasonable belief that his interference was justified by the necessity of the situation and was intended to benefit the owner.

When the damage to property is necessary to save life, greater damage may be done that would be justified “to prevent mere damage to property” (Watt v Hertfordshire County Council [1954] 2 All ER 368; See also Rigby v Chief Constable [1985] 2 All ER 985, 994).

The safety of human lives belongs to a different scale of values from the safety of property. The two are beyond comparison and the necessity for saving life has at all times been considered a proper ground for inflicting such damage as may be necessary upon another’s property. (Southport Corporation v Esso Petroleum Co Ltd [1956] AC 218, 228).

In New Zealand it was said in Dehn v Attorney General [1988] 2 NZLR 564, 580 (Tipping J):

A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm.

In 2008 the High Court of Australia (Kuru v State of New South Wales (2008) 236 CLR 1, [2008] HCA 26, [40] (Gleeson CJ, Gummow, Kirby And Hayne JJ) said:

The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire fighters, police and ambulance officers will often invoke application of that principle.

Necessity will justify almost any property damage in order to save life. The cutting up of the car, the entry onto property and the destruction of property can all be justified where that conduct is necessary to save another’s life. The doctrine is not limited to professional rescuers. A person visiting their neighbour who sees that they are lying injured on the floor is as justified in breaking the door in order to render assistance as is the local ambulance or fire service.

The law still requires that any action taken under the doctrine must be reasonable, so that if the rescuer acts in a way that is not reasonable in the circumstances, they may be liable in negligence (Beckingham v Port Jackson and Manly Steamship Co (1957) SR(NSW) 403).  This principle is subject to the rule that in deciding what was or was not reasonable, the courts, given the agony of the moment, are willing to excuse conduct that would be considered negligent in less urgent circumstances, particularly when life (rather than mere property) is involved.  The “agony of the moment” rule says that courts must take into account that where a person has found themselves in a situation not of their making and where immediate action is required, then the person’s conduct is not to be judged as negligent because, in retrospect, it appears that another course of action would have been better (Leishman v Thomas (1958) 75 WN(NSW) 173, 175):

[A] man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called “agony of the moment”, he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise.

A rescuer, “acting under the pressure of emergency, is to be judged leniently as to the reasonableness of his conduct” (Wallis v Town of Albany (1989) Aust Torts Reports ¶80-283, [69,011] (Pidgeon J); Wagner v International Railway Co 133 NE 437 (1921), 437-38 (Cardozo J)).

Necessity and medical treatment

This issue arose in In Re F [1990] 2 AC 1.  In that case the court had to consider whether doctors could lawfully sterilise a developmentally disabled adult.  Her parents wanted the procedure so that she did not have to deal with menstruation and the risk of pregnancy.  F was not competent to give consent and because of vagaries of the English law at that time, her parents could not give lawful consent.  The question was what doctrine could justify such a procedure.

Lord Goff again turned to necessity. The notion of ‘implied consent’ could not justify the action as you could not have implied consent from a person from who you could not get actual consent.    He said:

The basic requirements, applicable in these cases of necessity, that, to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

As Lord Goff said ‘The principle is one of necessity, not of emergency’.  He gave these examples:

Take the example of a railway accident, in which injured passengers are trapped in the wreckage. It is this principle which may render lawful the actions of other citizens – railway staff, passengers or outsiders – who rush to give aid and comfort to the victims: the surgeon who amputates the limb of an unconscious passenger to free him from the wreckage; the ambulance man who conveys him to hospital; the doctors and nurses who treat him and care for him while he is still unconscious. Take the example of an elderly person who suffers  a stroke which renders him incapable of speech or movement. It is by virtue of this principle that the doctor who treats him, the nurse who cares for him, even the relative or friend or neighbour who comes in to look after him, will commit no wrong when he or she touches his body.

The two examples I have given illustrate, in the one case, an emergency, and in the other, a permanent or semi-permanent state of affairs. Another example of the latter kind is that of a mentally disordered person who is disabled from giving consent. I can see no good reason why the principle of necessity should not be applicable in his case as it is in the case of the victim of a stroke. Furthermore, in the case of a mentally disordered person, as in the case of a stroke victim, the permanent state of affairs calls for a wider range of care than may be requisite in an emergency which arises from accidental injury.

Discussion

Necessity is a general and ill-defined doctrine.  It must be ‘ill-defined’ because the circumstances in which it may be applied are undefined.  But the doctrine does exist.  Where a person, whether a professional rescuer or not, believes and has some reason to believe that action is required to avoid an irreparable and grievous harm, they are justified in taking the action that they believe is necessary if they do no more than is required to achieve their objective and the harm done (which may be no more than to technically breach the law) is not disproportionate to the harm to be avoided.

You can see the doctrine’s relevance to the emergency services.  Breaking into a house or car to rescue someone is the example given by the High Court and the New Zealand court.  Providing care to those that cannot consent, the unconscious, children, the mentally ill or disabled etc are all things that the community at large, and the emergency services are called upon to do.   These things rarely get before a court but when they do it is the doctrine of ‘necessity’ that provides a general and broadly applicable doctrine to justify taking action to save a life or prevent harm.

The policy of the law, that when life is at stake it’s better to do something than nothing, is also behind my conclusion that if you have life saving skills you should use them, regardless of what uniform you are in.  It is also reflected in the good Samaritan legislation that was written to encourage people to act.


Categories: Researchers

Suspension from the CFA pending disciplinary action

28 January, 2017 - 21:43

This question comes from a volunteer with Victoria’s CFA.  My correspondent tells me:

I’m a CFA volunteer and I’m currently suspended by the Chief Officer pending cancellation of my membership. I’ve not been charged or been provided with any complaint against me as is required under CFA regulations and dispute resolution; however, I’ve been suspended since November 2016. I believe this contravenes r44 and subsequent regulations of S.R. No. 165/2014. Any advice would be appreciated.

Suspension of members of the CFA is dealt with by the Country Fire Authority Regulations 2014 (Vic) r 47.  This regulation anticipates that a member may be suspended pending both an investigation and final resolution of the allegation.  The regulation says:

(1) At any time before the Chief Officer has caused an investigation to be conducted under regulation 46(1), the Chief Officer or an officer of the Authority nominated by the Chief Officer for the purpose may suspend the member from the member’s brigade until the investigation report concerning the member has been given under regulation 46(2).

(2) At any time after the Chief Officer has caused an investigation to be conducted under regulation 46(1), an officer of the Authority nominated by the Chief Officer for the purpose may suspend the member from the member’s brigade until—

(a) the time for the laying of a charge under regulation 48(2) has expired; or

(b) if a charge is laid, the charge has been dismissed or found proven in accordance with regulation 49(3); or

(c) if an appeal has been made to the Appeal Panel, the chairperson of the Authority has given the appellant written notice of the Appeal Panel’s determination.

Under regulation 46(1) the Chief Officer may appoint someone to conduct an investigation and that investigation must be completed by the investigation ‘as soon as practicable after commencing an investigation’ (r 46(2)).  That is a very vague time frame and note that the time doesn’t ‘run’ until after the investigation is commenced, not from the time the member is suspended.  Regulation 46 sets no time limit to say when an investigation must be commenced if a member has been suspended.   So prima facie, the Chief Officer could suspend a member under r 47 but then wait some significant time before directing an investigation to be commenced under r 46.

Once a written report of an investigation has been received, the member must be charged within 30 days, or not more than 60 days if the Chief Officer so determines (r 48).

My correspondent has been suspended since November 2016.  I do not know if the Chief Officer has instigated an investigation under r 46.  If he has, that investigation must be completed ‘as soon as practicable’. There is then 30 days (or up to 60 days) before a charge must be laid.    Given that it’s now the end of January 2017 one might think that the fact that no charge has yet been laid is, of itself, not contrary to the regulations.  Given that between November and January there has been the Christmas and New Year break, it might be reasonable that no investigation has been completed and even if it has, the time frame for laying a charge won’t have passed.

The bigger issue is if the suspension has been put in place but no further action has been taken, eg no investigation commenced, because in those circumstances the members position can remain uncertain and in effect subject to punishment (suspension) without due process.  The point of allowing suspension pending investigation is to protect the community and the CFA but not to allow the Chief Officer to impose a punishment by, for example, suspending a member without due process and thereby in effect dismiss them from the CFA without regard to the rules on disciplinary hearings.

The crucial question then is what has been happening since November.  If the Chief Officer has appointed an investigator and the investigator is attending to his or her duties with due diligence, the current time frame is probably unobjectionable.  If nothing has happened one would infer that some ulterior motive is being pursued.

What’s the remedy?   To determine the matter would require access to documents and internal records.  If my correspondent is aware that an investigation is in place, eg he or she may have been advised who the investigating officer is, they may have been interviewed and know other people who have been etc, then one might think the process is under way. If on the other hand there is no evidence that an investigation has been commenced it would be appropriate to seek independent legal advice (not from a public blog/commentary) but from a solicitor who can take the matter up with the Chief Officer.  An alternative source of support may be the VFBV but I don’t know if they get involved in these sorts of quasi-industrial issues.


Categories: Researchers

Driving, r 306 and previous posts – explained

24 January, 2017 - 21:48

Usually on this blog I answer questions or discuss legal developments (cases or new legislation) that come to my attention. That means the discussion is about the issue at hand.  Following discussion on advanced first aid skills I wrote a more generic post, a more ‘helicopter view’ of the issues as I saw them.  That seemed to go down well so I’m now going to do the same thing with respect to the road rules.  To make sure this is generic I’ll refer to the Australian Road Rules as published by the National Transport Commission (Australian Road Rules 2012, as amended to November 2015).  As the Commission says, the Road Rules

…  form the basis of Road Rules of each Australian state and territory. Each state and territory has mostly copied the Rules into their own laws, however, not every provision has been copied exactly in each.

By referencing the model document I’m not referring to the law in any particular state.

We know the relevant road rules for this discussion are rules 78, 79 and 306.  They say:

78 Keeping clear of police and emergency vehicles

(1) A driver must not move into the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm…

(2) If a driver is in the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm, the driver must move out of the path of the vehicle as soon as the driver can do so safely…

(3) This rule applies to the driver despite any other rule of the Australian Road Rules.

79 Giving way to police and emergency vehicles

(1) A driver must give way to a police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm…

Note 2 For this rule, give way means: (a) if the driver is stopped — remain stationary until it is safe to proceed; or (b) in any other case — slow down and, if necessary, stop to avoid a collision;…

(2) This rule applies to the driver despite any other rule of the Australian Road Rules that would otherwise require the driver of a police or emergency vehicle to give way to the driver.

306 Exemption for drivers of emergency vehicles

A provision of the Australian Road Rules does not apply to the driver of an emergency vehicle if:

(a) in the circumstances:

(i) the driver is taking reasonable care; and

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

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

Rule 305 provides a similar exemption for the drivers of a police vehicle.  Rule 307 provides for exemptions from parking restrictions for police and emergency vehicles.   Rule 300(1)(b) provides that the rule against using a mobile phone whilst ‘not parked’ does not apply to the driver of an emergency or police vehicle.

Let us assume that there is an accident between a responding appliance and another vehicle.  The question people want to answer is ‘who is at fault?’.  The answer to that question does not depend simply on those rules above.  We can use as an example the video that’s been doing the rounds on Facebook of a NSW Police car involved in a minor collision – see  https://www.facebook.com/DashCamOwnersAustralia/videos/1308226399236997/.

Fault – criminal law

With respect to criminal law, the issue is not ‘who is at fault?’ but ‘has anyone committed an offence?’   It may be that both drivers are guilty of an offence or neither are.  It’s not a binary choice – it’s one or the other.

The driver of the police car has the warning beacons activated (or at least let’s assume that is the case).  The rule says that in the right circumstances the police driver commits no offence for failing to stop at the stop line and waiting for the red light that is facing him or her to turn green (Australian Road Rules rr 56 (Stopping for a red traffic light or arrow) and 305 (Exemption for drivers of police vehicles)).    But the police driver isn’t exempt those parts of the traffic laws that are not contained in the Australian Road Rules, given this was in NSW, the Road Transport Act 2013 (NSW) s 117 (“A person must not drive a motor vehicle on a road negligently”).  To drive ‘negligently’ means to drive without due care and attention.

The video shows that the driver slowed, waited etc so we can argue whether he or she was driving without due care and attention.  The more general point to make is that even if you have right of way, it doesn’t mean you can go.  Let’s take a more ‘pedestrian’ example – if you are driving along facing a green light and there are pedestrians walking across a crossing, you can’t run into them and argue it’s their fault as you had ‘right of way’.   Even when you have right of way you have to assume others will not honour that and you have to be prepared to avoid the accident.

In Hine v O’Conner [1951] SASR Abbott J said (at pp 4-5):

He [the bus driver] was not, however, entitled to consider himself as having “an open road” across that intersection because a “Stop Sign” is not always obeyed by drivers of vehicles; and, as he admitted in cross-examination, he has himself had the experience of other drivers disobeying such signs … Despite the existence of a “Stop Sign” at an intersection, it may become the duty of a reasonable driver in O’Connor’s situation to “give way” to another vehicle whose driver has disobeyed the “Stop Sign.”

So the mere fact you have ‘right of way’ (as the police car did) does not mean you are not ‘at fault’ in a collision.

What is evident from the comments that follow the video, and the disagreement as to who’s at fault, is there is more to it than the road rules.   Resolving the question of fault depends on what each driver saw and thought.  To go back to that video there would be questions of whether or not the red car was already blocking the police car’s path (note r 79 says the driver has to stop, r 78(2) says that if the driver is in the path, he or she has to move).  Who saw who?  Where was the driver of the police car looking? The issue is not at the time he or she moved over the stop line but at the time he or she drove into the vehicle in front.

Let me take another example, based on an earlier post – Air Horns on A CFA Appliance (January 20, 2017).   The question in essence was whether the use of air horns added anything to the use of beacons and a siren. A commentator on that post pointed out that

Use of an airhorn whilst responding a CFA appliance is covered under CFA SOP 12.04 which states…

Air horns may be used in conjunction with the siren, but shall only be operates in short blasts. Air horns are not deemed to be a siren.

But what does it mean that the CFA have said that ‘Air horns are not deemed to be a siren’?  It means that from the CFA’s point of view, they are not equated to a siren (or alarm) so if the CFA says you have to use your siren, the air horns, alone, aren’t sufficient.  But that won’t answer a legal question.

Assume that an appliance is being driven in an emergency response with lights, sirens and air horns.   At some point the siren stops working but the air horns are still working.  As far as the driver knows the beacon warning lights are still working so he or she continues to respond using the air horns.   A collision occurs.  After the collision an inspection of the appliance reveals that the beacons had also failed due to some fault in the warning device circuitry so when the siren cut out, the lights did too, but there was no indication to the driver of the extent of the failure.  Who’s at fault.

Assume the driver of the other car says ‘yes I saw the CFA appliance, I heard the air horns, but I’m a bush lawyer and I know the road rules and without flashing lights or siren (which the CFA says air horns aren’t) I knew I didn’t have to give way so I didn’t’.   I suspect any police officer or court would say that r 306 requires lights or an alarm, the horns brought the presence of the appliance to the attention of the driver, it was clear the driver of the appliance was seeking to move through traffic, you should have given way – it’s your fault.

Change the story, the other driver says ‘I heard a siren so I was looking for an emergency vehicle, but then the siren stopped.  I saw the CFA appliance but it had no lights or sirens and I could hear the air horns but couldn’t tell where they were coming from so I thought the best thing to do was keep coming’.  In that case questions are going to turn to the driver of the appliance – you knew your siren wasn’t working?  Did you check the lights?  You must have realised that air horns without sirens are not what people were expecting?  Why did you drive on into the intersection.  It’s your fault.

Now it’s not that simple because I haven’t given a story about the appliance driver’s perspective but the point is that by telling the story differently, we might reach different conclusions even though the nature of the driving of the appliance, and the road rules didn’t change.

So who’s to decide?  Again if you read the comments that follow the video some people think the police officer was at fault, others blame the driver of the red car.  Discussion is all well and good but it doesn’t lead to resolution of issues such as ‘who’s going to pay for the damage?’  A decision has to be made and that is what the police and courts are there for.  So don’t blame the police if they charge a driver, or the court for hearing and determining the matter.  Arguing ‘it shouldn’t be in court as the driver had the benefit of r 306’ is just asserting a conclusion you want the court to achieve, that is it is for the court to determine whether r 306 applies.

So what’s the point of r 306?  If you believe r 306 is going to get you out of trouble in a collision you’ve missed the point of the section.  It’s really a section that allows police and the fire service to avoid criticism.  We know that in today’s world, no matter what you do, someone’s there with a camera.  So when someone photographs a police officer using a mobile phone, or a fire appliance have a near miss when going through a stop sign, someone’s going to put that photo on social media and say ‘why don’t they get a ticket, I would’.  These rules allow the police to withdraw infringement notices for camera detected offences and not issue tickets because they point to a law that says ‘it was authorised; it’s not corruption or mates looking after their mates, the law says they’re allowed to do it’.

But rules like r 306 are written very vaguely and if I can steal a phrase from my friend Stephen Carter (of ACT RFS and SES) it’s a ‘self-licking ice-cream’.  It only applies if you’re taking reasonable care, and if you crash, prima facie you weren’t taking reasonable care.  Because even if you have right of way, the overriding obligation is not to crash.  The very act of being involved in a collision is evidence that you were not taking reasonable care.

Now it’s not correct, but it’s not a bad rule of thumb, that in any accident both drivers are at fault.  It’s not correct because some things aren’t ‘accidents’ eg where a driver deliberately rams another vehicle and sometimes one person’s driving is so bad there really is nowhere to go and nothing the other driver can do.    Classically running into the back of a stationary vehicle would be an accident where the person in front is not at fault.  But let’s stick to my rule of thumb – even when every rule is on your side there is still something you can do to avoid an accident – just ask any motorcyclist how much depending on ‘right of way’ won’t keep you alive.   So the collision is evidence (not proof, but evidence) of a failure to take reasonable care and if that’s the case r 306 disappears so as soon as there’s an accident, police and if push comes to shove, a court is going to have to consider whether or not the driver was taking ‘reasonable care’ so once you have an accident you can’t just point to the lights and sirens, you’re going to have to explain your action and possibly get a ticket or worse.

The effect is that r 306 allows the police and courts to lawfully not proceed against a driver who proceeds through a red light or exceeds the speed limit but it doesn’t determine who is at fault if a crash actually occurs.

Civil liability

Fault is a critical issue here, the driver at fault is required to make good any damage done.  In reality it’s their insurance company and in some jurisdictions, personal injuries compensation doesn’t depend on fault.  That’s true in all jurisdictions if the person’s injuries are catastrophic.  In those cases, the compulsory third party scheme will cover the costs of meeting the person’s basic needs but if they can prove fault they may be entitled to recover more for economic losses and general damages.  This is not the forum to consider all the various schemes but to say that the liability doesn’t really belong to the driver.

When considering civil liability, a court doesn’t have to find it was driver A or driver B at fault.  The court can apportion blame – driver A 40%, driver B 60%.  If that is the case and driver A is suing driver B, the court will determine the value of A’s damages according to law, and then order that B pay 60% of that amount.

The road rules are relevant here in that they are factors that the ‘reasonable driver’ pays attention to, but a ‘reasonable driver’ including the driver of a fire appliance knows that if he or she doesn’t pay attention, someone could die.  Even if they don’t crashing the appliance will defeat the purpose of the emergency response so the driver will pay very careful attention.

Case law, such as Hine v O’Conner quoted above, apportion damages when it comes to collisions between emergency service vehicles, but that is not always the case (No Liability for NSW Ambulance Accident (October 19, 2016) but see, contra see Liability For Motor Vehicle Accident – NSW Ambulance On Urgent Duty (July 6, 2015); see also The Motor Vehicle Accident That’s Not Your Fault (October 26, 2016)).   Remember that in all these cases the rules where the same.

Discussion

The Road Rules are merely the starting point.  The presence of r 306 does not give a broad exemption.  It is very narrow, limited only to an exemption from the other rules set out in the Australian Road Rules (not all traffic law) and only if the driver is taking ‘reasonable care’.  It’s the reasonable care that’s critical.   And if you’re involved in a collision, the question ‘were you taking reasonable care?’ has to be asked and answered – and the answer doesn’t come from the driver but ultimately a court (see Road Traffic Exemption – Who Determines if it is Reasonable that the Provision Should Not Apply? (May 22, 2016)).

In any accident, it may be that neither driver was taking ‘reasonable care’ so fault is not a binary choice, it can be shared.     The conclusion that driver A, or driver B was, or was not, exercising reasonable care depends upon the facts of which the presence of lights and sirens, and the road rules are just part of the factual picture.

As a commentator said, in response to an earlier post Your Rights Under Lights and Siren (December 4, 2015) ‘Emergency driving is a privilege, not a right…’.

Conclusion

I can draw three conclusions after running this blog for some 8 years.  My justifications for two of them are summarised in this post and in my other omnibus post, Scope of Practice – Previous Posts Explained (January 21, 2017).  Those conclusions are:

  1. If you have the skills to save someone’s life, use them; and
  2. If you are driving an emergency service vehicle, the most important rule is ‘don’t crash’.

To that I would add a third conclusion which is:

  1. No, you can’t put red and blue lights on your private car.

 

 

 


Categories: Researchers

Delaying the case sheet to respond to an urgent call – NSW Ambulance

21 January, 2017 - 20:52

A paramedic with NSW Ambulance says:

I recall seeing an article from you about the duty of care of Paramedics to complete Clinical Records and provide them to the hospital before departing on another case.  I can’t seem to find it though?

That post is Completing Paramedic Case Records (September 3, 2015).

The reason I ask is, NSW Ambulance has recently revised their clinical record policy which states:

“It is the responsibility of the paramedic to deliver and receive comprehensive clinical handovers wherever patient care changes from one clinician to another, this includes providing complete, legible and accurate documentation of the clinical observations, findings and management of the patient.”

But in another section states:

“Documentation of the clinical care is to occur at the time of, or as soon as practicable following the provision of professional advice, care, observation, assessment, management/treatment. It should include any other matter worthy of note.  However, response to a subsequent time critical incident should not be delayed in order to complete the CR. Records that are not completed contemporaneously with the treatment of the patient may lack in accuracy due to difficulty in recalling specifics of the incident. Where a CR is completed at a later time, a notation is to be made on the CR stating the reason for the delay and actual time the report was completed.”

To me this is a bit ambiguous because NSW Ambulance definition of “time critical incidents” may include someone with a simple cough “coded as Short Of Breath” or a caller with a cut finger who subjectively states the bleeding is “serious”.

That is a bit of a side issue.  Presumably NSW Ambulance define a time critical event as ‘short of breath’ or ‘severe bleeding’. The call taker and the paramedic don’t actually know what’s going on until they get there.  So the fact that it turns out the person had a simple cough or a cut finger, so their issue was not time critical, is not to the point.  The point is that, at the time, the case is prioritised as time critical.

Can I ask this… If a Paramedic delivers a patient to the hospital who has a complex medical condition/complex allergies/required significant active treatment, and that Paramedic was unable to provide a written copy of their clinical record because they were called away for a “time critical case” (as determined by NSW Ambulance), would that individual be liable for any mishaps that occur with the first patient as a result of the lack of documentation, or are they legally  “protected” by this policy which directs them to complete the written handover later?

The first rule is vicarious liability.  If the paramedic is negligent in the course of his or her employment, it is there employer that is liable.  So no, that individual WILL NOT be personally liable for any mishaps that occur with the first patient as a result of the lack of documentation, if there’s negligence it belongs to the ambulance service.  The other reason the ambulance service will be ‘at fault’ is that it’s the ambulance service’s duty to manage its resources and to give paramedics time to complete their tasks.

Managing resources will however always be a balancing act and a risk assessment.  There’s a risk to a patient if the handover isn’t completed with proper case sheet, but that person is already in hospital where others can provide care.  There is also a risk to the person who’s called triple zero and reported difficulty breathing or severe bleeding and the extent of that risk is not known.   The ambulance service has to manage both those risks with the limited resources that it has.

The ultimate issue is however for the paramedic who has to consider those risks. As I said in that earlier post:

… if there was no significant treatment to record on the eARF there may be little risk in leaving it if the paramedics are being asked to clear for an urgent task. On the other hand, if the patient has a life threatening condition and has received extensive treatment, including drug treatment from the paramedics, then ensuring that is recorded and handed over with the patient to allow their ongoing care is critical.   As noted above the ambulance service may owe a duty to get to other 000 callers as soon as possible, but the individual paramedic has a duty to continue to care for the person who is in their care.   Driving off without completing the eARF may be a remiss as simply dropping the patient at the door of A&E and driving away.

As employees’ paramedics are required to comply with the reasonable directions of their employer.  One can’t get into arguments on the spot about ‘what’s reasonable’ so if they are asked to clear for an urgent job but haven’t finished their paperwork and that does cause some problem, the paramedic won’t be liable, even if the ambulance service is.

When paramedics are registered health professionals the issue will change somewhat as the duty on paramedics to act as a responsible professional will be an independent and personal duty.  Liability will still belong to the Ambulance Service, but professional registration will enhance the paramedic’s capacity to say ‘I can’t clear as I need to complete this paperwork’.

Having said that I appreciate the dilemma both for paramedics and the ambulance service and it really does come down to a risk balance.  The problem for the paramedic is he or she knows what’s happening  with their current patient and can make a call on how important it is to their continued care that the documentation is completed.  What’s happening at the next call is at that stage unknown.


Categories: Researchers

Natural justice in, and the jurisdiction of, the CFA

21 January, 2017 - 20:25

The is the second part of a question received from a member of Victoria’s Country Fire Authority (for the first part, see Air Horns on a CFA Appliance (January 20, 2017)).   The relevant questions are set out in bold, below.

One of my brigade members has been suspended as a result of speeding to the station in his private vehicle and complaints from other members about this driving style on the way to jobs. He insists that while driving to the station to respond to alerts he is not answerable to CFA and therefor is not under their control in terms of speed limits etc. My belief is that he is responding as a CFA volunteer and so any directives regarding driving apply. (If he crashed on the way to the station to respond an appliance he would be covered by CFA insurance therefor they have the right to dictate how he should respond.) While he may say “whether I speed or not is up to me and only the police can fine me” it still seems reasonable that if CFA is aware of a member consistently speeding to the station to respond to fires then they have the right to suspend the member from turnouts. Can you clarify this in legal terms?

Related to the actual right of the CFA to take action is the need to grant ‘natural justice’.  I am the brigade delegate to (the) Volunteer Fire Brigades Victoria (association) which purportedly looks after the interests of volunteer brigades. The member detailed in the above called for my assistance. I gave him the advice on who he should talk to about driving and HR issues. Since then I have had a private telephone call from the brigade captain to say that there is no point in the member talking to the people I had recommended as they will not help and that the captain has private channels to ensure that this is the case. This raises the question of ‘is a requirement for natural justice for CFA volunteers?’ There is a disciplinary process called out in the Act and Regulations but it seems that individual brigades and management team can produce their own independent rules which override the regulations. There appears to be nothing to protect individual volunteers from arbitrary justice imposed by “brigade rules”. Is this really the case or do brigades have to comply with some overarching CFA disciplinary process and regulation?

It’s a bit hard to deal with this in detail without access to CFA documents and no doubt they have a relevant code of conduct or ethics.  On this point let me give a public acknowledgment of NSW RFS who put so much of their documentation online (see NSW Rural Fire Service, Service Standards).  I don’t see any reason for agencies not to make this sort of information public but most don’t.  Without reference to any position statement from the CFA this answer will be quite general.

The statement “whether I speed or not is up to me” must be wrong.   The volunteer who receives notice of a fire call and is making his or her way to the station is acting as a member of the CFA.  Consider what would happen if he or she was to crash on the way to the station and cause death or injury?  Everyone, the police, the coroner, the work health and safety inspector and the family of the deceased would want to know what instructions had the CFA given to firefighters to reduce the risk to others.   The CFA has a duty to ensure that its activities don’t pose a risk to people affected by its activities (Occupational Health and Safety Act 2004 (Vic) s 23).  This duty extends to volunteers and others on the road who the volunteer may put at risk when making their way to a fire station.

Further the CFA owes a duty to consider the welfare of its volunteers.  A volunteer who ‘speeds’ to the station, despite instructions not to, is not only putting him or herself at risk of death or injury, they are also putting themselves at risk of legal prosecution.  Their behaviour may well be a symptom that the fire fighter is struggling to cope with or understand his or her duties.  For all those reasons the CFA has a duty to intervene if they are aware of such risk-taking behaviour by someone responding to a call from the CFA.

Finally, to make it clear that the CFA must have an interest, change the facts and ask would the CFA be able to suspend a member who was guilty of murder, or sexual assault, or robbery, or arson or drug dealing?  The argument that ‘I sell drugs in my time, it’s nothing to do with the CFA’ is unlikely to be persuasive to either the CFA, the community or the press.  The CFA must consider whether people are suitable for the work of the CFA and the CFA’s role in the community, so offending even in your own time affects the CFA.

The authority of the CFA is set out in the Country Fire Authority Regulations 2014 (Vic).  Regulation 58 says:

A member who has been charged with an offence punishable by a term of imprisonment may be suspended from membership of the brigade by the Authority until the charge has been determined.

Regulation 58 is not limited to offences committed whilst acting as a member of the CFA.  Whilst ‘speeding’ doesn’t carry a penalty of imprisonment (Road Safety Road Rules 2009 (Vic) r 20), many other road offences do – for example Dangerous Driving (Road Safety Act 1986 (Vic) s 64).

Regulation 44 says:

A member of a brigade is guilty of an offence if the member— …

(d)     commits an act of misconduct; or…

(g)     is guilty of disgraceful or improper conduct.

What is ‘misconduct’ or ‘disgraceful or improper conduct’ is not defined but it would depend on what directions have been given to firefighters. Failing to comply with a policy statement or direction not to drive contrary to the road rules when turning out to the station could well fall within the description of ‘misconduct’.

I therefore agree that ‘if CFA is aware of a member consistently speeding to the station to respond to fires then they have the right [if not a duty] to suspend the member from turnouts’.

There are disciplinary proceedings set out in the Country Fire Authority Regulations 2014 (Vic) ss 44-58.  These provide for the process of investigation matters, suspending members during the period of investigation and ‘charging’ the member with an offence contrary to r 44.  Following an investigation and a decision by a CFA officer to lay a charge, the Chief Officer must hear the matter and determine whether or not the charge is proved.  In conducting the hearing (r 50(4)):

The Chief Officer must—

(a) ensure procedural fairness; and

(b) in making a decision, have regard to the interests of justice and fairness.

Suspension can occur before a decision is made to charge a member – so a member can be suspended during an investigation or whilst issues are dealt with in court (rr 47 and 58).

What follows is that if the formal proceedings are followed there is an obligation to impose natural justice but sometimes the procedures just are not followed – see Natural Justice and the SES (September 28, 2015), which does relate to Victoria SES).   So the question in this case would be has the member be formally suspended or just ‘told’ not to turn out?  In any event he or she can seek advice and it would be wrong for the Captain to use ‘back channels’ to influence that advice but no doubt such things do happen.

The final problem is if there has been a denial of natural justice, what do you do about it?  As my earlier post said:

The Victorian Civil and Administrative Tribunal (VCAT) found that it did not have jurisdiction to review a decision of Victoria SES to suspend four members of the Bacchus Marsh SES unit.

In Castle v Director General State Emergency Service [2008] NSWCA 231 the NSW Court of Appeal held that the Director-General had to hear from a unit controller before deciding to disband the SES unit and terminate the member’s appointment as unit controller.  That’s all well and good but the court did not that hearing from the member may not change the ultimate outcome, and the member, Mr Castle, did have to take the matter all the way to the Court of Appeal which most people can’t afford and couldn’t be bothered with.

Therefore, in the absence of a tribunal that can resolve the matter (such as VCAT) the right to natural justice may be somewhat hollow.   VCAT would have jurisdiction if the Chief Officer failed to give natural justice when hearing a formal allegation of an offence, but less formal actions, such as those taken with respect to the Bacchus Marsh SES unit may well leave the member without an effective remedy.

See also:


Categories: Researchers

Scope of practice – previous posts explained

21 January, 2017 - 05:35

This question was posted as a comment to my earlier post, Volunteering with Advanced Skills (January 18, 2017) but I thought it such a useful question that it warrants a post on it’s own.  I’ll break the question up and put comments along the way.

I know that you have responded to many questions that have a common theme and respond with the notion that individuals are likely to be held to the higher skill and a court would more likely question why something wasn’t done rather than why it was.

It’s true that this question, or variations on it, are asked a lot and my answer is ‘if you have skills that you can use for the advantage of the patient, use them’ but that hides many assumptions and subtleties that this post can bring out.

First, my point is not that ‘a court would more likely question why something wasn’t done rather than why it was’ but that a potential plaintiff would.  Law is not self-executing.  You can do something that’s negligent, or illegal, but legal consequences don’t follow unless legal action is taking.    So, let me try to put that in context.

In most of these posts I actually have trouble trying to think of the sort of thing that might arise.  Imagine a first aider is on duty with an intensive care paramedic and a registered medical practitioner.  They are in a first aid post with a standard first aid kit.  What exactly can the paramedic or doctor do that is going to be so different to the first aider in circumstances where it will make a difference?  The paramedic and the doctor might know more, so they can intervene if the first aider tells the person who is having a heart attack that they are OK to leave, but what actual skills do people have in mind?  And if you can identify skills that they have, that might be called for, and which can be performed in the circumstances, why shouldn’t they do that?

Given I’m not a clinician, let’s make some assumptions.  Let me assume that the relevant skill is release of a tension pneumothorax.  As I say, it’s a long time since I’ve had to treat a patient so I won’t rely on my understanding of what that involves, instead I’ll rely the advice published on a US Emergency Medical Service (EMS) website – Jim Sideras, Tension Pneumothorax: Identification and treatment (EMS1.com, January 17, 2011).  It says

Tension pneumothorax is a life threatening condition that can occur with chest trauma and is more likely to happen with trauma involving an opening in the chest wall.

After discussion about the causes, signs and symptoms and the difference where there is a ‘closed’ or ‘open’ pneumothorax it goes on to discuss when a ‘needle decompression’ is required.  For when a needle decompression is the appropriate treatment, it sets out these procedures:

  1. The following are steps to perform a chest decompression. However, you should follow your own protocols.
  2. Ensure patient is oxygenated if possible
  3. Select proper site
    1. Affected side at the second intercostal space and along the mid-clavicular line
    2. Note: Draw an imaginary line from the nipple up to the clavicle. The needle should not be closer to the middle of the chest than this line
  4. Clean site with alcohol or povidine solution
  5. Prepare needle; if it has a leur-lock or flash chamber, it will need to be removed
  6. Insert the needle into the second intercostal space at a 90 degree angle to the chest, just over the third rib.
  7. Note: There are blood vessels running along the bottom of the ribs. Ensure the needle is closer to the top margin of the lower rib in the intercostal space. This will prevent these vessels from being damaged.
  8. Listen for a rush of exiting air from the needle
  9. Remove the needle and leave the catheter in place, properly disposing of the needle
  10. Secure the catheter in place with tape. Some suggest covering the end of the catheter, but this will depend on the situation
  11. Ensure the tension has been relieved and the patient’s condition improves. If there is no improvement, the procedure will need to be repeated with another needle placed adjacent to the first needle
  12. Monitor, then reassess the patient

Now let us assume that a patient with a tension pneumothorax has presented to the first aid post and for whatever reason the first aid organisation has not endorsed the ‘scope of practice’ for either our doctor, or paramedic, to perform this procedure even though, let us also assume, they are both familiar with the procedure, experienced in doing it and by some bizarre circumstance, the relevant equipment is to hand.

There are not two options.  1) The patient is treated in accordance with the first aid manual that does not provide for the release of the tension pneumothorax, or 2) the doctor or paramedic, or both, release the tension pneumothorax.    Let us assume option (1) and let us also assume she dies and the autopsy reveals that had the pneumothorax been relieved, the injury would not have been life threatening.  Now imagine you are a member of her immediate family, her partner, child or parent.   How do you react to that news, assuming that you now know that the doctor and paramedic were there.  Here is a case where a person came to the first aid post seeking first aid, that is the very service they first aiders, including the doctor and paramedic, were there to provide. The person was vulnerable, in that they were injured, and they turned to the very people who claimed to be there to help and provide care.  And two people in that first aid room could have taken action to save her life, but didn’t.

Now imagine scenario (2), the tension pneumothorax is released, the patient is transported to hospital and has a good outcome.  Now imagine you are a member of her immediate family, her partner, child or parent.   How do you react to that news?  With pleasant joy and a letter to the first aid service thanking them for their professional response.

In which scenario are you more likely to get sued?  In the first the organisation and the doctor and the paramedic may well have a legal argument  – it was beyond our scope of practice and all the patient was promised was a ‘reasonable first aid service’ and that’s all she got.  That argument might even win – but in the first scenario, you might have to spend three years in courts arguing the point, in the second you get a pat on the back and a box of chocolates.

My first point, then, is that it’s not so much the court, but the people who are likely to take action, who are going to ask why things were not done, not why were they done.  It’s a risk – but if you want to take a risk management perspective the risk must be lower to act than not act.

What will the courts do?  The courts will ask ‘was the response reasonable’ that is was there good reason to act, or not act.  The reason to act is ‘we were competent, proficient, experienced, knowledgable, had the equipment at hand, knew of the patient’s need and recognised that without intervention the consequences were life threatening’.  All good reason to do something.

What is the reason to not act?  My agency told me not to do it and that I might not be insured – in other words I want to protect my agency, or myself, not my patient.    In a post on his Fire Law blog, on an unrelated matter (Rope Rescue, NFPA Compliance and Liability (January 11, 2017)), US firefighter and lawyer Curt Varone said:

To me it is not a liability issue. We have to stop thinking about things in terms of liability and do things because it is the right thing to do.

I agree with that sentiment.  If your focus is ‘I’ll get into trouble’ it’s time to stop volunteering.

But that doesn’t mean that there aren’t very good reasons for not acting.  They might be that they don’t have the equipment to hand, that if they release the tension pneumothorax they’ll have to escort the patient to hospital because the attending ambulance crew may not be able to deal with that situation, it may be that the ambulance is in fact only a short distance away and the patient’s condition won’t deteriorate in that time so better to leave it to those that will transport, it may be that the doctor or paramedic are already dealing with other life threatening injuries or multiple casualties and they triage the patient as a lower priority.  None of those apply in the story as I told it, but they might and if they did they would be good reason not to act.  They can be summed up by ‘if there is a clinical reason that says ‘let’s not do this’ then don’t do it’.

Let’s change the story somewhat.  Now assume option (2) that is the paramedic and doctor relieve the tension pneumothorax but for whatever reason the patient still dies.  There seems to be some myth that a person can sue whenever there’s a bad outcome.  I suppose a person can sue but whether it will go anywhere is a different matter but the reality is that a bad outcome does not mean liability.  In any event the patient has died and it’s discovered that the paramedic and doctor acted outside their scope of practice.  But so what? It is not the case that if you can prove any default of divergence from procedure liability will be established.  The divergence must be relevant (I saw someone suggest once that if you can show a nurse was wearing non-approved footwear, they would be liable and that is of course rubbish), and the plaintiff would have to show it made a difference.  In this case they would have to show that the patient would not have died if the paramedic and doctor had not tried to relieve the pneumothorax, so it was their intervention and not the initial injury that caused the death.

Now that might be the case if the person did not have a tension pneumothorax and when trying to relieve it they punctured a blood vessel and the patient bleed to death.  But the issue there is not that they did or did not act within their scope of practice, but that they were, or were not, competent.

Here the issue of vicarious liability may be an issue.  At common law vicarious liability extends to ensure that an employer is liable for the negligence of is employees.  It is not the case that any divergence (go back to the approved footwear comment, above) means that the employer is not liable.  Vicarious liability extends to an employee doing an authorised act in an unauthorised way.  If relieving a tension pneumothorax was within the practitioner’s scope of practice and they puncture a blood vessel, the employer will be liable.  I would suggest that a volunteer doctor or paramedic who is there as a first aider, but who ‘are both familiar with the procedure, experienced in doing it and by some bizarre circumstance, the relevant equipment is to hand’ is still doing an authorised act (providing first aid) in an unauthorised way so I would still expect the employer to be liable.

The situation is not so clear for volunteers.  First the volunteer who has watched too much M*A*S*H (Season 5 Episode 8, ‘Mulcahy’s War’ where Radar performs a tracheostomy using a pen knife and a biro) so decides to ‘have a go’ will certainly be on a ‘frolic of his or her own’.  Second, if we take as our example the Civil Liability Act 2002 (NSW) it says (at s 61):

A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work:

(a) organised by a community organisation, or

(b) as an office holder of a community organisation.

Section 64 goes onto say, however, that

This Part does not confer protection from personal liability on a volunteer in respect of an act or omission of a volunteer if the volunteer knew or ought reasonably to have known that he or she was acting:

(a) outside the scope of the activities authorised by the community organisation concerned, or

(b) contrary to instructions given by the community organisation.

Let us now assume that indeed the doctor or paramedic was sued over the procedure and wants to enjoy protection of s 61.  The plaintiff may want to argue that they are not protected by s 61 because of s 64.  That may be true.  But is that a good reason not to act?

To rely on that, is to say ‘The reason I didn’t relieve the patient’s tension pneumothorax, even though I was ‘familiar with the procedure, experienced in doing it and by some bizarre circumstance, the relevant equipment is to hand’ was because I knew that if I got sued I would not be able to rely on s 61, but if I let the patient die and got sued I could’.    That might be true, but is fear that “I’ll stuff this up and get sued’ a good reason not to act?  Fear that “I’ll stuff this up” is a good reason not to act, if in all the circumstances you think ‘I know what this patient needs but in this setting, in this first aid room, with this lighting, without my usual team about me, I’m not comfortable doing the procedure’ is a clinical reason.  But I don’t think a court would find it ‘reasonable’ to say, again, I was concerned that I would be liable.  But let me accept that it is not an illegitimate concern and it does reflect the notion that agencies that use volunteers must be able to set limits on what those volunteers do and don’t do.

Let me now return to my correspondent’s question which goes on to say:

What I query is that this view / opinion tends to send a message that organisational clinical governance frameworks and process (professional recognition, clinical credentialing and issuance of scope of practice etc) are largely superfluous?

To some extent I agree with that.  I think the issue is particularly true with registered health professionals and I’m going to include state paramedics in that category even though they are not yet registered health professionals.   The critical question will be are the agencies ‘professional recognition, clinical credentialing and issuance of scope of practice etc’ reasonable.  A ‘scope of practice’ that says ‘you must act in accordance with, and only in accordance with the first aid manual’ is easy to write and perhaps enforce, but it’s not reasonable.

For registered health professionals it’s a particular problem as they owe duties to their patients as doctors and nurses.  If the ‘scope of practice’ of the organisation unreasonably restricts their ability to act professionally, that is in a way that is accepted as appropriate by the profession, then they have a fundamental conflict.  If they are not allowed to practice in a professionally responsible way, I would advise them to rethink their volunteering (see ALS Paramedic as Volunteer With St John (WA) (April 5, 2014)).

My correspondent continues:

What if an organisation used a robust clinical credentialing framework to determine the clinical scope of practice of its staff and despite an individual claiming to be qualified / certified in an ‘advanced’ skill(s), the organisation/credentialing process did not include it in their scope of practice?! Hypothetically, where does this leave the individual and organisation.

For a start, we are now assuming that the ‘clinical credentialing framework to determine the clinical scope of practice of its staff’ is ‘robust’ so that it takes into account their professional obligations and the scope of practice of their ‘day job’.   In my view the questions I’ve previously answered have not demonstrated a robust scheme so, for example previous comments have dealt with situations where St John Ambulance (WA) tried to limit the practice of ‘a very experienced paramedic, currently working in a remote capacity in remote Western Australia’ (ALS Paramedic as Volunteer With St John (WA) (April 5, 2014)) or Victoria ambulance tried to limit the practice of one of its own paramedics (‘Just Ridiculous’? When is a MICA Paramedic a MICA Paramedic? (March 28, 2013)) or surf lifesaving trying to restrict the practice of a doctor (Doctor as Volunteer Life Saver and Scope of Practice (February 6, 2015)). Other questions involved paramedic fire fighters where again it was at least inferred that there was no real consideration given by the fire service as to what paramedics who were also volunteer fire fighters might do Victorian Paramedic and CFA Volunteer Assisting with Patient Care (August 25, 2016) and NSW Paramedic and Fire Fighter – When Does One Role Start and Finish? (July 8, 2015)).

That said, those earlier posts have to be read in that context.  If the organisation does have a robust scheme that seriously considers what people do in their ‘day job’ and their professional scope of practice then makes determinations based on that, that is a different matter.  One would expect that whatever the professional scope of practice (and here I’m talking registered health professionals and paramedics) would apply in their first aid volunteering but again there may be good clinical reasons why it doesn’t.  Provided the reasons are based on good clinical governance, not merely convenience and certainly not ‘we’ll all be sued if we let you do that’ then it must be honoured.

As for someone who claims a skill that the credentialing system doesn’t support, that is a different matter.  The person who says ‘I have advanced skills because I’ve got this certificate from Dodgy Brothers First Aid doesn’t have to be recognised.   If the ‘clinical credentialing framework to determine the clinical scope of practice of its staff’ is ‘robust’ there is presumably some Recognition of Prior Learning policy.  So one can ask ‘Is this certificate issued by an RTO or an agency we trust?’ ‘Can the person demonstrate the claimed skills?’   In that case the failure to expand their scope of practice should come with advice that ‘even though you claim to have that skill set, you don’t actually have it’.   Now in the questions I’ve answered I’ve accepted the person has the skill set claimed so those answers are different if they don’t.

That is clearly a problem as the person may not know and this is one of the situations where the legal answer is going to depend on the outcome.  Let’s return to the patient with a tension pneumothorax and the first aid has a Dodgy Brothers Certificate in pneumothorax treatment.  The organisation for which they volunteer has seen it and said ‘that’s rubbish, don’t ever try to do that when on one of our duties’ but here’s the patient in desperate need.    We’re still not in a very different position.  Dodgy releases the pneumothorax, the patient lives, everyone’s happy.  Dodgy doesn’t and the patient dies (remember that law suits against first aiders are virtually unheard of but even so) perhaps the family are upset and they might sue – both Dodgy for not doing it and the organisation for not letting him or her.    Answering whether they’d win or not would depend so much on the facts that I can’t make a prediction.  Or Dodgy does do it and does a bad job and someone sues.

In this case the organisation is going to want to disown Dodgy and if the organisation can point to a ‘robust’ assessment and communication to Dodgy that he or she really wasn’t skilled that will be much stronger than a non-existent process or a simple rule – ‘when you volunteer with us you apply our teaching and forget what you know’.

To repeat, all of my previous answers have been predicated on the unstated assumption that there is not a ‘robust clinical credentialing framework to determine the clinical scope of practice’.  The restrictions that have been imposed have been done due to a misguided legal fear or to avoid paying people for their skills.   If the restriction is evidence based, it’s a different story.

What concerns me is that whilst individuals can only work with the equipment provided, some will use the ‘greater good’ argument to supply their own equipment …

That is both fair enough and relates to the discussion above about ‘professional recognition, clinical credentialing and issuance of scope of practice etc’.   First, if the person starts bringing their own kit they begin to look like they are on a ‘frolic of their own’ that is they are not volunteering for the agency but in their own right.  That could be the case if they start carrying an intubation kit or a kit to release a pneumothorax, it would definitely be the case if they start carrying a drug kit where the lawful authority comes from their status as a registered health professional rather than as a person endorsed by the first aid organisation.  If they are ‘on a frolic of their own’ (as the first aider with the pen knife and biro above) then the agency can argue that they are not vicariously liable for any negligence.

And the problem can be dealt with in this way.   Whilst an agency can’t tell a person ‘pretend you don’t know what you do know’ they can say ‘this is the kit list, this is what is on the first aid post, this is what you can carry if you have our endorsement but don’t bring ‘stuff’ that isn’t on the list’.   In essence if you don’t carry the kit, you don’t have a choice to make.  There can’t be a ‘duty’ to carry the equipment to treat every possible injury because a duty of care is not owed to the world at large – it is owed to actual patient’s not potential ones.  So the mere fact that it is foreseeable that a person may present to a first aid post with a tension pneumothorax does not impose a duty on the event first aider provider to ensure that there is someone there who can treat it. You might also foresee that you might have patients with the bends but that doesn’t mean you must have a decompression chamber.    So the fact that the equipment is not there cannot lead to liability (within reason, there has to be some basic kit that no reasonable first aid organisation would fail to have, but the equipment for relieving a tension pneumothorax probably isn’t on that list).

… and additionally I am concerned (especially with healthcare professionals) that ‘context’ is a large contributor to an individual exercising clinical judgement and undertaking a skill.

Being trained and/or qualified in skills and exercising their judgement in undertaking that skill in their work environment vs in a hostile, minimally resourced mass gathering environ with no similarly or higher skilled clinician for support is a very different shift in context for many clinicians, (I accept for some it will be a comfortable and easy shift but for many (especially doctors and nurses) it’s an unfamiliar one…

That is correct and that is why for example, doctor’s fears of getting sued at an accident are overstated.     So a registered health professional may well be justified, on a clinical basis, in saying ‘I’d do x if I was in my hospital, but I’m not and I’m not going to try it here’.   And that would also be a defence if the injured person (or in extreme cases, the family of the deceased) want to argue ‘you were a doctor you should have done x’ if ‘x’ is what say, an experience emergency physician might have done, but the doctor in question is a city general practitioner with no emergency experience since leaving medical school.  Again, the questions I’ve answered before are predicated on the assumption that the person has the relevant skills.

Another issue to address is that what I’ve been talking about are life saving, time critical issues.  A doctor who volunteers with St John Ambulance is volunteering to do what doctors with St John ambulance do – first aid.  If a person develops a tension pneumothorax and is likely to die within 5 minutes and the ambulance won’t be on scene for 10, acting to relive that is part of providing first aid.  If, on the other hand, a patient comes in with a cut leg and the doctor can see it will need stitches and considers that he or she has a suture kit, there is no ‘duty’ to stitch them up.  St John practice would be to clean and dress the wound and tell them to go to casualty.   They’re not going to die, it’s not going to affect their outcome etc.  Where a relevant duty may arise here is if the volunteer first aider says ‘that’ll be right it won’t need a stitch’.  The doctor may think that as a St John volunteer it’s not his or her place to give medical advice, but as a doctor it would be reasonable to say ‘no, I think it does need stitches, you should go to casualty’ (or, if you prefer, have a quiet word with the volunteer so they can correct their advice).  Again, the doctor can’t not know what he or she knows.

As I said at the start too, I think the situation is mostly hypothetical because it’s difficult to imagine exactly what skill set we are talking about.  When volunteering, health professionals, including paramedics, have knowledge and confidence but what other skills do people think they have that they’ll be able to use, that will make a significant difference to the patient outcome, but which the agency for which they volunteer has said they are not to use?  And if you’re a registered health professional and you seriously think that if it came down to a matter of life and death the organisation would prefer you to let the patient die than do something that you are qualified and competent to do, you need to rethink your volunteering.

Is anyone going to get sued in these cases?  If the patient has a good outcome, no.   And in most other cases, no.  To go back to my starting point, however, if you are worried about risk, the risk is highest if you don’t do what is in the best interests of the patient.

So, should organisations continue to seek to improve clinical governance or is it irrelevant?

Absolutely, because that is the key.  As noted the questions I’ve answered before have implied a failure to have proper clinical governance.  If there is a system that considers each case on its merits, not just a blanket ‘This is Kaos First Aid – We don’t do that here’ (for those that remember ‘Get Smart’) then it is much more likely to stand up to scrutiny.  But any system is going to be difficult to justify if life saving treatment, or treatment that will avoid permanent and/or significant ongoing disability, is withheld by a person capable of providing it on the basis that ‘my organisation said I couldn’t and I didn’t want to be sued if I stuffed it up’.

For a registered health professional, failing to do what they know needs to be done, and is within their professional scope of practice could lead to professional discipline regardless of the edict from their volunteer agency unless, at least, there is an evidence based clinical reason for a decision to restrict their practice.


Categories: Researchers

Contracting emergency response activities

20 January, 2017 - 03:04

An employee of the Port Authority of NSW

… was particularly interested in your article on who is the agency for fighting fires and emergency response on Sydney harbour.

I work in marine operations for PANSW which currently has two fire fighting tugs manned 24/7 365 days a year – the ‘Shirley Smith’ in Sydney and the ‘Ted Noffs’ in Botany.  Both tugs were constructed to comply with the Australian Standard for FFSV.  In case of fire and emergency in Port Botany and Sydney we are the lead agency but take direction from the Fire Brigade for fires once they are on board.

The harbour master of the PANSW is planning to change the role of the FFSV.  These tugs are aging and he wants to replace them. The harbour master is currently negotiating with a commercial tug company to take over the primary role of fire fighting and emergency towage with their vessels by making their tugs captive with a minimum one hour call out time

This will take away the role of PANSW as the primary agency in all emergency plans and leave the PANSW employees without a role that they were trained to do.  The tugs are international standard for fire fighting not Australian standard and do not carry the required amount of foam on board.

Is there any advice you can give as to the legality of such a proposed move?

Is there any legal action that could be taken to stop these plans taking effect?

I can’t answer the specific questions asked as that would require much more detail and no doubt access to tender documents and other commercial in confidence material.  I can however provide some brief comments on the claim that ‘This will take away the role of PANSW as the primary agency in all emergency plans.’

Engaging others to provide services, in this case the commercial tug company, doesn’t necessarily ‘take away the role of PANSW as the primary agency in all emergency plans’. The NSW State Emergency Plan defines the combat agency as ‘the agency identified in EMPLAN as the agency primarily responsible for controlling the response to a particular emergency’.  Combat agencies can, and do, call on others to provide services but they remain ‘in control’.  For example, the NSW Rural Fire Service don’t own or fly all of the aircraft they use for aerial firefighting but the fact that they contract with the operators does not mean that the RFS has vacated its role as the combat agency for bushfires.

As I said in my post Combat Agency For Fire On Board A Vessel In Sydney Harbour (July 20, 2015)

… it is the Port Authority of New South Wales that is the combat agency.  They should appoint the Incident Controller who will set the controller’s intent for the response. Fire and Rescue may well take charge of firefighting operations but that doesn’t deny that the Ports Corporation is the combat agency, in the same way that in other emergencies particular agencies have specialised roles but it is the role of the IC to take overall control of the response.

The Port Authority could contract with the commercial tug company to provide fire fighting and tug boat services but that, on it’s own, doesn’t mean that the Authority no longer remains in control of the operation.

As for advice on the legality of the proposed move or any legal action that could be taken to stop these plans taking effect I would advise my correspondent to contact the relevant employees union.


Categories: Researchers