Safer Care Victoria has announced that the Victorian government has decided to regulate the commercial first aid sector.  An invitation, issued to Victorian first aid providers says:

Dear First Aid provider

The Victorian Government made an election commitment to review the Non-Emergency Patient Transport Act.  As part of that review it has been decided that the commercial first aid sector will be regulated for the first time.  Regulation will include licencing of providers and the setting of minimum patient safety and quality of care standards. The review is now underway.

You are invited to a forum to hear the outline of what is proposed by the Government and to provide your thoughts about what areas are important to regulate (and what is not important), what the likely impacts will be on your business and the provision of first aid more generally, and the minimum standards you think should be put into legislation.

The information provided to the department at this forum will inform the development of a public discussion paper scheduled for release in June or July and will also inform the development of the new First Aid legislation.

*Please note this event will be run over two sessions, covering the same content. Session two will also have the option to join a live stream.

SESSION ONE:

Date: Monday 29 April 2019

Time: 9.30am – 11:30am

Location: Sofitel Melbourne

RSVP: By Wednesday 24 April 2019, via Eventbrite here

 

SESSION TWO:

Date: Tuesday 14 May 2019

Time: 2pm – 4pm

Location: To be confirmed,

RSVP: By Friday 10 May 2019, via Eventbrite here

The Department of Health and Human Services wants to hear from you as a provider of First Aid and values your input

Sign up for updates | Victorian Government review of the Non-Emergency Patient Transport Act
This review will see the commercial first aid sector regulated for the first time, including licencing of providers and setting minimum patient safety and quality of care standards.
We’ll keep you updated on the progress of the review, opportunities and events, as well as any changes that might affect your work.

http://eepurl.com/glwwIr

I have been in contact with Victoria’s Chief Paramedic Officer, Alan Eade and he writes:

Anyone is welcome, so feel free to spread the information widely. The forums are public but targeted towards those who have a role / function in providing first aid services. We will not be covering first aid training, only the organised / contracted provision of first aid services. First aid in this setting is broad and covers the basic models through to advanced onsite critical care teams and temporary medical centres (eg: festivals). The legislative reforms discussed will only apply to Victoria but anyone is welcome from other jurisdictions.

It is my intention to travel to Victoria to attend the May forum.  I will report, via this blog, of developments in this interesting project.

Today’s correspondent asks:

What is the obligation for various state ES to issue emergency fire shelters to their volunteers including SES (issued polyester uniforms) sent to support fire operations?

Given polyester uniforms; how many SES volunteers when deployed to support fire service operations; are also lent temporary fire shelters?

https://wildfiretoday.com/2019/04/12/13-videos-about-fire-shelter-deployments-on-wildland-fires/?fbclid=IwAR1OIlm476EjrHiDsenGCLDejqKuN6YfutbXDENrQN18Hua-T-Ld5hWO_po

That link is to a page hosted by the Wildfire Today where they have “13 videos about fire shelter deployments on wildland fires”.  The introductory page says:

Fire shelters are small foldable pup tent-like fire resistant devices that a wildland firefighter can unfold and climb into if there is no option for escaping from an approaching inferno. Many firefighters have used the devices successfully, but others have been killed inside them.

As has been said so often, answers to questions like this are not answered by law; they are a question of risk assessment.  An emergency service has to consider what is the risk to its members and how to address that risk (Model Work Health and Safety Act 2011  ss 18 and 19). Providing a fire shelter is a last resort and many services would seek to have other responses to the risk of getting caught in a fire particular where the service is an SES and not a fire service (see SafeWork Australia Model Code of Practice: How to manage work health and safety risks (May 2018) [4.1] ‘The hierarchy of control measures’).  Further fire shelters are not particularly safe, some people have survived in them, others have died.

So the obligation (if there is one) is to provide a fire shelter if a risk assessment says that is the best response to a risk that staff and volunteers might face.

Today’s question is about licence checks with the NSW RFS.  My correspondent has:

… a question regarding reporting any license suspensions/disqualifications or conditional restrictions to the service. The RFS Safe Driving SOP’s (October 2008) [a copy of which is available online] section 1.5 [of SOP No. 1 ‘Responsibilities, Driver Licencing and Accreditation’] says:

The RFS requires its members to have an appropriate current licence for the class of vehicle they are driving, to know and comply with the conditions of their driver’s licence and obey all ARR.

Further section 1.6 says:

Members who are required to drive RFS vehicles shall notify their captain and their district manager (for volunteers) or their manager and the Fleet Services Officer (for staff) if they have any condition that may temporarily or permanently affect their ability to drive or if their licence is varied, cancelled, disqualified or suspended.

But other than personal honesty of the behalf of the member/staff is there anything compelling them to advise of any changes in their license situation? …

At my RFS Zones driving courses … we visually sight the participants licence to see it is correct class/any conditions and also not expired, but short of an RMS/issuing authority driving record transcript/the participants word, it’s impossible to tell if the persons license is current/active and not subject to a suspension/disqualification etc.

Should the RFS be conducting license checks via the RMS to ensure its drivers hold valid/current licenses or would this be considered an invasion of privacy? Considering many private transportation companies require a license transcript to be provided at least on initial employment to show they have a valid licence, and some require regular current transcripts to be provided to retain employment.

The cost for a licence transcript is approximately $20 in NSW (I haven’t had to get a transcript for nearly 10yrs so the price may have changed) but considering that RFS volunteers can get the Working with Children Check (WWC) done for free (the WWC transcript says on it not valid for paid employment) it surely can’t be that hard for a similar arrangement to be made with the RMS (RFS volunteers are already granted exemptions from certain costs of license upgrades … but instead of the person receiving the transcript it gets sent to the RFS instead.

Surely it would be in the best interests of the RFS or any ES for that matter to know that its drivers are holders of current and active licences for the vehicles they are required to drive in the course of their duties, one can only imagine the uproar, paperwork and finger pointing that would occur if a suspended/disqualified driver behind the wheel of an ES vehicle was involved in an incident, I would hazard a guess that any protections provided by the particular Emergency Services Act in regards to the actions of its members/staff would not be afforded to the driver given they are most likely in contravention of a Service Standard/standing order etc.

The issue here is one of risk and therefore risk management, rather than law.   Risk is traditionally described as a function of the probability of an event and the consequences of that event.

How likely is it?

What it is the probability that a person seeking to join the RFS or obtain a licence upgrade will lie about their licence status or present a licence that has been suspended or cancelled?  I would suggest it is low.  First where a licence has been suspended or cancelled after court proceedings, or by police following a serious criminal charge (Road Transport Act 2013 (NSW) s 224) the licence would be surrendered to police or the court, so the driver won’t actually have a licence.

Where a member has had a licence and is a regular driver for his or her brigade but her or his licence has been cancelled or suspended by Roads and Maritime Services (RMS) then the RFS may not know about it if the driver does not tell them.  (And if the licence has been suspended, cancelled or varied by RMS (Road Transport (Driver Licensing) Regulation 2017 (NSW) Part 9) the driver may still hold their licence).  If the member does not notify the RFS of their status they would be in breach of RFS services standards relating to safe driving and Service Standard 1.1.21 ‘Stand Down/Removal from Membership & Notification of Criminal Charges & Convictions’.  They could therefore also be subject to RFS disciplinary action if and when their failure to give appropriate notice is detected.

Possible consequences

Where the licence is suspended or cancelled then the person must not drive a vehicle.   If the person does drive, then they commit a criminal offence (s 53).  The fact that they are unlicensed does not mean they are necessarily dangerous, or they are not competent to drive; just that they are not authorised to drive. The risk that they will crash is no higher now than it was when they did have a licence.

The issue of liability and insurance is a non-issue.   All vehicles are covered by Compulsory Third Party (CTP) insurance.  Some RFS vehicles are not required to be registered (Road Transport (Vehicle Registration) Regulation 2017 (NSW) Schedule 1, cl 12).  Where a vehicle is not required to be registered the ‘Nominal defendant’ (an insurance scheme to ensure people injured by uninsured or unregistered vehicles do not miss out on compensation) provides the CTP cover (Motor Accident Injuries Act 2017 (NSW) s 2.29 and 2.37(3)).   If an RFS vehicle is not exempt from the need to be registered, then it will have a CTP policy in place.  The State of New South Wales is a self-insurer (NSW Self Insurance Corporation Act 2004 (NSW)) and my understanding is that the CTP policies will be provided by the governments self-insurance arrangements rather than from the market.  Whether that’s correct or not does not really matter.

If you think about your own insurance policies, if an adverse event happens you can claim on your policy and the insurer meets the costs.  If you fail to act honestly with the insurer or breach the terms of the policy then the insurer may be able to avoid liability and then the cost falls to you.  The NSW is a self-insurer, that means it always wears the costs.  The Self Insurance Corporation cannot be like a market insurer.  It may insurer the RFS and the RFS may even pay a premium, but if the self-insurance corporation could argue that it could avoid liability then the RFS would have ot pay, but the RFS is the government so it would still be the self-insurer.  And if the RFS bought CTP insurance in the market place and a private CTP insurer could avoid the policy, then liability would fall to the RFS (ie the NSW Government) and again it would be a matter for the self-insurance arrangements.   Either way if the RFS is liable, it’s the NSW self insurance arrangements that ultimately pick up the bill.

Further, where a vehicle is unregistered, the CTP insurer, after meeting the claims for damages by any injured person, can look to the driver to repay the claim (Motor Accident Injuries Act 2017 (NSW) s 2.29), but they can’t do that if the vehicle was exempt from registration (s 2.37(3)).  There is no provision to allow the CTP insurer to recover because a driver of a registered vehicle was unlicensed.

With respect to the various statutory protections for members, it’s true that an unlicensed driver won’t benefit from any exemption under the Road Rules 2014 (NSW) r 306 as it can’t be ‘reasonable’ that any exemption apply for an unlicensed driver.  There is a general exemption from liability for fire fighters acting in good faith (Rural Fires Act 1997 (NSW) s 128).  An unlicensed driver may be acting in good faith, perhaps he or she doesn’t realise their licence has been cancelled eg for fine default.  Even so r 128 does not apply in motor vehicle cases – see Board of Fire Commissioners v Ardouin (1961) 109 CLR 105 and RFS fatal collision and s 128 of the Rural Fires Act (October 14, 2016).

Conclusion on risk

For the RFS the fact that the driver is unlicensed does not increase the risk of an accident and when an accident does occur liability will be dealt with under the normal rules of motor accident compensation law and ultimately be dealt with under the NSW Self Insurance arrangements as it would if the driver were licensed.  The driver will enjoy no benefits from statutory immunities but that is also true if they are licensed and involved in a serious accident (see Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017)).  Whatever offences they commit will of course be compounded by the fact they are committing the offence of driving whilst suspended, disqualified or unlicensed.

The above discussion is intended to confirm the point that my correspondent made, that the real risk is reputation – ‘one can only imagine the uproar, paperwork and finger pointing that would occur if a suspended/disqualified driver behind the wheel of an ES vehicle was involved in an incident’.

When would you ask members to produce a licence history?

It begs the question of when would should a check on a person’s licence be done?  A document confirming a person’s licence status only shows what the person’s licence status was on the day that it was issued. It doesn’t mean they did not have their licence cancelled the next day.

The point of a licence is that it is a document that you can present to confirm your authority to drive.  Consider hire cars companies, they rent their cars to drivers on production of a licence, but they have the same issue as the RFS: Is that licence still current?  But the point of issuing the licence is to give the driver, and those that need to know, a document that can be relied upon.

You could do a check when a person wanted to upgrade their licence.  Depending on how it’s managed in the RFS however people have to pass a knowledge test and if their licence is not current, they won’t be able to sit the knowledge test and they certainly won’t be issued with a licence even if they pass all the driver competencies.

Having said all that, NSW RMS does provide:

… an online Driver Licence Check (DLC) service to authorised organisations, such as heavy vehicle operators to assist them to fulfil their duty of care responsibilities concerning road safety as well as to encourage the promotion of good driving practices…

DLC is an internet application that can be used for organisations to confirm driver licence and demerit point status of drivers engaged, or intended to be engaged, to drive vehicles for their organisation…

DLC is an online service providing:

• Licence Validation Enquiry – to confirm if a driver licence is current and the class of licence
• Demerit Point Enquiry – to confirm if a licence holder has ‘zero’ or ‘one or more’ demerit points accumulated. The demerit points balance is not released.

(See https://www.rms.nsw.gov.au/about/access-to-information/release-of-information-authorised-organisations.html)

Presumably the RFS could apply to access that service.

Conclusion

The question was ‘Should the RFS be conducting license checks via the RMS to ensure its drivers hold valid/current licenses …?’  There is no clear answer to this.  It’s not a reasonable response to a risk if, indeed, it is considered a risk.

As noted, drivers can produce a licence and that is issued to indicate a person’s authority to drive.  If they are not accepted at face value there’s not much point to them, but there can be administrative restrictions that are not shown on the licence.

As noted, where the licence is cancelled by police or court the driver won’t still have a licence.  Where it is suspended or cancelled by the RMS the driver may still have their licence, but they won’t be allowed to sit a knowledge test or be issued with a licence if that is contrary to current restrictions.  In those circumstances one might consider the issue is low risk.

But there is a risk but whether requiring members to produce a driving history/licence confirmation is a reasonable response to that risk is a matter for the RFS.  It is not obvious that the RFS should, or should not, ‘be conducting license checks via the RMS to ensure its drivers hold valid/current licenses’.

 

 

Today’s correspondent reports on a conversation within the New South Wales Rural Fire Service

A discussion arose today at lunch regarding RFS’ responsibility for fires on private property….

The fire being discussed was a hay shed fire which was in close proximity to silos.

It was suggested that the RFS could have left scene sooner than they did i.e. when the fire was ‘contained’ to the shed and at no risk of spreading further, it could have been handed back to the landholder to manage (manage the cooling of nearby silos and monitoring the fire until out).

The FCO stated that despite leaving scene, the RFS would remain responsible for the fire as it was technically still ‘going’ and was in Rural Fire District, and therefore RFS should maintain a presence until the fire was fully extinguished – which could be up to a week.

He was concerned that if the fire had managed somehow to spread, or a civilian who was left with the fire was injured, that he & the RFS would be liable?

My question is – when is the RFS ‘liable’ or ‘responsible’ and when does that end? Or is this not as black and white as it sounds?

That’s more a technical question than a legal question, but we’ll see what the law can add.  First it is a function of the RFS ‘to provide rural fire services for New South Wales’ (Rural Fires Act 1997 (NSW) s 9(1)(a)).   Section 9(4) says:

“rural fire services” includes the following:

(a) services for the prevention, mitigation and suppression of fires in rural fire districts,

(b) the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in rural fire districts,

(b1) the protection of infrastructure and environmental, economic, cultural, agricultural and community assets from destruction or damage arising from fires in rural fire districts,

(c) the provision of services referred to in paragraphs (a)-(b1) throughout the State in accordance with Part 3,

(d) any other service prescribed by the regulations.

Extinguishing the fire and taking steps to prevent it spreading would all be part of rural fire services.

The Act does not however say what level of service the RFS has to provide.  The RFS could suppress more fires with more assets, it could mitigate the risk of fires by mowing everyone’s lawn and installing sprinklers, but it doesn’t do that.  So what level of service is provided has to be determined by the resources available and the demands on them.

The ultimate question is whether any decision is ‘reasonable in all the circumstances’ and further whether it is made ‘in good faith for the purpose of executing any provision (other than section 33) of [the Rural Fires Act] or any other Act’ (Rural Fires Act 1997 (NSW) s 128).

In Gardner v NT [2004] NTCA 14 a Northern Territory Bush Fire Brigade inspected a property to observe a bush fire.  As he left the property, the fire Captain advised the owner to keep an eye on the fire and to call for fire brigade assistance if his property was threatened. The owner did not keep an eye on the property and his home was destroyed.  He sued the Northern Territory arguing that it was the Territory’s duty (through its fire fighters) to maintain a watch on the fire.  In article I wrote about that case (Michael Eburn, ‘A case study of tort liability for fire damage’ The Australian Journal of Emergency Management, Vol. 22 No. 1, February 2007, pp. 44-48) I said (at p. 47):

With respect to monitoring the fire the court held that it was reasonable for the Fire Brigade to rely on Mr Gardner to monitor the fire and to contact the Brigade if and when he became aware that the fire was in fact spreading onto his land.

… given the context of the fire, it was reasonable to rely on the home owner to take responsibility for the monitoring of the progress of the fire. It was not necessary for the Brigade to deploy scarce resources to monitor a fire that, at midday on the 10th September, was believed not to be a threat to the home.

The fact that that assessment was wrong did not mean that there was negligence. In deciding what the reasonable Fire Brigade would do in the circumstances the Chief Justice said that:

“… particular regard must be had to the remoteness of the locality, the community practice and expectations in such situations, the appellant’s experience, the duties required of the resources available to the Crown and the limited nature of those resources, namely, the volunteer Fire Brigade”.

The combination of circumstances meant it was reasonable to rely on Gardner to monitor the spread of the fire..

The same principles may be applied in the discussion at hand. If an assessment of all the circumstances there is a conclusion that the fire is not a risk and that it is within the resources of the property owner to manage it then why not leave it to them? One might consider different considerations where the fire is on a large property with full time staff and resources compared to a hobby farm on the edge of the urban interface with a part-time absentee landlord/farmer.

Whether there would be any liability of the fire escaped would depend on whether the decision was reasonable in all the circumstances (which would also take into account RFS policy and doctrine, not discussed here).  There is however no reason to think that it may well be a reasonable decision.

The FCO will not be liable.  If there is any liability it will fall to the RFS.

For related discussions see:

• Fighting safe but illegal fires in NSW (January 25, 2016); and
• Entering private land to fight a bushfire in NSW (June 16, 2013).

Today’s correspondent says:

A State Ambulance Service has recently released a policy on surge response. At it highest level, this surge policy dictates that paramedics do not complete paperwork for patients and that only critical care be administered on scene. Rather paramedics should expedite transport and drop patients at the nearest hospital without documentation (our major centres only have one hospital each).

As individually registered paramedics, do we have an obligation to treat the patient in front of us with the most appropriate care and then document that treatment? Is this directive legal and what are the potential ramifications to individual paramedics if we follow or don’t follow this policy?

To be clear, this surge policy will likely be implemented on a semi-regular basis and not reserved for mass casualty scenarios.

That’s a very complex and difficult question.  To think about an answer, I’ll start with the Health Practitioner Regulation National Law.  The primary professional duty on a paramedic is to practice paramedicine in a way that ‘might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers’ (definition of ‘unprofessional conduct’).  Principally that will involve providing the best, most technically proficient care to the patient before them, taking into account the patient’s condition, wishes and values.

Where a person rings for an ambulance and is advised that an ambulance is or will be dispatched, then the ambulance service may owe a duty of care to that patient (Kent v Griffiths [2001] QB 36).  In that case the ambulance service has entered into some sort of relationship with the patient.  But the same cannot be said of individual paramedics, a paramedic employed by [Jurisdictional] Ambulance Service cannot owe a duty of care to every patient that has called the ambulance.   A paramedic treating a patient in Drummoyne does not owe a duty of care to a patient in Coonamble even if NSW Ambulance does (noting here that this question does not come from NSW, it’s just an example using two stations I used to work at).  My starting point is, then, that the paramedic treating a person owes his or her principal duty to the patient currently in their care, not to the other patients that may be waiting.

But it’s not that simple.  Indeed, the jurisdictional ambulance service has a duty to manage resources to meet demand and it does need to try and service the entire community. It does that by employing paramedics and, as employees, paramedics have a duty to obey the lawful and reasonable directions of their employer.

There are also ethical principles at play here.  In a leading text on medical ethics, Beauchamp and Childress, Principles of Biomedical Ethics, (now in it’s 7th ed, 2012) identified four principles. They are:

1. Autonomy;
2. Beneficence;
3. Non-maleficence; and
4. Justice.

Personally I prefer to say ‘respect for autonomy’ and in simple terms beneficence may be ‘do good’ whilst non-maleficence is ‘do no harm’.  They are relevant here.  With respect to the principles of beneficence and non-maleficence the ethical duty on the paramedic is to do the best that she or he can for the patient and not to withhold treatment where that might harm the patient.

But there is also the principle of justice which again in a rough translation equates to ensuring people get the care they need on the basis of their needs and need alone.  Medical practitioners face the demands of justice because even though they are treating ‘their’ patient they cannot advocate to push their patient up the list to get access to surgery, or a test, nor can they divert resources to their patient that another patient needs more.  They have to consider the greater public good when determining what resources should be allocated to their patient.  For paramedics this will not usually be an issue. A paramedic treating their patient is not usually diverting resources that may be used elsewhere or for another.   But where there is unmet demand that may be the case.  Providing care to a current patient may be nice but to the extent that it means another person foregoes care it does raise the issue of justice and who is more in need of the service the paramedic can provide.

I’ve previously talked about not completing paperwork- see

• Delaying the case sheet to respond to an urgent call – NSW Ambulance (January 21, 2017); and
• Completing paramedic case records (September 3, 2015).

As for ‘only critical care be administered’ whether that’s reasonable will depend on all the circumstances. There is a difference between care that is critical, without it the patient will die or be left with significantly more serious injuries; and care that is nice – good in an ideal world with lots of time whether that provides better continuity of care (so perhaps that second set of obs) or provides the patient with more comfort (staying with them in casualty until a bed becomes available; see Paramedics leaving patients in casualty (January 24, 2015) but are not really necessary.

The critical questions will become whether in all the circumstances it was reasonable for the relevant ambulance service to ‘activate’ the policy and whether it was reasonable in all the circumstances for the paramedic to do what he or she did in response.  If a paramedic can comply with the policy without it causing serious harm to the patient and if there really is a significant surge in calls on ambulance resources, then it would seem appropriate to respond accordingly.   If compliance would pose a real and serious risk to the life or health of the patient, then a paramedic may have to say ‘I’m not complying’.  Having said that I do note my correspondent says that the policy does expect that ‘critical care be administered’ so, presumably, it is accepted that paramedics will not withhold care that is necessary to preserve life or prevent serious injury.

Without seeing the exact terms of the policy, one cannot comment on the details, but the principle has to be unobjectionable.  At the end of the day what is critical care for the particular patient will fall to the professional judgment of the treating paramedics.  That will require consideration not only of the patient’s needs, but also the directive from the employer and some assessment as to what calls are waiting to be responded to.  At the end of the day the paramedics obligation is to act, taking into account all the circumstances, in a way that ‘might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers’.

Conclusion

Without seeing the policy this answer is bordering on mere speculation.  Even so I would infer, from what I’ve been told, that the policy is saying, in effect, ‘we expect you to do this, unless there is good reason not to’.

Failure to comply may be a failure to obey a reasonable direction and in extreme circumstances could be grounds for dismissal.

But if the policy says ‘only critical care be administered on scene’ it is up to the paramedics to determine what is critical for this patient.  Providing critical care at the scene is applying the policy (at least as it’s described to me).  Another way to understand the policy may be as ‘we give you permission not to do everything you would otherwise do’ again leaving it to the paramedics clinical judgment to determine what, if any treatment, is not ‘critical’ today.

In terms of civil liability (if any) it will fall to the ambulance service.  In terms of professional liability (if any) the question is did the paramedic act in a way that ‘might reasonably be expected’ in all the circumstances including the implementation of the surge policy, not did he or she apply every step in every CPG and tick every box.  Paramedics are not automatons, they are professionals so it will be did they exercise their professional judgement.

POSTSCRIPT

Having written the above I have now been sent the relevant policy. I note that it says that the action ‘Assess the need for limiting non-essential on scene care in preference of expedient transport’ only arises at surge level 5 – Disaster Response. My correspondent’s claim that ‘this surge policy will likely be implemented on a semi-regular basis and not reserved for mass casualty scenarios’ seems unlikely.   There are thresholds for surge levels 1 through 4 and it would be hard to pretend that something was a disaster response when it was not.  I would suggest the way the policy was first reported is not a fair reading of the document, but even so the discussion above still identifies relevant considerations.

 

In Bethune and Western Australian Planning Commission [2019] WASAT 18 the applicant, Bethune, sought to overturn decisions by the Western Australian Planning Commission and the State Administrative Tribunal refusing his application to subdivide his block that lay on the Swan River floodplain.

Mr Bethune’s wanted to subdivide the block so that the existing house would be on one lot, the second lot would be available to build another home.  The area was zoned residential and each block would meet the minimum size for a home block.  In short the proposed subdivision was ‘appropriate under the planning framework’ ([3]).  The problem was that the property:

… is entirely within the Swan River floodway (floodway) and affected by major flooding.  The site is one of 15 lots which are zoned ‘Residential’ … which are located entirely or partially within the floodway, of which seven have the potential to be further subdivided, having regard to the minimum site area…

The application was rejected by the Planning Commission and again by the State Administrative Tribunal.  In this case Mr Bethune sought a review of the Tribunal’s decision.  The review was conducted by a judicial member (ie a judge) and was limited to questions of whether or not the tribunal had made a mistake of law.  Mr Bethune argued that the Tribunal made seven errors of law.  The judicial member Parry J rejected all those grounds and dismissed the application for review.  Of interest to readers of this blog was the finding by the Commission and the Tribunal that the development should not be permitted due to the risk to residents and rescuers in the event of the inevitable flood.

One argument of the applicant was that the relevant state government policies ‘do not specifically contain the words “risk”, “hazard” or “flooding”’ ([23]).  The Tribunal member, Ms Moore, when rejecting the application for development said:

Notwithstanding whether the issue of risk to people, property and emergency personnel is a factor relevant to the desirability of subdivision in a floodway is expressly contained within the policies referred to by the planners or not, the [T]ribunal is satisfied that this is a planning issue that is a relevant factor in the determination of this application.

The stated policy objective of ‘facilitating development which achieves appropriate community standards of health, safety and amenity’ meant that the ‘issue of risk and hazard, particularly considering risk to future residents and emergency personnel’ was a relevant consideration ([23]).  Evidence of the risk to residents and emergency personnel came from Mr Munday, the manager of the Bassendean State Emergency Service and Mr Pumphrey, District Officer for Intelligence Management at the Department of Fire and Emergency Services. The Tribunal concluded (at [29]):

… that in this case it is inappropriate to create additional lots that would facilitate an increase in the number of properties and, consequently, the number of people living in this floodway and exposed to the risks and hazards enumerated by Mr Munday and Mr Pumphrey in their evidence. It will also increase the risk to emergency personnel as an increase in residents give [sic] rise to an increase [in] the possible numbers of rescues of those residents.

The respondent submits as a separate issue that approval of the proposed subdivision will set an undesirable precedent.  The [T]ribunal is satisfied that there are six lots that are factually undisguisable [sic] from the subject site and that, if this application was allowed, it would be likely that these lots would also be able to be similarly subdivided and, consequently, this would further increase the risk to future residents and emergency personnel.  The [T]ribunal accepts that allowing the proposed subdivision would, in this case, set an undesirable precedent.

With respect to the judicial review it was argued that there was insufficient evidence as to the risk from flooding. Parry J said (at [73]):

There was clear and cogent evidence before the Tribunal in relation to the risks to residents and emergency personnel associated with a flood event.  That evidence was largely agreed between Mr Munday and Mr Pumphrey.  It was therefore open to the Tribunal to find, on the evidence, that the proposed subdivision would increase the risks to residents and emergency personnel and to determine, in part on that basis, that the subdivision application should be refused.  In the circumstances, there was no error in the Tribunal’s assessment of the risks associated with a flood event.

Prevention is better than cure

With seven blocks on the river front large enough to subdivide, granting this application would have set a precedent for those other landowners.  It was not an issue of one more house on the floodplain but potentially seven, all at risk from inundation in a 1:100 year flood.  Taking into account the risk to the property owners and their potential rescuers the development would not meet the objective of ‘development which achieves appropriate community standards of health, safety and amenity’ (emphasis added).

Today’s question is about:

A community group [that] is considering buying a defibrillator and they wish to know two things.

1. If they purchase a defib is there a requirement to place the defib on a register so members of the public know there is a defib onsite.
2. If the defib is used off the school grounds by the public and the defib is broken or malfunctions who is responsible for the repairs?

Answers Question 1:

There is no ‘requirement to place the defib on a register so members of the public know there is a defib onsite’.  Registering is a good idea but a good idea does not necessarily bring legal obligation.   See the links, below, for registers operated by:

• Ambulance Victoria
• South Australia Ambulance; and
• St John Ambulance Australia.

Question 2:

If you own something you are responsible for repairs and maintenance.  You can look to others to reimburse the costs if they negligently damage something or where there is a contractual obligation (think of hire cars that make a driver responsible for all sorts of damage even in the absence of negligence).

If someone takes a defibrillator because they need to use it and its broken or malfunctions the owner is responsible for it.

If the person who takes it breaks it, then the owner may be able to ask them to pay for it, but one does have to imagine that would be pretty unreasonable if they took it because it was needed.   Asking someone to pay would not only discourage people from trying to save a life, the claim would also (in most cases) be defeated by relevant state ‘good Samaritan’ legislation (and yes, I know it’s not actually called the Good Samaritan Act in any state or territory, but that is a shorthand or colloquial term for the legislation – you can find the actual legislation here –  ‘good Samaritan’ legislation).

The cost of trying to ask a person who took an AED in order to try to save someone’s life to pay for damage to the AED would far exceed the cost of just buying a new AED.

In short, my answers are:

1) No;

2) The owner.

 

 

 

Today’s question relates to the provisions of the Mental Health Act 2014 (Vic). My correspondent says:

Section 351 of the mental health act outlines police and protective service officers legal powers to apprehend a mental health patient. The language seems very deliberate in naming specifically police and protective service officers instead of just saying authorised officers. Which makes me believe those powers pertain to only police/PSO’s and not other authorised officers such as paramedics.

However, in section 353 it outlines the “power to enter premises, apprehend and take a person to or from a designated mental health service.” This section discusses power for authorised persons to apprehend. Which includes paramedics. The settings of which this section can be applied appear to be the same as section 351.

This has caused some confusion as these two sections appear to contradict one another. I’ve asked some colleagues and a few people seem confused by this.

Could you please clarify?

Let’s being by looking at the sections.  Section 351 says:

(1)        A police officer, or a protective services officer on duty at a designated place, may apprehend a person if the police officer or the protective services officer is satisfied that—

(a)         the person appears to have mental illness; and

(b)         because of the person’s apparent mental illness, the person needs to be apprehended to prevent serious and imminent harm to the person or to another person.

(2)        A police officer or a protective services officer is not required for the purposes of subsection (1) to exercise any clinical judgement as to whether the person has mental illness.

(3)        A police officer or a protective services officer exercising the powers conferred by this section may be accompanied by a registered medical practitioner or a mental health practitioner.

(4)        A person apprehended under this section is subject to the custody of the police officer or the protective services officer, as the case may be, until released from that custody in accordance with this section.

(4A)     As soon as practicable after apprehending a person under this section, a protective services officer must—

(a)         hand the person into the custody of a police officer; or

(b)         for the purposes of enabling the person to be examined in accordance with section 30, arrange for the person to be taken to—

(i)         a registered medical practitioner or mental health practitioner; or

(ii)        a public hospital, denominational hospital, privately-operated hospital or public health service within the meaning of the Health Services Act 1988 .

(4B)     A protective services officer may only exercise the power to apprehend under this section in relation to a person who is at, or in the vicinity of, a designated place.

(5)        As soon as practicable after apprehending a person under this section or being handed a person apprehended by a protective services officer under subsection (4A)(a), a police officer must arrange for the person to be taken to—

(a)         a registered medical practitioner or mental health practitioner; or

(b)         a public hospital, denominational hospital, privately-operated hospital or public health service within the meaning of the Health Services Act 1988 to enable a registered medical practitioner or mental health practitioner—

to examine the person in accordance with section 30 to determine whether to make an Assessment Order.

(5A)     A person apprehended under this section by a protective services officer is released from the custody of the protective services officer when—

(a)        the person enters into the custody of a police officer; or

(b)        if subsection (4A)(b)(i) applies, the person is made subject to an Assessment Order; or

(c)        if subsection (4A)(b)(ii) applies, the person enters into the care of the public hospital, denominational hospital, privately-operated hospital or public health service within the meaning of the Health Services Act 1988 .

(6)        A person apprehended under this section is released from the custody of the police officer when—

(a)        if subsection (5)(a) applies, the person is made subject to an Assessment Order; or

(b)        if subsection (5)(b) applies, the person enters into the care of the public hospital, denominational hospital, privately-operated hospital or public health service within the meaning of the Health Services Act 1988 .

(7)        For the purposes of apprehending a person under this section, a police officer or a protective services officer has all the powers necessary to do so.

(8)        Nothing in this section limits—

(a)        any other power of a registered medical practitioner or mental health practitioner in relation to a person apprehended under this section; or

(b)        any other power of a police officer or a protective services officer in relation to a person apprehended under this section.

Section 353 says:

Power to enter premises, apprehend and take person to or from a designated mental health service

(1)        This section applies if a provision of this Act provides for a person to be taken to or from a designated mental health service or any other place.

(2)        For the purposes of this section, an authorised person may—

(a)        enter any premises at which the authorised person has reasonable grounds for being satisfied that the person may be found; and

(b)        apprehend the person for the purpose of the person being taken to or from a designated mental health service.

(3)        Before an authorised person enters any premises under this section, the authorised person must—

(a)        announce to any person at or in the premises that the authorised person is authorised to enter the premises; and

(b)        state the basis of the authority to enter; and

(c)        give any person at or in the premises an opportunity to permit the authorised person to enter the premises.

(4)        An authorised person may use reasonable force to gain entry to the premises if the authorised person is not permitted entry under subsection (3)(c).

(5)        On gaining entry into the premises, an authorised person must, to the extent that it is reasonable in the circumstances—

(a)        identify himself or herself to the person who is to be apprehended; and

(b)        explain to the person why he or she is to be apprehended; and

(c)        give the person the details of the place to which he or she will be taken.

An ‘authorised officer’ is defined (s 3) to mean:

(a)        a police officer; or

(b)        an ambulance paramedic; or

(c)        a registered medical practitioner employed or engaged by a designated mental health service; or

(d)        a mental health practitioner; or

(e)        a member of a class of prescribed persons;

Section 351 is very much limited to police and protective service officers and it gives them the right to detain (in common terms, arrest) a person who they suspect is mentally ill.  The reference in subsection (2) to ‘clinical judgment’ is to confirm that police don’t have to perform any sort of psychiatric test or apply the sort of judgement of a health practitioner – they can act on their own ‘gut feel’ that the cause of the person’s behaviour is a mental illness.  (For a discussion on a similar distinction in New South Wales see State of New South Wales v Talovic [2014] NSWCA 333 discussed in my earlier post, NSW Police, paramedics and the mentally ill (May 15, 2018)).

Having detained someone, the police officer or the protective service officer must arrange for the person to be taken to a facility for an appropriate medical examination (ss 351(4A) and (5)).  Section 351 is therefore an independent right to detain a person vested in police and protective service officers but not paramedics.

Section 353 is much more general, but it applies only if some other ‘provision of this Act provides for a person to be taken to or from a designated mental health service or any other place’.  It is not a general power to detain a person.   As we have seen, if a police officer or protective service officer acts under s 351 he or she ‘must arrange for the person to be taken to’ a medical practitioner or a hospital, that is they must be taken ‘to … a designated mental health service or any other place’.  A police officer may do that by putting the person in a police car but the use of police cars is not ideal for the mentally ill, and a police officer or protective service officer may not have a car, or may have other duties to attend to.  So they may call upon Ambulance Victoria to assist.  And that is where s 353 comes into play.  The paramedic, as an ‘authorised person’ can enter upon the premises where the person is, can take them into their custody, and transport them to where they need to go (having explained to them who they are and where they are going to take the person).

Section 353 does not however apply only when police or protective service officers act under s 351. (And in those circumstances it is unlikely that the officer will need to announce his or her entry into premises and use force).  Rather s 353 applies whenever there is an authority to detain a person such as when an assessment order (s 28), a temporary treatment order (s 45), a treatment order (s 52) has been made or the person is absent from a mental health facility without leave (s 352).

One can imagine for example that there is a treatment order for a person, but they have absconded and are at home.  An authorised officer under s 353 can go to the home, demand entry, and take the person into custody for the purposes of returning them to the facility.  That is quite different from s 351.

In effect s 351 is going to apply ‘on the street’ (including in people’s homes if that is where police are responding) or at or near a designated place.   When s 351 applies it is the police who are making the non-clinical decision that the person is mentally ill and needs to be assessed for that purposes.   The other sections that empower a person to be taken to or from a mental health facility depend on a doctor or mental health professional making that clinical judgment.

In either case once the doctor, mental health professional, police officer or protective services officer has determined that the person needs to be transported, then the paramedics can exercise their powers under s 353 to give effect to that judgement.

What it means is that, in Victoria, paramedics do not have the power to make a call to treat a mentally ill person contrary to their wishes.  Where paramedics are treating someone and form the view that they are mentally ill then, as with any medical care, they need the patient’s consent in order to treat and transport them.  If the patient is unable to consent then the doctrine of necessity applies and treatment that is reasonable and in the patient’s best interest can be given without consent (see The doctrine of necessity – Explained (January 31, 2017)).

Where the patient is capable of giving consent but does not do so, even if the reason they don’t do so is because of their mental illness then that has to be respected – see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018).  As Justice Bell said in PBU & NJE v Mental Health Tribunal [2018] VSC 564, discussed in that post:

The capacity test must be applied in anon-discriminatory manner so as to ensure that people with mental illness are not deprived of their equal right to exercise legal capacity upon the basis of contestable value-judgments relating to their illness, decisions or behaviour, rather than upon the basis of the neutral application of the statutory criteria(s 68(2)(c)). In short, the test is not to be applied so as to produce social conformity at the expense of personal autonomy.

People can be mentally ill, they can make judgements that are not in their best interests and they may make those judgements because of their mentall illness but that does not mean that they are not competent to  understand the nature and effects of the advice they are given and their decision.

Where a person is competent but mentally ill, paramedics do not have the right to detain the person and take them to a facility, they need the police to attend and have the police exercise their discretion under s 351 and then transport the patient to the relevant facility.  That is not the situation in other states – see for example Mental Health Act 2015 (ACT) s 80 see also Bradley, E., Townsend, R. and Eburn, M. ‘Paramedics and ACT Mental Health Legislation’ (2015) 12(4) Australasian Journal of Paramedicine, Article 1, 1-6.

Conclusion

Section 353 says that paramedics, and other authorised persons, can enter premises, detain a person and take them to a mental health facility but only when someone else has authorised that to happen.  One group of people that can make that determination is police and protective service officers acting under s 351.

The sections do not contradict each other.  A police officer can compel a person who, although mentally ill remains competent to refuse treatment, to under a mental health assessment.  A paramedic cannot.

The Parkerville bushfire began on 12 January 2014 when a privately owned, jarrah wood electricity pole (known as a ‘point of attachment’ or PA pole) fell causing electrical arcing which ignited dry vegetation around the base of the pole. The fire burnt approximately 392 ha of bushland and destroyed 57 homes and a number of outbuildings. The jarrah pole was at least 30 years old ([102]). It failed due to fungal decay and damage by termites ([5]).

In this case Western Power ran a power line to the jarrah pole where it connected to the homeowner’s switchboard. From the switchboard a submains cable took the electricity down the pole and underground to the house. When the pole fell, the submains cable was pulled through a hole in the switchboard damaging the insulation and allowing a short circuit and arcing with the metallic edges of the switchboard enclosure. “Hot molten metal globules from the conducts and the metal enclosure dropped to the ground, igniting the dry vegetation …” (at [19]).

A class action on behalf of those affected by the fire was brought in the Supreme Court of Western Australia. The three defendants were

1. Western Power, the network operator which used the jarrah poll to carry electricity from their network to the home of Mrs Campbell;
2. Thiess, a contractor that was engaged by Western Power to replace a pole owned by Western Power. Part of that work involved disconnecting, then reconnecting the power line that ran, via the jarrah pole, to Mrs Campbell’s property; and
3. Mrs Campbell who owned both the land the jarrah pole was on, and the jarrah pole.

In a 168 page judgment (Daniel Herridge & Ors v Electricity Networks Corporation T/As Western Power [No 4] [2019] WASC 94) Le Miere J found that Mrs Campbell and Thiess had been negligent. Responsibility for the resulting damage was apportioned 30% and 70% respectively. The claim against Western Power was dismissed. The court, helpfully, published a two page summary of the judgement explaining the claims against the defendants and the outcome. You can read that here [Parkerville Judgment Summary – 27 March 2019] – I won’t repeat it and will assume readers have read that before proceeding to read my summary.

What is particularly interesting about this case is that it is a judicial determination of liability. Electricity supply companies have been sued for causing many bushfires including those of Ash Wednesday (1983) and the Black Saturday fires (2009). Although there have been payments made, those cases all settled rather than have a judge actually determine whether or not there was liability. This is one of, if not the first case where the liability for fire caused by failing electricity assets has been judicially determined.

Western Power Negligence

The operations of Western Power are governed by legislation, including the Electricity Act 1945 (WA). The plaintiff’s argued that this Act gave Western Power the authority to enter premises, inspect pole and replace them if necessary. Further, they argued, this imposed a duty on Western Power to do those things. Le Miere J said (at [180]):

In any event, the fact that Western Power had power to enter upon Mrs Campbell’s land and inspect the PA pole or to replace the PA pole if it is unfit for its purpose does not mean that Western Power had a statutory duty to do any of those things. Furthermore, the fact that Western Power has a function and sometimes exercises power does not impose a duty on it to exercise that function or power on all occasions.

In short; just because an authority ‘may’ do something does not mean they ‘must’ do it, and just because they have done it in the past does not mean they now must do it at all times in the future. His Honour concluded (at [200]):

… s 25(1)(a) [the Electricity Act 1945 (WA)] imposed no duty on Western Power to maintain the PA pole or to maintain an installation of which the pole was a part. Furthermore, s 25(1)(a) confines Western Power’s duty to maintain service apparatus to a duty to maintain service apparatus belonging to Western Power and not service apparatus belonging to a consumer such as the PA pole.

Section 25(1)(b) imposes a duty on Western Power to take reasonable steps to ensure that the connection of its electricity supply to the consumers property is safe and to minimise the risk of fire. The plaintiffs argued that this imposed an obligation upon Western Power to inspect the power pole to ensure it was fit for purpose. His Honour said (at [219]-[220]):

Section 25(1)(b) does not impose on Western Power a duty to make routine inspections of a consumer pole and to replace, or require the landowner to replace, a consumer pole that is no longer fit and safe for the purpose of supporting service apparatus of Western Power…

The obligation imposed on the network operator by s 25(1)(b) to take all reasonable precautions may require the network operator to inspect a consumer pole in some circumstances. In particular, the obligation to take all reasonable precautions may require the network operator to inspect a consumer pole at the time the network operator attaches apparatus to, or does work on the pole. The content of the obligation in a particular circumstance is fact specific.

With respect to duty of care, His Honour held (at [292]) that Western Power did not owe a legal duty to make regular inspections and repair privately owned poles as that duty would be incompatible with the terms of the Electricity Act. The obligations imposed by the Act are a duty on Western Power to maintain its ‘service apparatus’ and not the apparatus owned by a third party, in this case Mrs Campbell: ‘The statutory scheme is that the consumer and not Western Power has the duty to maintain service apparatus that belongs to the consumer’ ([293]). Further, the risk to the plaintiffs was that the pole would fail, fall and allow discharge of electricity to start a fire. It was the owner, Mrs Campbell, who had relevant control of that risk. At [294] His Honour said:

The PA pole belonged to Mrs Campbell. It was on her land. Western Power had a legal power in certain circumstances, to enter upon her land and inspect the PA pole. However, the existence of that power is not sufficient to give rise to a duty to exercise the power. In the absence of the exercise of the power Western Power did not have the requisite control over the source of the risk of harm.

If there is a duty on Western Power not to supply electricity via a pole that is unsafe, that duty can only arise if Western Power has actual knowledge that the pole is unsafe.

His Honour found (at [297]) that Western Power did have a duty to inspect the pole when undertaking work on the pole. There was, therefore, a duty to inspect the pole on 19 July when the power line to the pole was disconnected and then reconnected. If the inspection revealed that the pole was unserviceable then there would be a duty on Western Power not to connect the power to that pole ([298]). However (at [305]):

A duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Generally, this duty of care will be satisfied by engaging a competent contractor to carry out work. Hence the general rule that a person is not responsible for the wrongful acts committed by the contractor or the contractor’s employees in the course of work for which they were engaged.

His Honour concluded that the decisions to engage Thiess, a specialist company that conducted many inspections and did work for Western Power was a reasonable response to the risk of failing domestic poles. At [354]:

Western Power took reasonable precautions to ensure that qualified and competent personnel carried out the work, including pre-work inspections of wooden poles, by retaining a competent, reputable and experienced contractor to carry out the work under a contract which required the contractor to engage personnel to perform the work who are competent, have all the necessary skills, training and qualifications to carry out the work in accordance with the contract and have been inducted by Thiess and are able to perform the work without the supervision of Western Power’s personnel.

It was also alleged that Western Power had a duty to warn Mrs Campbell of the risk that old poles can rot and need to be inspected and, in some cases, replaced. At [377] His Honour rejected that argument. He said:

As a general rule a person does not have a duty of care to avoid risk of harm by advising another person of that other person’s legal duties and responsibilities. There is nothing in reg 253 of the Electricity Act Regulations or any other fact, law or circumstance of this case for that general rule not to apply. Western Power did not owe to the plaintiffs, or anyone else, a duty to take reasonable care to avoid harm by advising Mrs Campbell of her responsibility to inspect and maintain the PA pole in a safe condition.

The conclusion was that Western Power did not owe a duty to regularly inspect and maintain private poles. It did have a duty to inspect poles when working around them, such as when disconnecting and then reconnecting the pole to the Western Power distribution network but it met that duty by engaging the services of a ‘competent, reputable and experienced contractor’ to do that work. Western Power having done all it was reasonably required to do was not negligent and therefore not liable for the damage caused by the pole’s failure.

Nuisance

The plaintiffs also sued Western Power for nuisance, a different cause of action from negligence. Nuisance requires proof that the defendant unreasonably interfered with the plaintiffs’ enjoyment of their land: ‘The focus of nuisance is on the interference the plaintiff has suffered not – as in negligence – with the quality of the defendant’s conduct’ ([383]).` His Honour said (at [404]):

Western Power is not liable in nuisance. It did not create, or participate in the creation of, the nuisance. Western Power did not install the PA pole. It had no duty to inspect and maintain the PA pole… Western Power did not carry out any work on the PA pole or inspect it. It was through no act of Western Power that the PA pole became in, or remained in, an unsafe condition and gave rise to a nuisance or created a state of affairs which caused the nuisance.

Thiess

As noted above, Thiess, under contract to Western Power, had disconnected and then reconnected the AP pole to the Western Power network. This was done on 19 July 2013. The work involved inspecting the AP Pole to determine if it was ‘good’ (see [70]-[76]). The Thiess contractor determined that the pole, at that time, was serviceable.

A number of experts, called by different parties, met to see if they could come to a consensus view on issues relating to the case. They concluded that, given the state of the Jarrah Pole in 2014 (when it failed), it must have been unserviceable for some time before 2014. Whilst the various experts expressed qualifications on their ability to say, with certainty, when the pole became unserviceable it was clear, and the judge found (at [136]), that the:

… pole was unserviceable in the sense of not being fit for its purpose in July 2013; it lacked the structural capacity to withstand forces likely to be applied to it even though it was strong enough to remain standing at that time. Further, I am satisfied that the PA pole ceased to be serviceable sometime prior to that, and probably before 2010.

In other words, although the Thiess employee found, in July 2013, that the pole was ‘good’, the expert evidence was that it was not and could not have been fit for purpose at that date. In his first statement, the Thiess team leader said ([156]):

We done a check on the consumer pole (a sound check with a hammer and dug down to see if the pole is good, it was good and we carried on with our work).

That witness later agreed ([158]; see also [163]):

… that he did not actually have any specific recollection that he did a sound check with a hammer and dug down to see if the pole was good, he said that was a standard practice and that was all in fact he could recall about what he must have done on that day.

Le Miere J found ([167]-]174]):

Mr Bartosch inspected between 460 and 690 poles each year. His usual practice required him to perform six or seven hammer tests per week. The PA pole was just one of hundreds of poles he inspected in the two-year period prior to the fire…

Mr Bartosch could not provide details of any specific pole he had worked on in the six months prior to trial. The reliability of Mr Bartosch’s recollection and evidence of the PA pole, and his inspection of the PA pole in July 2013, was further undermined by the mistakes and lack of care he showed in incorrectly completing the JSA and CUSA forms and his own unsatisfactory explanations for having signed off on those errors…

On 19 July 2013, Mr Bartosch did not know what a termite mudding was. He said that he had never encountered termites or termite damage on a pole prior to 19 July 2013. Mr Bartosch conceded the external face of the PA pole above the ground had splits and cracks, notwithstanding his initial evidence that there were no cracks or splits visible in the PA pole.

Thiess argued ([406]) that the court should not find that the use of a private contractor by a statutory authority (in this case, Western Power) meant that the contractor assumed the ‘burden of ensuring that government assets are safe and fit and remain safe and fit’. The plaintiffs argued that the duty on Thiess was no more than the duty to perform work in accordance with the terms of the contract with Western Power which included an obligation, agreed to by Thiess, to comply with Western Power’s Work Practice Manual.

At [424]-[430] His Honour set out his reasons for finding that Thiess did indeed owe a duty of care. They were in control of the work at the pole, they should have realised that if they failed to exercise reasonable care when inspecting the pole (which they were required to do as part of their contract with Western Power) then it was foreseeable that harm would follow if the pole was in fact unserviceable. It was Thiess, and not Western Power or the class of people at risk from fire, that could take action to inspect the pole and determine whether it was currently fit for purpose.

Thiess was negligent. At [449] and [452]:

… Thiess’ leading hand, Mr Bartosch, did not exercise due skill and care during the conduct of his pre-work safety inspection. The inspection did not comply with the Work Practices Manual or industry standards…

On his own evidence, Mr Bartosch made an inadequate assessment and observations of the PA pole. He did not make an assessment of the age of the PA pole and did not seek to find out its age. Mr Bartosch did not observe any problem with the physical condition of the PA pole. However, I find that on 19 July 2013 the PA pole showed significant signs of deterioration including weathering, splits, cracks and termite mudding. In July 2013 Mr Bartosch did not know what termite mudding was. It was his understanding that he had not come across the effects of termites on a pole.

A reasonable defendant in the position of Thiess would have inspected the pole in accordance with identified industry standards and the customer’s Work Practices Manual. A reasonable defendant would also have ensured that their field staff were properly trained to apply those industry standards. Mr Bartosch had not received adequate training, having been shown how to inspect a pole once or twice in 2005 and receiving no further instruction (see [460]-[468]). His Honour found (at [469]):

… that Thiess breached its duty of care in both respects asserted by the plaintiffs – it failed to adequately train and supervise the line crew and it failed to exercise due care and skill in inspecting the PA pole in accordance with its contractual obligations and industry standards.

Had Thiess properly inspected the pole they would have reported to either Western Power or Mrs Campbell (or both) that the pole was unserviceable and could not be reconnected to the network. Either Western Power or Mrs Campbell would have made arrangements to replace the pole (as it was in both their interests to have the electricity reconnected) and the failure of the pole (see [475]-[482]), and with it the fire, would have been prevented. As a result of finding that Thiess owed a duty of care, had been in breach of its duty and that the breach caused the fire and resultant losses, Thiess was found (at [483]) to be ‘liable in negligence to the plaintiffs for the loss and damage suffered by them as a result of the fire.’

Further (at [488]) Thiess was found liable in nuisance for leaving the work site on Mrs Campbell’s property in an unsafe condition, ie with an unserviceable PA pole connected to the power network. At [489] ‘The fire was an actionable nuisance caused by the manner in which Thiess left the worksite.’

Mrs Campbell

At [493]-[496] Le Miere J said:

Mrs Campbell was the owner of the PA pole and the land to which it was affixed. She had control of the PA pole. A person with control of a chattel or fixture generally has a duty to exercise care that it does not cause harm.

A reasonable person in Mrs Campbell’s position ought reasonably to have foreseen that if the PA pole was not inspected, it would become unsafe after it had been in the ground for more than 25 years. That is all the more so if the reasonable person has Mrs Campbell’s actual knowledge of a history of termite damage to wooden structures on the land and knowledge that termites had eaten out the jarrah stumps under the house. It was reasonably foreseeable to a person in the position of Mrs Campbell that a jarrah PA pole might be at risk of termite damage to the point where it would collapse. It was reasonably foreseeable to a person in Mrs Campbell’s position that if the PA pole failed it might cause damage to life and property by the ignition and spread of a fire.

Mrs Campbell had control over the PA pole which was the source of the risk of harm. The PA pole was her property and it was imbedded in the ground on her land.

The asserted duty of care is consistent with established legal principle.

It is an important principle of negligence law that the defendant’s conduct is judged against that of the hypothetical reasonable person. It did not matter that Mrs Campbell said that she did not know of the risk or foresee the risk of potential harm, the question is what would the ‘reasonable person’ have foreseen. And a reasonable person would know that they are responsible for items on their land and that wooden poles are likely to deteriorate over time. In fact Mrs Campbell did have some knowledge of that as termites had destroyed jarrah stumps that held up her house. At [510] the judge said:

It is not to the point that Mrs Campbell did not know of, or turn her mind, to the ownership of the PA pole, its vulnerability to bio-deterioration or her responsibility to maintain it. A reasonable landowner in her position would have foreseen the risk.

And at [519]:

Mrs Campbell breached her duty of care. She took no steps to procure the necessary inspections, or any inspection. She never asked anyone to do so on her behalf. As far as she knew the PA pole had never been inspected.

Mrs Campbell was liable in negligence ([525]) and nuisance ([533]).

Apportionment between Thiess and Mrs Campbell

His Honour agreed that the failure by Thiess was more significant than the failure by Mrs Campbell. At [554]-[558] he said:

… Thiess was engaged on a commercial basis as a specialist contractor. Thiess was, or should have been, aware of industry practice for training line crews. Thiess did not conform to those standards.

Thiess was responsible for the manner in which it carried out the 19 July 2013 pre-work inspection. Thiess was the only party who inspected the PA pole. It did so in a professional capacity and undertook contractual and tortious obligations to inspect and assess the condition of the PA pole to industry standard. It fell short of the standard to be expected of a reasonable line maintenance contractor. Its relative responsibility is exacerbated by its lack of any adequate systems for training or supervision of its line crews in relation to pre-work inspections, especially when it knew of the risks associated with old, unknown and unmaintained consumer poles. Thiess’ negligent performance of the July 2013 works was due to systemic shortcomings rather than to a one-off incident of inattention or some accident…

Nevertheless, Mrs Campbell’s departure from the applicable legal standard of conduct was substantial. As the owner of the PA pole and the   owner   and   occupier   of   the   land   to   which   it   was affixed, Mrs Campbell had control of the PA pole.  She did nothing to inspect or maintain the PA pole.

In all the circumstances I apportion responsibility 70% to Thiess and 30% to Mrs Campbell.

Discussion

As noted earlier this is the first case where the liability of electricity authorities for bushfire has been judicially determined.  Having said that we must remember that a decision of a single judge, even a Supreme Court judge, does not create a binding precedent. Further, whilst I don’t know I would not be surprised if Thiess and/or Mrs Campbell took this result on appeal.  Pending any decision of a Court of Appeal we can draw these conclusions.

1. A company like Western Power does not owe a duty of care to inspect and maintain private electrical assets. Its duties are to maintain its own infrastructure.  Where it is working on and around private assets, or connecting them to the network, then there is a duty to inspect those assets and ensure that they are safe and fit for purpose.
2. A company like Western Power can meet that duty by engaging a contractor that claims to provide those services and to be expert in that work and where there are quality assurance guarantees built into the term of the agreement. In this case Thiess had guaranteed that its staff were trained and competent and that various standards including those set out in Western Powers manual would be met.  It would defeat the purpose of the contract if the principal then had to supervise the staff of the contractor to make sure they had done their job to that standard.
3. Given the evidence as to the nature of the inspection and the training, or lack of training given to Thiess staff, the finding of negligence by Thiess is not surprising. Thiess were contracted to do a job to a professional standard where the risk to others should they fail was obvious.  They failed to meet the obligations that they agreed to and failed to perform to industry standard.
4. The liability of Mrs Campbell may be a surprise but reminds readers that the test in negligence is not whether the defendant’s actions were reasonable given what they knew, thought or believed, but what a reasonable person would have done in the circumstances.
5. Liability can be apportioned. Just because Thiess owed the community a duty to take reasonable care does not mean that Mrs Campbell did not also owe a duty of care.  The fact that Thiess was negligent does not mean that Mrs Campbell was not also negligent.  The law does not allow a defendant to escape liability by saying ‘but they did the wrong thing too’. Rather it allows a judge to apportion liability between the parties to reflect their contribution to the ultimate loss.  The commercial nature of Thiess’ contract and their claimed expert knowledge meant they shared the bulk of the responsibility.

 

Today’s question is about professional indemnity insurance for a registered nurse and soon to be registered paramedic.  My correspondent is:

… an RN but working full time (in WA) as an ambulance officer – due to be registered as paramedic late this year.

I’ve been asked to some very casual work (4 days) on a film set making a TV commercial. Duties include making sure crew are well hydrated, sunscreen applied when filming outside and dressing small cuts/wounds if they occur. Essentially a first aid provider. Anything else would be advised to seek attention from GP. They also sometime have kids on set and like ‘extra eyes’ on them to be safe.

My job title would be set medic and I would essentially be a sub-contractor.

My question is do I need professional indemnity insurance as a nurse if I’m employed only as ‘set medic’? Someone said because it’s my highest level of education I have to be insured as such even if I’m not using those skills, but others including APHRA said unless my title is ‘RN’ I don’t need to worry.

Given my correspondent is a registered nurse (RN) I’ll refer to the various documents from the Nursing and Midwifery Board but the provisions applying to paramedics are similar if not identical.

Practise of the health profession in which the practitioner is registered

The Health Practitioner Regulation National Law as adopted in WA by the Health Practitioner Regulation National Law (WA) Act 2010 (WA) says, at cl 129:

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

What does it mean to ‘practise the health profession in which the practitioner is registered’?  The Nursing and Midwifery Board’s Registration Standard: Professional Indemnity Insurance Arrangements (1 June 2016) defines ‘practice’ as

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

It does not say ‘any role, whether remunerated or not, where a person is called ‘nurse’’.   The title of the position is irrelevant, it is the skill set that is used that is defining.

The Health Practitioner Regulation National Law does not define the scope of practice of the regulated professions.  It is up to registered health professionals to determine their own scope of practice, and education needs, taking into account their particular circumstances and their assessment of their own competencies.

The claim that my correspondent is not ‘using’ the skills of a nurse in the circumstances described seems to me to be clearly wrong.  A nurse has skills in dealing with patients, making assessments and experience in actually touching people to provide care etc. All those skills will be used.  The fact that other people also have those skills, the fact that a person with a first aid certificate or in fact anyone can dress small cuts and wounds does not mean that a nurse who does that task is not bringing to the task their skills and experience as a nurse.

And, with respect, the statement ‘Anything else would be advised to seek attention from GP’ must be incorrect.  There is a possibility that someone with come in with ‘something else’ and the nurse, because he or she is a nurse, will recognise that the matter is serious and advise the person to go to an emergency department or even ring triple zero for an ambulance.  A person with suspected heart attack, stroke, heat stroke or other critical conditions will not, I hope, ‘be advised to seek attention from GP’’. And the nurse, making the decision to call triple zero rather than refer a person to their GP will draw on skills, knowledge and experience as a nurse.

My correspondent’s scenario also begs the question of ‘why were they asked to do this job?’  Did they respond to an ad and if so what where the selection criteria?  Was it that the applicant must be a nurse or have relevant experience?  If it was ‘relevant experience’ did my correspondent rely on their nursing experience?  If the answer is ‘yes’ then they got the job because they are a nurse so the expectation must be that they are bringing their nursing skills and experience with them.

On the other hand did they get asked because they knew someone in the production company or were they just the right person in the right place at the right time?  Either way was the decision to ask them to do it based on the knowledge that they are a nurse?

In a recent article written by me (Michael Eburn ‘Registered paramedics, insurance and first aid – looking for coherence in law’ (2019) 16 Australian Journal of Paramedicine http://dx.doi.org/10.33151/ajp.16.663) I wrote about a claim that paramedics would need Professional indemnity insurance ‘if they’re attending the scene of an accident on the weekend and they’re not working or where they’re doing volunteer sports trainer work with the local soccer club…’.  In that article I quoted Daubney J who, in Legal Services Commissioner v Walter [2011] QSC 132, had to identify whether a person ‘had engaged in legal practise while not a registered Australian lawyer’.  To paraphrase that decision and to put it into context of a nurse, one might infer that a person is to:

… be regarded as acting or practising as a [nurse] in one of three ways:

1. By doing something which, though not required to be done exclusively by a [nurse], is usually done by a [nurse] and by doing it in such a way as to justify the reasonable inference that the person doing it is a [nurse];
2. By doing something that is positively proscribed by legislation or rules of court unless done by a duly qualified [nursing] practitioner;
3. By doing something that, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in [nursing].

It is up to my correspondent to determine whether any of those criteria apply recognising that there are no practices that ‘positively proscribed by legislation or rules of court unless done by a duly qualified [nursing] practitioner’.

Employee or contractor

The other rule is that a health practitioner does not need PI Insurance if they are covered by insurance from their employer (Nursing and Midwifery Board’s Registration Standard: Professional Indemnity Insurance Arrangements (1 June 2016), p. 2).  That begs the question of whether my correspondent is an employee.  One would infer an employer/employee relationship if the employer can set the hours of work, provides the ‘tools of trade’ (in this case the relevant first aid kit, sunscreen etc), remits tax to the Australian Tax Office, pays superannuation etc, pays wages or salaries in accordance with or based on an award or relevant enterprise agreement.  A person is more likely to be self-employed if they are responsible for providing their tools of trade, are responsible for paying their own tax, render an invoice for their services particularly if they have an ABN etc.

If my correspondent is employed and negligently treats a person, then any liability would fall to the employer who, if sensible, will have relevant insurance including workers compensation insurance if the people on the set are also employees (see https://emergencylaw.wordpress.com/?s=vicarious+liability).

If my correspondent is not employed then they are an independent contractor and will be responsible for their own liability and should, if sensible, carry relevant insurance though of course one might think the risk is so low that insurance is not warranted.

Insurance is available

It does appear that PI insurance is available.  A quick google search shows for example that members of the Australian Primary Health Care Nurses Association (APNA) can get PI for $110 and members of the Australian Nursing Federation get PI Insurance with their membership.  Guild Insurance also offers PI Insurance for nurses.

I make no comment on whether these policies would be suitable for my correspondent’s proposed work, it would be necessary to read the relevant policy information and discuss with the insurer what is proposed, but the point is that insurance is available and not difficult to obtain.

Whether PI insurance is in fact required it would be prudent to get it.  If you don’t need it but have it the cost is the premium.  If you don’t get it and there’s an issue – whether it’s a claim for civil damages or a disciplinary matter including a possible complaint of practising without insurance, the cost would be catastrophic.  A premium seems a small price to pay.

Conclusion

My view is that it is arguable that my correspondent will be practising nursing as he or she will ‘uses their skills and knowledge as a’ nurse, because you can’t leave those skills and knowledge behind.  The job title is irrelevant.

The problem is that one cannot get a definitive answer until after the event.  If my correspondent does the job and nothing adverse happens (the most likely outcome) then no-one will know or care whether there was insurance.

If there is an adverse outcome my correspondent may be subject to a civil claim (assuming that they will be a contractor, not an employee) and disciplinary proceedings.  The disciplinary proceedings may be no more than a complaint that they practised without insurance.  All that can be avoided by having relevant PI insurance which appears to be available for a low cost and a cost that can be passed onto the customer.

The question was ‘do I need professional indemnity insurance as a nurse if I’m employed only as ‘set medic’?’  The answer is ‘yes you do if you are going to use your skills and knowledge as a nurse’.  As a professional it is up to my correspondent to determine that in the first instance, and up to the Nursing and Midwifery Board and/or a Performance and Professional Standards Panel and/or the State Administrative Tribunal of Western Australia to determine if there is a complaint.

PI Insurance may not be required but if a health professional is going to offer a health service (that is ‘a service for maintaining, improving, restoring or managing people’s physical and mental health and wellbeing’ (Health Services Act 2016 (WA) s 7)) for fee as an independent contractor, PI insurance would seem an essential cost of that business.

Today’s correspondent has:

… struggled to conceive of what would be considered sufficient documentation on our patient care records.

I’ve been working as a paramedic for 14 years and yet I still don’t feel like I know what is a minimum standard of paperwork, as a result I fear I often tend to write too much, and err on the side of caution.

I suspect the answer will be ‘it depends on the case’ but I was wondering if you could give a legal perspective on what might constitute both sufficient and insufficient paperwork, should we be unfortunate enough to ‘end up in coroners court’.

At the beginning of our careers we are warned, ‘if you end up in coroners court, your paperwork had better be good’, and ‘if it’s not written down, it didn’t happen’ and various other iterations of what is possibly scaremongering. This mantra is repeated ad nauseum throughout a paramedics’ career, however as paramedics we receive very little training regarding paperwork completion. What training there is, is often just the particular paramedic trainers take on what is ‘good paperwork’, they are frequently far from experts in regard to documentation, and just repeat the old mantras.

I appreciate a patient refusing transport or being left at home as a decision of the paramedic involves a much higher level of risk, and therefore more stringent attention to detail in regard to paperwork, in particular to what information was given, capacity and consent. But what is the risk when a patient is transported and handed over to ED?

I am always surprised at the brevity of doctors letters, which frequently accompany a patient from home, or from a GP surgery, when an ambulance has been called to transport a patient to hospital. Frequently these letters take the form

“Dear Dr,

Joe Bloggs 24/06/40

Mr Bloggs has been unwell with worsening sob for the past 2 weeks. There is widespread crackles and wheeze, and I am concerned given his history of COPD and unresponsive to augmentin that he may need more intensive management in ED.

Hr 88, BP 150/80 Sp02 93% RR 16

Regards

Dr Smith”

In contrast, it would be quite common for a paramedic to arrive at this same patient and write a lengthy tale (in fear of the case ending up in coroners court) or perhaps even internal clinical audit.

It may look something like this:

“PC

Shortness of breath

HPC

78 year old male

Living independently in own home, retirement village with no home care arrangements

3/52 history of productive (grey green) cough, associated wheeze and shortness of breath.

Becomes very sob within 10m walk.

Difficulty managing at home, difficulty in performing basic self care tasks such as toileting and showering, due to SOBOE.

Previous icu admission for pneumonia

Loss of appetite over past week.

Day 3 of second course of augmentin without improvement

Seen by GP today at home, recommended attending ED via ambulance given history.

Denies chest pain on coughing.

No fevers, rigors

No urinary symptoms

No headache

No nausea

OE

Alert male, sitting upright in armchair during assessment GCS 15

Airway patent, verbalising, speaking in partial sentences

Breathing, rate 26, elevated. Deep and slightly laboured. Auscultation of chest revealed widespread wheeze. Sp02 on room air 93%. No cyanosis

Circulation, strong regular radial, rate 80. no pallor. No diaphoresis. Normotensive. ECG NSR.

Disability, perl GCS 15. BSL within normal limits.

Afebrile at 37.1.

Tx

Assist to stretcher

Monitor

IV access

Salbutamol neb x 2, good effect

Hospital

Handover to staff

Handover of GP letter, and one bag of patient belongings”

In fact, many Patient Care Record forms (electronic or paper based) already have drop down lists or check boxes for much of the information we write in the free text narrative section, there is always Airway, Breathing, Circulation, Disability sections, vital signs sections, GCS sections, pupil sections, temperature, Sp02 etc, yet we tend to repeat this information in the free text section, perhaps to give the impression we performed our assessment to a high standard, should we ‘end up in coroners court’.

I’m wondering if in reality, for a patient transported to hospital, we could generally be as brief as the GP letter above, considering the extremely low risk of anything ‘going wrong’ with this transport.

Please don’t think I’m trying to cut corners in regards to paperwork, it just seems that sometimes we are being overly thorough, in light of the doctors letter example above, and with the knowledge that the ED doctor will extract their own, much more thorough history than either the paramedics, or the GP.

I think this is relevant given the increasing pressures on paramedics to complete paperwork, clean and restock the ambulance in 20 minutes (15 minutes here in WA).

That’s a very thorough question, and the answer is probably ‘it depends on the case’ but we can work through some issues.

Business records

First, as has been noted before, a paramedics patient care record is a ‘business record’.  Business records are kept for the purpose of the business and are only of value if they record what actually happened.  Because business have an interest in ensuring their records are accurate courts can trust them.  What follows is that a business record can be tendered into evidence as proof that whatever is recorded on them is what actually happened (for further discussion see, for example:

• The role of Paramedic records in litigation (October 28, 2010);
• Lithgow Council v Jackson [2011] HCA 36 (28 September 2011) (October 5, 2011);
• Completing paramedic case records (September 3, 2015); and
• Keeping records for the fire service – WA (January 8, 2019))

The issue with business records, in the context of this question, is that they are expected to record what happened. That means if they don’t record what you might expect that is evidence that it did not happen.  In context you would expect a paramedic to note on the Patient Care Record form details of drugs administered.  If there are no details recorded that would be evidence that no drugs were administered. That is the basis for the teaching ‘if it’s not written down, it didn’t happen’.  That’s not an irrebuttable rule, the paramedic could give evidence that the drugs were administered and explain why it was not recorded, but the starting point is certainly if it’s not there, it did not happen.

Again keep in mind that what I’m talking about is matters that you would expect to be there.  If there is a ‘check box’ that’s not checked then whatever the box is recording did not happen.  But if we’re talking about something you don’t have a space for, eg the patient tells the paramedic something and it’s not recorded then the same rule won’t apply.  It is not usual for paramedics to write a verbatim transcript of the patient’s conversation so the fact that it is not recorded that the patient said something that is clinically irrelevant won’t prove the point.  Let me give an example:

Assume the patient asks ‘did you see my wife at home?’ and the paramedic replies ‘no, I didn’t, she wasn’t there’.  There is no apparent need to write that innocuous conversation down, but later the patient is charged with murder. The patient wants to call the paramedic to give evidence in order to argue that this conversation shows he did not know where his wife was and so therefore had not murdered her. Given that conversation is not something that you would expect to see recorded in the case sheet, the absence of the record does not prove the conversation did not happen.

So we can see the point we’re talking about clinically relevant material.  I will return to this point later.

What are good records?

The mantra from lawyers, particularly those in the health law field, is

 “good records, good defence; bad records, bad defence; no record, no defence”

But that begs the very question my correspondent has asked, namely what are ‘good records’.

As my correspondent notes it will depend on the case.  The record keeping is certainly an issue for risk management.  For the doctor (or paramedic) who thinks this is a very low risk transport there needs to be little more than the patient’s name and pick up and drop off address so the correct bill can be raised (see First aid patient records – who and what are they for? (January 31, 2015)).  For complex high intervention cases the records need to be more complete as they do need to show what interventions were done and why.

A difference between a doctor’s letter and a paramedic’s patient record

There is a difference between the doctor’s letter and the paramedic case record.  The doctor’s letter is the letter between one doctor and another.  The first doctor may have many other records regarding his or her treatment of the patient and there may also be other health provider records.  This letter then is for one purpose only.  The paramedic records are not only written to inform the receiving doctor of what was observed but forms the only record of the paramedic’s intervention in the patient’s life.

Should some issue become relevant (and you can’t know in advance what legal issues are going to arise in the future when someone may come back and ask if you noted something, or did something, or remember something) then it is the case that more complete records will always be better than less complete records.   Certainly, in the example given above if the patient dies, unexpectedly in the ED, and there are issues of why anyone did not notice they were in fact critically ill, the paramedic would want to be able to rely on their detailed notes.  The doctor too, would want to rely on more than the letter but he or she may have detailed records of their observations of the patient that help explain why they formed the view that they did.  In essence the paramedics record is likely to be their entire record, whereas the doctor’s letter is a summary of their entire engagement with the patient (however long that has been) but probably not their only record.

On a practical level, my suggestion would be that if “many Patient Care Record forms (electronic or paper based) already have drop down lists or check boxes for much of the information we write in the free text narrative section” then there is no need to write it in the free text section unless you are noting something unusual or the collection of signs and symptoms that cause you to form a diagnosis or treatment plan that may be outside the norm.  If all the observations are within normal range and can be noted using the drop down box/tick box etc there will be little value in ‘repeat[ing] this information in the free text section’.

The real question, as is so often the case in my response to paramedics, is ask what is clinically required in the patient’s best interest.  Take as given you should fill out the form your employer has given as the minimum, but if you are going to add more ask ‘is this required in the patient’s best interests’.  That is always a risk assessment, there is always a risk that that you will conclude ‘no’ and something goes astray and someone would benefit if you had asked or written more detail; but equally taking time and seeking and recording every minute detail ‘just in case’ is intrusive and does no-one any favours.

Conclusion

In conclusion my advice would be complete the patient record form designed by the service and if there is a box to check do what you need to do to be able to check the box, so if it asks for BP, take the patient’s BP.  But repeating it all particularly where everything is within normal bounds is probably unnecessary.

Today’s question is inspired by an article in the British Medical Journal –

Abi Rimmer, ‘My patient wants to record our appointment, what should I do?’ BMJ 2019; 364 doi: https://doi.org/10.1136/bmj.l1101 (Published 19 March 2019).

The conclusion in that paper is:

“The request to record a consultation is not a hostile one, loaded with the intention of setting up barriers or conflict. Most patients are not familiar with medical terminology. They are in distress, and they want to listen and to understand, even though they’re struggling. Ultimately, they want to be heard and understood. They want a two way conversation where their priorities count. So, let them record with no strings attached. I imagine doctors may worry about the possibility of litigation or being held to their word when they’re exploring diagnoses or treatments outside of their specialism or comfort zone. But is this reality? I doubt it. In my experience, patients are much more forgiving than you may first think.”

The correspondent who raised this with me asks whether, in New South Wales, patients can record conversations with paramedics.   My correspondent says:

I am just following up on a question about patients recording paramedics without consent in NSW (my understanding is that the law differs from state to state). I would really appreciate hearing your opinion.

I understand that the Surveillance Devices Act 2007 (NSW) s 7 says that:-

(1)          A person must not knowingly install, use or cause to be used or maintain a listening device:

(a)          to overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b)          to record a private conversation to which the person is a party.

Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

(2) …

(3)          Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:

(a)          all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or

(b)          a principal party to the conversation consents to the listening device being so used and the recording of the conversation:

(i)            is reasonably necessary for the protection of the lawful interests of that principal party, or

(ii)           is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

Section 7(1) is clear. But section 7(3) is a little unclear. Section 7(3)(a) says that section 1 (b) doesn’t apply if ALL principal parties consent  OR (3)(b) may apply, but (3)(b) refers to only ‘a’ principal party being able to record provided (i) OR (ii).   I am just wondering about the use of the word ‘consents’ in (3)(b) and how it fits with the reference to the singular party. Do you think that this means:-

1. With reference to (3)(b)(i) that a patient can record a conversation with a paramedic without the paramedic’s consent in order to protect their lawful interests (eg right to consent or refuse consent for treatment/right to be informed/warned)? And
2. With reference to (3)(b)(ii) that a party (being the patient) can record a conversation for their own purposes provided they don’t communicate or publish it elsewhere?

I found this case that has applied the section https://www.caselaw.nsw.gov.au/decision/54a63da33004de94513dbc9b

A listening device is defined as ‘any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear’ (s 4).

A private conversation (s 4) is:

… any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only:

(a) by themselves, or

(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,

but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.

I have previously written on listening devices – see all the posts that appear here – https://emergencylaw.wordpress.com/?s=listening+device

The case that my correspondent refers to is Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133.  In that case Mr Toth was convicted of an offence contrary to s 7(1)(b) after he used a ‘concealed video recorder in the shape of a pen’ to record ‘the examination undertaken by the doctor and the conversation with her’.  He was convicted by the Magistrate and appeals to the District Court and the NSW Court of Appeal were dismissed.  I will return to that case in due course.

Discussion

I don’t think the answer is complex, one has to simply read the words of the Act.  It is an offence to using a device to record a private conversation (s 7(1)) unless the exceptions in 7(3) apply.  The principal parties to the conversation will be the patient and the paramedic.   A patient can record a conversation with a paramedic if:

• The paramedic consents; or
• It is ‘reasonably necessary for the protection of the lawful interests’ of the patient or
• The recording ‘is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation’.

If a patient says they want to record the conversation why would a paramedic not consent? Paramedics ‘may worry about the possibility of litigation or being held to their word’ but they should have the confidence to back themselves.  If provide high quality professional care then the recording will confirm that.  If you fail to provide high quality professional care then the recording will confirm that too and save everyone a lot of unnecessary trauma having disputes about who said or did what.  If you believe you are a competent professional you would consent as you want to provide high quality care and want to know if you did not.

If you don’t consent what are you going to do about?  It would be remiss to refuse to treat the patient’s clinical needs unless they agreed to turn off the recording as that would be putting your interests ahead of the patient.

Let us assume for the sake of the argument, however, that the paramedic does not consent or that the recording is covert in which case the paramedic is not given the chance to consent.  In that case the recording is still not illegal if ‘It is reasonably necessary for the protection of the lawful interests of the patient’.   It is not obvious to me why that would be the case but it might be if for example the patient has expressly refused some treatment and wants to ensure, if they become unconscious, that their wishes are respected.  In any event, to answer the question, we don’t need to come up with an example where recording the interaction is ‘reasonably necessary for the protection of the lawful interests’ of the patient.  All we need to do is note that if that was the case, then the recording is not unlawful.

Finally the recording can be made provided the intention or purpose of the recording is for a reason other than ‘publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation’.  This is where a patient’s may want to record the conversation because they ‘are in distress, and they want to listen and to understand, even though they’re struggling. Ultimately, they want to be heard and understood. They want a two way conversation where their priorities count.’  They want to be able to use the recording later to recall what they were told as they know at their moment of distress they are going to have difficulty.  That too is not unlawful.

A follow up question was ‘can those recording be relied on by the patient in any action against the practitioner?’   The answer has to be ‘possibly’.  A court or tribunal that is looking at allegations of poor conduct wants to know the truth.   Evidence that helps establish the truth would be admissible.  If the patient attempts to use the recording in evidence it does not prove that at the time of the recording they had the purpose ‘of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation’.

Even if they did have that purpose, the fact that evidence was illegally obtained does not make it inadmissible.  The Evidence Act 1995 (NSW) s 138(1) says (emphasis added):

Evidence that was obtained:

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

In short it must not be used unless it should be used.  Section 138(2) sets out a list of factors a court has to consider when balancing the need to ensure evidence is not collected illegally but also to ensure that courts have evidence to establish the truth.  In the case of a recorded conversation between patient and paramedic issues to be considered would include the nature of any allegation, what other evidence is available, how probative the recording is etc.  Whether it could be used in any particular case would depend on the circumstances of that case.

Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133

I now turn to Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133.   As noted in that case Mr Toth was convicted after he used a ‘concealed video recorder in the shape of a pen’ to record ‘the examination undertaken by the doctor and the conversation with her’.   That case does not, however, really shed any light on the matter.  In that case Mr Toth’s argument was not that he was justified by s 7(3). Rather his argument was that the walls of the surgery was such that conversations in the examination room could be heard by people in the reception area and so this was not a ‘private conversation’ because the conversation occurred ‘circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else’ (Surveillance Devices Act 2007 (NSW) s 4, definition of ‘private conversation’).

In the Court of Appeal, Basten JA (with whom Barrett and Emmett JJA agreed) said (at [16]-[17]):

… The doctor gave evidence from which it was clear that she wished the conversation to be private. The applicant did not give evidence. There was therefore no evidence to contradict the conclusion that both persons desired the words to be listened to only by themselves.

There was, however, positive evidence from the doctor that she did not expect her consultation with the applicant to be overhead by others. That evidence was not determinative of the question raised by the proviso, which was whether the parties “ought reasonably” to have expected that the conversation might be overheard. However, given that the doctor worked at the surgery, her opinion, which was led without objection, supported the conclusion that the proviso did not apply. The application of the proviso was the issue on which the appeal was based…

Given the way the case was run, finding that the doctor expected the conversation to be private and that she did not expect it to be overheard was fatal to Mr Toth’s defence.   Neither Mr Toth nor the court addressed any part of s 7(3) so that case provides no guidance to the issues under discussion.

Reality TV shows

This post raises further issues about reality TV shows such as “Paramedics” and “Ambulance Australia”.  On these shows cameras were installed in ambulances that recorded both video and audio, that is they were ‘listening devices’.

Some people may have consented to their use but it cannot be the case that everyone did or more importantly that they were capable of consenting.  If they needed ambulance services and the ambulance was equipped with recording equipment they were in no position to give or refuse consent and that is particularly true the more serious their injuries and the more their injuries impacted on their ability to consent.

Further the clear purpose of making the recording was for ‘communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation’ that is the viewing audience.    This is true at the time of recording, whether the recording was ultimately used is irrelevant.

If that’s true the recording could only be justified if it was ‘reasonably necessary for the protection of the lawful interests of that principal party’, but the recording was not being made by a ‘principal party’ – it was being made by the television channel and/or the ambulance service.

It appears to me that the television channels and/or the ambulance services knowingly installed, used or caused to be used a listening device ‘to overhear, record, monitor or listen to a private conversation to which the person is not a party’ and that is an offence.

Conclusion

My correspondent asked with some slight modification:

1. With reference to (3)(b)(i) that a patient can record a conversation with a paramedic without the paramedic’s consent in order to protect their lawful interests (eg right to consent or refuse consent for treatment/right to be informed/warned)? And
2. With reference to (3)(b)(ii) that a party (being the patient) can record a conversation for their own purposes provided they don’t [intend to] communicate or publish it elsewhere?

My answer to both questions is ‘yes’.

I have been referred to a news story regarding, yet again, violence directed to paramedics – Blair Thomson, ‘Man avoids jail despite attacking two ambos trying to help him’ The Age (Online) (March 20, 2019)

My correspondent says;

I know you did a review of the sentencing of the two women who bashed the poor Victorian Paramedics (one of whom is still off work because of his injuries).

These two paramedics work for NSW Ambulance and had just popped across the border because Victorian Ambulance don’t have a presence there, something that happens often for both sides.

Does this have any implications for Work Cover?

Also the judge says it’s not in the interest of the public to send him BACK to gaol. Surely the public would be happy if this person was absent from the community even for a short time. He’s obviously a repeat offender and the story claims he had other outstanding warrants which is why he wouldn’t surrender to police.

Also how does this sentence compare to attackers of judges across the country?

I have made a commentary on an earlier case No gaol time for defendants who assaulted Victorian Paramedic (May 18, 2018) see also Mandatory prison sentences – offering paramedics a placebo rather than protection (August 3, 2018).

I haven’t seen the judge’s reasons so I can’t know if what factors caused the judge to conclude ‘it’s in your interest and indeed the community’s interest that I not send you back to prison today.’’  If the magistrate’s decision is published and I will be happy to comment on it (but see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)).

Equally I can’t comment on what ‘the public would be happy’ with as there are many publics.  No doubt many would be very happy to see this person in gaol.  Others may not.  Who knows where anyone would stand without knowing the issues that were put before the judge.  The reason judges take an oath to apply the law and have tenure is to ensure that they don’t feel pressure to make decisions that would ‘make the public happy’.  Public expectation is a factor in the sentencing decision but only one.   Relying on community response to sentences when all that response is based on a media report is unhelpful.    See for example

• Geraldine Mackenzie, Caroline Spiranovic, Kate Warner et. al  ‘Sentencing and public confidence: Results from a national Australian survey on public opinions towards sentencing’ Australian & New Zealand Journal of Criminology 45 issue: 1, page(s): 45-65 https://doi.org/10.1177/0004865811431328.
• Kate Warner, Julia Davis and Maggie Walter ‘Public Judgement on Sentencing: Final Results from the Tasmanian Jury Sentencing Study’ Trends & Issues in Crime and Criminal Justice, No. 407, February 2011 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2362709. The Tasmanian study found:

Using jurors is a way of investigating the views of members of the public who are as fully informed of the facts of the case and the background of the offender as the judge. Based upon jurors’ responses from 138 trials, the study found that more than half of the jurors surveyed suggested a more lenient sentence than the trial judge imposed. Moreover, when informed of the sentence, 90 percent of jurors said that the judge’s sentence was (very or fairly) appropriate. In contrast, responses to abstract questions about sentencing levels mirrored the results of representative surveys.

That is once people know the facts they are more inclined to understand, and see the sentencing decision as reasonable.

The fact that these paramedics were assaulted and injured is terrible.  I have no idea whether not sending the offender to gaol is or is not a reasonable outcome.

What we do know is that the threat of mandatory sentencing was clearly not a deterrent nor did it protect the paramedics from violence.   To repeat what I said in the paper I wrote with Ruth Townsend and which you can link to from my post on mandatory sentencing:

Our argument is NOT that gaol terms for people who assault paramedics are not, and will not, be called for. Neither are we arguing that it is ok to intentionally assault paramedics. It’s not; and that’s why it’s illegal, as it should be.

Fundamentally our argument is that mandatory gaol terms will not decrease the risk of, or actual event of occupational violence directed toward paramedics and they may have adverse effects for paramedics…

We also said ‘It is clear governments don’t believe in mandatory sentencing despite the rhetoric’ as there is always a discretion left to the judiciary despite what the parliamentarians say in electoral mode.   Gaol terms may not be unjust; mandatory sentences are.

Workcover

As for the ‘implications for Work Cover’ I infer that means implications for workers compensation and the answer is that there are none. The paramedics were employees of NSW Ambulance engaged in their employment even though at the time they were in Victoria.  They will be able to obtain workers compensation under the Workers Compensation Act 1987 (NSW).

Comparative sentences

As for sentences for people who assault judges I’m not sure I’ve seen any cases on point.  I am aware that someone is currently on trial for the murder of a family court judge and a number of other offences.  It has been reported that the trial judge has ordered that the trial be put on hold unless legal aid fund his defence – see Angus Thompson ‘The accused is indigent’: alleged Family Court bomber broke, judge says’ The Sydney Morning Herald (Online) February 28, 2019.  The judge there is applying the law, not some prejudice because one of the victims was a judge.

Today’s question relates to age discrimination within the NSW Rural Fire Service.  My correspondent says:

In this district there is a district rule that only members aged over 25 will be supported by the service to get their MR licence (effectively for free). Members under 25 are not supported to get their heavy vehicle licence. There is a provision for members under 25 to get their licence (supported by the service) if they apply directly to the district manager and pass a driving aptitude test.

This is independent of the members category of licence (Ls, Ps, etc) and their years of driving experience.

Discrimination on the grounds of age is prohibited by the Age Discrimination Act 2004 (Cth) and the Anti-Discrimination Act 1977 (NSW).  The reason for both Commonwealth and state legislation is to ‘cover the field’. There are constitutional limits on what each legislature can regulate so the Commonwealth Act applies to areas within the Commonwealth’s legislative responsibility and the state Act applies to areas within the state’s legislative responsibility and between them all manner of employers, service providers and others are bound by anti-discrimination laws.   As the RFS is a state agency, I’ll refer to the state Act.

The Anti-Discrimination Act 1977 (NSW)

The Anti-Discrimination Act 1977 (NSW) s 49ZYA defines age discrimination as:

(1) A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of age if the perpetrator:

(a) on the ground of the aggrieved person’s age … treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group…

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s age if it is done on the ground of the person’s age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.

I infer from the question that a member aged under 25 can get support to obtain a Medium Rigid (MR) licence but he or she has to make an application and pass an aptitude test, criteria that do not apply to a person aged 25 or over.  Prima facie (ie on the face of it) that sounds like age discrimination but that does not make it unlawful.

A volunteer with the RFS is not ‘at work’ so the provisions relating to discrimination in work do not apply.  Section 49ZYN says:

It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of age:

(a) by refusing to provide the other person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services.

Arguably one could argue that by providing the training the RFS is providing a service, but I think that’s a long bow – one does not look to the RFS as a driver training provider.  The RFS provides rural fire services to the community so the RFS cannot refuse to provide say firefighting services to a farm operated by young people on the basis that they are young and fit and should be able to deal with the fire themselves. That’s not the same as saying ‘as a service we require people under 25 to demonstrate different eligibility requirements for training that a person over 25 doesn’t need to meet’.

Let us assume, however, that this discrimination in the provision of services, even that is not enough to make it unlawful.  First there is an exemption for safety reasons – section 49ZYV says:

Nothing in this Part renders unlawful discrimination against a person on the ground of age with respect to:

(a) the manner in which fitness to control a vehicle or a class of vehicle is assessed, or

(b) the terms and conditions on which and the length of time during which a licence to drive or ride a vehicle is provided or made available,

as the case requires, if that manner is, or those terms and conditions and length of time are, imposed in order to meet safety considerations that are reasonable in the circumstances.

That could be on-point.  I would think s 49ZYV(a) is directed to things like a driving test.  Asking an older person to pass a test that a young person can pass but which fails to take into account the older person’s diminished capacities is not unlawful and thankfully so.  Equally giving an older person a licence valid for one year whereas a younger person gets a 5-year licence and requiring the older person to pass a test to renew their licence is not prohibited.

Arguably too, asking a younger person to pass an aptitude test may be a way for the RFS to assess a person’s ‘fitness to control a vehicle or a class of vehicle’ that is not imposed on older persons.  The RFS are not ‘providing’ the licence so I don’t think paragraph (b) is relevant.  If the RFS did want to rely on that provision, then they would need to demonstrate why that was a reasonable response to legitimate (not just perceived or believed) safety considerations.

There is an exemption for ‘voluntary bodies’ (s 57).  Because the RFS is established by an Act of Parliament (‘the Rural Fires Act 1997 (NSW)’) the RFS does not meet the definition of a ‘voluntary body’ so that exemption is not relevant.

The Age Discrimination Act 2004 (Cth)

One might be able to bring the matter under the Commonwealth law if there was a relevant link to the Commonwealth’s constitutional authority, eg if the RFS were considered a trading corporation (and note that Victoria’s CFA has been held to be a trading corporation – see United Firefighters Union of Australia (‘UFU’) v Country Fire Authority (‘CFA’) [2014] FCA 17 (31 January 2014) (February 12, 2014)) or if it could be shown that the actions put the RFS in breach of an international agreement such as the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights.  I can’t see how requiring a person aged under 25 to make an application and pass an aptitude test would be a breach of either of those agreements so I will assume the Commonwealth Act doesn’t apply. Even if it did there would be the same hurdles as there are with the State Act.

Rural Fire Service – Service Standard 1.1.42: Respectful and inclusive workplace

The RFS says Service Standard 1.1.42, at [1] (emphasis added) says:

The NSW Rural Fire Service (NSW RFS) is strongly committed to providing and maintaining a respectful and inclusive workplace, where all members are treated with dignity, courtesy and respect at all times and in all work locations. Bullying, discrimination, vilification and/or sexual harassment have no place in a respectful and inclusive workplace.

At [3.21] the Service Standard says:

Discriminating against a member of the NSW RFS in any of the following ways is against the law and will not be tolerated.

(a) Age discrimination occurs when someone is treated less favourably because of their age.

However, at [3.25] ‘An action may not be considered discrimination when it is: a. permissible under NSW anti-discrimination laws…’

Discussion

Asking ‘members under 25 to … apply directly to the district manager and pass a driving aptitude test’ when that is not required of members aged 25 and over is clearly discriminating on the grounds of age.  The younger members are asked to meet a further criterion because of their age and no doubt because of a belief that younger drivers pose a greater risk than the older drivers.

But that does not make it unlawful.  Discrimination on the grounds of age is unlawful in employment (ss 49ZYB to 49ZYK), education (s 49ZYL), the provision of goods and services (s 49ZYN), accommodation (s 49ZYO) and in registered clubs (s 49ZYP).  There could be an argument that this discrimination is discrimination in the provision of services (s 49ZYN) but I don’t really think that is the case.

To say that the RFS is not prohibited from discriminating against its volunteers does not mean that they should do that.  As noted, the RFS says that it does not tolerate discrimination including discrimination on the ground of age.

The RFS could, arguably, rely on the exemption in s 49ZYV but it seems clear that this exemption is intended to apply to say the Roads and Maritime Services that does discriminate on the grounds of age eg by requiring older drivers to pass annual tests.  Even if s 49ZYV was applicable the question would be whether the extra burden of requiring a younger driver to pass an aptitude test is ‘imposed in order to meet safety considerations that are reasonable in the circumstances’.

Conclusion

It seems to me axiomatic that asking a driver aged under 25 to ‘apply directly to the district manager and pass a driving aptitude test’ and not imposing those conditions on a driver aged 25 and over is to discriminate on the grounds of age.

That may not be unlawful because the member is a volunteer or because a legitimate response to a safety issue but I confess I find it hard to believe that could be established (but perhaps it can be). If the discrimination would not be lawful if the member were an employee then the RFS should not tolerate that discrimination with respect to a volunteer.

How my correspondent might deal with that is a more complex issue.  The first step would be to raise it with a district manager and if that did not achieve an acceptable outcome raise the matter with RFS HQ in accordance with the RFS internal procedures.

 

 

 

 

 

 

Today’s question relates to mandatory reporting of children in need of protection in Victoria.  My correspondent asks:

 … are Victorian paramedics mandatory reporters of suspected/child abuse now that they are registered?

My initial belief was ‘yes’, but after revisiting the Children, Youth and Families Act 2005 (Vic), I’m not so sure. S.182(a) specifies ‘a registered medical practitioner’. I thought this might include paramedics, but after reviewing AHPRA’s Register of Practitioners – Professions & Divisions page the language used is ‘health practitioner’ except for medical practitioners registered by the Medical Board of Australia. I’m wondering if the language in the legislation is deliberate, particularly in light of nurses and midwives being listed as mandatory reporters separately in the Act (s.182(b/ba)).

The list of mandatory reporters set out in s 182 includes (relevantly) ‘a registered medical practitioner’ and ‘a nurse’.  A registered medical practitioner is (s 1) ‘a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student)’.  A nurse is (s 1) a person registered under the Health Practitioner Regulation National Law to practise in the nursing and midwifery profession as a nurse (other than as a midwife or as a student).

Under the national scheme the term ‘medical practitioner’ is a protected title that can only be used by a registered medical practitioner, ie a doctor. Only a nurse can use the title ‘nurse, registered nurse, nurse practitioner, [or] enrolled nurse’ (s 113).  There is, as my correspondent noted, no reference to paramedics or any of the other health professions regulated by the Health Practitioner Regulation National Law.

When interpreting legislation, the words of the legislation have to be given their defined meaning.  A ‘medical practitioner’ is not a ‘health practitioner’.   The Health Practitioner Regulation National Law, adopted into Victorian law by the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) defines a health practitioner as ‘an individual who practises a health profession’ (s 5).  A health profession is any of the 15 professions regulated under that law, including medicine, nursing and paramedicine.  If the Children, Youth and Families Act 2005 (Vic) s 182 meant ‘health practitioner’ rather than ‘medical practitioner’, it would say so.

Conclusion

To include paramedics the Children, Youth and Families Act 2005 (Vic) s 182 would have to specifically refer to paramedics or to ‘a health practitioner as defined by the Health Practitioner Regulation National Law’ (or some such form of words).   In the absence of those words the list of mandatory reporters does not include registered paramedics.

For the same conclusion with respect to Western Australia see Paramedics as mandatory reporters of child abuse (November 27, 2018).

Today’s correspondent is a trainer who trains

… employees of clients on how to be fire wardens so to coordinate an emergency evacuation or to respond to an emergency in their workplace under AS3745:2010.  Indemnity from prosecution under the standard refers people onto their insurance provider, question is… are fire wardens being volunteer workers trained to respond to an emergency or coordinate an evacuation of the workplace, considered good Samaritans under the Civil Liability Act? Are fire wardens protected from prosecution under any other law if they acted with reasonable measure doing their best in an emergency?

The answer to those questions is ‘no’.

A good Samaritan under the legislation in each state and territory (other than Queensland) is someone who steps up to provide emergency first aid or medical care or in many states, ‘any other form of assistance to a person whose life or safety is endangered in a situation of emergency’ (to quote the WA Act); see

• Civil Laws (Wrongs) Act 2002 (ACT) s 5;
• Civil Liability Act 2002 (NSW) s 56;
• Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 8;
• Civil Liability Act 1936 (SA) s 74;
• Civil Liability Act 2002 (Tas);
• Wrongs Act 1958 (Vic) s 31B;
• Civil Liability Act 2002 (WA) s 5AB.

I think in most cases a bystander who saw a building was on fire and ran in to the building to notify the occupants and assisted them to evacuate even though no one was injured would meet the definition of a good Samaritan and that most people would expect that they should be considered good Samaritans, so I will assume, for the sake of the argument, that in every case the definition does in include that behaviour.

So are fire wardens good Samaritans?  The answer is ‘no’ because they are doing the task as part of their job, even if they don’t get paid extra for it.   It is the person conducting the business or undertakings responsibility to have emergency procedures and he or she can only do that by using the staff of the undertaking.  They are not acting as ‘good Samaritans’ – the volunteer who steps out of the crowd with no obligation and not expectation – rather they are at work.

As for prosecution I suspect that’s the wrong word.  One gets prosecuted for criminal conduct and I cannot imagine what crime my correspondent has in mind.  If one means civil liability (given the references to the Civil Liability Acts) then one has to consider the question of ‘liability for what?’

The law of negligence only sees someone liable for failing to act reasonably in the circumstances.   Further (Leishman v Thomas (1958) 75 WN (NSW) 173 at p. 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.

If the warden ‘acted with reasonable measure doing their best in an emergency’ then there is no negligence so no liability.

In any event, a worker who is the workplace fire warden will not be liable for any negligence, his or her employer will be – see Vicarious liability for the actions of fire wardens (March 5, 2016) see also all the posts on vicarious liability – https://emergencylaw.wordpress.com/?s=vicarious+liability

Conclusion

The fact that I’m asked this question by a trainer implies that students are still asking ‘will I be sued if …’  If we look at all the cases where fire wardens have been sued we find … there are none.  Of course they won’t be sued.  What could they possibly do that would make the situation worse?  Deliberate or criminal misconduct excepted, there is no risk of liability, not because there is some ‘immunity’ but because the law of negligence doesn’t impose liability on everyone if there is a bad outcome.  It’s more nuanced than that.  In any event they are employees and their employer will be liable if there is any negligence.

 

 

 

Today’s correspondent asks:

… if two paramedics respond to a case, and during their care one of them is seriously injured (let’s say they are responding to a patient in cardiac arrest following an unknown industrial accident, and during care one paramedic is accidentally electrocuted and becomes unconscious), is there any legal guidance on the responsibilities of the second paramedic in regards to who they chose to treat?

For example, I would assume that the remaining paramedic would now care for their partner (the paramedic), even if it meant that the patient was not cared for at all until back-up arrives.

Is there any legal guidance on this? I assume that our duty of care to the patient is superseded by scene safety and therefore the patient is always at a lower priority than the crew.

It is certainly NOT the case that ‘our duty of care to the patient is superseded by scene safety and therefore the patient is always at a lower priority than the crew’.  If scene safety were the issue and paramedic 2 was electrocuted, then presumably paramedic 1 would withdraw until the scene could be made safe.

The duty to the two patients has to be the duty any paramedic owes in a situation where the number of patients exceeds the number of paramedics on scene. The issue would be determined by the principles of triage and assessing clinical need.  Patient and the safety of the treating paramedic will come into it.  If there is a patient that ideally should be treated with higher priority but he or she cannot be safely accessed, then a paramedic would treat the other patient first.   And if it is too dangerous for the crew to enter then that is fair enough.

In this scenario however, assuming Paramedic 1 is no longer at risk, the decision to treat should be based on principles of need and triage, not that Paramedic 1 owes some predominant duty to paramedic 2 over and above any duty owed to patient 1.  A critical ethical principle in medical care is ‘justice’ that is giving aid to those that need it on the basis of their need and not for judgements to do with status, personal loyalty etc.  It would be understandable if paramedic 1 sought to treat his or her friend and colleague first, that may be a natural inclination, but it is certainly not going to be a legal duty.  And if paramedic 2 is clearly not as badly injured as the original patient, such that triage would say treat the original patient first, it may be a breach of duty to that patient to withdraw treatment in favour of a colleague.

For a related discussion see – Gabriella Marchant ‘Paternal instinct’ led Hindley Street doctor to treat his daughter first, inquest hears’ ABC News (Online) 14 Feb 2019.

 

 

Today’s correspondent has questions regarding current recruiting by St John Ambulance (WA).  St John (WA) offers a number of entry pathways.  They are (https://changelives.stjohnwa.com.au/changelives/employment)

• Student ambulance officer
• Paramedical Science degree graduate entry and
• Registered nurse and allied health professional pathway

St John (WA) is currently hiring “student ambulance officers” (https://changelives.stjohnwa.com.au/changelives/employment, open to 1 April 2019).

My correspondent is already a registered paramedic but they have been told they are ineligible to apply for this position which, amongst other things, requires candidates to complete the paramedicine degree at Curtin University.  My correspondent has been told that if they were ‘eligible I would be required to complete another bachelor degree in paramedicine’.  I’m not sure but I would suspect Curtin University would be reluctant to allow someone to enrol if they already had an equivalent degree, but we don’t need to explore that further.

The problem for my correspondent is that St John are advertising for people to join their student program, rather than their program for paramedicine graduates.  My correspondent is a registered paramedic but cannot apply.  My correspondent says:

The issue I see is that there is a state-wide shortage of qualified and paid paramedics in one of, if not, the largest state and/or territory, less an entire nation in the world. This has previously been identified by the Western Australian Department of Health and Western Australian Country Health Service (WACHS).

Personally, I have travelled and worked in and around remote Western Australia for private companies who are predominantly conducting mining operations and can verify there is a lack of registered-qualified-paid paramedics and volunteer ambulance personnel in rural localities where one would expect there to be.

So, how can the state of Western Australia allow a significant disparity of health workers across the state, which is not merely due to town numbers etc.; and, whilst at the same time – I a well-qualified registered health professional am unable to get work in which the state I was born and grew up in, which I studied my degree in?

The first point is that the State of Western Australia doesn’t operate an ambulance service, it contracts St John Ambulance Australia (WA) to provide ambulance services in that state.  And it is up to St John to decide what its recruitment needs are and how it is going to meet its obligations to the state and the community.  It does not mean that St John has to employ every graduate paramedic who asks for a job.  St John (like any organisation) has a budget and resources and has to choose how to allocate those resources.  One may say that a state the size of WA should have more paramedics but there are only limited resources in the state’s budget and no doubt limited resources in the budget of St John.

How governments allocate their budget is not a legal question – that is you cannot sue a government and argue that they should put more resources into paramedics and therefore less into some other area of government operations (see Civil Liability Act 2002 (WA) s 5W).  There is no legal argument that the State of WA should fund St John to provide more paramedics than it currently does.

Equally St John has to use its resources to meet the demands on its services.  That is not only employing paramedics but all the people that support the service and allocating those resources as they see fit and in accordance with the demands of any agreement with the State.  Some may argue (some have argued) for example that St John should not use volunteers (see The role of volunteers and others in ambulance services with upcoming paramedic registration (June 10, 2018)).  But there is no law that says that they cannot.  They have to work out how they will serve the community with the resources that they have.  Others may think that other decisions would be better but ultimately it is up to St John subject to terms of its agreement with the state of WA (see Paramedic Service levels in WA (February 22, 2018) for a link to the  Services Agreement Between State of Western Australia and St John Ambulance Western Australia Limited (1 July 2015 to 30 June 2018) and for a discussion on staffing levels).

Conclusion

St john have a number of entries to a career as a paramedic. Today they are advertising for people to come in and join their ‘student ambulance officer’ program. No doubt there are reasons behind that decision and reflections on how that helps their workforce planning. The fact that there are people like my correspondent, that is registered paramedics who would like to work with St John (WA), does not mean that St John has to employ them as well as, or instead of students.

This simply is not a legal question.  It is a policy question.  The State of WA choses to contract with St John (WA) to provide ambulance services.  St John has to meet its contractual obligations but how it does that is up to St John. How they manage their workforce is also a matter for them.  If anyone thinks St John, or the government are doing a bad job in that regard their recourse is to take it up with the Minister and, ultimately, run for office.  There is no legal remedy to be pursued.  That St John wants to employ people as student paramedics rather than graduate paramedics does not give rise to any legal rights in, or obligations to, graduate paramedics who would like a job.

 

 

Today’s question is about affidavits, statutory declarations and witnessing documents.   Some background:

Many people think that the role of a Justice of the Peace (JP) or anyone else signing a statutory declaration or affidavit is to witness the signature of the person making the declaration. That is not correct.

An affidavit is a document generally intended to be admitted into court.  The person signing the document (‘the deponent’) sets out the evidence that they could give in court.  If you appear in court you have to take an oath or make an affirmation to tell the truth.  An affidavit must also be verified by oath or affirmation, that is the deponent must make a promise that the contents of the affidavit are true and correct.  The role of the person who ‘witnesses’ the affidavit is to administer that oath. If the oath is administered and the person has made a false statement then they have committed an offence; if it turns out there was no oath or affirmation, then no offence is committed.

A statutory declaration is a similar document but generally not intended for use in court.  Government departments and others may require a statutory declaration in order to ensure that the deponent understands the seriousness of the matter.  The person authorised to witness the document is required to administer the declaration required by the Act, not merely witness the signature.  If the declaration is not properly made, there is no offence even if the content of the Statutory Declaration is wrong or false.

The importance of making these declarations properly was addressed in DPP v Marijancevic, Preece and Preece [2011] VSCA 355 where failure to take the oath when completing affidavits in support of an application for a search warrant meant that the warrant was not properly issued and the evidence against the accused was excluded from their trial.  The trial judge said:

To take an oath binds the conscience. Our whole court system relies on oath taking, whether in the witness box or by affidavit. To admit the evidence here, in the face of a systemic practice of avoiding the taking of an oath when making affidavits, would strike at the very heart of the system of taking evidence.

Today there are statutory schemes governing oaths and the making of affidavits and statutory declarations.  These schemes exist in each state and territory and for the Commonwealth.  If a person is giving evidence in a Commonwealth court or filing a statutory declaration to support an application to a Commonwealth government department they will need to comply with the Commonwealth’s legislation.  If the matter is state based then they comply with state legislation, though in most cases a government would accept a document completed under another jurisdiction’s legislation as the person has still taken an oath and can be prosecuted for making false or misleading statements.

That, finally, brings me to today’s question:

Can an emergency services employee (noting that in my understanding a volunteer counts as a permanent employee in the eyes of the law) witness a statutory declaration as per the Statutory Declarations Regulations 2018 schedule 2, part 2 – other persons, item 31. A quick google search points me to this Wikipedia page – https://en.wikipedia.org/wiki/List_of_Victorian_government_agencies – on Victorian government agencies. Under the above schedule and item 31 would a member of the State Emergency Service as a volunteer with 5 years continuous service be able to function as a ‘permanent employee of a state authority’ as suggested in the above schedule?

Would this also apply to Paramedics (registered)?

Certification of documents is outlined in the Oath’s and Affirmations Act 2018 however it is quite vague referring in Part 5 – Certification to Authorised Certifiers however lists of such persons are not included in the document. instead, reference is made to affidavit takers, statutory declaration witnesses, other persons, and prescribed persons. The first two groups are included in the act under their relevant subsections however the last two groups “Other persons” and “prescribed persons” does not seem to have a list available.

I ask as I can imagine the intention of lawmakers when drafting this legislation was to ensure that people of “good sted and integrity” are certifying documents or witnessing statements/declarations. I feel that emergency services workers both volunteer and paid would fall into this category.

This question is reproduced as, with respect to the author, it demonstrates several errors that I need to address.

First a volunteer does not ‘…count as a permanent employee in the eyes of the law’.  A volunteer is not an employee. There are many similarities and there have been laws to bring them together.  For example under the model Work Health and Safety legislation of 2011 (which has not been adopted in Victoria) the term ‘worker’ is used.  That term is defined to include a ‘volunteer’ but that is because a volunteer is not equated to an employee.  If they were the Act would not need to try and define a different term.

Equally volunteers in the emergency services get workers compensation as if they are employees. But if they were employees there would not need to be special legislation to ensure that they too are covered – see for example Country Fire Authority Regulations 2014 (Vic) r 75.  There is no rule of law, either common law or statute law, that says ‘a volunteer counts as a permanent employee in the eyes of the law’.

Commonwealth law

My correspondent’s reference to Victorian government agencies listed on Wikipedia tells me that they come from Victoria, but they refer to the ‘Statutory Declarations Regulations 2018 schedule 2, part 2 – other persons, item 31’.  The Statutory Declarations Regulations 2018 are Commonwealth regulations.  The relevant part of the Statutory Declarations Regulations 2018 (Cth) says that, amongst others, a person authorised to take a statutory declaration includes

31. Permanent employee of:

(a) a State or Territory or a State or Territory authority; or 

(b) a local government authority; with 5 or more years of continuous service, other than such an employee who is specified in another item of this Part…

32. Person before whom a statutory declaration may be made under the law of the State or Territory in which the declaration is made.

Does this include a volunteer member of Victoria’s emergency services?   Paragraph 31 could be applicable if ‘a volunteer counts as a permanent employee in the eyes of the law’ but as noted that is not the case.  The person has to be a ‘permanent employee’.

The Statutory Declarations Regulations 2018 (Cth) Schedule 2, Part 1 lists some health practitioners as persons who can take an affidavit.  Paramedics are not yet on that list.

Victorian law

To understand who can make a statutory declaration under Victorian law one needs to look at the Oaths and Affirmations Act 2018 (Vic) and the Oaths and Affirmations (Affidavits, Statutory Declarations and Certifications) Regulations 2018 (Vic). The Act, s 19, lists who can take an affidavit.  That list includes ‘any prescribed person or person who is a member of a prescribed class of persons’.  To see who is ‘prescribed’ we look to the regulations.   Regulation 5 says that authorised affidavit takers include a ‘public service employee [of] level 4 or equivalent or above’ and ‘officers and employees appointed or employed by the Country Fire Authority with a classification of level 7, however described’.  Presumably an ‘officer’ of the CFA need not be an employee.  If all officers were employees there would be no need to say ‘officers and employees’.

A person authorised to take an affidavit is also authorised to administer a statutory declaration (s 30) and to certify that a copy is a true copy of an original document (s 39).

Conclusion

My correspondent asked

… would a member of the State Emergency Service as a volunteer with 5 years continuous service be able to function as a ‘permanent employee of a state authority’ as suggested in the Statutory Declarations Regulations 2018 (Cth)?

The answer to that question is ‘no’.

With respect to taking an affidavit or statutory declaration or certifying a document as a true copy in Victoria, an officer of the CFA ‘with a classification of level 7’ can do those things.  That does not extend to any member of the CFA, or Victoria SES or a paramedic.

A volunteer with the Victoria State Emergency Service with 5 years continuous service is not authorised under Victorian or Commonwealth law to take an affidavit or statutory declaration or to certify copies as true copies of the original.