Today’s question arose in

…  light of the recent murder in Melbourne. Can you go through the comparing courtesies versus mandatory actions following crimes? We often provide statements and documentation as a courtesy following official requests yet it has always been an impression that in a crime scene police have more authority when it comes to evidence, taping of scenes for example and seizing equipment and belongings until released.

I’ll answer this question in the context of Victoria.

Specific ‘crime scene’ powers are provided for in

• the Australian Capital Territory (Crimes Act 1900 (ACT));
• New South Wales (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW));
• the Northern Territory (Police Administration Act 1978 (NT));
• Queensland (Police Powers and Responsibilities Act 2000 (Qld)); and
• Tasmania (Police Offences Act 1935 (Tas)).

In general terms, when police exercise crime scene powers they can cordon off an area to restrict access, seize items found in the crime scene and interview people found in or near the crime scene.

There is no mention of ‘crime scene’ (in a relevant context) in Western Australia, South Australia or Victoria.  It is clear that Victoria police do, as they must, cordon off crime scenes, seize evidence and take steps to ensure that the scene is not contaminated (see for example, R v Alexander [2006] VSCA 142, [69]) but I cannot see where they have any specific, statutory authority to do that.  The power, to the extent there is any, must come from common law and be implied by the duties of constable and the obligation upon Victoria police to ‘uphold the law so as to promote a safe, secure and orderly society’ (Victoria Police Act 2013 (Vic) ss 8 and 51).

A brochure on Police powers: Your rights in Victoria (2017 Victoria Legal Aid) suggests Victoria police have very limited powers.  “Victoria Police policies and procedures are published in the Victoria Police Manual (VPM)” (https://www.police.vic.gov.au/policies-procedures-and-legislation).  Unfortunately I cannot access the VPM so I do not know what it says about crime scene powers (if any).

In Victoria police can require a person to give their name and address where the police officer believes that the person ‘may be able to assist in the investigation of an indictable offence which has been committed or is suspected of having been committed’ (Crimes Act 1958 (Vic) s 456AA).  Police cannot detain a person who is not under arrest for an offence (s 464I).

According to the Victims of Crime website (https://www.victimsofcrime.vic.gov.au/police-investigation/collecting-evidence):

Some items of your property may be related to a crime. If so, the police may need to take these for use as evidence at court. Police must give you a receipt if they take away any of your property. If the property is needed as evidence at court, you may not be able to have it returned to you until after the case is finished. You can expect that the police return your property as soon as possible.

Unfortunately they don’t say what legislation gives police the power to detain property.  Where police do think there is evidence of a crime they can obtain a warrant that allows them to seize that property – Crimes Act 1958 (Vic) s 465.

What follows is that no-one is obliged to cooperate with police or answer their questions other than to provide their name and address where s 456AA, above, applies.  That is true for everyone including paramedics.  If police ask paramedics for a statement as to what they observed and did one would expect that paramedics would indeed assist but they are not compelled to do so.    They may chose not to if for example the police want a statement about what a patient said whilst in the ambulance and to give the statement would breach the patient’s right to keep the communication confidential- see

• Paramedics and Patient Confidentiality number 2 (July 23, 2015); and
• Paramedic providing a statement to Queensland police (June 16, 2017).

Equally paramedics may want to report to police what they observed in the course of their duties due to the serious nature of any offence, but equally, they may not – see Discovering crime during an emergency response (July 19, 2016).

If items held by the paramedics will assist in the investigation, Victoria police would need to issue a subpoena or obtain a search warrant to compel production of those items.

A paramedic from Western Australia (I don’t know what organisation my correspondent works for) is being asked to provide immunisation services.  My correspondent has:

… been asked to complete the “on-line update” training on providing immunisations designed for providers who are already trained, however, I have not completed the initial training course (aimed at registered nurses and pharmacists – as per WA health information from their website). I do hold a bachelor degree in paramedical science, and have participated in consistent on-line and group cpd,; as well as being ALS 2 Qualified.

My new employer has been requesting me to complete the “short on-line update course” and I am told that will be fine, however, I was taught to be cautious and I want to know where I stand in legal terms of providing an immunisation i.e ADT or Twinrix booster whilst only completing the update for already accredited immunisation providers.

I am skilled in IM injection administration; I am well versed in managing life-threatening conditions I.e anaphylaxis; seizures; and other conditions that may be associated with adverse reactions to immunisations; and I have full AHPRA registration; a PRODA Account (to register to update the Australian Immunisation Register). Likewise, for what it’s worth I do have personal liability insurance, although I am by definition an employee.

The administration of an (S4) Immunisation would be over sighted via a telephone consult by an Occupational Medical Doctor where no SASA is in writing (structured administration and supply arrangement).

Could you please advise what is a registered paramedic’s best course of action to take; especially if they are under pressure to complete the “abbreviated update training” within two days, where their new employment may be dependent on having the training done, which may not be in my understanding the correct pathway to be deemed competent under the department of health, especially when applying to update the Australian Immunisation Register (AIR) etc.

The WA health department provides details on ‘Immunisation education’ on its website at https://ww2.health.wa.gov.au/Articles/F_I/Immunisation-education.  That website says

WA Health provides immunisation education to health professionals within the State.

This includes a comprehensive immunisation course for immunisation providers…

The listed courses for health professionals are courses for nurses, midwives and Aboriginal health workers. The website also provides details for recognition of prior learning and ‘Immunisation clinical competency assessment’. The options for RPL is available for ‘Immunisation providers who hold immunisation course certificates from outside Western Australia’.  That is not my correspondent. The option for clinical competency assessment is a tool to ‘assist individuals in identifying levels of competency in their immunisation practice’.  It is not an alternative to an appropriate immunisation course.

The website also provides information on ‘Immunisation Education Update Day webinar series’ and ‘Online immunisation update’.  I infer that it is the ‘Online immunisation update’ that my correspondent has been asked to complete.  The information for that program says:

The Immunisation Update (external site) has been developed by the CDCD [Communicable Disease Control Directorate] and is offered free of charge. Providing WA immunisation providers with this update creates an opportunity for 24/7 access to current immunisation education. The online version creates a solution to the provision of immunisation updates, in an efficient and effective manner to immunisation service providers.

Although nurses with immunisation certification are required to undertake an annual update to maintain their certification, the update is also available to all immunisation providers as a tool to increase immunisation knowledge.

The update comprises of 4 modules including scenarios and quizzes. It will take approximately 4 hours to complete and can be done over multiple sessions.

It seems clear that this is not intended to replace the ‘initial training course’.

On the web page providing ‘Immunisation provider information and resources’ the Department of Health says

The CEO of Health has issued the below SASAs [Structured Administration and Supply Arrangements] to authorise certain Registered Nurses and Midwives to administer vaccines in accordance with the Medicines and Poisons Regulation 2016. Providers who are eligible to work under the relevant SASA are encouraged to familiarise themselves with the requirements.

(The relevant SASAs appear to be:

1. Registered Nurses – vaccination (Word 91KB)
2. Midwives – vaccination (Word 90KB) but see also
3. Pharmacists – influenza vaccination (Word 89KB)).

That means that those nurses and midwives authorised by the SASA can possess, supply and administer the vaccinations on that authority.  This will not extend to my correspondent who is a paramedic but not a nurse nor a midwife.

Twinrix is ‘inactivated hepatitis A and recombinant DNA hepatitis B vaccine’ (https://au.gsk.com/en-au/products/our-prescription-medicines-and-vaccines/vaccines/twinrix/).  Hepatitis A and B vaccines are listed in Schedule 4 of the Poisons Standard (21 December 2018, https://www.legislation.gov.au/Details/F2019L00032).   Schedule 4 poisons are ‘Prescription Only Medicine’ (cl 1.3).

In WA (Medicines and Poisons Act 2014 (WA) s 27):

An employee or agent of a health professional acting within the scope of the employee’s or agent’s actual or apparent authority, may do anything that is authorised by the professional authority of the health professional, other than to prescribe a medicine.

If my correspondent was employed by a medical practitioner then my correspondent could possess, supply and administer the medication provided it was the doctor who actually determined that the medication was warranted ie prescribed the medication. However I doubt that my paramedic is actually employed by a medical practitioner.

Assuming that my correspondent’s employer is a ‘health service’ then the health service can issue a SASA authorising my correspondent, as an employed health professional, to carry, supply and administer schedule 4 drugs (Medicines and Poisons Regulations 2016 (WA) r 34 and r 62).   Administration of a schedule 4 drug must be on the direction of a ‘prescriber’ (relevantly a doctor) or in accordance with a standing SASA (rr 15 and 62).

That is a long way of saying that:

1. If my correspondent’s employer is a health service (a term that is not defined) and
2. If there is in place a SASA authorising my correspondent as a paramedic to administer, possess and supply the schedule 4 immunisation drugs; and
3. If there is a direction from a prescriber (in the absence of independent authority in the SASA) to administer the immunisation; then

It can be lawfully administered.

But that does not answer the critical question of whether my correspondent is competent to administer the drugs.  My correspondent says

I do hold a bachelor degree in paramedical science, and have participated in consistent on-line and group cpd, as well as being ALS 2 Qualified… I am skilled in IM injection administration; I am well versed in managing life-threatening conditions i.e anaphylaxis; seizures; and other conditions that may be associated with adverse reactions to immunisations; and I have full AHPRA registration; a PRODA Account (to register to update the Australian Immunisation Register).

Paramedic registration under the Health Practitioner Regulation National Law does not define scope of practice.  The Code of Conduct (Interim) issued by the Paramedicine Board (June 2018) says (at [1.2]):

Practitioners have a responsibility to recognise and work within the limits of their competence and scope of practice. Scopes of practice vary according to different roles … To illustrate, in relation to working within their scope of practice, practitioners may need to consider whether they have the appropriate qualifications and experience …

Paragraph [2.2] says:

Maintaining a high level of professional competence and conduct is essential for good care. Good practice involves:

a) recognising and working within the limits of a practitioner’s competence and scope of practice, which may change over time

b) ensuring that practitioners maintain adequate knowledge and skills to provide safe and effective care

c) when moving into a new area of practice, ensuring that a practitioner has undertaken sufficient training and/or qualifications to achieve competency in that area…

The Continuing Professional Development registration standard (17 May 2018, p. 1) says that a paramedic must chose CPD that ‘contributes directly to improving your competence (performance and behaviour) and keeping you up to date in your chosen scope and setting of practice.’

As a registered professional it is up to my correspondent to determine whether he or she is comfortable and feels competent to administer immunisations in accordance with the SASA issued by his or her employer.  If not it is up to the paramedic to raise that with the employer and undertake CPD to gain that competence.  Who pays for that training and on whose time it is completed is a matter for negotiation between the employer and employee.

“The administration of an (S4) Immunisation … over sighted via a telephone consult by an Occupational Medical Doctor” is lawful provided there is an SASA in place to authorise the paramedic to carry, supply and administer the listed medication, albeit administration is on the direction of a doctor.

Whether the ‘short on-line update course’ is sufficient to give the paramedic confidence and competence to administer the immunisation is a matter ultimately for the paramedic who is responsible for his her professional development and scope of practice.

The difference for nurses and midwives is that if they do the courses offered by WA Health they can take advantage of the SASAs issued by the CEO of Health and can independently authorise the administration of the immunisation.

Today’s correspondent asks me to

… discuss Victoria’s use of ‘Non-emergency Patient Transport” companies in 000 emergency call outs?

Private companies are now dispatched daily to facilitate emergency room admissions consisting of any possible diagnosis including elderly broken hips, severe back pain, people undergoing radiation and chemotherapy complications, pregnant women with abdominal pain and bleeding, patients undergoing severe psychiatric episodes and paediatric emergencies…

I work for a private provider and I am curious as to the legalities of using these severely under-resourced and under-qualified resources as a means of attending emergency jobs and supposedly easing pressure on emergency ambulances and their ability to have improved response times to code 1 cases. 8 of my last 10 jobs have been referred back to an emergency ambulance, and my employer informs me that in the last 3 days, 120 cases have been referred in-field back to emergency crews leaving patients in pain or delaying attendance at ED significantly as non-emergency crews have minimal means of intervention and are bound by stringent protocols that do not allow transport if patient vital signs are out of range …

My correspondent also provides details of workloads, time on shift, overtime, double loads etc but I can’t address everything and I don’t think those issues are relevant to the question of ‘the legalities of using these severely under-resourced and under-qualified resources as a means of attending emergency jobs’. They are industrial issues beyond the scope of this blog and arguably beyond the scope of Ambulance Victoria as Ambulance Victoria is not the licensing authority for NEPT providers. Licenses are granted by the Secretary of the Department of Health and Human Services (Non-Emergency Patient Transport Act 2003 (Vic) s 13).

The Ambulance Services Act 1986 (Vic) s 15 says that the objectives of ambulance services in Victoria are

(a)          to respond rapidly to requests for help in a medical emergency;

(b)          to provide specialized medical skills to maintain life and to reduce injuries in emergency situations and while moving people requiring those skills;

(ba)        to provide safe, patient-centred and appropriate services;

(c)           to provide specialized transport facilities to move people requiring emergency medical treatment;

(d)          to provide services for which specialized medical or transport skills are necessary;

(da)        to foster continuous improvement in the quality and safety of the care and services it provides;

(e)          to foster public education in first aid.

Not everything in that list is about an emergency.

Ambulance Victoria operates a fleet of ambulances and employs paramedics but there is nothing in the Act to say that using the Ambulance Victoria fleet is the only way that they can respond to a request for ambulance services.  It is well known, for example that the Metropolitan Fire Brigade form a crucial part of Ambulance Victoria’s response to calls for assistance.

The Non-Emergency Patient Transport Act 2003 (Vic) provides for licencing of non-emergency patient transport (NEPT) providers.  Non-emergency patient transport service means (s 3):

a service that offers or provides for—

(a)          the transport of persons on public roads to or from medical services—

(i)            using a stretcher carrying vehicle; or

(ii)           where the persons being transported are provided with specialist clinical care or monitoring while being so transported; or

(b)          the transport of persons by air to or from medical services where the persons being transported—

(i)            are transported on stretchers; and

(ii)           are provided with specialist clinical care or monitoring by the person operating the transport service

The definition does not refer to the patient’s condition being not urgent.    Neither the Ambualnce Services Act nor the Non-Emergency Patient Transport Act define ‘emergency’.  The Non-Emergency Patient Transport Regulations 2016 (Vic) defines low, medium and high acuity patient.  A high acuity patient (r 8)

requires—

(a)          active management or intervention; and

(b)          one or more of the following—

(i)            cardiorespiratory support;

(ii)           a higher level of care than that required for the transport of a medium acuity patient;

(iii)          observation and monitoring of an intravenous infusion that contains vasoactive agents;…

No doubt in some cases those people are very sick.

My correspondent is indeed correct that there are clinical conditions where an NEPT provider must not transport the patient (r 10) however transport may be authorised by a doctor, nurse or paramedic ‘working in the communications centre of Ambulance Service—Victoria’ where transport is ‘necessary to avoid the possibility of the patient dying or suffering an adverse event were the patient required to wait for a different form of transport or for assessment’ (r 10(5)).

What is an emergency?  Ambulance Victoria (like other ambulance services) operates a campaign to encourage people not to call triple zero except in an emergency.  They say (https://www.ambulance.vic.gov.au/campaigns/save-triple-zero-emergencies/):

People sometimes hesitate to call Triple Zero (000) because they are not sure if the situation qualifies as an emergency. If in doubt, always call Triple Zero (000). Call takers are trained to help you and will direct you to the appropriate assistance.

An immediate life-threatening emergency needing an ambulance may include the following:

• chest pain or chest tightness
• difficulty breathing
• extreme pain
• large burns
• serious accidents or trauma
• severe bleeding
• sudden numbness or paralysis of the face, arm or leg
• unconsciousness

Conditions such as ‘broken hips, severe back pain, people undergoing radiation and chemotherapy complications, pregnant women with abdominal pain and bleeding, patients undergoing severe psychiatric episodes’ arguably don’t fit those definitions (unless there is ‘extreme pain’) so are a ‘non-emergency’.  Ambulance Victoria also has in places process to triage calls to limit the use of emergency ambulances, they say (https://www.ambulance.vic.gov.au/wp-content/uploads/2017/06/revised-clinical-response-model-evaluation-report-faqs.pdf; emphasis added):

The Ambulance Victoria Referral Service is staffed by paramedics and registered nurses who assess less-urgent Triple Zero (000) calls. It is a safe and proven method of assessing these calls in greater detail to ensure we can meet the patient’s individual need and the urgency of their case. This may result in an ambulance being dispatched or referral to an alternative service, such as a locum doctor or nurse, provision of self- care advice, or return of the case for either emergency or non-emergency ambulance dispatch. The Referral Service has operated in metropolitan regions since 2003 and expanded to all regions of the state in April 2014.

An ambulance is ‘A vehicle equipped for taking sick or injured people to and from hospital, especially in emergencies’ (Oxford dictionary (online)).  An NEPT vehicle is a non-emergency ambulance.

It stands to reason that triple zero call takers and those in the Ambulance Victoria Referral Service have to make assessments of the patient’s condition based on incomplete information and sometimes inaccurate reporting by bystanders (see for example, Coroner reports on first aid and QAS response to death in care (May 21, 2019)).  No doubt some calls will be assessed as requiring an emergency ambulance when that is not the case, and some will be assessed as requiring a non-emergency response when that will also not be the case.   At least sending an NEPT provider gets someone there and if they report back that emergency paramedics are required then it is a form of effective triage.

So what are the ‘legalities of using these severely under-resourced and under-qualified resources as a means of attending emergency jobs?’  There are no specific legalities.  Ambulance Victoria is charged with providing ambulance services to the people of Victoria but that does not mean they are limited to only using its own staff and its own fleet.

As Ambulance Victoria says it tries to limit its resources to emergencies (not defined in law but with some guidance from their own publication).  It can, and does, rely on other resources and providers to help meet the legislated objectives including responding rapidly to requests for help in a medical emergency (see http://www.mfb.vic.gov.au/Community/Emergency-Medical-Response.html).  The use of NEPT providers to respond to requests for ambulance services may be seen to be consistent with providing ‘specialized medical skills to maintain life and to reduce injuries … while moving people requiring those skills’, ‘safe, patient-centred and appropriate services’ (where emergency paramedics are not ‘appropriate’) and ‘services for which specialized medical or transport skills are necessary’.

Clearly it’s legal to use NEPT providers, subject to the terms of their licence and the provisions of the Non-Emergency Patient Transport Act to respond to calls that are assessed as non-urgent.  There may be disputes as to what is ‘urgent’ or what is ‘appropriate’. Like all definitions they may be matters on which minds differ but the ultimate call on who to dispatch is a matter for Ambulance Victoria.

If NEPT providers are under resourced, under qualified or overworked that is matter for the service providers and the Secretary of the Department.

This is another coroner’s inquest that will be of interest to readers of this blog – Inquest into the death of John Davis, Queensland Coroners Court, 17 April 2019.

Mr Davis was a 50 year old man with ‘acquired brain injury from birth resulting in intellectual impairment and epilepsy, severe obstructive sleep apnoea, gastro-oesophageal reflux disease and osteoporosis’ ([1]).  He was living in supported care.  The circumstances of Mr Davis’ death were described at [3]-[8]:

At approximately 11:00am on 8 April 2018, Mr Davis and the three other residents at the facility were given lunch by their daily carer Mr Joseph Oderinde … Mr Davis was heard to collapse to the floor. Mr Oderinde found Mr Davis unresponsive. Mr Oderinde called 000 and monitored Mr Davis’ response with the assistance of the Emergency Medical Dispatcher (EMD). When it became apparent Mr Davis was not breathing he was instructed to perform cardiopulmonary resuscitation, which he did until the first paramedics arrived.

A total of three Queensland Ambulance Service (QAS) crews were eventually dispatched to the residence as Mr Davis deteriorated. When paramedics first arrived they found Mr Davis with a Glasgow Coma Scale (GCS) of 3 and in pulseless electrical activity (PEA). Mr Davis had no cardiac output and was noted to be difficult to ventilate. After initial difficulty with a faulty laryngoscope [where the light did not work so the paramedics could not ‘see below the oral cavity’ ([100])] and the attendance of a Critical Care Paramedic, a large piece of meat was cleared from the airway using a different laryngoscope. Mr Davis was subsequently easier to ventilate and returned to spontaneous cardiac activity.

Mr Davis could not be intubated at the scene and was successfully ventilated using a laryngeal mask airway. Apart from the difficulties in clearing the airway due to instrumental issues, there were some issues relating to proper documentation of the event on the Electronic Ambulance Report Form (eARF)…

Mr Davis was transferred to the SCUH and was noted to be spontaneously breathing and easy to ventilate with the laryngeal mask airway. He remained at a GCS 3 and was intubated.

A CT scan revealed changes consistent with significant brain injury due to the period without blood and oxygen supply, known as hypoxic-ischaemic encephalopathy. The CT scan also revealed that changes related to his previous brain injury, which was reported as being stable in comparison with scans taken in January 2014 (over 4 years earlier).

Mr Davis made no significant recovery and died at 00:50am on 10 April 2018.

The Coroner investigated many aspects of Mr Davis’ care but relevant to this blog is the discussion around CPR and the QAS response.  A review by QAS found (at [101]-[102]):

• Officers Lahood and Nightingale failed to adequately identify and manage a patient with a foreign body airway obstruction.
• The primary patient care eARF was of significantly poor standard with major errors and admissions.
• Officers Lahood and Nightingale failed to self-report this case as a clinical incident.

Additionally, significant and vital equipment failure occurred during the incident (probable flat laryngoscope batteries), with no documented pre-shift vehicle and equipment check for that day.

In reviewing the evidence it was clear that there were communication difficulties between Mr Oderinde and the EMD.  There was conflicting reports back to the EMD as to Mr Davis condition.  At times MR Oderinde reported that Mr Davis was breathing when the sounds on the recording of the triple zero call suggested that there was no effective breathing.  With respect to Mr Oderinde’s response the coroner said (at [150]-[154]; emphasis added):

It is apparent Multicap [the operator of Mr Davis’ accommodation] ensures all its DSWs [Disability Support Workers] have up to date First Aid and CPR training…

DSWs do not provide clinical care and could not be expected to in the circumstances. The appropriate policy in place was for DSWs to follow their training and call emergency services.

In this case it is evident Mr Oderinde cleared the area to make it safe for CPR, checked the airway and rang 000. Mr Oderinde did not observe any obstruction and it is fair to say neither did Officer Lahood.

I find on balance that Mr Oderinde was wrong about the time he called 000 and it was much closer to 12:07pm than 11:52am. It may have been whatever time piece he used that showed this timing was incorrect. I accept there may have been a few minutes pass while he cleared some space, placed him in an appropriate recovery position and checked his airway, and there may have been some time before the 000 call went through to QAS but I do not believe Mr Oderinde did nothing for a number of minutes.

What happened from there was not optimal in that there was a clear difficultyin the transfer of accurate information between Mr Oderinde and the 000 EMD. What was evident to me, and a reason why Dr Rashford was asked to review the call, is that it was possible what I was hearing was perhaps agonal breathing some minutes before CPR commenced. Dr Rashford is of the opinion that was the case. I am not critical of Mr Oderinde in being unable to recognise this for what it was as it is clearly out of the scope of practice of DSWs to make such clinical judgments.

With respect to the QAS response the coroner said (at [155]-[161]):

The issue of the call received by the QAS EMD was very robustly analysed by Dr Rashford [Medical Director for QAS] where he concluded that on balance the call was not handled optimally.

Dr Rashford stated that from listening to the call the EMD found the case very difficult due to the conflicting information being presented. Having listened to it on a number of occasions I can only agree.

Dr Rashford found there were understandable human factors at play that resulted in a delay in recognising the choking episode complicated by cardiac arrest. Despite that, there was no delay to paramedics arriving on the scene.

Given Dr Rashford’s evidence about the significant education in this area that has been undertaken and is continuing to be developed, I do not see the need to further comment or consider further recommendations in this regard.

QAS also investigated the actions of the various paramedics at the resuscitation and subsequent to it. The investigation considered two paramedics failed to adequately identify and manage a patient with a foreign body airway obstruction. This finding is mitigated to some extent by the relative rarity of the paramedics coming across foreign body airway obstruction conditions and infrequent experience of real-time direct visualisation laryngoscopy by ACPs.

The two paramedics concerned have received further training in airway management and in the use of laryngoscopes and have otherwise been performance managed.

The evidence supports a finding that by the time paramedics arrived Mr Davis had been in cardiac arrest for some time and would have already suffered a degree of hypoxia from which it was unlikely he could recover. That being said, it evident the earlier CPR commenced (likely to have been ineffective until the obstruction was removed) and the earlier the removal of the food bolus obstruction occurred, then the better the chance of a more favourable outcome eventuating.

As with the inquiry into the State Mine Fire (see Two coroners inquests that may be of interest (May 21, 2019) the coroner was assisted by an agency inquiry, in this case the review by QAS, and their report on what training they had introduced generally, and specifically with respect to those involved in the case.  In light of the steps QAS had taken to ensure that their call takers and paramedics were informed and trained, the coroner said (at [162]) that he did:

… not consider any recommendations need to be made to QAS in respect to its findings on its investigation as there is clearly ongoing improvement processes as part of its organisational ethos and it is best placed to drive those forward

The coroner did recommend that other disability service providers consider adopting a checklist developed by Multicap to assist service providers ‘to identify future residents who may have swallowing/choking risks’ (see [164]-[165]).

Again, however, no adverse comments directed to Mr Oderinde, the paramedics or QAS.  A review of a tragic case where provided care was sub-optimal but with recognition of the factors that contributed to that and recognition of steps already taken by Multicap and QAS to improve future performance.  The coroner reviews past cases to make forward looking recommendations. Although coroners can make adverse findings and recommend criminal prosecutions, that is rare and doesn’t arise just because someone died and sub-optimal responses can be identified.

I am reminded of an earlier post – Confined space rescue – Queensland (May 13, 2019) where the question I was asked ended with ‘… would a company’s risk assessment stand up in coroners court when it follows processes outside/contradicting of industry best practice?’  One can’t be too specific, as I say coroners can make adverse findings (see 2003 Canberra bushfires, the coroner and litigation (June 26, 2009)) and can refer people to the DPP for possible criminal prosecution that is not the norm.  What one might expect if there appears to be a poor risk assessment is that the coroner would ask the company ‘and what have you done to fix the problem?’ and perhaps make recommendations for others to avoid similar, tragic circumstances (see also First aid and paramedic care – and coroners are not out to get you (December 1, 2018)).

The NSW Coroners court has published findings in two inquests that may be of interest to readers of this blog:

• The State Mine Fire, (also known as the bushfire starting at Marrangaroo Training Area), Lithgow on 16 October 2013 (14 May 2019); and
• Inquest into the deaths of Stephanie Jane King, Ella-Jane Kabealo and Jacob Matthew Kabealo (10 May 2019).

The Deputy State Coroner found (at [131])

… the State Mine Fire was caused on 16 October by a demolition serial conducted by ADF [Australian Defence Force] personnel at the Marrangaroo Training Area. The fire spread extensively, in particular having regard to the weather conditions over the period 16-17 October 2013, causing damage to property but no serious injury or loss of life…

After the fire the ADF held a Commission of Inquiry and the Rural Fire Service had conducted an After Action Review.  Because of these extensive reviews the Coroner said (at 12]

… there are no unresolved issues or matters which require further scrutiny or examination. There are no witnesses who have provided statements to this inquiry who should be examined. Accordingly, this hearing proceeded by the tender of the brief of evidence…

After reviewing the evidence the coroner made no recommendations or adverse comments regarding the conduct of the ADF, the RFS or of any individuals.  She said (at [131]) ‘Recommendations are neither necessary nor desirable having regard to the steps taken by the ADF, the RFS and local brigades.’

Ms King and two of her three children drowned when her vehicle lost traction on mud and silt that had been deposited on the road by floodwater.  The vehicle left the road and entered the Tweed River.  The road had not been closed by council who were not aware of the extent of mud and silt on the road.  Multiple emergency services attended including NSW Ambulance, Police, the SES and the Volunteer Rescue Association.

The Acting State Coroner made a number of recommendations directed to Tweed Council to improve their ability to better identify the state of the roads after flood events.  Again the coroner made no adverse comments regarding the conduct of the Council or any individual.   With respect to the emergency response she said (at [50]):

I am satisfied that the Police, the SES, the VRA and Ambulance, arrived as soon as they reasonably could, given the geography and ongoing access issues, and that they did everything they could to try to rescue the family. Their work is heroic and no doubt it was an extremely challenging and difficult job for each of those individuals involved.

These events impacted upon communities and emergency service personnel and will be of interest to readers of this blog.  This blog is however about emergency law – the coronial process is a legal process so they are reported here but the findings themselves made no findings or recommendations about the law or legal issues.  The issues were questions of fact so I don’t report them in detail but leave them to interested readers to follow the links, above, and read the coroners’ findings.

Importantly members of the emergency services often cite ‘the coroner’ as the person who will criticise them and further, that someone may have to explain themselves to the coroner is used as a threat of ultimate dire consequences.

In these two events many properties and three lives were lost. These were tragic outcomes that could have been avoided.  The ADF could have chosen not to detonate ordinance on a day of high fire danger.  The Tweed Council closed roads when water was over the road but did not inspect them when the water had rescinded to determine the state of the road after the flood.  Before the coroners both the ADF and the Council identified how the event occurred, their own shortcomings and what they had done to address those issues for the future.

The coroners reviewed the events, gave a public finding as to what happened and in the case of Ms King made recommendations that are intended to help inform others in order to reduce the likelihood of future deaths in similar circumstances.

The coroners did not make adverse findings against any individual.  The coroners did not find anyone or any institution liable – that is not what the coroner is there to do.  The coroners did not find anyone guilty of any offence – that is not what the coroner is there to do.  The coroner did not recommend any disciplinary or legal action against anyone or any institution.

Further this post, a correspondent has drawn my attention to an ABC Radio National Conversations podcast Inside the Coroner’s Court (27 November 2018) in which Hugh Dillon, retired NSW Deputy State Coroner, talks about the Court and explicitly mentions how emergency services can work with the coroner.

Following my post Operating a private fire brigade in SA (May 18, 2019) the online discussion, both on WordPress and on Facebook, took on a tone that I do not accept.  All those posts have been removed and to the extent that I allowed the ad hominem argument (‘a fallacious argumentative strategy whereby genuine discussion of the topic at hand is avoided by instead attacking the character, motive, or other attribute of the person’ asking the question) to continue, I apologise.

I remind people this is my blog and people write to me asking for my opinion.  The answer is public and necessarily incomplete.  I’m not giving legal advice and can’t get back to the correspondent to get a find understanding of every issue or develop a detailed scenario. Questions and answers are general, so inevitably there will be variations in given facts, or assumptions, that may lead to a different legal outcome.   Further, I may be wrong or have overlooked something.

In any of those cases others are welcome to write and say

• ‘but what if…?’ or
• ‘actually we do ‘x’ and we deal with the legal issues this way …’ or
• ‘we do ‘x’ but not in the circumstances you describe and that makes a difference’ or
• ‘I think you have missed section 123 of whatever Act…’ or the like.

That is, I invite anyone to contribute to answering the question.

What I don’t invite is an attack on the person asking the question or an attack on their motive for asking.  If you do ‘x’ and someone asks ‘is x legal?’ that does not necessarily mean that they are attacking you or looking for information against you, or that you or everyone should stop doing ‘x’.  They are asking ‘is ‘x’ legal?’.  And if my answer is ‘yes’, ‘no’ or ‘maybe’ you are welcome to explain how and why you do ‘x’ and how you deal with the legal issues.  Or you are welcome to say nothing at all.

No-one is welcome:

• to tell the person who asked the question that he or she is an idiot because they didn’t already know the answer;
• to ask ‘so what, you want no-one (or everyone) to do ‘x’, well that will be bad …’ or
• to say ‘the fact that you had to ask shows that you are part of the problem for ‘x’-doers….’

Even if you are the reason they are asking, even if you do actually know something of why they are asking, the appropriate response to is still to respond to the question, or say nothing.

Let us recall two rules that no doubt have been repeated to us all over the years, and use them to guide comments on this blog, on whatever platform:

1. The only dumb question is the one you don’t ask; and
2. If you can’t say something nice (and that addresses the question) don’t say anything at all.

Today’s correspondent is:

…looking for some guidance relating to the provision of private fire services. The state in question is South Australia. Can anyone start up their own private fire service and charge for their services and respond within the jurisdiction of a state fire service?

(I infer that this question does not relate to a private company, say a mine or owner of a large industrial complex, that operates a fire brigade to provide a first response to an emergency or fire that occurs on the worksite and forms part of the businesses emergency procedures as required by the Work Health and Safety Regulations 2012 (SA) r 359)).

My correspondent refers to anyone starting ‘up their own private fire service … within the jurisdiction of a state fire service’ and there are two state fire services.

The Fire and Emergency Services Act 2005 (SA) provides for the establishment of the South Australian Metropolitan Fire Service (SAMFS) and the South Australian Country Fire Service (SACFS) (and the South Australian State Emergency Service but that is not relevant for this discussion).  The South Australian Fire and Emergency Services Commission (SAFECOM) may define fire districts ‘for the purposes of the operations of SAMFS’.  Outside an established fire district, the SACFS is the relevant fire fighting authority (s 4).  In other words the ‘jurisdiction’ of the SAMFS is within declared fire districts; the ‘jurisdiction’ of the SACFS is outside declared fire districts.

Outside declared fire districts it is an offence ‘without the approval of the Commission or the Chief Officer of SACFS, be a member of a fire brigade … that is not an SACFS organisation’. For the purposes of that offence the term “fire brigade” ‘means a group of people equipped to deal with fires on behalf of a local community’ (s 134).  Whilst a person who wanted to set up a fire brigade and say provide contracted services to a work site may argue that is not dealing with fires ‘on behalf of a local community’ we can conclude, at least prima facie, that it is not lawful to for anyone to ‘start up their own private fire service and charge for their services and respond within the jurisdiction of’ the SACFS.

Interestingly there is no similar provision with respect to fire districts.  Section 34 says ‘The Chief Officer may establish a fire brigade within any fire district’ but it does not say that anyone else may NOT establish a fire brigade.

It appears then that a person could establish a fire brigade within the jurisdiction of the SAMFS but that would not be without its difficulties.  The Brigade would not automatically have the right to operate emergency vehicles (Road Traffic (Road Rules–Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) r 54 ‘definition of emergency worker’).  They would not have the right to take water for firefighting or exercise any of the other powers of a SAMFS officer (Fire and Emergency Services Act 2005 (SA) s 42), nor would they enjoy the protection from liability that applies to the SAMFS or SACFS (s 127). They would have to relinquish control to the SAMFS where that service attended any fire (s 41).

Further, although there is no equivalent to s 134 that applies within a fire district, there are other relevant offences. A person must not:

• falsely represent that he or she is a member of an emergency services organisation or other person with responsibilities under this Act (s 126(1)); or
• assume a name or description that consists of, or includes, official insignia (s 131(3); see also Emergency Management Act 2004 (SA) s 30).

A private fire brigade would need to take care in the design of any uniform, logo, insignia or decals that it could not be confused for the SAMFS or SACFS or give rise to an impression that they have responsibilities under the Act.

There is a prohibition on being a member of a private fire brigade in areas of South Australia that fall under the responsibility of the Country Fire Service (s 134).  I suppose that means anyone could ‘start up their own private fire service’ but they could not have any members of the brigade.

There is no equivalent provisions for areas of the state that fall under the responsibility of the Metropolitan Fire Service but there are many provisions that could make it difficult if not impossible for such a brigade to operate.  They would need to make it very clear that they are not part of the state’s emergency services structure or operating under the auspices of the Fire and Emergency Services Act 2005 (SA) unless they had the approval of SAFECOM.

As I mentioned in a previous post, Regulating first aid services in Victoria (April 17, 2019) Victoria is planning to introduce legislation to regulate the commercial first aid sector.  In that post I said ‘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.’ The forum was held on Tuesday 14 May.  This is my report.

Recognising that this was a very preliminary discussion, this is my interpretation of what was said.  There are no direct quotes nor is it any official or endorsed report.

The message from the speaker the Department of Health and Human Services was that there was a commitment to have legislation in place by 1 July 2020, but the content of that legislation was open to negotiation.  At this time nothing is written but they are engaging with the sector and those that engage first aid providers to inform a discussion paper to be released in June inviting feedback.

The proposal is to define standards of first aid.  At this stage they are taking about three tiers.  Here they did give these definitions:

Tier 1: Anticipated to cater for minor injuries and conditions.  Access to over-the-counter medicines. Usually managed by first responder (or similar titles), usually below health professional scope.  Call triple zero (000) for any emergency assistance. Minimum equipment may be defined (may include AED, EpiPen), Minimal clinical governance. Low licencing fee.

Tier 2: Anticipated to cater for moderate injuries and conditions, eg fractures, altered conscious state, serious bleeding. Stabilising patients and calling triple zero (000) for emergency assistance.  Drug permissions broadly equivalent to current NEPT [Non-Emergency Patient Transport] sector.  Significant clinical governance requirements.  Staffing provided to match event risk profile.  Minimum requirements for set up and equipment; and

Tier 3: Anticipated to cater for complex injuries and conditions eg critical illness, unconscious patients, behaviours of concern.  Use of critical care (including up to anaesthesia or IV sedation).  Emergency stabilisation prior to transfer. High level clinical governance.  Staffing provided to match event risk profile.  Minimum requirements for set up and equipment.  Reporting [on patient numbers and outcomes] to the Department.

(I note that the conversation confirmed that they were not committed to these definitions or to having three tiers.  There may be more (or less) depending on the outcomes of the consultations, but these are preliminary ideas to start the discussion).

The idea is that event organisers will need to conduct a risk assessment of their event, determine their first aid requirements and then engage an organisation licensed to provide Tier 1, 2 or 3 first aid as required.  Equally a first aid licensee will need to do their own risk assessment of the event and refuse an event if they assess a higher level of care is required.

It is organisations (including sole traders) rather than individuals that will be licensed.  Further, it was stated that there would be no inter-state exemption.  Anyone providing first aid services in Victoria would need to be licensed in Victoria.  The obligation will be upon licensees to ensure that all their volunteers and staff have relevant competencies and scope of practice to provide care at the contracted tier.

The speakers did agree that they wanted to ensure that they did not want to stop people doing first aid when they were aware that people needed care.  The aim is to regulate those that are providing first aid service to public events for ‘fee or reward’ (taking a broad view of ‘reward’) not those providing first aid at an unexpected event. They do not want to collect ‘mum and dad volunteers who get paid petrol money’ to stand by at the games played by their children’s teams.  They are also not seeking to regulate work places that are regulated by (in Victoria) the Occupational Health and Safety Act 2004 (Vic).  An employer who employs staff to provide first aid at the employer’s workplace will not be caught by the licensing requirements.

It was further noted that the licensing tiers would not stop first aiders providing care should injuries occur beyond the expected level.  For example, where a service provider was providing ‘Tier 1’ first aid, the first aiders would not be stopped from rendering first aid to a seriously injured person even though that was beyond the scope of their engagement.  If the expected risk of an event is ‘minor injuries and conditions’ but a person is in fact seriously injured, the first aiders will still have to respond and assist to the best of their ability.  The scheme is not designed to limit people’s capacity to preserve life as required.

There was a discussion of providing data to event organisers about patients both aggregated data (number of patients, type of injuries etc) and individual data.  The speakers took that on board as something the Act may be able to address.

Some people posted questions in response to my first post.  Again recognising these are not official answers but my answer based on my interpretation of what I heard:

Lets hope it flows through to training as well…

It was clear that it would not extend to training.  The Department of Health and Human Services was not in a position to regulate registered training organisations or training syllabi.

I hope it is broad in that it recognises the place of first aiders and the value of them, and doesn’t become overly burdensome from requiring much higher levels staffing and scope than are really needed. I hope it might also give small low risk events the confidence to operate with their own staff acting as first aid…

There is a risk, I suspect that the scheme would impose some burdens both in cost and what is required but that remains to be seen in the detail.  I did ask about staff employed by event organisers and whilst the detail is to be worked out I think the view was that if a person was employed by the event provider and was only providing first aid at that event then they would not be licensed as they are not in the ‘business’ of providing first aid.  We will need more detail before any conclusion on these issues can be drawn.

.. there is also the question of the level of insurance coverage and a minimum standard of equipment…

These issues are ‘within scope’ of the project.

I wonder how it will affect site-specific, employer-organised and funded first aid

That sort of first aid is not intended to be caught by this proposal. It’s not the delivery of first aid that is being regulated but the delivery by organisations that provide first aid to third parties for ‘fee or reward’.

… a pure volunteer service will not need a licence…

There was nothing said to suggest that a volunteer service will not need a licence.  If they are regularly providing first aid to third parties they will be caught up and need a licence.

I’m sure someone asked, but I can’t now find it, whether it would affect agencies like the CFA or SES where members may have to provide first aid as an ancillary part of their duties.  My answer would be no when it comes to first aid when fighting a fire or responding to any emergency, but it would if a brigade or unit wanted to provide first aid at a community event as a fundraiser (as described in Can NSW SES provide event first aid services? (November 13, 2016)).

Everyone should ‘watch this space’.  Whilst the Bill that is developed and passed will only apply in Victoria, once one jurisdiction leads the way, others may be expected to follow. A discussion paper is expected in June and then everyone will have more detail and the opportunity to respond to what will be more concrete proposals.

‘In November 2014, a 23 storey mixed-use building in Docklands, Melbourne (the Lacrosse Building) caught fire’.  In Owners Corporation No.1 of PS613436T v LU Simon Builders Pty Ltd (Building and Property) [2019] VCAT 286, the builders were found liable to the owners, but they were able to shift their liability to the fire engineer (39%), the building surveyor (33%), the architect (25%) and the person who ignited the fire with a cigarette butt (3%; but with no order requiring him to pay, the builders will have to cover that amount).

Rather than attempt to explain the decision myself, I refer readers to the analysis of the legal issues and outcome by Mills Oakely, solicitors, which you can read here.

No doubt this is only the first step in defining the liability and obligations of those in the building industries.  Mills Oakely say:

An appeal is highly likely and the decision is not binding on Courts in other jurisdictions. Caution must also be taken given the specific facts and contractual clauses that were pertinent to the finding.  Nonetheless, the case, and particularly the underlying rationale for the decision, has wide-ranging implications for industry professionals.  It presents a first look by the judiciary into a problem that is far more widespread than the Lacrosse Building and presents the best available guidance at this stage as to how these matters may well play out for owners seeking recovery of rectification costs, and for the potential liability of building professionals (and their insurers).

Today’s question comes in two parts:

1) In relation to determining liability can you please elaborate on the hierarchy of the below, which supersedes which, how they are used in eg coroner’s court & in situations where say there is no relevant/defined standard would following (Industry best practice) legally be justifiable & how is industry best practice determined?

> Australian Standards

> State Act’s & Reg’s

> State Codes of practice

> OEM Guidelines

> Industry best practice

> Employer Standard Operating Procures/ Safe Work Guides

2) I’ve come across this situation many times in different fields of Private industry Rescue, however currently in relation to company’s providing confined space rescue/standby (AS 2865 & QLD Confined space code of Practice 2011 don’t cover required numbers of rescue personnel).

I would consider professional state fire services standards “best practice”, in this case QFES. Would that be a correct thought pattern in the state of QLD & in the absence of any employer defined guides?

The QFES Breathing Apparatus manual & QFES Tech rescue manual confined space rescue working in pairs is a requirement & entry rescue teams are a minimum of 2 personnel.  However all private Industry Company’s I have come across only require 2 personnel total to conduct the job, so in the event a rescue is required a single operator would enter the confined space to perform the rescue.

Possibly the company have conducted a risk assessment and decided 2 personnel were sufficient & obviously there is a cost concern to support this train of thought, however should an incident take place & investigation follow would a company’s risk assessment stand up in coroners court when it follows processes outside/contradicting of industry best practice?

In a court of law, the court’s job is to apply the law – that is the Acts and Regulations and the common law developed by the judges.

Other matters, such as Australian Standards, Codes of practice, Guidelines, Industry best practice and Employer Standard Operating Procures/ Safe Work Guides are, subject to what I’m about to say, evidence that may be used (depending on the issue) to identify what should be considered best practice.  In an earlier post (Non approved PPE, the NSW RFS & Work Health and Safety (November 22, 2014) I said:

In an earlier post (‘Face masks for residents near the Hazelwood Mine fire, Victoria’ (February 26, 2014) I said:

… it may come as a surprise that Australian Standards are not legally binding. There is no general obligation to comply with Australian standards though there may be in specific circumstances. For example a motorcycle crash helmet must comply with Australian Standard 1698-1988 but that is because of a specific rule (Trade Practices Act 1974 – Consumer Protection Notice No. 9 of 1990 – Consumer Product Safety Standard: Protective Helmets for Motor Cyclists) rather than some general obligation to comply with the Australian Standards.

The relevance of the Australian Standards is that if there is an allegation that someone failed to act reasonably, whether that is in a claim for negligence or a prosecution for work health and safety standards, evidence of compliance with (or failure to comply with) an Australian standard may be evidence that the defendant’s response to a risk was (or was not) reasonable. It is not however conclusive evidence, compliance with an Australian standard does not prove a reasonable response to risk; evidence of failure to comply does not prove an unreasonable response to risk. It is just one factor to be considered in all the circumstances.

A search of the Australian Legal Information Institute (AustLII) using the search <“Australian standards” and negligence> brings up 996 cases which may sound like a lot but when one considers that is nearly all Australian tribunal and courts going back about 25 years and, in the case of the High Court, to 1901, it’s not really that many.  The cases (having looked at a view from the superior courts, not all 996) do as my correspondent has suggested, refer to the Australian Standards as evidence, but not conclusive evidence as to what may be required in particular circumstances.

The exception to that principle that Standards, Code of Practice etc are simply evidence arises when they are ‘called up’ by the legislation (for example as discussed with reference to the Trade Practices Act 1974  (Cth) (now repealed) in the above quote).   The Work Health and Safety Act 2011 (Qld) s 274 provides that the Minister may approve relevant Codes of Practice.   Where a person is prosecuted for breach of a duty under that Act an ‘approved  code  of practice is admissible in the proceeding as evidence of whether or not a duty or obligation under this Act has been complied with’ (s 275).

To put the list in a hierarchy it would be:

1. State Acts & Regulations;
2. Australian Standards, State Codes of practice, OEM Guidelines, Industry best practice, and Employer Standard Operating Procures/ Safe Work Guides to the extent that they are specifically called up in legislation;
3. Australian Standards, State Codes of practice, OEM Guidelines, Industry best practice, and Employer Standard Operating Procures/ Safe Work Guides that are not called up in legislation.

QFES may set the standard of ‘industry best practice’, that would be up to the industry to determine.  It is not true just because QFES is QFES. (For a related discussion see Industrial rescue squad – Queensland mining sector (December 8, 2018)).

The obligation upon a private industry rescue team is to undertake a risk assessment as required by the Work Health and Safety Act 2011 (Qld) and the relevant regulations in this case the Work Health and Safety Regulation 2011 (Qld) Part 4.3 Confined Spaces.    Regulation 69 says that there must be ‘monitoring of conditions within the space by a standby person who is in the vicinity of the space and, if practicable, observing the work being carried out’ (emphasis added).  The reference to ‘a’ standby person is a reference to a singular person that is this regulation only requires one person to be with the person in the space.

Of course this regulation is dealing with what may be described as routine entry to a confined space, not entry that may be required when it is known that something has gone wrong and a rescue is required. There are provisions for emergency procedures (r 74) but they do not prescribe minimum staffing levels.

The question was

… should an incident take place & investigation follow would a company’s risk assessment stand up in coroners court when it follows processes outside/contradicting of industry best practice?

How it will ‘stand up’ depends on how good it is and what processes the person conducting the business or undertaking can show they used to come to their own conclusions.  If they are being prosecuted for an offence contrary to the Work Health and Safety Act then compliance with any relevant Code of Practice will be evidence that they did, or did not, meet their duties under the Act. Evidence of other practice (the battle of experts) will go to issues of whether they should or should not have done something differently.  What the outcome would be would depend on all the circumstances.

Remember a coroner cannot do anything but make recommendations.  He or she may recommend that those involved in confined space rescue should consider the guidance offered by some particular organisation or practice.

Today’s correspondent is

…writing to seek some clarification regarding the application of the Mental Health Act 2007 (NSW) by NSW Ambulance Paramedics, where a patient is in Police custody.

If for instance, paramedics have been called by police to undertake a Mental Health Assessment on an individual in police custody at the local Police Station, and post this assessment, paramedics deem the patient is mentally ill/ disturbed, is it necessary for Paramedics to utilise s 20?

Additionally, I might add the following information,

1)    NSW Police are unsure whether this patient is mentally ill/ disturbed and are seeking clarification from paramedics as to whether this patient requires transport to the hospital; and

2)    The patient does not want to go to the hospital.

In this case, does the fact that this patient is in police custody mean that it is unnecessary for paramedics to utilise s 20?

Can a paramedic schedule this patient, despite the fact that they are in police custody? Are there any legal restrictions preventing this?

I will infer that ‘police custody’ means the person has been arrested for an offence, not detained by police for the purposes of the Mental Health Act.  Where police are acting under the Mental Health Act see NSW Police, paramedics and the mentally ill (May 15, 2018).

Section 20 says

An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.

Although s 20 does not refer to consent and does not expressly say it applies where a competent patient refuses consent that can be inferred by the sections placement in the Act.  The Section appears in:

• Chapter 3 ‘Involuntary Admission and Treatment in and Outside Facilities’;
  • Part 2 ‘Involuntary Detention and Treatment in Mental Health Facilities’;
    • Division 2 ‘Admission to and Initial Detention in Mental Health Facilities’.

Where a person is delivered by an ambulance officer, then the person may (not must) be detained at the mental health facility pending their examination by a mental health professional (s 18).

A person may also be detained if they are brought to a mental health facility by police (s 22).

The effect of the above is that section 20 provides that ambulance officers may transport a patient to a declared mental health facility if they believe ‘on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with’ the Mental Health Act 2007 (NSW) and the declared mental health facility can detain the person on the basis of that opinion.  It is inferred that this can be done even when the patient is competent and refuses to consent to that treatment and transport.

The scenario is as I understand it, that police have arrested a person and form the view that he or she may be mentally ill and ask paramedics to assess the patient.  After the assessment the paramedics form the belief ‘on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with’ the Mental Health Act 2007 (NSW). The patient does not want to go to a declared mental health facility.

The police may rely on the paramedics assessment to come to the conclusion that ‘it would be beneficial to the person’s welfare to be dealt with in accordance with’ the Mental Health Act, rather than the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the Bail Act 2013 (NSW).  In that case the police could take the person to a declared mental health facility (Mental Health Act 2007 (NSW) s 22).   But transporting a person to a mental health facility takes up police resources in providing a health service and is not best for patients (see NSW Health – NSW Police Force, Memorandum of Understanding 2018 Incorporating provisions of the Mental Health Act 2007 (NSW) No 8 and the Mental Health Forensic Provisions) Act 1990 (NSW), 22 December 2017).

Given that the paramedics are there and given ‘…that an ambulance officer, who necessarily has some medical training, is more equipped to make reasoned decisions in relation to mental health issues than someone (such as a police officer) with no such training’ (State of New South Wales v Talovic [2014] NSWCA 333, [136]) it makes sense that the ambulance officers will transport the person.

However, a paramedic cannot treat a competent person unless that person consents to paramedic treatment.  Patient consent is still required even when the person is in police custody (Neal v Ambulance Service of NSW [2006] NSWCA 102; but see Crimes (Administration of Sentences) Act 1999 (NSW) s 73 regarding compulsory treatment of sentenced prisoners).  The fact that the person is mentally ill does not mean they are not competent to give or refuse consent (PBU & NJE v Mental Health Tribunal [2018] VSC 564 discussed in Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)).   It follows that if the paramedics are to take the person to a declared mental health facility where the patient is refusing to consent, they can only do so if they hold the belief required by s 20.

It then begs the question of what does my correspondent mean by ‘is it necessary for Paramedics to utilise s 20?’  If they hold the belief, on reasonable grounds, ‘that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with’ the Mental Health Act 2007, then they are relying on s 20.  The ambulance service has, as I understand it, some extra paperwork (that is not prescribed by the Act) that paramedics must complete in which case so be it.  It is important to record clinical information including the information relied on to form the belief required by s 20.

As for the question ‘Can a paramedic schedule this patient, despite the fact that they are in police custody?’ – a paramedic cannot ‘schedule’ anyone.  That is an old term and comes from the idea that some form was in the schedule of the Act.  And indeed there is such a form – a medical practitioner acting under s 19 must complete ‘the form set out in Part 1 of Schedule 1’ so one might say that a doctor is ‘scheduling’ the patient.  That is not the case in s 20.  Section 20 provides that an ambulance officer who forms the relevant opinion may transport the person.  And section 18 says the mental health facility may detain the person.

The correct question is ‘can a paramedic form the view that a person in police custody is mentally ill and should be transported to a mental health facility’ then the answer is ‘yes’.  If the person won’t consent to treatment then the ambulance officers can only treat and transport on the basis of s 20.

We can put that in context of physical injuries:

• If police arrest someone and asked paramedics to take a person to hospital the patient’s consent is still required. If the police insist that the prisoner go to hospital the correct response would be ‘(s)he’s your prisoner and (s)he won’t come with us, you take him/her’.  Even if the prisoner is transported to hospital, the police cannot insist that he receive treatment contrary to his informed and competent refusal (see Ambulance Service v Neal (January 29, 2009)).
• If police arrest someone and call the ambulance to take the person to hospital and the paramedics form the view that the patient’s condition does not require transport to hospital again the correct answer is ‘you want to take them to hospital, you do it’.   People, including police, cannot insist on ambulance transport to hospital where in the paramedic’s opinion, such treatment is not clinically indicated (see Transport everyone or act as a professional? A question for paramedics (May 6, 2013)

The same has to be true in mental illness;

• If police arrest someone and asked paramedics to take a person to declared mental health facility then the patient’s consent is still required, unless the ambulance officers hold the opinion required by s 20.
• If police arrest someone and call the ambulance to take the person to a declared mental health facility and the patient refuses, and paramedics form the view that the patient’s condition does not meet the criteria under s 20 then there is no power to transport without consent. In that case the correct answer is ‘you want to take them to hospital, you take them relying on your power under s 22’ (see NSW Police, paramedics and the mentally ill (May 15, 2018)).

The question was:

… paramedics have been called by police to undertake a Mental Health Assessment on an individual in police custody at the local Police Station, and post this assessment, paramedics deem the patient is mentally ill/ disturbed, is it necessary for Paramedics to utilise s 20?

In my view the answer is ‘yes’.

For further discussion see:

• More on the treating the mentally ill by paramedics in NSW (April 17, 2017)
• Further commentary on the Mental Health Act 2007 (NSW) s 20 (April 17, 2017)
• Again revisiting the Mental Health Act 2007 (NSW) s 20 (April 18, 2017)

Today’s question is

I would like to know if there is a requirement for a medic / ESO to worker ratio for the resources sector in Western Australia. Is there a point (Number or workers) where a second medic ESO is required? Also, if a Medic / ESO is required to be on Call 24/7 Should they be paid for being on Call.

The question of pay is an industrial law issue and not one I’m competent to answer.  That question should be directed to the Fair Work Commission or a relevant trade union.

As for the ‘medic / ESO to worker ratio’ my answer is that I am not aware of any ‘requirement for a medic / ESO to worker ratio’.  Modern work health and safety legislation is premised on the idea that the person conducting the business or undertaking will ensure that there are first aid and emergency procedures in place to reflect the risk.  That approach is reflected in the Mines Safety and Inspection Act 1994 (WA) and the Mines Safety and Inspection Regulations 1995 (WA).

The regulations say that there must be an emergency plan (r 4.30) and there must be first aid personnel and equipment (rr 4.24 to 4.29) but there is no mandated ratio of personnel to first aid officers. In fact r 4.26 only requires that ‘a [singular] person qualified in first aid is available at the mine at all times when persons are working at the mine’ and that ‘a’ (again singular) person qualified in advanced first aid is available at all times.

It follows that at least the Mines Safety and Inspection Act and its Regulations do not establish ‘a medic / ESO to worker ratio’.  Whether any industry standards do is another matter and not something I can comment on.

Today’s question came as a comment on an earlier post.  The writer says:

… Say a patient is adamant that they don’t want your help as a first aider. They clearly and explicitly state this. If you force treatment, what are the ramifications? Also, if they then become unconscious, are we still required to follow their wishes? I’m certain I saw you write something about this, but for the life of me I can’t find it.

It’s true, I’ve written much on this see https://emergencylaw.wordpress.com/?s=consent.  It was also the subject of my first refereed journal paper – Michael Eburn, ‘Withholding, Withdrawing and Refusing Emergency Resuscitation‘ (1994) 2 Journal of Law and Medicine 131-146.  but even so questions like this constantly arise for new entrants and there’s no harm in revisiting the issues.

Let’s start with the first question:

The real answer is probably nothing. Law is not self-executing, just because you do something illegal it does not mean anyone is going to prosecute or sue you.  For a prosecution the law enforcement authorities – usually the police – have to get involved and determine a number of issues in particular whether there is admissible evidence to prove the elements of the crime and relevantly, in context, is there a public interest in a prosecution.

To sue you the person who you ‘force treatment’ upon has to be sufficiently motivated, well connected and supported to bring a legal action that is likely to take many years.  It also depends on the outcome, if later they reflect and realise you did them a favour then they’re unlikely to do anything, but if you have offended their deeply held beliefs or have exposed them to a risk or life that they did not want, then they may well be very motivated to take legal action (see Malette v Shulman (1990) 67 DLR (4th) 321; doctor sued for administering blood contrary to patient’s known wishes even though it saved her life)).

Another ramification is that the person you are trying to treat is entitled to use reasonable force to resist a battery – they may punch you (Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police – Part 2 (October 5, 2015)).

Putting aside the practical limitations what, at least in theory, are the ramifications.  To touch someone without their consent is a battery – Collins v Wilcock [1984] 3 All ER 374 at p. 378:

The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery… “the least touching of another is anger is a battery.” The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3, p. 120:

“the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.”

The effect is that everybody is protected not only against physical injury but against any form of physical molestation.

The most common justification for touching a person in first aid is that the person consents – Rogers v Whitaker [1992] HCA 58, [14]:

… except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it. In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended’.

Consent may be express (unusual in first aid, where a person is given an explanation of the proposed treatment and its risks and explicitly agrees to the treatment) or implied.  Implied consent arises for example where the patient cooperates with the first aider and does as they are asked or otherwise assists in their own treatment.

In some cases, a patient cannot consent – due to their age, their mental capacity, the effect of their injury or illness, their level of consciousness etc.  In those cases, treatment, without consent, is justified by the principle of necessity – In Re F [1990] 2 AC 1 (emphasis added):

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

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

A person is able to ‘form such a wish’ if he or she is able to understand the information being presented to them and take that into account when making their decision. The test is a functional test, that is the question is ‘whether, at the time the decision had to be made, the person could understand its nature and effects’.  It is not an outcome test that is whether it is a good or wise decision (PBU & NJE v Mental Health Tribunal [2018] VSC 564 discussed in Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)).  The presumption is that an adult person is competent unless the contrary be shown.

A person validly refuses treatment if they make a decision in circumstances where they are:

• Competent;
• Informed; and
• The decision covers the situation that has in fact arisen (In Re T [1992] EWCA Civ 18)).

There is one other legal defence to touching without consent, also discussed in Collins v Wilcock. Lord Goff said (at p. 378), after setting out the principle quoted above that there is:

… a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life…

Among such forms of conduct, long held to be acceptable, is touching a person for the purpose of engaging his attention, though of course using no greater degree of physical contact than is reasonably necessary in the circumstances for that purpose. So, for example, it was held by the Court of Common Pleas in 1807 that a touch by a constable’s staff on the shoulder of a man who had climbed on a gentleman’s railing to gain a better view of a mad ox, the touch being only to engage the man’s attention, did not amount to a battery…  Furthermore, persistent touching to gain attention in the face of obvious disregard may transcend the norms of acceptable behaviour, and so be outside the exception. We do not say that more than one touch is never permitted; for example, the lost or distressed may surely be permitted a second touch, or possibly even more, on a reluctant or impervious sleeve or shoulder, as may a person who is acting reasonably in the exercise of a duty. In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend on the facts of the particular case.

Touching someone on the arm as you approach them and ask ‘are you ok?’ is not a battery.

In every state and territory, other than Queensland, there is legislation colloquially known as good Samaritan legislation.  This legislation provides that a person who comes to assist another without expectation of payment or reward, is not to be held liable for acts done in good faith (see Good Samaritan legislation – a comparison (February 22, 2017))

Let us apply those principles to the scenario ‘a patient is adamant that they don’t want your help as a first aider. They clearly and explicitly state this. If you force treatment, what are the ramifications?’

What follows may to be true if the patient is not competent but

• given that they are capable of being adamant, and
• following the principle explained in PBU & NJE v Mental Health Tribunal [2018] VSC 564, and
• given the difficulties a first aider will have in assessing competence,

I will, for the sake of this discussion, assume the patient is competent.

Where a competent patient is ‘adamant that they don’t want your help as a first aider’ then to touch the patient is to commit a battery.   To provide other help, eg to ring an ambulance because you think they really need it, is not a battery as you haven’t touched them.  But to touch them is a battery and subject to the limitations discussed above, could see the first aider prosecuted, or sued, or both.

I cannot see how forcing treatment, where that involves touching a person, upon someone who is a ‘adamant that they don’t want your help as a first aider’ and they are capable of, and do ‘clearly and explicitly state this’ would be acting ‘in good faith’ as provided for in the good Samaritan legislation.

The situation becomes more complex (obviously) ‘if they then become unconscious’.  At that point they are no longer competent.  For years (and no doubt still) first aid instructors have said that once the person is unconscious you can rely on ‘implied consent’ to treat them. As the discussion of the legal principles above show, that is not correct.  There is no implied consent and to infer that, having been adamant that they do not want your help that you can now infer that they do is plain silly.

Now the relevant doctrine is ‘necessity’ as described above.  But you cannot treat contrary to their known wishes, but what are those wishes?  Remember a binding refusal has to be competent, informed and cover the circumstances that now arise.   We have assumed that up until the time the patient became unconscious, they were competent.  But were they informed, and did they intend that refusal to apply in circumstances that have now arisen?

There are many reasons why a person may be adamant that they don’t want your help as a first aider.  They may:

• Be stoic and not want to feel they are wasting your time;
• Not believe that they are critically ill
• Prefer to wait for the jurisdictional ambulance crew to arrive if one has been called
• So overwhelmed by the situation that they are actually thinking about what things they have to deal with – who is going to pick up the kids from school? How do I let someone know I’m not coming? – that they can’t actually think about what you are trying to tell them
• Prefer to wait for their partner or other close person to come to them to advise them
• They may not trust you
• They may, but it is unlikely, realise that they are very sick, that they are about to die, and that they are happy for that to happen naturally and if today is the day their ‘number is up’ or the day their ‘God is calling them’ or whatever other view they have, then so be it and they would rather die than be treated by you or anyone else.

The problem with all those scenarios is that the patient is not properly informed.  They are not in a position where someone has been able to say ‘this is what is wrong with you, these are the options and the risks of each, what do you want?’  If they are adamant that they don’t want your help as a first aider but then lapse into unconsciousness one might infer that they did not realise how sick they in fact were.

Second, did they intend that decision to reject your help as a first aider to apply if the option were life and death?  If they say ‘I don’t want your help as I’m going to:

• Take myself to hospital or the doctor
• Wait for my partner/parent/child to come get me
• Wait for the ambulance to arrive

Then they are saying ‘I’d rather wait for them’ not ‘I’d rather die’.   In most cases one would have to say that a person who ‘is adamant that they don’t want your help as a first aider but who then ‘become[s] unconscious’ was not sufficiently informed and was making a decision between first aid by you or not, not between life and death and so that refusal does not extend to the circumstances that have arisen. In that case there is no binding refusal and the doctrine of necessity says ‘treat the person’.

There may however be cases where it is a clear refusal.  First aid may involve seeing a stranger on the street who appears unwell or it may involve visiting a close relative with a know medical history and where their wishes are clear – that they do not want resuscitation. It may involve cases where persons have recorded advance directives or ‘do not resuscitate’ orders in place.  In those cases, the insistence that they don’t want your assistance may mean ‘I don’t want CPR’ but there is more to first aid than CPR.

If we assume that the first aider is aware that the person has no CPR orders in place, then it is appropriate to withhold CPR but that does not mean that the person should not be assisted, and an ambulance called (depending on where they are).   As with palliative care the person may be refusing life-saving care but that does not mean they don’t want assistance to die with dignity.  So you would not say ‘they didn’t want my help, they have a DNR order in place, so I’m just going to let them die here in the street’.

Making these types of calls is difficult if not impossible and it is exactly these situations where the good Samaritan legislation will come into play.  The first aider who sees that the person has now become unconscious will no doubt be acting in good faith if he or she thinks ‘this is worse than we thought, I’d better do something’.  I would expect any court would accept that this is the very situation where the good Samaritan legislation should apply.

Question: … Say a patient is adamant that they don’t want your help as a first aider. They clearly and explicitly state this. If you force treatment, what are the ramifications?

Answer: The likelihood of ‘ramifications’ are low, but the first aider may be prosecuted or sued for battery.  A person who is being touched against their will may use reasonable force to resist so the first aid may find themselves the victim of lawful violence.

Question: ‘…if they then become unconscious, are we still required to follow their wishes?’

Answer: Yes, but their wishes were ‘I don’t want your help as a first aider’ in the circumstances where I am conscious and able to express that view.  That does not mean that if it was a choice between being assisted by you or someone else that they actually meant they would rather die than be treated by you.  In nearly all cases that involve a first aider a statement ‘I don’t want your help as a first aider’ in circumstances where it is not clear how ill the person is does not extend to mean ‘‘I don’t want your help as a first aider ever, even if it means I may die or suffer significant long term harm’. If you treat the person in those circumstances you are not ignoring their wishes, rather they haven’t expressed a wish about what treatment they want in the circumstances that have arisen.

Where they have expressed a wish as the to what treatment they want in the circumstances that have arisen, that is where there is in place a relevant advance directive or clear communication that needs to be honoured. But again, only to the extent that it applies.  A Do Not Resuscitate Order does not mean Do Not Do Anything.

I have previously reported on the decision of the Justice Henry (‘Henry J’) of the Queensland Supreme Court in Masson v State of Queensland [2018] QSC 162.  In that case Henry J found that there had been no negligence by the paramedics involved in treating Ms Masson’s acute asthma (see Queensland Ambulance not negligent in treatment of patient’s extreme asthma (July 25, 2018)).

On 10 May 2019 the Queensland Court of Appeal handed down its decision in Masson v State of Queensland [2019] QCA 80.  In that decision McMurdo JA (with whom Fraser JA and Boddice J agreed) allowed the appeal by the Estate of Ms Masson’s appeal.  The Court found the state of Queensland was liable for the negligence of the Queensland Ambulance Service (QAS).  The court ordered the parties to make further submissions as to the appropriate amount of damages and costs that should be awarded.

These are set out in some detail in the earlier post (Queensland Ambulance not negligent in treatment of patient’s extreme asthma (July 25, 2018)).  Sufficient for this discussion is this summary from McMurdo’s judgment ([2] and [3]):

In 2002, Jennifer Masson suffered a severe asthma attack at a friend’s house in Cairns.  An ambulance was called which arrived a few minutes later.  Ambulance officers treated her immediately, including by the intravenous administration of the drug salbutamol.  About 20 minutes later, when she was being transported to a hospital, the officers administered the drug adrenaline.  She was soon at the hospital where she received further doses of adrenaline…

When the ambulance officers arrived at the scene, Ms Masson had already stopped breathing.  Tragically, by the time she arrived at the hospital she had suffered irreversible brain damage by being deprived of oxygen.

There had been a number of allegations of negligence at trial, all of which were rejected by Henry J.  In the Court of Appeal only one claim was relevant. That was ‘… that the ambulance officers ought to have administered adrenaline immediately, or at least within a couple of minutes, rather than doing so only 20 minutes later’ ([5]).

A critical issue was the meaning of the flow chart for the treatment of asthmatics in the QAS Clinical Practice Manual – see below.

McMurdo JA said (at [20]-[23]):

For the appellant, it was contended that the case which was presented to the officers was within the first of the “diamonds”, headed “Imminent Arrest”, with the consequence that Ms Masson was to be treated in the way set out in the shaded section opposite that alternative.  The officers were to “Consider adrenaline I.V./ETT, I.M.”  The appellant’s case was that this meant that adrenaline had to be administered, with the officers to consider only how that was to occur: intravenously (“I.V.”), by an endotracheal tube (“ETT”) or intramuscularly (“I.M.”).

For the respondent, it was argued that this was not a case within the diamond which was highest on the page, because not every circumstance which was there listed, most particularly bradycardia, was present.  Ms Masson was not bradycardic, instead she was tachycardic.  Further, had the circumstances been within the first diamond, it was argued that the ambulance officers had to consider whether to administer adrenaline, rather than being directed to administer it.

The trial judge accepted the appellant’s argument that this was a case of “Imminent Arrest” which was within the first diamond, because not every circumstances there listed had to be present.  It was sufficient that the GCS was under 12.  However, the judge rejected the appellant’s argument as to the meaning of “[c]onsider adrenaline”, holding that this required the officers to consider whether to administer adrenaline (and if so how), rather than compelling its administration in some form in every case of imminent arrest.

In my view, the trial judge’s interpretation, in each respect, was correct…

McMurdo JA concluded (at [149]) that the standard of care expected of a paramedic (at least in 2002) was to administer treatment guided by the Clinical Practice Manual. She said:

… it would not be consistent with the exercise of reasonable care and skill for an ambulance officer to depart from the guidance of the CPM.  A substantial issue in this appeal is the scope of the discretion, provided by the flowchart, to “consider adrenaline”.  The exercise of reasonable care required that such consideration actually occur, but consistently with the guidance provided by the CPM.

She concluded that Mr Peters did not properly apply the CPM. First, the trial judge found that Mr Peters did consider adrenaline but ruled it out because of the possible risk of side effects (see [151]-[153] of trial judge’s reasoning set out in [135] of the Court of Appeal’s decision).  McMurdo JA reviewed the evidence and found that the judge’s conclusions at trial were not supported by the evidence that had been put before him. She concluded, contrary to the opinion of the trial judge, that Mr Peters took the view that the flow chart required all the indicia in the first diamond to be met (ie GCS <12 and bradycardia and absent pulse) before adrenaline could be administered.  He did not consider that some combination of those symptoms, coupled with other indicia of ‘imminent arrest’ (given that this patient was in respiratory arrest) meant that under the CPM the use of adrenaline was permitted.  At [150]-[159] McMurdo JA said:

As the trial judge found, this was a case of imminent arrest as described in the flowchart.  The ambulance officers, Mr Peters in particular, had to make an assessment of the symptoms and condition of the patient.  However, upon the correct interpretation of the flowchart, this was a case within the diamond highest on the page:  the patient’s GCS was less than 12 and she was at risk of an imminent arrest, more specifically a cardiac arrest.  According to the CPM, the officers were to be guided by the treatments appearing in the section indicated by the arrow to the right of that diamond…

I have disagreed with the trial judge that Mr Peters did consider whether adrenaline should be administered, by weighing the risks from its use against the risks of salbutamol not being as effective in bronchodilation.  To the extent that Mr Peters did avert to the use of adrenaline, he immediately rejected it, not because of a clinical judgment, but because he misunderstood the guideline by thinking that in no case was adrenaline to be given to a patient who was not bradycardic…

In summary, Ms Masson was not treated in accordance with the CPM.  The use of adrenaline was not considered as required by the flowchart.  If it was considered at all, it was inconsistent with the CPM to decide to administer twice the permitted dosage of salbutamol in the hope that this would be as effective as the administration of adrenaline…

… the CPM was not relevantly ambiguous.  Mr Peters’ understanding was that adrenaline was not even to be considered for a patient who was not bradycardic.  It would have been remarkable if the CPM precluded the use of adrenaline where the heartrate was normal.  Mr Peters’ conduct cannot be excused on the basis of a reasonable but mistaken interpretation of the CPM.

That of itself is enough to establish negligence, but the trial judge had found that what he saw as a decision by Mr Peters to prefer salbutamol because of the risk of side effects, was supported by medical opinion.  At [161] McMurdo JA said:

Yet ultimately, the judge held that the administration of salbutamol in this case could be justified because it accorded with “a responsible body of opinion in the medical profession”.  His Honour found that although, in 2002, there was not a responsible body of opinion that salbutamol was equally effective as adrenaline, nevertheless there was a body of opinion supporting its use in preference to adrenaline where the patient had a high heartrate and high blood pressure…

McMurdo JA said (at [164]) that his Honour’s finding, above, was not supported by the evidence, but even if there was such a divergence of opinion within the medical profession, it would not justify Mr Peters’ departure from the CPM.  Of most interest to readers of this blog will be her Honours comments on the standing of paramedics and paramedicine. At [148]-[149] she said:

The difference between the care and skill to be expected of an ambulance officer and that to be expected from a specialist in emergency medicine is significant in a number of ways.  The first is that, notwithstanding their training, ambulance officers cannot be expected to make the fine professional judgments which would require the education, training and experience of a medical specialist.  That limitation is recognised by the fact that ambulance officers are provided with the instructions and guidance of something such as the CPM.  As the trial judge said in the above passage, the CPM (or as he called it, the QAS guidelines) was significant as evidence of a relevant standard of conduct.

Further, again because of the more limited education, training and experience of ambulance officers compared with medical specialists, it would not be consistent with the exercise of reasonable care and skill for an ambulance officer to depart from the guidance of the CPM.  A substantial issue in this appeal is the scope of the discretion, provided by the flowchart, to “consider adrenaline”.  The exercise of reasonable care required that such consideration actually occur, but consistently with the guidance provided by the CPM.  A departure from that guidance, with the grave risk that the patient would not avoid serious injury or death, could not be easily justified upon the basis that the officer believed that there was a responsible body of medical opinion which supported that course.  Unlike the medical specialist, the ambulance officer does not have the requisite competence to make their own professional judgment about the merits of competing views within a field of specialised medical practice.

And at [161], even if there was “a responsible body of opinion in the medical profession” supporting the use of salbutamol in preference to adrenaline where the patient had a high heartrate and high blood pressure.

… an ambulance officer could not have been expected to know of the existence of competing bodies of medical opinion on that subject, and was not competent to make an assessment of the respective merits.  Instead, the exercise of reasonable care required the ambulance officer to be guided by the CPM.

Compare the decisions in the trial court and the court of the appeal.  The trial judge took the view that Mr Peters considered adrenaline but ruled it out because of the risk of adverse side effects and with the knowledge of contests of ideas of when and which drug to use.  That is he found, and accepted as not negligent, that there was an exercise in professional decision making.

The Court of Appeal found that the trial judge had misunderstood the evidence.  That Mr Peters did not make the sort of judgement described, rather seeing that all the symptoms in the first diamond were not present he took the view that he was not permitted to administer adrenaline. Further there was no dispute in medical opinion.  If that’s correct, so be it.  If the judge misunderstood the evidence and if Mr Peters misunderstood the CPG then that was, in the Court of Appeal’s view, negligent.  But the Court of Appeal went further.  A paramedic is not expected to know or understand the science behind the treatment guidelines or issues in contest within the science. Further he or she is not expected to make decisions other than to assess the symptoms to identify what guideline applies and then apply that guideline.

Although this case was decided in 2019, the treatment given to Ms Masson was delivered in 2002.  Paramedicine has come a long way since 2002 including the now almost universal requirement for new paramedics to have degree qualifications and the recognition of paramedic professionalism as shown by registration of paramedics under the Health Practitioner Regulation National Law since December 2018. There is no discussion of any evidence about developments in paramedic practice and it would not have been relevant as the question was whether the treatment delivered in 2002 meet the standard of reasonable care to be expected from a paramedic in 2002.  But whether a court would take the same view of treatment in 2019 remains to be seen.

Even so the court made several statements of concern.  First McMurdo JA (at [147]) relied on the decision of Basten JA who delivered the judgement of the NSW Court of Appeal in Ambulance Service of New South Wales v Worley [2006] NSWCA 102 (discussed by me in the article ‘Ambulance Service of NSW v Worley; further legal lessons for the emergency services‘ (2007) 5(2) Journal of Emergency Primary Health Care (continued as the Australian Journal of Paramedicine) Article 990235). In that case Basten JA said ‘Ambulance officers are not medical practitioners, let alone specialists in emergency medicine …’

Today’s paramedics may well assert that they are indeed specialists in emergency medicine.

Of concern in Worley’s case was that 5 doctors, and no paramedics were called to give evidence as to the care to be provided by a paramedic.  As Basten JA said:

Without objection, experts in emergency medicine discussed their own practices in well-equipped teaching hospitals, with far less attention being given to the position of ambulance officers and the nature and purpose of the protocols which governed their conduct.

In Masson’s case both sides of the case called six emergency medical practitioner (three each) but at least they also called two paramedics (one each).  In Lithgow City Council v Jackson, a case that turned on the meaning to be drawn from a paramedic’s case sheet, none of the parties thought to ask the paramedics what they had intended to convey about the cause of the patient’s injuries when recording the history on the case sheet (see Lithgow Council v Jackson [2011] HCA 36 (28 September 2011) (October 5, 2011)).

Although paramedics now complete a three year degree and are registered health professionals, it seems that they have a long way to go to truly establish themselves and paramedicine as a profession. In her book, Nursing and the Injustices of the Law (Sydney : W.B. Saunders/Bailliere Tindall, 1994) Megan-Jane Johnstone argued that nurses won’t be truly a profession until they are sued as nurses for their own decisions rather than being seen as the agents of doctor’s negligent decisions.  It has been a cause celebre that Dr Hadiza Bawa-Garba, a UK doctor was convicted of manslaughter and struck off as a medical practitioner following the death of a young patient (see UK doctor successful in appeal against decision to remove her name from the register following manslaughter conviction (August 14, 2018)).  What is often forgotten is that a nurse was also convicted of manslaughter and presumably that nurse’s conviction still stands.  Whilst it is not a badge of honour that anyone would want to wear, that the nurse was held to account for her actions, independently of the doctor, may go some way to showing that nursing and nursing standards are sufficiently developed such that nurses are now seen responsible for their own decisions and not just responsible for faithfully implementing doctor’s orders.

Masson’s case shows that the law is still to give full recognition to paramedics or, more importantly, the science of paramedicine.  Paramedics are responsible for their compliance with guidelines or protocols issued by their service. (In Worley’s case the court had found that the paramedic could not be negligent if he treated the patient in accordance with the protocol then in place.  If there was negligence (which there was not) it lay with the ambulance service for issuing an inappropriate protocol.)  They are not, according to McMurdo JA, ‘expected to know of the existence of competing bodies of medical opinion’ nor are they ‘competent to make an assessment of the respective merits’ of those competing opinions.

Paramedics are now registered.  In a recent article (‘Paramedicine In 10 Years: What will it look like’ (2019) 46 Response, 18-20) Ruth Townsend and I argued that registration is likely to have a significant impact on those practicing paramedicine today compared to those practicing on 31 November 2018 (ie before registration came into effect).  The impact of registration will be felt in the years to come.   One impact, particularly if paramedic practitioners move back into the tertiary sector to complete paramedic research and PhDs will be to develop a body of knowledge that is unique to paramedicine and qualify paramedics as ‘specialists in emergency paramedicine’.  If and when that happens it may be that cases involving paramedic practice have paramedics and not medics as expert witnesses and where issues arise it will be about ‘competing bodies of paramedical opinion’ where paramedics are able to ‘make an assessment of the respective merits’ of various opinions when assessing the case in front of them.

Until them medicine remains the dominant profession setting the standards by which paramedics, and nurses, and others are judged.  There are those that make the argument that it is medicine that restricts other health professions, limiting the ability of nurses and paramedics and others to do things such as prescribe medication or practice independently.  It is argued that this is done for the patient’s benefit and care, but a more cynical view may be that it is done to protect medicine’s turf and standing.    These issues were touched on in a special issue of The Drum on health care (The Drum, ABC TV, 9 May 2019) Dr Norman Swan, a doctor and host of ABC’s The Health Report said (at 53:40) that there is no free market in health care and that people are not getting health care they need.  To change that is, he says, is the need to ‘challenge organised medicine’ (at 54:29).  Developing a unique body of knowledge that is paramedicine will be part of that challenge to organised medicine and will allow paramedics to move into that free market (see Expanding paramedic practice with the coming of registration (October 29, 2018)).

Perhaps Mr Peters did not exercise sufficient imagination in this case, seeing that this patient did not have bradycardia he concluded that she was not at risk of imminent arrest even though she was in fact in respiratory arrest. He was, according to the court, expected to take a more wholistic view of the patient’s presentation and identify that [cardiac] arrest was imminent and therefore the only treatment called for was adrenaline, not salbutamol.  I’ll leave that to others to decide if that was reasonable and how you would read the QAS flow chart.

What can be said, with some confidence, is that if that sort of reasoning was expected in 2002 it will be even more so in 2019 when paramedics have completed three years of university education before moving onto the road as registered paramedics.

Of real concern and perhaps more importance is what McMurdo JA said about paramedicine and paramedics as professionals.  Today it is still doctors who are called to give evidence on paramedic practice.  It is lawyers that decide what evidence to call and these cases (and in particular Worley’s case and Lithgow city where no paramedics were called) suggest that lawyers are not yet thinking about paramedics as independent practitioners.

Being the paramedic who was found negligent is nothing anyone would want, but it is perhaps a first step in recognising that paramedicine is a profession and that paramedics are accountable for their decisions.  The next step is to move away from the idea that paramedics are, or are not, negligent only to the extent that they follow the manual issued by their employer and move to recognise that they are experts in pre-hospital emergency care and that there is a body of paramedical knowledge to be applied by paramedics.  That next stage is perhaps a long way off, but it is something for the profession to work toward.

I have previously reported on the decision in LRB v Secretary to the Department of Justice and Regulation (see Past misbehaviour and current risk (November 30, 2018)).  To recap, the issue was that LRB ‘when he was just over 18 and a half years of age but still attending secondary school in Year 11, he had sexual relations with a 14-year-old boy who was in Year 8 in the same school.’  These offences occurred in 1997.   21 years later, with no subsequent offending, he applied for a working with children check to allow him to continue volunteering with Victoria’s Country Fire Authority (CFA).

The nature of LRB’s prior offending meant that the matter had to be determined by Victoria’s Civil and Administrative Tribunal (VCAT).  Deputy President Lulham considered LRBs past offending, his subsequent good conduct, the need to protect young persons and the public interest in both granting and refusing LRB’s application. Taking all that into account the Deputy President concluded that ‘giving an assessment notice to the Applicant would not pose an unjustifiable risk to the safety of children’.  The Tribunal ordered that LRB be issued with ‘an assessment notice under the Working with Children Act 2005’ (LRB v Secretary to the Department of Justice and Regulation [2018] VCAT 1351, [132] and [140]).

In Secretary of the Department of Justice and Community Safety v LRB [2019] VSC 277 the Secretary appealed to the County Court arguing that Deputy President Lulham had made errors of law when making the orders described above.  Ginnane J dismissed the Secretary’s appeal.  There were a number of issues of law raised that I won’t report because of their technical aspects.  Critical however was the Secretary’s submission, summarised by the Judge (at [83]) as:

The Secretary’s approach was that although there was no specific evidence of any risk of future harm by LRB to children, criminal offences committed 21 years ago meant that he was nevertheless too great a risk to children to be given an assessment notice.

(Although not part of the judgement, if it is my view that If accepted that claim would have denied any aspect of possible rehabilitation or consideration of the circumstances of the offence.  If it was intended that any offence, regardless of how long ago was a bar to the assessment, the legislation could say that. It would not be difficult for the legislature to set out that some convictions meant that an assessment could never be issued, rather than provide that a Tribunal is to make the decision but then say there is no room for the Tribunal to exercise discretion.)

In any event Ginnane J found that there had been no error.  He said (at [93]-[94])

[The Deputy President] … devoted much of his decision to considering whether giving LRB an assessment notice would pose an unjustifiable risk to the safety of children…

Reading the Deputy President’s reasons as a whole reveals that he did give paramountcy to the matters contained in s 1A [that is ‘the protection of children from sexual and physical harm’]. He focused on the centrality of both s 1A in particular and the protection of children in general.

Finding that the Deputy President had correctly applied the law, the Secretary’s appeal was dismissed and LRB retains his assessment notice under the Working with Children Act 2005 (Vic).

As I said when concluding my earlier post:

Serious past offending is a concern but after 21 … years …, a person is entitled to point to their post offending behaviour and have that considered when deciding whether they pose ‘an unjustifiable risk to the safety of children’.  If there is no appreciable risk then there is value for everyone in allowing them to contribute to the community in employment … by continuing to volunteer with the CFA.

Today’s question is described as being about “the extension of duty of care” but I’m not sure what that means.  The scenario is:

In Tasmania, we regularly see ramped ambulance crews extending beyond their rostered finish time, and these crews are often sent to relieve the ramp at the commencement of their shift. On one recent occasion, a crew spent 13.5 hrs of their 14hr shift ramped, only to then have to remain at hospital for a further 2 hours beyond their rostered shift. My question is “if the hospital is not receiving your patient, at what point is it acceptable for the paramedic to relinquish their duty of care?” acknowledging that in this example, there was no foreseeable relief.

I don’t understand what my correspondent means by ‘relinquish their duty of care’ –  a duty of care is a legal concept imposed by law, it is not someone that one can ‘relinquish’. I think what is meant is when can a paramedic relinquish the care of their patient.

I think I have largely answered this question before – see Paramedics leaving patients in casualty (January 24, 2015).

In that discussion the issue was about whether it was reasonable to wait with the patient for 45 minutes.  It’s a much bigger issue if paramedics are waiting with patients for 15 hours!  The question always has to be what are the paramedics doing for their patient. If they’re just sitting waiting and the patient could just as easily wait in the general area (and would have if they had made their own way to hospital) then one has to ask what value it is adding to have a paramedic staying with the patient.  On the other hand, if they are providing care then they may need to wait but if the patient needs care and the hospital is taking that long, then effectively the hospital is closed and one would hope arrangements would be made to take the person to another centre or to some alternative care.

What we can say, as with the earlier post, there simply can’t be a rule that says for example, ‘at the end of the shift just leave the patient’ if that’s going to cause the patient to die or suffer extreme risk to their wellbeing.  On the other hand the paramedics well-being also has to be considered so they can’t be expected to stay there for 24 hours, or perhaps 15 or even three. That’s not for me to say.

The legal answer is you can leave the patient when it’s reasonable to do so.  The problem with that answer is that gives no specific guidance because every case is different.

If hospitals are unable to admit patients for 15 hours that is a political rather than a legal question and should be directed to the Minster rather than to this blog.

Today’s correspondent has:

Another question about audio recording on cardiac monitors that might be of interest for your blog.

St John Ambulance Western Australia are introducing a new cardiac monitor/defibrillator which, amongst other new features, has the ability to record audio at a scene. St John have indicated to staff that this will be enabled on the new monitors to record audio at cardiac arrests. I note your previous post about audio recording at Ambulance Tasmania here – https://emergencylaw.wordpress.com/2018/02/26/audio-recording-by-ambulance-tasmania/ – and note that a lot of this doesn’t apply since the intention is to only audio record at a cardiac arrest, where patients are unlikely to be having a private conversation (what we have been told is that it will only record when “defibrillation mode” is activated, which is ambiguous because this could potentially include an unstable or peri-arrest patient who one might put defib pads on who are still conscious who could then still share private thoughts – however for the purposes of this question I’m happy to take it on face value that only cardiac arrests will be recorded).

The intention behind audio recording cardiac arrests is about continual improvement and finding human factors that are potentially causing delays in treatment, time without chest compressions etc so these can then be improved, as one of the comments on the previous post pointed out, this is a practice encouraged by the Resuscitation Academy. While the intention is noble, there are some issues that have come up in discussion amongst my colleagues around the use of what is effectively a recording device. While patients themselves may not be recorded, there may be situations where bystanders, family members etc at a resuscitation may be recorded, who may object to signage on the monitor saying “conversations may be recorded” etc. As the recording at cardiac arrest cannot be turned off, a paramedic could be placed in an impossible situation between turning off the monitor to stop the recording meaning they cannot analyse a rhythm or defibrillate a patient, or continue to manage the patient appropriately and continue recording against the bystander’s wishes. To their part, St John have simply said that any recording of bystanders would be unintentional therefore is excepted under the act; and accordingly there are no consent issues and they don’t see any conflicts arising (I can supply you with the “FAQ” document that has been produced if that would be helpful).

I note that while not the intent of the recordings, conversations with or between family members may be of a personal nature, from what their wishes are for their loved one, through to things they wished they had told them but never did.

So, my questions are:

1. Would recording conversations with or between bystanders without their knowledge or consent breach the relevant legislation?
2. If so, could the paramedics operating the “recording device” (the cardiac monitor/defibrillator) be liable under the relevant legislation (I believe the Surveillance Devices Act)?
3. If it is an offence under the act, does vicarious liability apply?
4. If a family member refuses consent to be recorded but does not wish to leave the area, is there any resolution in this circumstance other than “too bad”? On the assumption that a reasonable paramedic isn’t going to turn off the defibrillator.

It is indeed correct that I have written on this topic before – Audio recording by Ambulance Tasmania (February 26, 2018).  My correspondent says that much of that answer won’t apply in WA ‘since the intention is to only audio record at a cardiac arrest, where patients are unlikely to be having a private conversation’.  My correspondent goes on to say, however ‘we have been told … that it will only record when “defibrillation mode” is activated, which is ambiguous because this could potentially include an unstable or peri-arrest patient who one might put defib pads on who are still conscious who could then still share private thoughts …’ so it seems to me much of that answer re Tasmania will apply in WA, but we can work through the legislation and the scenario in any event.

In WA the relevant Act is the Surveillance Devices Act 1998 (WA).  That Act says (s 5):

… a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a  listening  device —

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

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

Penalty:

(a)          for an individual: $5 000 or imprisonment for 12 months, or both;

(b)          for a body corporate: $50 000.

The critical questions are therefore, what is a listening device and what is a private conversation?

A ‘listening device’ (s 3) is:

… any instrument, apparatus, equipment, or other device capable of being used to record, monitor or listen to a private conversation or words spoken to or by any person in private 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;

A ‘private conversation’ (s 3) is:

… any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard.

It is no offence to use a device to record a private conversation where the use of that device results in the ‘unintentional hearing of a private conversation’ (s 5(2)(e)). Nor is it an offence when everyone consents to the recording (s 5(3)(c )) or where one party consents and the use of the device is ‘reasonably necessary for the protection of the lawful interests of that principal party’ (s 5(3)(d)).

The use of a defibrillator that records audio is intended to improve response to cardiac arrest.  Any recording of a private conversation between bystanders (accepting for the moment that the patient cannot talk as they are in cardiac arrest) would be ‘unintentional’ (even if it is foreseeable that is nto the intention) so no offence is committed (s 5(2)(e)).

If ‘bystanders, family members etc at a resuscitation’ are having a private conversation that can be overheard and recorded by the device then it can also be overheard by the paramedics who are, presumably, close to the device.  In those circumstances they would be having a conversation where they ‘ought reasonably to expect that the conversation may be overheard’ (by the paramedics) in which case it is not a private conversation and no offence is committed.

If they are trying to have a private conversation with the treating paramedic or paramedics that is probably inappropriate at a cardiac arrest and they will be told so.   In any event it would be appropriate to say ‘this conversation is being recorded’ (or point to the notice on the defibrillator that says words to the effect of ‘This machine may be recording your conversation’).

The paramedic is not faced ‘an impossible situation between turning off the monitor to stop the recording meaning they cannot analyse a rhythm or defibrillate a patient, or continue to manage the patient appropriately and continue recording against the bystander’s wishes.’  The paramedic’s duty is to the patient.  If it has been pointed out that the conversation si being recorded and the bystander continues to talk either it is no longer a private conversation as they know ‘the conversation may be overheard’ and/or they have by implication consented to the recording (s 5(3)(c)).

I can then turn to my correspondent’s questions:

1. Would recording conversations with or between bystanders without their knowledge or consent breach the relevant legislation?
   No, if that were to record any private conversation it would be unintentional (s 5(2)(e)).
2. If so, could the paramedics operating the “recording device” (the cardiac monitor/defibrillator) be liable under the relevant legislation (I believe the Surveillance Devices Act)?
   No need to answer that as the answer to question 1 is ‘no’; but if there was an offence yes a paramedic could be liable as the offence is committed by anyone who installs or maintains the device (ie St John (WA)) as well as anyone who uses the device (ie the paramedic) but as noted my answer to question 1 is ‘no’ so that is a moot point as I believe no offence is committed in the circumstances described.
3. If it is an offence under the act, does vicarious liability apply?
   No, vicarious liability is a concept in tort law. It says an employer is liable to pay damages for the negligence of the employee.  It does not extend to the criminal law.  An employer does not go to gaol for the employee.  Again that is a moot point as I believe no offence is committed in the circumstances described.
4. If a family member refuses consent to be recorded but does not wish to leave the area, is there any resolution in this circumstance other than “too bad”? On the assumption that a reasonable paramedic isn’t going to turn off the defibrillator.
   No, the answer is ‘too bad’. If people want to have a conversation where the paramedics (and therefore the device) can overhear what they say, that is not a ‘private conversation’.    If they want to have a private conversation with the paramedic and they know the device is recording then they by implication consent to the recording.  Even if they don’t know the device is recording, the recording of that conversation is still ‘unintentional’; recording that conversation is not the intention or purpose behind the use of the defibrillator to record audio at a cardiac arrest.

Bill Madden via his Medical + health law blog is reporting on the decision of the Tasmania Health Practitioners Tribunal to suspend the registration of a medical practitioner for comments he made online.  The post (https://billmaddens.wordpress.com/2019/04/23/inappropriate-online-comments-professional-misconduct/) says:

Writing for Australian Doctor newspaper, Antony Scholefield has drawn attention to a conduct decision of the Health Practitioners Tribunal (Tasmania): Medical Board of Australia v Dr Christopher Kwan Chen Lee [2019] TASHPT 3.

At [7], the Tribunal noted that the relevant conduct consisted of making numerous inappropriate and offensive statements or comments online in public forums in which the respondent was readily identifiable from his own words and photographs as an Australian medical practitioner.

The respondent admitted that he wrote the posts (at [12]) but said (at [14]) that at the time he posted his online comments he was relatively young and inexperienced and he had a brash and opinionated bent to his conduct on social media. He did not fully appreciate that posting comments on a Singaporean online forum would have consequences on his practise of medicine in Australia.

A joint submission stressed that despite the respondent’s above mentioned online conduct he has not permitted his socio-political and other personal views to colour or influence his medical practise and he has certainly never been discriminatory or derogatory towards the groups of individuals that his comments are alleged to be inflammatory of.

The respondent did not dispute that the conduct constituted professional misconduct (at [26]).

At [41] the Tribunal stated:

The parties submitted, and I agree, the online posts convey socially unacceptable and extreme sentiments which are disrespectful of women and comment upon violence towards or sexual abuse of women. Some of the online posts might reasonably be interpreted as being racially discriminatory and contrary to acceptable social norms in Australia. All of the online posts had the potential to incite radical views, antagonise the reader and they had the potential to cause harm to the public. In addition some of the posts involved the use of vulgar language, expressions of committing violence and crime all of which are inconsistent with the good repute of medical practitioners and the relationship of trust between medical practitioners and patients who are, of course, members of the public.

The respondent was reprimanded and suspended for a period of 6 weeks.

I won’t repeat the doctor’s comments here but they are set out in the judgement if you want to read them. They were truly offensive and hardly befitting a member of the medical profession.

Readers of this blog will be interested as no doubt a tribunal would take a similar view of similar comments by a paramedic.  Your professional life is not limited to the time you are at work.  Social media is full of opportunities for people to tarnish their own professional standing as Lee discovered.

For further discussion on the use of social media see

• Views expressed are my own’ – a useful disclaimer on social media? (February 15, 2016).
• Speaking out on social media (May 9, 2016);
• New CFA social media policy (July 10, 2018); and
• Posting on social media by police – and others (February 2, 2019).

Most importantly see the Paramedicine Board social Media Policy (Interim) (June 2018).  Paramedics need to be familiar with that policy before venting, or encouraging others to commit crimes of violence, on social media.

Following yesterday’s post – Spent convictions and paramedic registration (April 23, 2019) I was asked:

What is the rule regarding Civil Offences? I am nearly finished my Paramedical Degree, however did lose my driver’s license many years ago. I know this is considered civil, not criminal and it was over 10 years ago so officially it could be “spent” (I am in WA).

That question reveals a common misunderstanding – that traffic matters are not criminal.  This is what Lord Aitken sitting in the Privy Council said of criminal law (Proprietary Articles Trade Association v Attorney-General For Canada [1931] A.C. 310):

Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences? Morality and criminality are far from co-extensive; nor is the sphere of criminality necessarily part of a more extensive field covered by morality – unless the moral code necessarily disapproves all acts prohibited by the State, in which case the argument moves in a circle. It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the domain of “criminal jurisprudence”; for the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who commit them are punished.

That’s a long way of saying that you can’t look at conduct and determine from the nature of the conduct whether it’s criminal or not.  What makes something criminal is that it is prohibited and the consequences are punishment rather than, say, the payment of compensation.  But civil penalties exist and they look like crimes.  Distinguishing between them can be difficult.  In Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2013) 216 CLR 161 Hayne J said (at [136]-[138]):

… proceedings are distinguished according to whether or not they seek the conviction of the defendant for an offence…

Seeking to obtain the conviction of a person accused of contravening written or unwritten law lies at the heart of the criminal process… Absent statutory provision to the contrary, a conviction should not be recorded except where the requisite elements of the contravening conduct are established beyond reasonable doubt.

In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 French CJ, Kiefel, Bell, Nettle and Gordon JJ said ([52]-[53]):

A criminal prosecution is an accusatorial proceeding which is governed by the fundamental principle that the burden lies in all things upon the Crown to establish the guilt of the accused beyond reasonable doubt and by the companion rule that the accused cannot be required to assist in proof of the offence charged.

Civil penalty proceedings are civil proceedings and therefore an adversarial contest in which the issues and scope of possible relief are largely framed and limited as the parties may choose, the standard of proof is upon the balance of probabilities and the respondent is denied most of the procedural protections of an accused in criminal proceedings.

What follows from all of that is an offence is criminal if:

• There is prohibited conduct;
• The consequence of that conduct is punishment or a ‘conviction’;
• The case must be proved by the Crown; and
• The burden of proof is ‘beyond reasonable doubt’.

If you think of traffic matters they are clearly criminal.  There is prohibited conduct, the consequence is punishment and if the matter is dealt with by a court it will be heard in the court’s criminal jurisdiction, it will be prosecuted by the police or a public prosecutor and the burden on the Crown is to prove the case beyond reasonable doubt.  Many people want to think traffic matters are not ‘criminal’ as they don’t meet their test of seriousness (and might I suggest because many people commit traffic offences but don’t want to think of themselves as criminals).  That is however the point of Lord Aitken’s speech – the moral nature of the conduct in no way defines whether the consequences of that conduct are criminal or not.

Traffic matters can, in most cases, be dealt with by traffic infringement notices, they don’t have to go to court.  Payment of an infringement notice is, generally, not an admission of guilt and does not equate to a prosecution – see Traffic infringements and paramedic registration (October 10, 2018).   If an infringement notice is paid, subsequent criminal prosecutions are stayed.  That is not however the case in Western Australia.

Tasmania and Western Australia provide exceptions to the rule that the payment of a fine is not a conviction. Tasmania says that a person who pays an infringement notice is ‘taken to have been convicted of the offence’ (Monetary Penalties Enforcement Act 2005 (Tas) s 20). Western Australia says that the payment of a penalty notice is not a conviction (Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 24) unless it relates to an offence under a road law in which case the payment of the fine is taken to be a conviction ‘for the purposes of the Road Traffic (Authorisation to Drive) Act 2008 section 16(1)(a)…’ (s 26). Arguably it is a conviction for the purposes of the Road Traffic (Authorisation to Drive) Act 2008 not the Health Practitioner Regulation National Law but a prudent applicant would disclose it. It is unlikely to have an impact on a paramedic’s registration unless they were recklessly driving an ambulance at the time.

First my correspondent is wrong.  Traffic offences are not ‘considered civil’; they are criminal.

If my correspondent went to court and a magistrate or judge ordered, after a trial or a plea of guilty, that the licence was cancelled then that is a criminal conviction and must be disclosed regardless of how long ago it occurred – Health Practitioner Regulation National Law ss 77, 79, 135 and s 5 definition of ‘criminal history law’.

In every jurisdiction other than Tasmania and Western Australia an applicant who has received and paid Traffic Infringement Notices and lost his or her licence because they acquired too many demerit points and the relevant licensing authority cancelled their licence then that is not a criminal conviction because there were no criminal proceedings.  In that case the licence was cancelled by administrative action.  Because it is not a criminal conviction ‘spent conviction’ legislation.  Equally, because there was no conviction the Paramedicine Board’s Criminal History Registration Standard won’t apply as there is no criminal history.

In WA payment of a Traffic Infringement Notice does equate to a conviction with the consequence that it should be disclosed regardless of how long ago it occurred – Health Practitioner Regulation National Law ss 77, 79, 135 and s 5 definition of ‘criminal history law’.

Today’s correspondent asks for my

… interpretation on the NSW Road rules definition of an emergency vehicle. I note an emergency vehicle is only defined as such if it is driven by an emergency service worker. The definition of an emergency service worker is listed as “a member of the Ambulance Service or the ambulance service of another State or Territory, in the course of providing transport in an emergency associated with the provision of aid to sick or injured persons…”. I was wondering if the interpretation of that definition would mean that ambulances are only emergency vehicles if responding to a patient and while taking a patient to hospital?

Those definitions are taken from the Road Rules 2014 (NSW).  Does that mean ‘ambulances are only emergency vehicles if responding to a patient and while taking a patient to hospital?’ I don’t think so, I think the concept is slightly broader than that.

To be an emergency vehicle the ambulance officer has to be:

• Providing transport:
• In an emergency:
• Associated with the provision of aid to sick or injured persons.

The Oxford English dictionary defines ‘transport’ as ‘Take or carry (people or goods) from one place to another by means of a vehicle, aircraft, or ship’ (https://en.oxforddictionaries.com/definition/transport).  The transport does not have to be of the patient, so taking the paramedics to the scene, or specialised transport eg bringing rescue equipment to or from the scene, is all ‘transport’.

We have some idea of what emergency means in the Road Rules given the Court of Criminal Appeal’s decision in  Wells v R [2017] NSWCCA 242 (13 October 2017).  An emergency has to be some circumstance that has ‘some aspect of urgency to it’ (see Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017)).

Associate with means ‘connected’ to (again see Oxford English dictionary definition of ‘associated’; https://dictionary.cambridge.org/dictionary/english/associated).  What is ‘associated with the provision of aid to sick or injured persons’ could be a matter of debate.  Clearly responding to the triple zero call or determining that a patient’s condition warrants an urgent response to hospital would fall within that definition.  Other things may too, eg being called to stand by at a police action or fire in order to be there to treat anyone who is injured would be ‘associated’ with the provision of aid’.

The use of the term ‘associated with’ means that it is more than actual provision of aid to actually injured people.  Should however the issue arise, that is should an ambulance officer be prosecuted for an offence and he or she wants to rely on r 306 to say that they had an exemption from that road rule, the question of whether their task was sufficiently ‘associated with the provision of aid to sick or injured persons’ would be a matter for the Magistrate.