A correspondent has

… a young friend who is appointed by a local government authority in a WA regional shire as a Bush Fire Control Officer under the Bush Fires Act 1954, Part IV Division 1 Section 38. This is sanctioned as he is an “officer” in his local BFB.

He has stated to me on numerous occasions that he has the authority to fit red warning lights to his privately registered vehicle. This statement is due to his duties as an officer of his BFB and an FCO.

When prompted about it he often states that he “was told that by someone”. His most recent statement was words to the effect that it was “approved by DFES and the Department of Transport (DoT) therefore no DoT permit is required”.

I don’t think the “someone told me” defence would be an argument that would hold weight in front of a magistrate.

The issue of warning lights on private cars is a common subject on this blog – see https://emergencylaw.wordpress.com/page/2/?s=red%2Fblue

The answers to this question is largely set out in a WA Department of Transport (DoT) publication – Flashing warning lights and emergency vehicle status (December 2017).  That document says:

Can I fit and use flashing warning lights on my vehicle?

Yes, provided:

• the vehicle is a type of vehicle specifically authorised under the Road Traffic (Vehicles) Regulations 2014 (fitment of FWLs) and the Road Traffic Code 2000 (use of FWLs on public roads); or
• the CEO of DoT has approved the fitment and/or use of FWLs.

The Road Traffic (Vehicles) Regulations 2014 (WA) r 327 says, with respect to flashing warning lights (FWLs) that an emergency vehicle or a vehicle approved by the CEO of the DoT may be fitted with a flashing warning light (r 327(2) and (4)(a) and (e)).    An emergency vehicle includes

a vehicle operated by — …

(ii) a bush fire brigade under the Bush Fires Act 1954; or

(iii) the department of the Public Service principally assisting in the administration of the Fire and Emergency Services Act 1998 [ie DFES], and ordinarily used by members of the brigade or members of staff of that department in the course of carrying out their duties;

or a vehicle declared by the CEO of DoT as an emergency vehicle (rr 226 and 227).

It follows that my correspondent’s friend can put a red light on his vehicle if his vehicle is ‘operated by a bush fire brigade’ or by virtue of the appointment as a bush fire control officer means it is ‘operated’ by DFES.  I do not think a person’s membership of a bushfire brigade or position as a fire control officer means that a private vehicle is operated by the brigade or DFES (see What is a vehicle that is ‘operated by or on behalf of and under the control’ of Ambulance Victoria? (July 21, 2017) and Fitting red emergency warning lights to a private vehicle in WA (September 5, 2015)) but I suppose it is arguable.

If a bush fire brigade does not ‘operate’ the person’s private vehicle then it is illegal to have a fitted flashing light without the CEO’s approval.  The document cited above explains how to apply for permission and there are online forms:

• Application for Emergency Vehicle Status or Authorisation to Fit and Display Flashing Warning Lights https://www.transport.wa.gov.au/mediaFiles/licensing/LBU_VL_F_AppEmergVehStatusFitDisplayFWL_E178A.pdf
• Application to Display Flashing Warning Lights Only https://www.transport.wa.gov.au/mediaFiles/licensing/LBU_VL_F_AppFitDisplayWarnOnly_E178D.pdf

Conclusion

My correspondent’s friend may be correct.  If DFES have specifically said that they take the view that when responding to a fire in his or her private car then they accept that the car is being operated by DFES that would appear to make the vehicle an emergency vehicle.  If I were that driver I would want to make sure that this was in writing.

A better approach would be to apply for permission from the CEO of DoT.  If DFES or the local council supported the use of the red warning light they would no doubt be willing to provide a letter to that effect.  If the CEO of DoT gave the relevant permission that would be sufficient.

In the absence of anything in writing either from DFES or the CEO of DoT then ‘someone told me’ is not going to be helpful.

 

A medical practitioner

… read with interest an article on your blog Accessing medical supplies on an aircraft (August 9, 2017)  and I was wondering if you might be kind enough to let me know if you might be able to help with my query.

I was recently in Canada at a conference and was told by some apparently knowledgeable people that one of the reasons why many commercial airplanes do not carry ‘stock’ Epipens for emergency use to treat allergic reactions is because in many jurisdictions, Epipen is a prescription item and therefore its use by a non-healthcare professional or patient who has been prescribed the Epipen depends on the law of the country the aeroplane is flying over at that time. Thus, the Epipen could only be administered by a healthcare professional on board in many countries and not by the aircrew.

I was hoping that given your expertise/interest in this area, you might be able to help clarify the situation?

I do think the answer is largely in that earlier post but I’ll clarify it with specific reference to the epipen.

First it’s not the country that the aircraft is overflying that will be relevant, it will be a mix of the laws of the departure port, the arrival port and most importantly the law of the country where the aircraft is registered that is relevant.

It’s been discussed before that in Australia adrenaline is a schedule 3 drug.  That means a person does not need a prescription to obtain an Epipen from a pharmacist but it does mean it has to be supplied by a pharmacist, not from someone who bought it from a pharmacist – see Drugs in a private first aid kit (September 22, 2018).

In that earlier post (Accessing medical supplies on an aircraft (August 9, 2017)) I noted that aircraft do carry drugs and have access to medical advice to obtain authority to use those drugs.  The recommended kit list from the International Civil Aviation Safety Organisation includes ‘Epinephrine 1:1 000’.  The regulation of international air carriers is a complex interplay of Commonwealth and State laws to give effect to the international obligations that Australia has entered into.  I’m not going to try and find the specific rules that allow aircraft to have scheduled drugs in their medical kit.

As noted in that post

ICAO [the International Civil Aviation Safety Organisation] recommends that aircraft carry ‘accessible and adequate medical supplies’. There is no standard of what that means but they do recommend ‘one or more first-aid kits for the use of cabin crew in managing incidents of ill health’ and ‘for aeroplanes authorized to carry more than 100 passengers, on a sector length of more than two hours, a medical kit, for the use of medical doctors or other qualified persons in treating in-flight medical emergencies’…

It would appear that like many things the issue is risk management.  It is up to airlines to assess the risk of a medical emergency which must take into account the nature of their operations.  They will then carry appropriate medical and first aid supplies.

If we limit the discussion to Australian aircraft then they may chose to carry Epipens if they decide that is the appropriate response to the risk.  They may prefer to carry adrenaline in other forms or not all.  Where they do carry adrenaline it is a schedule 3 drug so it is appropriate that where it is carried on the aircraft it is only made available on the approval of a medical practitioner or pharmacist.  It may not require a prescription but it is ‘pharmacy only’ medicine, not an unscheduled drug.

Today’s question again deals with issues of paramedic registration.  My correspondent says:

If I am an Ambulance Officer or a Volunteer in an Ambulance service, either private or public and meet paramedic registration requirements then why can I not call myself a paramedic by law?

Let me post this from SJA WA:

SJA Specific FAQ- As questions are asked the answers will be populated on this section for all Paramedics to review.

Q -If I am a current SAO [Student Ambulance Officer] and already hold a paramedic Science Degree am I required to be registered?

A– St John does not require a SAO who holds a degree to be registered as St John are not employing you as Paramedics nor are you calling yourself a Paramedic. However, you may be eligible for registration and may apply if you wish to. If you do not apply within two years of graduation (as a new grad) you will need to demonstrate that you have undergone a minimum number of hours of supervised practice with a Paramedic – as a St John SAO you will meet this requirement during the time you are a student prior to promotion to Paramedic.

Is this not wrong in the way in which this is put across and in fact, it reads like double standards?

I’m not exactly sure what my correspondent means by ‘wrong in the way in which this is put across’ or what are the double standards, but I do think it is problematic and by explaining why it may address my correspondent’s concerns.

Today (19 October 2018) anyone in Western Australia can call themselves a paramedic. Presumably the term ‘paramedic’ means something to St John (WA) but the meaning they give the term only applies to St John (WA).  I can call myself a paramedic in WA and whilst St John (WA) (and in fact anyone else) may not recognise that I’m a paramedic, I commit no legal wrong in using the title (provided I’m not seeking to mislead or deceive in trade or commerce).

What St John do mean by the term ‘paramedic’ is not explained on their website.  The St John (WA) website talks about the Graduate Student Ambulance Officer program for those with a paramedicine degree, the Student Ambulance Officer – Registered Nurse Pathway and the Student Ambulance Officer program where students will complete their degree from Curtin university whilst employed by St John (WA). All of these are pathways to employment as a paramedic without defining who or what is a ‘paramedic’.

The Australian Paramedical College in an undated page refers to employment with St John (WA).  This is not an official website but I will assume it’s correct for the sake of the argument.  It says to be employed as a qualified paramedic an applicant needs:

Employed with a recognised Ambulance Service within the last 12 months

Hold a Paramedic Health Science Degree or equivalent

A minimum of 2 year’s work experience and demonstrate the following experience and tenure;

• Victoria Ambulance Service – MICA level with at least 2 years on road experience at that level
• New South Wales Ambulance Service – Intensive Care Paramedic level with a minimum of 2 years on-road experience
• Queensland Ambulance Service – Critical Care Paramedic level with a minimum of 2 years on-road experience
• St John Ambulance, Northern Territory- Advanced Care Paramedic level with a minimum of 2 years on-road experience
• All other Ambulance jurisdictions- Evidence of working within a recognised Ambulance Service for a minimum of two years within a scope of practice equivalent to that of St John Ambulance, Western Australia.

If that is correct (and as I say this is not from St John (WA) but I’ll assume it is correct) then St John (WA) would appear to define ‘paramedic’ as a person with a relevant degree and 2 years work experience at the intensive care/critical care/ advanced care level.

On 1 December 2018 all that changes.  From that date only a registered paramedic can use the title ‘paramedic’ and Paramedic will mean ‘a person registered by the Paramedicine Board as a paramedic’.

If you are employed as a student ambulance officer by St John (WA) (or anyone else) and you ‘meet paramedic registration requirements’ then you can apply for registration.  If you are registered then you are a paramedic.  If you do not apply for registration then you are not a paramedic and cannot call yourself a paramedic.   Who is, or is not, a paramedic will be determined by the Paramedicine Board not the employer.

The first part of the post that is attributed to St John (WA) is therefore correct.  It says:

Q -If I am a current SAO [Student Ambulance Officer] and already hold a paramedic Science Degree am I required to be registered?

A- St John does not require a SAO who holds a degree to be registered … However, you may be eligible for registration and may apply if you wish to.

The Health Practitioner Regulation National Law ss 86-93 provides for student registration.  If you obtain student registration (assuming that the Paramedicine Board choses to register students) then you can call yourself a ‘student paramedic’.  If you are accepted for general registration then you are a Paramedic – no matter what St John (or any other employer) wants to call you.

One path for registration is to hold an approved qualification. The list of approved qualifications can be found at https://www.ahpra.gov.au/education/approved-programs-of-study.aspx?ref=paramedicine.

People qualify for registration as a medical practitioner but that does not mean that they can then work as a neurosurgeon or set up their own practice as a GP.  New graduates are employed on different terms to members of the Colleges of Surgeons or General Practitioners but they’re still doctors.  An ambulance service may chose to employ graduates on terms that limit their practice and subject them to supervision and further career development training.  But if those students meet the requirements for registration and chose to register then they are paramedics.

I would suggest an employer like St John (WA) will have to change the names of its programs.  For example, the Graduate Student Ambulance Officer program may become the Graduate Paramedic program.  If students at Curtin register as student paramedics, the Student Ambulance Officer program may need to become the Student Paramedic Program.  These are examples of the sort of matters that will have to be addressed as the registration process settles down and people come to grips with its impact.  As noted elsewhere there will be significant industrial issues that will have to be addressed – see Paramedic registration and changing the terms of employment (February 16, 2018).

What of the statement ‘St John are not employing you as Paramedics nor are you calling yourself a Paramedic’.  That statement only makes sense if ‘paramedic’ means a person with ‘a relevant degree and 2 years work experience at the intensive care/critical care/ advanced care level’; but that is not what Paramedic will mean after 1 December.  If a person is a graduate with an approved qualification and registered, and is then employed, they are being employed as a graduate and therefore as a paramedic, even if they are not being employed as an intensive/critical/advanced care paramedic.  They may be subject to the same supervision and restriction as a person employed today as a ‘Graduate Student Ambulance Officer’ but from 1 December, if they register, they are a paramedic and that is the reason they are being employed.  They will also be able to call themselves a paramedic.

Conclusion

It is all semantics (‘the branch of linguistics and logic concerned with meaning’).  Today St John restricts the title ‘paramedic’ to ‘a person with a relevant degree and 2 years work experience’.   After 1 December 2018 the title will be restricted to ‘a person registered as a paramedic with the Paramedicine Board’.  No doubt St John (WA) will have to change the language it uses in job descriptions, employment programs etc even if those changes will have little practical difference for new graduates – other than they will be able to call themselves paramedics if they are registered.

Today’s question revisits a matter of clear concern:

If a person who is a registered medical practitioner (doctor) also works casually as a registered paramedic, what are their obligations when working as a paramedic?

In the event of a complaint or adverse outcome, or if a case comes before the coroner’s court, will they be expected to practise at a higher standard than would be expected of paramedics in general, or would the standard be that of a careful paramedic of similar skill and experience?

I understand skills would be limited by the equipment and environment of the ambulance and its equipment, however would the clinical knowledge and judgement of the practitioner be held to a higher standard in particular?

Also, more generally, could the answer to the more specific question above be applied to any registered health professional who also works as another registered health professional in a different field?

For related posts see

• Holding dual registration – EEN and paramedic (April 25, 2017)

and all the posts here

• – https://emergencylaw.wordpress.com/?s=volunteer+scope+of+practice

The basic premise is if you are a registered health professional you are a registered health professional regardless of what uniform you are wearing or what you say you are doing today.   Today I’m cooking sausages at the Bunnings Bar-b-q for my kids school – that doesn’t mean you are not a doctor, or nurse, or paramedic, when someone puts their hand on the hot plate.

Don’t look at this question from the perspective of the health professional, look at it from the perspective of a patient and someone reviewing the event afterwards.  It’s hard to imagine what a doctor or nurse is going to do that’s different to a first aider or paramedic if they don’t have specialist equipment at hand but they do bring different knowledge.  Let us assume however that there is something that they could do, or there was something that they observed or knew and didn’t act on that knowledge or apply that skill.  And let us assume it would have made a clinical difference to the outcome.  Also assume that whatever it was is not contraindicated.  A neurosurgeon may know that the patient needs brain surgery but that doesn’t obligate them to do the surgery on the street.   So with those limitations assume there is something that could be done.

A patient suffers adverse outcomes.  They discover that there was a registered health professional on duty with the volunteer first aid group or in this context a doctor on the ambulance even though his or her uniform said ‘paramedic’ not ‘doctor’.  There was something that person could have done that would have benefited the patient. The thing was not illegal and not contra-indicated.  It was practicable to do it, the health professional knew how to do it and knew it was indicated, but didn’t do it.  Why didn’t they do it? The organisation who’s uniform they were wearing hadn’t said they could do it (or perhaps had said they could not).  So what’s the concern? The practitioner’s concern was that they would get into trouble or they would get sued and would be personally liable.

If they’re afraid of getting sued they either don’t back their own competence in which case get another job (fear of getting sued is different to saying ‘in the circumstances it was not the appropriate thing to do given risks/benefits’) or they think that the emergency services are like a row boat on a sea surrounded by sharks.  The sea is the law and the sharks the lawyers and the only thing protecting the practitioners are legislative protection and the vicarious liability of their employer or agency.  As soon as they come out of the boat the sharks are waiting to attack.  This blog hopefully shows that is not the case.  Emergency services aren’t getting sued.  The law is actually calm and the sharks are protecting the boat.

But let us return to the patient who says ‘I came to you for care, you knew that there was some care I needed and you could have provided but you didn’t and I can show that because of that I have a worse outcome’.  If you were that patient would you accept the argument ‘yes I am a doctor, but on that day I was a paramedic and paramedics don’t do ‘x’ even though doctors do and I could have’?

As for the coroner (if that’s your concern) how do you answer the question ‘you let this person die rather than break an employer’s administrative rule?’ That, surely, is a harder question to answer than ‘why did you go beyond this rule?’ A: because that was the best hope I had to save their life (see

• Performing an Emergency tracheotomy (or life mimics art?) (March 11, 2018); and
• Doctor and emergency tracheotomy (September 19, 2017)).

When it comes to professional discipline the threshold question is did a health professional practice their profession at ‘a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers…’  As a health professional (whether that’s doctor, paramedic or nurse) what do you think your peers and the public would expect you to do if you were treating a person (regardless of the uniform) there was a procedure that would benefit the patient, was not contra-indicated, was safe to perform in the circumstances, was something you were competent to perform and had the necessary equipment and/or assistance and would improve the patient’s outcome particularly where it was necessary to save life or prevent long term threat to health or wellbeing (not where it would just be convenient or it could wait until the person saw their own doctor or hospital without increase risk).

Registered health professionals need to ask themselves – what should I do in those circumstances? What would others expect me to do?  Your answers to those questions will tell you what to do.

The question was

In the event of a complaint or adverse outcome, or if a case comes before the coroner’s court, will they be expected to practise at a higher standard than would be expected of paramedics in general, or would the standard be that of a careful paramedic of similar skill and experience?

…would the clinical knowledge and judgement of the practitioner be held to a higher standard in particular?

The person will be judged by the standard of a person with similar skills, competence and qualifications.  If the paramedic is also a doctor then they are a doctor.  They have that knowledge and those skills. If there was something else they could have done to save the patient’s life or prevent long term disability they will be expected to do that. If there is a complaint to the medical board the question will be did they practice their profession as a doctor at ‘a lesser standard than that which might reasonably be expected of the [medical] practitioner by the public or the [medical] practitioner’s professional peers…’

POSTSCRIPT

Having written the above I may have come up with an example to demonstrate the point.

Imagine that you have been a member of St John Ambulance for many years so you started as a first aider.  You have gone onto study medicine and have recently graduated so you are a registered medical practitioner but the paperwork has not quite caught up and as far as the St John records show, you are a first aider.

A patient comes into a first aid post and is treated by a first aider colleague. That colleague does their best and says to the person ‘there’s nothing we can do but if symptoms persist you may want to see your doctor’.  Assuming given that person’s skills and training that advice is appropriate.  But you’re a doctor and you have seen many more patients and you look at the patient and think ‘something’s not right here; if I was at work I’d want to ask a few more questions, take a blood pressure and listen to their chest’.  Assume there is a sphygmomanometer and stethoscope available.

You have two options.  First you say ‘today I’m a first aider, if I wasn’t a medical practitioner I would do just what my colleague did and give the same advice. The treatment offered to this person is what might reasonably be expected at a first aid post.  As a first aider I have nothing more to offer so I will offer nothing more.  I know there is a sphygmomanometer and stethoscope available but St John have not endorsed me to use those items even though, at work, I use them every day, but if I use them I will have broken a St John rule and if the person sues me for using them St John may not support me’. The person leaves, 10 minutes later suffers a catastrophic complication and dies.

Your alternative is to step up and say to the first aid colleague and the patient, ‘actually in my day job I’m a doctor and I wonder if I could just ask a couple more questions and take your BP?’   You do that and say ‘look I’m really concerned I think we should call an ambulance as you really need to see a doctor for some definitive tests’.  An ambulance is called the patient is taken to hospital where a diagnosis is made and his life is saved.  Or an ambulance is called, the patient’s taken to hospital and it’s determined that everything’s fine.  Or an ambulance is called and before it gets there the patient suffers a cardiac arrest but at least receives prompt CPR and defibrillation as he was in a first aid post – whether he lives or dies.

As a registered health professional which of those scenarios can you live with?  And what do you think your professional peers would make of either of them?  And who’s going to sue?  The patient who is sent to hospital with its associated expense and inconvenience to be subjected to tests that rule out whatever it was you suspected may be the problem, or the family of the patient who died 10 minutes after leaving a first aid post because you thought you were in a first aid uniform today?

Would you expect to be judged, and would you judge, the person who says ‘today I’m a first aider, if I wasn’t a medical practitioner I would do just what my colleague did and give the same advice. The treatment offered to this person is what might reasonably be expected at a first aid post.  As a first aider I have nothing more to offer so I will offer nothing more…’ as having acted reasonably? Or would you expect more from them because regardless of the uniform and the rules, they are a registered health professional?

I know today’s questions are about dual registration but the principle has to be the same if there is some procedure that the doctor can do, or some knowledge that he or she can bring to the matter, that a paramedic would not and does not have.

Today’s question comes from a Queensland volunteer rural firefighter who read my post More on the Queensland Road Rules (November 26, 2012).

History

In that post I was considering whether a member of the Queensland Rural Fire Service when responding to an emergency call was an emergency worker, and therefor driving an emergency vehicle for the purposes of the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld).  My conclusion was that the Fire and Rescue Service Act 1990 (Qld) used the term ‘officer’ in a variety of contexts – Fire Service Officer, Authorised fire officers, fire officer, first officer and ‘such other officers’.  The Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) said that an emergency worker included an officer of the Queensland Fire and Rescue Authority’.  Because the Transport Act did not define who is ‘an officer’ I argued that it was a generic term that covered all the various officers.  I concluded:

So my view is that an officer of a rural fire brigade is not a fire service officer, or a fire officer, but they are ‘an’ officer of the QFRS and so they are an emergency worker for the purposes of the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) and so any vehicle that they are driving ‘in the course of his or her duties as an emergency worker’ is an emergency vehicle.

I did note that my conclusion did not necessarily mean that the rural fire officer had any exemptions under the relevant road rules.  An officer could only rely on r 306, the exemption for emergency vehicles if that was ‘consistent with any direction from the Commissioner under s 82(2) or s 19… if they (QFES) give a direction or order that drivers are not to drive contrary to the rules that would be evidence to say it is not reasonable that the rule should apply…’

I finished by saying

If anyone wanted to contribute to the debate, I’d be very interested to read any official advice from QFRS particularly if it expresses a contrary interpretation.

Today’s question

Today’s correspondent has indeed forwarded advice from QFES.

The document, Queensland Fire and Emergency Service Safety Alert No. SA-07-18 dated 10 October 2018, as provided to me, is attached (SA-07-18-Driving-and-Vehicle-Safety).  Relevantly it says (emphasis in original):

There has been an increase in incidents involving QFES vehicles in recent weeks, including speeding infringements, road traffic crashes, vehicles impacting pedestrians and vehicles impacting QFES personnel at incidents scenes [sic]

… all QFES workforce are reminded that driving, particularly en-route to, or at the incident scene requires the utmost care and attention.

Exemption for Emergency Vehicles within the Australian Road Rules 2009 and the Transport Operations (Road Use Management Road Rules) Regulation 2009 do not apply to volunteers driving QFES vehicles, therefore volunteers can drive QFES vehicles displaying a red and blue light or sounding an alarm whilst responding to an emergency but MUST comply with all relevant road rules.  In addition, any traffic infringements for speeding or from red light cameras are required to be passed on to the person identified as the driver of the vehicle.

The Australian Road Rules are published by the National Transport Commission as the model for adoption across Australia.  They are not legally binding unless and until they are incorporated into the law of a state or territory. The latest consolidation is dated 19 March 2018.  It is not clear what the Safety Alert is referring to when it mentions the Australian Road Rules 2009, but that doesn’t matter.  The relevant reference is to the Transport Operations (Road Use Management Road Rules) Regulation 2009 (Qld).

Corrections, updates and mea culpa

Revisiting this issue, I have to say my post in 2012 was wrong.  In that post I relied on a definition of emergency worker that said:

emergency worker means–

(b) an officer of the Queensland Fire and Rescue Authority or a fire and rescue service of another State;

Anyone reading that today may recognise that the Fire and Emergency Services Act 1990 (Qld) creates the Fire and Emergency Service, not the Fire and Rescue Authority. The Queensland Fire and Rescue Authority was abolished by the Emergency Services Legislation Amendment Act 2001 (Qld).  At that time the Authority was replaced by the Queensland Fire and Rescue Service.  The Fire and Rescue Service became the Fire and Emergency Service with the commencement of the Public Safety Business Agency Act 2014 (Qld) on 21 May 2014.

The definition of emergency worker that I relied on, in 2012, came from the Transport Operations (Road Use Management—Road Rules) Regulation 1999 (Qld).  The Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) (and therefore the rules in force when I was writing in 2012) defined emergency worker as, inter alia, ‘a fire officer under the Fire and Rescue Service Act 1990…’  What follows is that my conclusion of November 26, 2012 is not only wrong now, it was wrong when I wrote it.

The current law Exemption under the road rules

Under the Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld) r 306 the driver of an emergency vehicle is exempt from the other road rules if—

(a) in the circumstances—

(i) the driver is taking reasonable care; and

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

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

An emergency vehicle is a vehicle driven by an emergency worker who is ‘driving the vehicle in the course of performing duties as an emergency worker’.  An emergency worker as, inter alia, ‘a fire officer under the Fire and Emergency Services Act 1990…’ (Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld) Sch 5)  A ‘fire officer’ is a ‘person employed in the service who has the functions of fire prevention and fire control, and includes a person employed under this Act who is undergoing training as a fire officer’ (Fire and Emergency Services Act 1990 (Qld) Sch 6).

Conclusion 1

It follows that now (as it was in 2012) the:

Exemption for Emergency Vehicles within the … Transport Operations (Road Use Management Road Rules) Regulation 2009 do[es] not apply to volunteers driving QFES vehicles…

Using red/blue lights and siren

What then of the statement:

… volunteers can drive QFES vehicles displaying a red and blue light or sounding an alarm whilst responding to an emergency…

Here we have to start with the authority to have red/blue lights and a siren on a vehicle. The relevant rules are set out in the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld).

Rule 23(2) says ‘A motor vehicle must not be fitted with a device that can make a sound like the sound of a siren, exhaust whistle, compression whistle or repeater horn.’ That rule does not apply to an ‘emergency vehicle’ (r 23(3)(b)).

Rule 99 says ‘A vehicle, other than an exempt vehicle or a special use vehicle, must not be fitted with a light that flashes.’  Rule 99(6) says:

In this section—

exempt vehicle means any of the following vehicles—

(a) a police vehicle;

(b) an emergency vehicle;

(c) a transport enforcement vehicle;

(d) an Australian Border Force vehicle;

(e) an Airservices Australia vehicle.

The Dictionary set out in Schedule 4 of the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld) defines emergency vehicle as:

… a motor vehicle—

(a) fitted with—

(i) a repeater horn or siren; or

(ii) a flashing warning light; and

(b) driven by—

(i) an officer of the Queensland Ambulance Service or an ambulance service of another State in the course of the officer’s duty; or

(ii) an officer of the Queensland Fire and Rescue Service or a fire and rescue service of another State in the course of the officer’s duty; or

(iii) an officer or employee of another entity with the written permission of the commissioner in the course of the officer’s or employee’s duty.

We know that is out of date – it should refer to the Queensland Fire and Emergency Service but I am taking this from the official Queensland legislation website so this is the current version – https://www.legislation.qld.gov.au/view/whole/html/inforce/current/sl-2010-0192.   Savings provisions will mean that a reference to the Fire and Rescue Service is taken to mean a reference to the current Fire and Emergency Service.

Unlike the Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld) Sch 5, this definition does not refer to a ‘fire officer’ but to an ‘officer’.  This takes us back to the argument I made in 2012 – the term ‘officer’ is different to, and means more than, ‘fire officer’.

Let us assume that the argument in 2012 was correct (even though I was using the wrong definition of emergency worker) and that a first officer of a rural fire brigade is an ‘officer’ (but not a fire officer’) of QFES (but see Rural Fire Brigades as part of Queensland Fire and Emergency Services (not Queensland Fire and Emergency Service (August 6, 2018)).  If that is correct, then the definition of emergency vehicle in the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld) makes sense.

Conclusion 2

If I assume Queensland Rural Fire Service vehicles are fitted with red/blue lights and sirens, then they can be driven by a volunteer fire fighter even though they are fitted with the lights and siren even though that driver gets no exemption from the road rules if they are activated.

The obligations of others

The obligation of other drivers when they are in the vicinity of an emergency vehicle are set out in the c rr 78 and 79.

78 Keeping clear of police and emergency vehicles

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

Maximum penalty—20 penalty units.

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

Maximum penalty—20 penalty units.\

(3) This section applies to the driver despite any other section of this regulation.

79 Giving way to police and emergency vehicles

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

Maximum penalty—20 penalty units.

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

Conclusion 3

We know that a vehicle being driven by a rural firefighter is not an emergency vehicle for the purposes of the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) so other drivers do not need to comply with these provisions.

Implications

The implications are crazy. As the safety alert says ‘driving, particularly en-route to, or at the incident scene requires the utmost care and attention’ so why add to the complexity by allowing rural fire fighters to drive as if they are driving an emergency vehicle when they are not?

Rural fire fighters may understand that they have no exemption under the road rules but others will not. Other drivers are not going to appreciate that they don’t have to get out of the way of the appliance and whether they have to or not, will no doubt try to do so. That puts every other road user at risk and, given r 78(3) may encourage other road users to break the law in order to get out of the way.  Imagine the confusion of a rural fire appliance stopped at a red light.  Every other driver, even those facing a green light, stop to allow the appliance to proceed, but it doesn’t. It sits there, lights flashing, siren wailing waiting for a green light.  Who knows what other drivers will do in this very confusion situation.

The driver of the fire appliance may intellectually understand that he or she has no exemption but when they are proceeding to a fire or other emergency call, lights flashing and siren sounding, other drivers will be getting out of their way.  The adrenaline of the fire call is heightened by the noise and conduct on the road so expecting that driver not to edge over the speed limit, or go through the red light when everyone is waiting, or to take some other measure is foolish. They may get a ticket, worse they’ll have an accident.

The Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld) says it’s ok to have these lights and sirens fitted to the vehicles but says nothing about their use.

The use of the lights and sirens is only mentioned in the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld).  That regulation doesn’t say when they can be used but what they mean for the driver of an emergency vehicle or other drivers when an emergency vehicle is nearby.  A vehicle driven by a fire fighter who is not a ‘fire officer’ is not an emergency vehicle.

It is my view that if you are going to activate lights and sirens people will get out of your way and expect you to drive like an emergency vehicle.  That does not mean you can drive at a dangerous speed or proceed through a stop sign or red traffic light without first stopping to ensure others have given way, but having done that people will expect you to move on. If you are going to drive in full compliance with the road rules what do the lights and sirens do other than heighten emotion and confuse everyone.

My view is that if there is no exemption, then the driver should not activate the lights and sirens as that is meant to trigger rr 78, 79 and 306 and if those rules don’t apply to the driver they are meaningless and dangerous.

Rural fire service volunteers should also note the exemption from the parking rules (Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) r 307) only applies to an emergency vehicle too.  Not only might you get a traffic infringement for driving to an emergency, you might also get a parking ticket when you get there.

Other questions

My correspondent concluded by asking;

So cars that move out of the way are doing so on a voluntary basis. But if they (the yielding car) were to then have a minor accident, would that car be at fault since there was no ‘requirement’ to give way to the approaching vehicle (not in a criminal context, but for example voiding their comprehensive insurance).

The answer is that they may be liable.  Remember r 78 says that a driver must get out of the path of an emergency vehicle and further ‘This section applies to the driver despite any other section of this regulation.’  The driver may proceed through a red light, trigger a red light camera, then respond to the infringement notice by saying ‘I was getting out of the way of an emergency vehicle as required by r 78(3)’.  The police may say ‘but that’s not an emergency vehicle (but you couldn’t know that) so the ticket stands’. That’s unlikely but possible (see also Making way for emergency vehicles (May 18, 2015)).

Would it void one’s insurance? No.  That question implies a misunderstanding of insurance. Comprehensive car insurance means that if your car is damaged, or you damage someone else’s car, the insurer will pay out to meet your losses (agreed or market value) and meet your legal liability to any other car owner.  You don’t void the insurance because the accident is your fault, that is what the insurance is for.  An insurer may not pay out if you deliberately damage your car but they do if you accidentally, including negligently, damage your car – that’s why you have insurance.

Conclusion

The Queensland legislation is a mess.  The safety alert is at least in part correct:

Exemption for Emergency Vehicles within the Australian Road Rules 2009 and the Transport Operations (Road Use Management Road Rules) Regulation 2009 do not apply to volunteers driving QFES vehicles, therefore volunteers … MUST comply with all relevant road rules.  In addition, any [parking or] traffic infringements for speeding or from red light cameras are required to be passed on to the person identified as the driver of the vehicle.

Volunteers ‘can drive QFES vehicles [fitted with] a red and blue light or … alarm’ but whether they can or should activate or ‘display’ those lights or ‘sound’ that alarm is another matter.

If QFES is worried about safety, inviting volunteers to use the light/sirens when they have no exemption from the road rules is simply inviting harm. Either volunteers will be getting traffic tickets or someone’s going to have an accident because emergency driving is dangerous.  If you don’t want (or don’t have) an exemption from the road rules, don’t behave as if you do. A fire appliance with flashing red/blue lights and siren looks like an emergency vehicle and people can be expected to behave accordingly.

The point of the lights and siren is to alert people to the emergency vehicle and make them aware that the driver may take action that would be illegal for other drivers and that other drivers must make every effort to clear a path. If those obligations don’t exist, if it’s not an emergency vehicle, the use of the lights and sirens is dangerous and unnecessary.

If I was a Queensland RFS volunteer I would refuse to drive the vehicle with lights/sirens activated.  The reason I want those on is I want the benefit of rr 78, 79, 306 and 307. If I don’t get those then there’s no ‘benefit’ to put into the risk assessment or cost/benefit equation.  The risk to myself (of accident and legal consequence) and the risk to other road users is too high for no effective benefit.

QFES should either seek to amend the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) so that a volunteer fire fighter is an emergency worker or the direction from QFES should be that, as there is no exemption, drivers should not use the lights and sirens fitted to their appliances.  Ideally the sirens should be removed as they shouldn’t be used when driving and serve no purpose when stationary.  That would leave only the flashing blue/red lights to warn other road users of a stationary fire appliance where it is posing a road hazard.

 

Today’s correspondent is a paramedic currently working

… for a private Paramedic company on a mine site. I am also a long serving Paramedic with Queensland Ambulance Service of over 28 years and still work as a casual for QAS.

I would like to put a request to you to possibly investigate the and hopefully help make change to an outdated QLD Health regulation for Paramedics working outside the state service.

Paramedics will all require registration by the end of the year as are all health care professionals. Paramedics working for Queensland Ambulance Service (QAS) are authorized to administer certain drugs as per drug protocols under the license of the Medical Director of QAS and are not required to consult and have autonomy to administer those drugs as per the drug protocol.

I am currently employed as a casual for QAS and have been employed with QAS for over 28 years.

My full time employment is now with a private sector Paramedic company working on a mine site as a Paramedic. Mine site industrial Paramedics have the same qualification’s as QAS and will all be registered the same as state Paramedics. Mine site Paramedics work under similar drug protocols as QAS but are required to consult a Doctor and do not have the same autonomy to administer most of the drugs in our drug protocol.

All Paramedics will have mandatory Indemnity Insurance and to be known as a Paramedic will require registration with AHPRA.

My request to you is to have the same professional respect for the mine site Paramedics as the State Paramedics with QAS and have the Health (Drugs And Poisons) Regulation 1996 (Qld) changed to reflect the current changes in professionalism with Paramedics and registration.

I have addressed these issues in an earlier post – see Administering drugs when paramedics are registered (October 3, 2018).

I note that the Health (Drugs and Poisons) Regulation 1996 (Qld) deals with the authority of ambulance officers employed by the Queensland Ambulance Service in regulations 66, 174, 262 and Appendix 2A. It is wrong to say that an officer’s authority to carry and administer scheduled drugs comes from ‘the license of the Medical Director of QAS’. It comes from the Health (Drugs And Poisons) Regulation 1996.

Other people are also authorised to carry drugs eg Queensland Ambulance Service—first responders (r 174A); members of St John Ambulance Australia—Queensland (r 174B) and Registered nurses (rr 67, 175, 263).  I will not go through the details of when they can carry those drugs or the endorsements needed. The point is that the Regulations do provide for people to carry drugs whether that is on registration or upon certification by an identified office holder.

As it is now well known, from 1 December paramedics will be registered health professionals.  That won’t automatically change the drug legislation but it may be that there will need to be changes.  For example, the regulation uses the term ‘paramedic’ but this is not defined.  With the introduction of registration it will, I suggest be taken to mean a ‘registered paramedic’ but that won’t help my correspondent as the term is used in the context of ambulance officers employed by QAS.

What that means is that, with registration, paramedics will still be able to carry and use drugs because they are working for QAS, not because they are registered paramedics. But given the term ‘paramedic’ will then mean something, the regulatory may in due course make provision for registered paramedics to carry drugs in the same way that there are regulations for ‘registered nurses’.

As I have noted elsewhere, the changes to paramedic practice that registration will bring will not happen overnight.  It will take time for governments to be confident that registered paramedics are appropriately supervised by the Paramedicine Board and that the public interest warrants allowing registered paramedics to carry drugs away from their employer.   Equally, it will take time to address these issues.  Professional registration is only the first step.  Registration will however empower paramedics by giving them a professional voice to lobby government.

Conclusion

Whether the right to carry and administer drugs will be given to paramedics or remain with their employer remains to be seen.  These are not new or unforeseen issues.   As I said in my previous post:

… in my view, paramedic registration is going to change the nature of paramedic practice, but it won’t do that overnight.  Once paramedics are registered it will be possible for health departments to make rules that relate to ‘paramedics’, for example they will be able to make rules to the effect that ‘a paramedic may carry the following drugs’ (or some such).  That they will be able to do that doesn’t mean they will and it certainly doesn’t mean they will when registration commences.  Deciding what authority to give to paramedics will depend on evidence and arguments and timing submissions eg when poisons legislation comes up for review.

 

 

 

Today’s question comes from a paramedic who has moved interstate to take up:

… a senior operational position with a jurisdictional ambulance service. My position does not specifically require me to be a paramedic, however it is certainly beneficial and I believe that the paramedic experience I brought with me was a contributor to my originally obtaining the position.

Because I intend to continue to practice as a paramedic, and I have sufficient qualifications, experience and currency to do so, I have submitted my registration application. However, I do not yet have a certification/authority from my employer to practice to ‘paramedic’ level (as most jurisdictional ambulance services require). The certification process is quite comprehensive and involves many hours of ‘orientation’ and a series of clinical tests and scenarios that I am required to progress through.

My question is: Should I find myself in a situation where I am a registered (and suitably insured) paramedic and have the skills and experience to make a clinical difference by the application of a paramedic skill, however I do not yet hold jurisdictional certification/authority to do so, what reasonable considerations should be taken into account?

The impact of registration

It is my view that paramedic registration is going to bring significant changes to paramedic practice.  It will not make that difference on 1 December 2018 (the commencement date) but it will, over time.  One change will be to remove the need for this sort of assessment and the idea of an ‘authority to practice’ (see What is a paramedic’s ‘authority to practice’? (August 19, 2014)).

Today (17 October 2018) paramedics are not registered. Except in NSW, Tasmania and SA, anyone can call themselves a paramedic.  What a paramedic can and cannot do is not defined by law but by the person’s skills and training. It makes sense that in this environment employers want to assess a person’s skills and then say ‘as your employer we’re happy for you to do ‘a’, ‘b’ and ‘c’’.   That’s what an authority to practice is.  It does not make it illegal to do ‘d’, ‘e’ or ‘f’ but in the event of any allegation of unprofessional or negligent conduct it may allow the employer to argue you were on a ‘frolic of your own’.

With paramedic registration, I would expect that, over time, this will change.  First an employer will know that a registered paramedic has qualifications that meet the standards for registration so they don’t have to go and look at the course and try to identify the content.  Second the Paramedicine Board <<https://www.paramedicineboard.gov.au/Professional-standards/Professional-capabilities-for-registered-paramedics.aspx>>:

… has adopted professional capabilities for registered paramedics …

These capabilities identify the knowledge, skills and professional attributes needed for safe and competent practice of paramedicine in Australia and draw on the Professional Competency Standards – Paramedics Version 2.2 2013 published by the Council of Ambulance Authorities and the Australasian Competency Standards for Paramedics 2011 published by Paramedicine Australasia.

As registration ‘beds in’ employers will become confident that a registered practitioner moving from interstate has those ‘professional capabilities’.

Finally ‘The Paramedic Observer’ is reporting that

The Victorian government has taken a significant step to enhance the mobilisation of the paramedic workforce with its proposed Advanced Paramedic Roles Implementation Pilot, which will trial new roles for paramedics in rural communities.

What makes this move particularly significant is that Victoria has taken up this issue with the Council of Australian Governments Health Council. The Council has decided to task the Paramedicine Board of Australia with developing a nationally consistent approach to the scope of the practice, educational requirements and education provider accreditation for paramedic practitioners.

There has been no nationally agreed scope of practice for paramedics in the past outside of employer guidelines and protocols. Along with national registration, a national scope of practice will be a breakthrough in facilitating private practice by registered paramedics and expanding the role of the profession outside the traditional ambulance sector.

Once again, when there is ‘a nationally consistent approach to the scope of the practice … for paramedic practitioners’ much of this assessment when changing jobs will become unnecessary.

The answer

I can now turn to my correspondent’s question.  Assuming that my correspondent is a registered paramedic then his or her obligation is to provide care as a reasonable paramedic.   The Health Practitioner Regulation National Law, s 5 says:

“Unprofessional conduct”, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers…

The question would be “what would a registered paramedic’s peers make of a decision by a ‘registered (and suitably insured) paramedic … [with] the skills and experience to make a clinical difference’ who didn’t apply his or her skills or knowledge because their employer had not yet completed a process to sign off that the paramedic was competent and where no specific legal authority or endorsement was required for those skills (in other words it doesn’t involve the use of scheduled drugs)?”

The reasonable considerations that should be taken into account are what is the risk to the patient?  You may be able to make a clinical difference but perhaps the duty car is only a minute away so the delay won’t matter.  On the other hand if it’s act now or the patient dies then what’s more important – meeting the employer’s administrative needs (and that’s all it is) or saving the patient’s life.  And if you’re in attendance in the uniform or car of your employer would they prefer you let the patient die in order to comply with their administrative processes (and if the answer is ‘yes’ perhaps it’s time for another employer).

I won’t get into issue of potential negligence actions a) because I assume my correspondent or any paramedic both is, and believes they are, competent so I assume the procedure is not going to be done badly b) my correspondent has noted that they will be ‘suitably insured’ and c) the risk of such an action is so low as to be almost far fetched or fanciful for reasons discussed in many other posts on this blog.

In short if you’re a registered paramedic and you believe you have the skills and experience to make a clinical difference and in particular if the situation is urgent, then do it.   Any certification by the employer is not what gives you skills and experience, you either have them or you don’t.

In Gamblin v State of Queensland, (Queensland Ambulance Service) [2018] QIRC 129 Deputy President Swan, sitting as the Queensland Industrial Relations Commission, rejected a claim by a Queensland Ambulance Service (QAS) Paramedic that he had been the victim of unfair dismissal and dismissed his claim to be reinstated to his position with the QAS.

The facts

Mr Gamblin was an Advanced Care Paramedic with QAS. He commenced with QAS in 2008 and qualified as a full-time Advanced Care Paramedic in 2011.  From January 2015 until his dismissal on 22 July 2016 he worked as an Advanced Care Paramedic on a casual basis.

On 29 June 2016 Mr Gamblin was working with a graduate paramedic.  They transported a patient to the Gold Coast Robina Hospital.  Whilst there another ambulance arrived.  The two paramedics in the second ambulance were caring for a young woman who had been found intoxicated and who has been punched in the mouth.  The paramedics caring for this young woman were able to rouse her at the scene and she walked, with assistance, to the ambulance.  They did not believe she needed hospital care but they had been unable to locate anyone to care for her and they could not leave her where she was so she was transported to hospital.   At [73]-[75] it is reported that:

… the Patient Care Officer in the ambulance [said that] … during the Patient’s transportation to the Hospital he monitored her and stated that “everything was fine”.

He formed the view that there was nothing out of ordinary in terms of the Patient’s responses.  He had in fact removed the monitors from the Patient on her way to the Hospital as he believed that this was no longer required.

At the Hospital, the handover of the Patient to the triage nurse occurred and the triage nurse went to the patient to awaken her.  The Patient was placed upright on the stretcher for this purpose.

(Deputy President Swan does not say this, but reading between the lines, I would infer that she was asleep rather than unconscious).

The paramedics responsible for this patient’s care, the triage nurse, and another paramedic in the hospital with another patient were all engaged in their various duties of completing paperwork etc.

Mr Gamblin, who had arrived at the hospital with his own patient and who had nothing to do with the treatment of this young intoxicated woman, without consulting the other paramedics, the triage nurse or the medical staff, approached the patient and inserted an Oropharyngeal Airway (OPA) into her mouth.  The patient reacted and resisted this procedure.  Mr Gamblin is seen to hold the OPA in place.  He finally removes the airway and leaves the area.  The entire process took between 52 and 53 seconds and was recorded by CCTV.

The treating paramedics observed, after Mr Gamblin’s intervention, that there was (at [84]) ‘blood and saliva around the patient’s mouth’ (see also [97]).

Mr Gamblin claimed that he intervened because he was concerned that a patient with a glasgow coma scale of 3 was not being properly treated and that she was at risk of a compromised airway.  In essence his intervention was necessary, as a matter of urgency, to protect the patient’s wellbeing.  The tribunal rejected this explanation.  At [166]-[167] Deputy President Swan said:

A significant factor for consideration are the admissions by the Applicant of his failings on that morning.  Those failings included the following:

• The Patient was not under his care;
• He had not conducted his own GCS assessment of the Patient;
• He had not brought into the triage area a full set of equipment;
• He had failed to measure the size of the OPA on the Patient. Rather, he had relied upon his own visual assessment of the size required;
• That he had not put the Patient in a supine position; and that
• He also had failed to record his involvement with the Patient on the relevant paper work.

I am unable to accept the claim that the Applicant held a genuine belief that he was required to intervene in the process with a Patient for whom he was not responsible.  This is particularly so when the facts are that the Patient was already in an Emergency Department of a Hospital; and that the Patient was not his Patient and that he would not have had any direct knowledge of the Patient’s history.  Further, given the setting of the incident, where there was a triage nurse who has seen the Patient; where the Patient had two specific Paramedics allocated to observing her; where there are Doctors who would be available if called; and where all the necessary medical equipment would be available to utilise if required, it is unbelievable to accept that the Applicant felt there was an urgent need for him to interfere in the treatment of this Patient.

So why did he do it?  The evidence revealed that he was ‘showing off’ to his more junior partner and (at [27]) ‘that he used the OPA on the Patient as a means of showing … the Graduate Paramedic who was working with him on 29 June 2016, how to get a response from a patient using an OPA.’

Mr Gamblin’s partner (who was working his first shift with Mr Gamblin) gave evidence (at [57]-[59]) that:

On two occasions prior to the incident at the Hospital on 29 June 2016, the Applicant had talked … about being able to get a response from a patient who was not responding through the use of an OPA…

Mr [Gamblin’s partner]… had noticed at the Hospital that a triage nurse was attempting to get a response from a female Patient using a physical cue.

He recalled the Applicant at some point saying to him words to the effect “watch this” or “here watch this”.

Later, at [68]

He added that on 29 June 2016, in his view, the Applicant had wanted to show him how to insert an OPA. His opinion was that the Applicant was not concerned about the patient per se, but rather that he had wished to show [him] … how to insert an OPA for the purpose of identifying its efficacy.

At [183] Deputy President Swan said:

I have accepted the opinions of those who viewed this incident that it was the case that the Applicant was in effect “showing off” … his knowledge and capacity concerning the effective use of an OPA on a patient.

Mr Gamblin’s conduct was proved misbehaviour in that ([12]) he:

… conducted an unauthorised medical procedure on a patient who was in the care of other QAS Paramedics; and

… contravened QAS Procedures and Guidelines – namely:

• Clinical Practice Guidelines Neurological/Altered level of consciousness;
• Clinical Practice Procedures:  Assessment/Glasgow Coma Scale; and
• Clinical Practice Procedures:  Airway management/Oropharyngeal airway insertion.

Deputy President Swan reviewed the processes adopted by QAS in their investigation of the incident and found that the investigations had been properly conducted with no denial of natural justice.  The decision to terminate Mr Gamblin’s employment was not ‘harsh, unjust or unreasonable’ and there was, therefore, no ‘unfair dismissal’ (see [6] and Industrial Relations Act 2016 (QLD) s 316).

Commentary Criminal behaviour

Mr Gamblin was lucky not to be charged with a criminal offence.  At [138] Deputy President Swan notes that ‘On 1 September 2016, QAS was told that by the Queensland Police Service that the Patient did not wish to proceed with criminal charges against the Applicant.’

I can’t say whether or not there was a criminal offence, but as has been noted on this blog often enough, consent is required before any treatment is administered.  Consent is not required where a person is unable to consent eg because they are unconscious.  In those circumstances treatment may be given where that treatment is reasonably necessary and in the patient’s best interests (see The doctrine of necessity – Explained (January 31, 2017)).

The inference is that this patient was not unconscious or, in any event, Mr Gamblin did not attempt to assess her level of consciousness.  Further he introduced an OPA to show off to his partner, not because he was acting in her best interests.  In those circumstances the defence of necessity would have provided no comfort to Mr Gamblin had he been charged (which is not to say he would have been convicted of any offence, only that the requirements for this defence do not appear to have been met).

The impact of registration

The consequence of this incident is that Mr Gamblin lost his employment.  That was in 2016.  It’s now 2018 and with the publication of this decision the incident and the consequences are public but they haven’t been until now.  At [117] Deputy President Swan noted that by 2 October 2016 ‘the Applicant had obtained full-time employment with Ambulance Tasmania’.   I cannot say whether Ambulance Tasmania knew or knows of this incident and what if any impact it may have now that the Tribunal’s decision has been published.

One argument for paramedic registration was that it would protect patients by making sure incidents of unprofessional conduct are identified and known.  Should an incident like this occur once paramedics are registered, the Paramedicine Board will be able to take immediate action to restrict a paramedic’s practice pending investigation and determination of any complaint (Health Practitioner Regulation National Law, s 156).  A paramedic who is subject to that action would not then be able to get a job with another ambulance service where that would be inconsistent with any action taken or conditions imposed by the Board.  Further, if after determining the matter, it is determined that it is sufficiently serious, it can be referred to a Tribunal with the power to cancel the paramedics registration.  Even if a person is not ‘struck off’ the register, conditions may be imposed on his or her right to practice or he or she may be required to undergo further education.  The outcome of those proceedings will be public and any conditions noted on the register.  If the paramedic then approached another ambulance service, provided they make the appropriate enquiry, they would know of the history before deciding if the person can or should be employed as a paramedic.  This aspect of patient protection is a key feature of national registration.

Conclusion

A paramedic’s obligation is to act in the best interests of his or her patient.  Using the patient as a ‘means to an end’, in this case using a vulnerable patient as a training aid to advance the skills of a more junior colleague, is unethical and probably criminal.

In this case, the tribunal found that QAS was justified in its decision to terminate Mr Gamblin’s employment.  With paramedic registration there will also be the Paramedicine Board and ultimately a relevant Tribunal under the Health Practitioner Regulation National Law that will be empowered to take action to protect patients from improper conduct by registered paramedics.

A correspondent has drawn my attention to this news story –

• Isabel Moussalli, ‘Stingray attack prompts call for change about who can give pain relief to patients at sea’ ABC Esperance (Online), 16 October 2018.

The essence of the story is that a man who was stung by a stingray ‘suffered hours of pain because a marine rescue service was not allowed to give him pain relief and volunteer ambulance officers were not allowed to board rescue boats’.   The story tells us that the Esperance Volunteer Marine Rescue Service (VMRS) ‘personnel were trained in first-aid but were not allowed to administer pain medication’.  As a result the VMRS requested a paramedic be sent aboard the rescue vessel but this was not possible as:

… the town’s only career paramedic was unavailable.

A St John Ambulance spokesperson said because volunteer ambulance officers were not trained to give medical care on board boats in open water or aircraft, they were not able to help the patient until he reached shore.

“St John has expertise in the provision of land-based pre-hospital care and land-based patient transport,” the spokesperson said.

“Once on land, our crew was able to deliver two forms of pain relief to the patient, including a ketamine product.”

The patient, Mr Black is quoted as saying:

“The Government needs to look into this and actually make some ruling where volunteer paramedics are allowed on boats, just to allow better care of the patient,” he said…

Mr Black said if changes could not be made to allow volunteer ambulance officers on boats, he believed the VMRS should obtain qualifications to administer pain relief.

Commentary

My first comment is that I think it is unfortunate that people presume everything is ‘up to the government’.  In conference I go to government officers bemoan the fact that everyone looks to government for a solution as evidence of a lack of personal resilience.  That is not the issue here but the statement that ‘the government needs to look into this…’ is still reflective of the view that governments are the cause of, and solution to, every problem.

Recognising that I have only this story to go on, it has to be that the change ahs to come from St John Ambulance (WA) not the government.  There is no ambulance service legislation in Western Australia and no regulation that says ‘a Volunteer ambulance officer must not be dispatched in a boat’.   One can infer that it is St John (WA) that has determined that the risk to staff and patients of using volunteers to try and treat people on boats exceeds the potential benefit.  If St John (WA) would allow a career paramedic to travel on the VMRS boat then one might infer (or at least hope) that there has been a risk assessment to determine in what circumstances and with what training and PPE a paramedic will be allowed to set off with the VMRS.  Presumably the relevant risk mitigation could be extended to volunteers if St John wanted to do that.

The government, as the contractor with St John for the provision of emergency ambulances may want to discuss the matter with St John but it unlikely that they are in a position to ‘make some ruling’.  The key driver for change has to be St John.

As for the alternative, that the ‘VMRS should obtain qualifications to administer pain relief’ that would surely be a matter for the VMRS.  No doubt the VMRS could approach the WA Health department and find out what training, record keeping and storage was required to then get an authority under the Medicines and Poisons Act 2014 (WA) to carry, supply and administer the relevant pain relief medication.   Again I wouldn’t expect the government to take the initiative here, it would be up the VMRS to determine whether that was a path they wanted to follow and then approach the relevant department to identify, and follow, the process for a drug authority.

Conclusion

Mr Black’s situation must have been terrible to endure, but I don’t see that it’s a problem for the government to address.  If there are issues with responding ambulance volunteers on VRMS boats or with VMRS volunteers not being able to access pain relief, the solution lies with either St John (WA) and/or the VRMS.  It’s not an issue that government could or should be expected to come in and wave an magic edict to solve.

 

The United Kingdom Supreme Court has handed down a decision in Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 (and thank you Bill Madden’s WordPress for bringing this to my attention).  This case dealt with the standard of care that can be expected from the NHS Trust and the no clinical staff in a busy emergency department.

On 17 May 2010, Mr Darnley was assaulted.  He rang his friend, Mr Tubman, and told him about the assault. He reported that ‘he had a headache and that it was getting worse’ ([1]).  The Mr Tubman drove Mr Darnley to the Mayday Hospital at Croydon. They arrived at 8:26pm.

Mr Tubman accompanied the appellant at the A & E department and was a witness to the conversation with the female A & E receptionist. The trial judge accepted Mr Tubman’s account of the conversation which took place. The appellant provided his personal details. He informed the receptionist that he had been assaulted by being struck over the back of the head and he thought that he had a head injury, that he was feeling very unwell and that his head was hurting. The receptionist did not have a helpful attitude and was more concerned about how the injury occurred. She asked the appellant if the Police were involved. The appellant and Mr Tubman both told the receptionist that the appellant was really unwell and they were worried that he had a head injury and needed urgent attention. The receptionist told the appellant that he would have to go and sit down and that he would have to wait up to four to five hours before somebody looked at him. The appellant told the receptionist that he could not wait that long as he felt as if he was about to collapse. The receptionist replied that if the appellant did collapse he would be treated as an emergency.

After 19 minutes Mr Darnley and Mr Tubman left the A&E department and went to the home of Mr Darnley’s mother.  At about 9:30pm the appellant became distressed and an ambulance was called. Mr Darnley was transported back to the Mayday Hospital by ambulance arriving at 10:38pm. A CT scan ‘identified a large extra-dural haematoma’.  He was transferred to another hospital and underwent surgery at 1:00am ([6]).  As the court noted (at [7]) Mr Darnley ‘suffered permanent brain damage in the form of a severe and very disabling left hemiplegia’.

Mr Darnley brought an action against the NHS Trust alleging that there was a breach of the duty of care ‘by the non-clinical reception staff concerning the information he was given about the time he would have to wait before being seen by a clinician and also a failure to assess the appellant for priority triage’ ([8]).

There were two clerical staff on duty that night.  Neither Mr Darnley nor Mr Tubman could identify who they had spoken to and neither of the clerical staff could recall Mr Darnley or their conversation with him or Mr Tubman.  They gave evidence of their ‘normal practice’. One said ‘that when a person with a head injury asked about waiting times… she would tell them that they could expect to be seen by a triage nurse within 30 minutes of arrival and it would be quite incorrect to tell them that they would have to wait up to four to five hours before being seen’.  The other ‘stated that she would tell them that the triage nurse would be informed and they would be seen as soon as possible’ ([5]).

The trial judge found in favour of the NHS Trust.  The judge’s reasoning was summarised at [10]. The trial judge found that there was nothing in Mr Darnley’s presentation to suggest that he needed immediate attention but had he been told that he would be seen within 30 minutes he would not have left the hospital. ‘The appellant’s decision to leave the A & E department was, in part at least, made on the basis of information provided by the receptionist which was inaccurate or incomplete’.

Even so, it was not the role of reception staff to try to ensure people stayed in the department.  ‘The harm suffered in this case was outside the scope of any duty or obligation owed by the respondent by its reception staff’ and, further, the alleged negligence in providing inaccurate information about the process in the department did not cause Mr Darnley’s injuries or make it worse by increasing the time to treatment:

The connection between the alleged inadequacies of the information provided and the harm suffered was broken because the decision to leave was one that was ultimately the decision of the appellant.

Mr Darnley appealed to the UK Court of Appeal.  The Court of Appeal upheld, by at 2:1 majority, the trial judge’s finding that there was no duty to advise the patient of waiting times.  The Supreme Court (at [11]) summarised Jackson LJ’s view as holding that the law did not impose:

… a duty not to provide inaccurate information about waiting times. To do so would add a new layer of responsibility to clerical staff and a new head of liability for NHS health trusts. Moreover, even if the receptionist were in breach of duty by giving incorrect information to the appellant, the scope of that duty could not extend to liability for the consequences of a patient walking out without telling staff that he was about to leave. The appellant should accept responsibility for his own actions.

Sales LJ too the view ’that information as to likely waiting times was provided as a matter of courtesy and out of a general spirit of trying to be helpful to the public’ and did not give rise to a legal obligation to be accurate ([12]).

McCombe LJ (at [13]) disagreed.  He considered that:

… it is the duty of the hospital not to provide misinformation to patients, whether it is provided by reception staff or medical staff. Incomplete and inaccurate information had been provided negligently. The failure to impart the reality of the triage system to the appellant on his arrival was, on the facts of this case, a breach of duty by the hospital. Furthermore, that breach of duty was causative of the appellant’s injury.’

There was a further appeal to the UK Supreme Court. In the Supreme Court, all five judges (Lord Lloyd-Jones with whom Lady Hale, Lord Reed, Lord Kerr and Lord Hodge agreed) held that the appeal should be allowed.

The existence of a duty of are care was not in issue

The Supreme Court held that this case was not about whether or not there was a duty of care.

It has long been established that such a duty is owed by those who provide and run a casualty department to persons presenting themselves complaining of illness or injury and before they are treated or received into care in the hospital’s wards. The duty is one to take reasonable care not to cause physical injury to the patient (Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428, per Nield J at pp 435-436). In the present case, as soon as the appellant had attended at the respondent’s A & E department seeking medical attention for the injury he had sustained, had provided the information requested by the receptionist and had been “booked in”, he was accepted into the system and entered into a relationship with the respondent of patient and health care provider… This is a distinct and recognisable situation in which the law imposes a duty of care. Moreover, the scope of the duty to take reasonable care not to act in such a way as foreseeably to cause such a patient to sustain physical injury clearly extends to a duty to take reasonable care not to provide misleading information which may foreseeably cause physical injury.

(For further discussion on Barnett v Chelsea and Kensington Hospital Management Committee see:

• Victorian Paramedics treating patients inside the A+E (June 12, 2015);
• Treatment in a Victorian hospital carpark (August 19, 2015); and
• Hospital nurse calling an ambulance for someone else (August 9, 2018)).

The NHS Trust owed the duty of care, not particular staff.  It was not necessary to consider or distinguish between the duty of the clinical and non-clinical staff.  The Trust operated via its staff and it was the Trust’s duty to ensure that the patient was not provided with misleading information.   What may be expected from different staff may go to the question of whether there had been a breach of duty, but not whether a duty of care existed.

Further suggestions that hospitals ‘could close down this area of risk altogether by instructing reception staff to say nothing to patients apart from asking for their details’ or withdraw ‘information which is generally helpful to the public’ was overstated.  Although A&E departments are busy and complex it would still be up to any plaintiff to prove their case and the duty only requires that a response to enquiries be reasonable.

It is undoubtedly the fact that Hospital A & E departments operate in very difficult circumstances and under colossal pressure. This is a consideration which may well prove highly influential in many cases when assessing whether there has been a negligent breach of duty.

The Supreme Court was of the view that this case did not raise any new or novel questions about duty of care. Rather the issue was whether there had been a negligent breach of that duty.

Breach of duty

There was no allegation that there was negligence in having non-clinical staff as the first point of contact with the A & E department nor was there a suggestion that the staff had to give accurate information about when a person would be seen.  Lord Lloyd-Jones said (at [24]-[27], emphasis added):

Anyone who has any experience of A & E departments will know that this would be impossible. The pressures on medical staff are enormous, the demand for attention is constantly fluctuating and priorities are likely to change. However, it is not unreasonable to require receptionists to take reasonable care not to provide misleading information as to the likely availability of medical assistance…

A receptionist in an A & E department cannot, of course, be expected to give medical advice or information but he or she can be expected to take reasonable care not to provide misleading advice as to the availability of medical assistance.  The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care.

Responding to requests for information as to the usual system of operation of the A & E department was well within the area of responsibility of the receptionists. The two receptionists on duty at the material time were both aware that the standard procedure was that anyone complaining of a head injury would be seen by a triage nurse and they accepted that the usual practice was that such a patient would be told that they would be seen by a triage nurse within 30 minutes of arrival … or as soon as possible… No reason has been suggested as to why the appellant was not told of the standard procedure. The hospital was operating within the acceptable range of triage timing agreed by the experts and the actual position was that the appellant, had he remained, would have been seen by a triage nurse within 30 minutes because he was complaining of a head injury…

However, instead the appellant was simply told that he would have to wait for up to four or five hours to see a doctor. That information was incomplete and misleading… The appellant was misinformed as to the true position and, as a result, misled as to the availability of medical assistance. The trial judge made the critical finding that it was reasonably foreseeable that a person who believes that it may be four or five hours before he will be seen by a doctor may decide to leave. In the light of that finding I have no doubt that the provision of such misleading information by a receptionist as to the time within which medical assistance might be available was negligent.

Causation

Lord Lloyd-Jones (at [29]) found that there was a link between the negligent advice and the ultimate injuries.

Far from constituting a break in the chain of causation, the appellant’s decision to leave was reasonably foreseeable and was made, at least in part, on the basis of the misleading information that he would have to wait for up to four or five hours before being seen by a doctor. In this regard it is also relevant that the appellant had just sustained what was later discovered to be a very grave head injury. Both the appellant and Mr Tubman had told the receptionist that the appellant was really unwell and needed urgent attention. The appellant told her that he felt as if he was about to collapse. He was in a particularly vulnerable condition and did, in fact, collapse as a result of his injury within an hour of leaving the hospital. In these circumstances, one can readily appreciate how the judge came to his conclusion that the appellant’s departure was reasonably foreseeable.

Result

The result was that the Croydon Health Services NHS Trust was found to have been negligent and the matter was sent back to the trial court to assess the value of the damages.

Wang v Central Sydney Area Health Service

This case is very similar to the earlier decision in Wang v Central Sydney Area Health Service [2000] NSWSC 515.  Mr Wang was also assaulted and attended casualty at Sydney’s Royal Prince Alfred Hospital.  He arrived at hospital at 9.25pm and left to seek treatment at a 24 hour medical centre at about 11pm.  During that time the plaintiff and his witnesses said that Mr Wang ‘was not examined by a doctor or a nurse’.  In this case however, the clinical notes indicated otherwise and showed that he had been seen by the triage nurse.   The triage nurse ‘placed him at the top of the list bar one… In the meantime, she had the plaintiff sit in the waiting area, where she could observe him in case there was any deterioration in his condition’ ([16]).

As with Mr Darnley, Mr Wang ended up at home where his condition deteriorated.  Had he remained at hospital he would have received more prompt treatment and would have made a ‘good recovery’ ([37]) rather than end up with his permanent disabilities.

In this case there were allegations regarding the assessment of Mr Wang and the failure of the triage nurse to respond to Mr Wang’s friends insistence that he was unwell and needed to see a doctor.  With respect to the examination Hidden J said ([47]-[50]):

Given that her note demonstrates that she obtained a history from the plaintiff, it is inconceivable that [the triage nurse] would not also have undertaken the brief physical examination which she described. From the whole of the expert evidence, it is clear that it was an examination of a basic kind which any medical professional would have performed…

it was no part of … [her]function to treat the plaintiff. From the whole of the expert evidence, it is clear that her task as triage sister was to make a primary assessment of him with a view to assessing the urgency of his need for treatment. That assessment had to be made in the light of the other demands upon the Department at the time and the available professional resources.

[Her] … other responsibility was to keep the plaintiff under observation in the waiting area in case his condition worsened…

What must be understood, however, is that the observation of the plaintiff … is different from formal neurological observations which might have been maintained if he had progressed to the treatment area.

As to the demands from Mr Wang’s friends (at [63]):

The pleas of the plaintiff’s companions that he be treated urgently … were well motivated and entirely understandable. Nevertheless, they could not influence, let alone dictate, the priority to which he was entitled. That was a matter to be assessed by the hospital staff…

Even so, the court found that the hospital was negligent in not attempting to communicate the need to stay at the hospital.  The ‘plaintiff was free to leave and the hospital staff had no power to restrain him’ ([65]) but even so they could advise him or the risk of leaving.   Mr Wang was supported by a number of friends and collectively they made the decision to seek treatment elsewhere.  Hidden J said (at [74]):

I have no doubt that they joined in a decision to leave the hospital not through any sense of personal inconvenience, but because they believed it was necessary to ensure that the plaintiff received the treatment which he needed.

Further (at [75]):

If the benefits of remaining at the hospital had been explained to Mr Ng, I am satisfied that he would have conveyed that advice to the plaintiff and counselled him to [remain]… Equally…  I am satisfied that the plaintiff would have done so and would have been supported in that decision by his two flatmates… They had spent about an hour and a half at that institution and, despite several expressions of concern about the plaintiff’s condition, they were told no more than they would have to wait.

As in Darnley’s case, Hidden J had no doubt that the hospital owed Mr Wang a duty of care even though he had not been admitted as a patient.  At [76]-[77] he said:

Clearly, the primary duty which the hospital owed to the plaintiff was to assign him his appropriate priority through the triage system and to observe him in the waiting area in case his condition deteriorated. I am content to assume that no duty to provide him with medical services arose until he could be accommodated in the treatment area.

In my view, that duty extended to furnishing the plaintiff with appropriate advice when it was intimated that he might leave the hospital. The hospital failed to discharge that duty, and the plaintiff’s present condition is attributable to that failure.

Compare and contrast

These two cases have similarities and differences.  The similarities are that they confirmed that a hospital that operates an A&E Department owes a duty of care to those that attend seeking medical care and that duty arises from the time they arrive, not from the time they are admitted as a patient.

The duty extends to giving relevant, and not inaccurate or misleading advice.

The difference is that in Darnley’s case the information given was inaccurate.  In Wang, the advice that he should stay was not given when Mr Wang’s friends indicated they would leave. So in one case inaccurate advice was given, in the other no relevant advice was given.

That distinction is relevant to the argument in Darnley’s case that hospitals ‘could close down this area of risk altogether by instructing reception staff to say nothing to patients apart from asking for their details’ or withdraw ‘information which is generally helpful to the public’.  In Wang’s case the liability arise from failing to give relevant advice.  Merely refusing to give advice may be no protection from liability.

What is required is that staff give reasonable advice.  It is not a case that it has be accurate to the minute or hour (ie it doesn’t have to be ‘you will be seen in 1 hour 10 minutes) but it has to be not obviously incorrect or absent all-together.

Conclusion

In both cases however the court was satisfied that had the patient’s been advised of the true state of affairs –

• In Mr Darnley’s case that he would be seen within 30 minutes;
• In Mr Wang’s case that he had been triaged and subject to no other more urgent case coming in he was the next to be seen or at least that the triage nurse shared his friends concerns that he may have a head injury and he would be best advised to stay;

They would have stayed and their head injuries diagnosed and even if that did not happen, they would have collapsed within the hospital and received immediate care with better outcomes.  In both cases the hospital were found to have breached the duty owed to those seeking assistance and was liable.

A correspondent has moved into an area that:

… has chronically poor road drainage, meaning any substantial and/or prolonged rainfall sees the drainage system overloaded and streets moderately flooded. The level of these waters, if not disturbed, doesn’t affect the neighbouring houses, but ignorant drivers who race through the flooded streets cause waves and push the waters into properties on either side of the street. Other vehicles often find the water too deep, and stall and become stuck on the street.

In the past, residents have tried to block the street with garbage bins, both to protect their properties, and the drivers, but have been abused by drivers. The area has a limited capacity for attendance by emergency services due to the number of streets affected, a very small Police presence, and the local SES Unit is about an hour away in good weather (and often busy with storm or flood response operations when this happens).

• Does a member of the public have any powers to close a road to protect their property?
• Does a member of the public have any powers to close a road to protect traffic?
• If a driver disregards a road closure, do they have any responsibility for any damage they cause as a result?

I’m not sure of my correspondent’s jurisdiction so I’ll answer this with reference to NSW.  The answer is ‘No, a member of the public does not have the power to close a road’.  It is an offence to ‘without reasonable excuse (proof of which lies on the person), wilfully prevent, in any manner, the free passage of a person, vehicle or vessel in a public place’ (Summary Offences Act 1988 (NSW) s 6).  In the circumstances described the people involved would argue, quite rightly that they had a ‘reasonable excuse’.

But warning people of danger is not the same as closing a road.  I said this as a comment to my earlier post, Assisting NSW police with road closures (January 7, 2014):

Here’s an example from 1880, Ned Kelly’s holding the populace of Glenrowan when one man escapes and flags down the train carrying police. Did he have any authority to stop the train? No, but it can’t be suggested it was illegal to flag down the train to tell the driver and the police that the tracks had been ripped up and Kelly was hold-up in Glenrowan.

So you’re driving along the freeway and you see a fire and you chose to stop and warn others; no authority is required. Of course the other driver’s commit no offence if they ignore you and travel past…

Equally if you know the road is flooded and try and draw that to driver’s attention then that is not closing the road, that’s telling them the facts.  The drivers, however, have no legal obligation to pay attention to your warning.

As for damage done by the drivers, if they damage the road they may be liable (Roads Act 1993 (NSW) s 102).  Equally they could be liable for damage to the property if the property owner could prove negligence but that would be difficult as the driver has a right to drive on a road (even a flooded road that is not formally closed – Road Act 1983 (NSW) s 5).   Further the property owner would need to demonstrate how the damage was caused by the driver and not the floodwaters.  My correspondent says ‘The level of these waters, if not disturbed, doesn’t affect the neighbouring houses, but ignorant drivers who race through the flooded streets cause waves and push the waters into properties on either side of the street’ but to actually have the relevant evidence to prove that may be harder to come by.

A paramedic with 18+ years of experience has

… a question regarding responsibility / accountability.  Statements by team members have included “if it all goes to bad, it will be his fault as the senior clinician”.  In hearing these statements, I have often taken the lead in treating patients (well within my partners scope of practice) and resulted in complaints about me ‘taking over patient care’.

In light of registration, in the case of an adverse patient event will the highest level clinician be the one held responsible for the actions, or lack thereof, of clinicians they are working with?

The answer to that question is ‘no’.  If the answer were not ‘no’ it would deny everyone any chance to learn or practice their profession.  You may as well put each intensive care paramedic with a ‘driver’ as no-one else but the senior clinician could provide care.

You are responsible for that which you are responsible for.  Let me explore that to give it meaning.  If there is some skill set that is within the partner’s scope of practice you could trust them to perform that skill whilst for example you go and get the stretcher and set up the ambulance.  They are responsible for their own performance and their own practice.

But if, you are formally appointed as a training officer, then that may mean you do not have the liberty to leave them to their own devices and need to supervise them.

And everyone has a duty to supervise each other.  If you see your partner is about to make a mistake you have an obligation to say something but not because you are the senior practitioner but because that is professional practice in the patient’s best interest.  Equally your partner has an obligation to, and hopefully is in a culture that supports him or her, question you and point out that you’ve missed a step or picked up the wrong drug or are going to do anything that is not appropriate.   And in the event of an adverse outcome that is subject to a learning review everyone is going to be asked what did you do and see and what could you have done differently to prevent this outcome.

In terms of professional discipline the question is ‘did the paramedic engage in conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience conduct?’  Not was there an adverse outcome.  As argued above I think a registered paramedic will pull up any colleague if they see a mistake or error is about to be made.  Equally a senior clinician may intervene if they think the patient’s condition warrants the use of their further skills or experience.  But a registered paramedic may also allow their colleagues to practice their profession within their scope of practice.

Conclusion

The Senior practitioner will be responsible if he or she knows that his or her advanced skills are called for but doesn’t provide them so as not to offend the more junior partner.  But short of that, what the consequences of actions that lead to adverse patient outcomes will be will depend on all the circumstances. There is no rule that says ‘the senior practitioner on scene is responsible for everyone’s behaviour and the patient’s outcome’.

A paramedic

… employed by Ambulance Service of NSW for past 16 years [is] currently experiencing difficulties with National Registration with AHPRA due to English Language standard certification.

My correspondent says:

I’ve continuously worked full time in various roles since my arrival from Ex Yugoslavia in 2002 including excess of 16 years as a on road Paramedic. Should I (and few more fellow officers) just sit and pay for exams or to propose that NSW Ambulance seek for an exclusion for currently fully qualified employees? Does AHPRA provide exemption if we have demonstrated knowledge and ability to perform in this role?

The relevant rules are be found in the English Language Registration Standard published by the Paramedicine Board.  This Standard says:

If you are applying for initial registration you must demonstrate your English language competency in one of the following ways:

1. English is your primary language and you have undertaken and satisfactorily completed:

a) all of your primary and secondary education which was taught and assessed solely in English in a recognised country, and

b) qualifications or training in the profession, which you are relying on to support your eligibility for registration under the National Law, which were taught and assessed solely in English.

OR

2. You have a combination of secondary education and qualifications or training in the profession, where you have undertaken and satisfactorily completed:

a) at least two years of your secondary education which was taught and assessed solely in English in a recognised country, and

b) qualifications or training in the profession, which you are relying on to support your eligibility for registration under the National Law, which were taught and assessed solely in English in a recognised country.

OR

3. You have undertaken and satisfactorily completed at least six years’ (full time equivalent) continuous education taught and assessed solely in English, in any of the recognised countries, which includes qualifications or training in the profession which you are relying on to support your eligibility for registration under the National Law.

OR

4. You achieve the required minimum scores in one of the following English language tests and meet the requirements for test results specified in this standard:

a) the IELTS (academic module) with a minimum overall score of 7 and a minimum score of 7 in each of the four components (listening, reading, writing and speaking).

Presumably if my correspondent has been in Australia since 2002 I’ll assume that they did not complete their primary or secondary education in Australia or in English.  It follows that they will need to satisfy paragraph (3) or (4) to demonstrate their English language skills.   If they have worked for 16 years in Australia and completed training that may well meet the standard in paragraph 3.

In a page of Frequently Asked Questions the Paramedicine Board says, inter alia:

I have completed a Diploma in Paramedical Science through the NSW Ambulance Service. Can this be included as vocational education under the extended education pathway?

Yes this three year training program is an accepted qualification under the National Law, so it can be included under the extended education pathway as long as the education meets the requirements for this pathway.

I have completed a Diploma in Paramedical Science through a Registered Training Organisation in Australia. Can this be included as vocational education under the extended education pathway?

If you are relying on the Diploma in Paramedical Science for eligibility for registration as a paramedic, then yes this can be included under the extended education pathway as long as the education meets the requirements for this pathway.

I can’t see that NSW Ambulance would be successful in getting an exemption from current employees but that doesn’t mean you couldn’t ask.  Fundamentally however the rules are reasonably clear and a person who has worked as a paramedic for 16 years may well be able to demonstrate sufficient training in English to meet the extended education pathway (paragraph 3).

An academic with an Australian paramedic school notes that:

Students undertaking paramedic entry-to-practice university study typically need to complete a reflective journal during their clinical placements. With national registration of paramedics and mandatory reporting about to commence, a colleague has raised a question regarding potential that a reflective journal completed by a student may contain allegations of unsafe/unethical or illegal practice that they observed during their clinical placement, where this alleged behaviour may have compromised patient safety. If the student is interviewed by the supervising academic and they confirmed their observation of the event, where does the academic (a registered paramedic) stand regarding obligations to report this? Should the academic report directly to AHPRA or should the student (as a student registrant) be encouraged to report?

The reference to mandatory reporting is found in the Health Practitioner Regulation National Law.   Relevant provisions of that law are, first, the definition of ‘notifiable conduct’.

“notifiable conduct” , in relation to a registered health practitioner, means the practitioner has—

(a) practised the practitioner’s profession while intoxicated by alcohol or drugs; or

(b) engaged in sexual misconduct in connection with the practice of the practitioner’s profession; or

(c) placed the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or

(d) placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.

The inference is that the paramedic student has observed another health practitioner engage in ‘notifiable conduct’ and has reported that to their academic mentor/supervisor.  The National Law goes onto say (cl 141):

(1) This section applies to a registered health practitioner (the “first health practitioner”) who, in the course of practising the first health practitioner’s profession, forms a reasonable belief that—

(a) another registered health practitioner (the “second health practitioner” ) has behaved in a way that constitutes notifiable conduct;…

(2) The first health practitioner must, as soon as practicable after forming the reasonable belief, notify the National Agency of the second health practitioner’s notifiable conduct or the student’s impairment.

In the context of the question the first health practitioner is the academic who forms the belief of the second practitioner based on the report from the student.

The Paramedicine Board in its advice on registration says (at https://www.paramedicineboard.gov.au/Registration/Check-if-you-need-to-register.aspx; emphasis added):

The Board recognises that the actual breadth of paramedic practice is not limited. It can encompass a wide variety of both clinical and non-clinical activities in a wide variety of roles and settings including in jurisdictional ambulance services, health services, hospitals, the defence forces, private industry, academia and broader government.

Practising includes using professional knowledge in a direct non-clinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles, and any other roles that impact on safe, effective delivery of services in the profession.

Let us assume therefore that the academic receiving the report is a registered paramedic and that receiving the report is in the course of practising [their] …profession’ as a paramedic.

That then begs the question of whether or not the report gives rise to ‘a reasonable belief that— (a) another registered health practitioner [ie the practitioner observed by the student] …has behaved in a way that constitutes notifiable conduct’.

The first objection is that the academic has no personal knowledge of any notifiable conduct and his or her impression is clearly what we lawyers would call ‘hearsay’.  But the fact that it’s hearsay means that academic could not give evidence, in court, of what he or she was told in order to prove that what he or she was told was true.

But just because information is hearsay or inadmissible does not mean it cannot form the basis of a reasonable belief or suspicion.  In R v Rondo [2001] NSWCCA 540 Smart AJ said (at [53]) ‘Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.’

The fact that the conduct was not directly observed does not mean that the academic does not or cannot have the necessary reasonable belief.  But whether they do have that belief is a matter they have to decide. ‘A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’ (Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266).  If the academic were to consider making a report, he or she would have to actually believe the notifiable conduct occurred not that it has been raised so the academic wants to report it to protect their own position and without really thinking about whether the material presented.

What a person would consider in deciding whether they had an actual belief that notifiable conduct had occurred would vary with each allegation, but I suggest one would consider the seriousness of the alleged conduct, the risk to the public and the student’s veracity in reporting it.  One would want to have a detailed conversation with the student and ideally would urge them to report the issue but we can understand why a student may be unwilling to do that.  To hold the necessary belief is to have a state of ‘mind towards assenting to, rather than rejecting, a proposition’ that the second practitioner has engaged in notifiable conduct (George v Rockett (1990) 170 CLR 104).  If the academic reflects on the student’s report and ideally discusses the situation with the student and then believes that notifiable conduct has arisen, then that would seem to attract s 141 and the obligation to report.

To test that conclusion, we can ask ‘what is the alternative?’ If the alternative is there is no obligation to report as the academic did not observe the conduct in question then that begs the question of why do they ask the students to reflect and second, being put on notice, what is the academic institution doing to protect its students from being subject to notifiable conduct or having observed it, to understand their professional obligations.  And should we allow patient’s to be put at risk simply because the conduct was not seen. Many behaviours will be ‘unseen’ but things that are seen, observed or known suggest that notifiable conduct has occurred.  For the academic, the student’s report is something that comes to his or her attention that suggests notifiable conduct has occurred just as observing bruises on the patient or anomalies in the drug stock may suggest conduct, that has not been observed, has occurred.

Conclusion

The question was premised on a student’s reflective journal containing ‘allegations of unsafe/unethical or illegal practice that they observed during their clinical placement, where this alleged behaviour may have compromised patient safety’.  The question was

…If the student is interviewed by the supervising academic and they confirmed their observation of the event, where does the academic (a registered paramedic) stand regarding obligations to report this? Should the academic report directly to AHPRA or should the student (as a student registrant) be encouraged to report?

Accepting that the academic is practicing as a paramedic then if he or she is satisfied that the material presented does disclose notifiable conduct then I think s 141 of engaged and the conduct should be reported.  It may be better to encourage the student to report but if he or she won’t or feels they cannot then it may be up to the academic in order to protect both the student and patients.

Before making a report, the academic has to move from thinking ‘if that’s true, that’s notifiable conduct’ to ‘I think that is probably true and is notifiable conduct’. The belief doesn’t have to be satisfaction beyond reasonable doubt or even balance of probabilities but ‘a positive feeling of actual apprehension’ that notifiable conduct occurred. If after reading the report and if possible interviewing the student the academic holds an actual belief that notifiable conduct occurred then arrangements should be made to report that conduct, whether that’s supporting the student to make the report or making the report themselves.

And we may think the report from the academic has little probative value and that may be true.  The Board may consider that it’s not enough, but you also cannot know whether this report will be the 2nd (or 3rd, or 4th etc) report on this practitioner – and that AHPRA won’t say ‘even if we can’t rely on this hearsay report it certainly adds to our concern about this practitioner and tells us that we need to seriously investigate this person’s practice’.

A paramedic

… currently going through the registration process for registration as a Paramedic received an email from one of our “Registration Ambassadors” checking up on our progress and also advising, – “A note also – if you have any “criminal history” include it – this includes simple traffic/ speeding fines!”

I’ve also been a Registered Nurse for nearly 20 years. I was under the impression perhaps wrongly that speeding fines were not criminal offences and have not declared (again perhaps incorrectly) two <15kmh over the speed limit fines from before I was registered as a nurse.

My question is are speeding fines “criminal” offences and do they need to be declared during AHPRA registration or re-registration as per the above AHPRA statement.

Both the Paramedicine Board of Australia, Registration Standard: Criminal History (17 May 2018) and the AHPRA Registered Health Practitioners Registration Standard: Criminal History (1 July 2015), which applies to nurses say:

Criminal history is defined in the National Law as:

• every conviction of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law
• every plea of guilty or finding of guilt by a court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for the offence, and
• every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law.

(See Health Practitioner Regulation National Law, s 5).

My correspondents traffic infringement notices were issued in Victoria.  Traffic Infringement notices are issued under the Road Safety Act 1986 (Vic) and the Infringements Act 2006 (Vic).  Under the Road Safety Act an authorised officer can issue an infringement notice (s 88).  Payment of the fine acts to ‘expiate’ the alleged offence (Infringements Act 2006 (Vic) s 32).   Where an offence is expiated, s 33 says:

(a)        no further proceedings may be taken against the person on whom the notice was served in respect of the offence; and

(b)       no conviction is to be taken to have been recorded against that person for the offence.

Further, payment of the penalty (s 33(2)):

… is not and must not be taken to be—

(a)  an admission of guilt in relation to the offence;

The point of infringement notices is to give a short cut to legal proceedings.  A police or other authorised officer who detects an offence has the option of prosecuting the alleged offender.  Criminal offences are heard in the Magistrates Court.  For routine offences, such as traffic matters, this is time consuming, expensive and a waste of everyone’s resources, so an alternative is created.  Rather than require the accused to appear at court the authorised officer can issue an infringement notice setting out the allegation.  A person who receives an infringement notice but who denies that they are guilty can elect to have the matter put before the court where the normal rules of criminal law apply – the prosecution must prove the accused’s guilt beyond reasonable doubt.  Alternatively the alleged offender can pay the prescribed fine and that is the end of the matter but because the matter has not been heard by a court, and recognising that many fines will be paid simply because defending the case is literally more effort than it’s worth, the payment of a fine does not equal an admission of guilt and is not a criminal conviction.  The record of the fine and any associated demerit points will appear on the accused’s driving record, but not criminal record.

If we return to the definition of Criminal history referred to in the Paramedic Registration Standard and the Health Practitioner Regulation National Law:

• paying a traffic infringement notice is not a ‘conviction of the person for an offence…’ (Infringements Act 2006 (Vic) s 33(1)(b))].
• paying a traffic infringement notice is not a ‘plea of guilty [Infringements Act 2006 (Vic) s 33(2)(a)] or finding of guilt by a court; and
• in the absence of an election to go to court, is not a ‘charge made against the person for an offence’ [Infringements Act 2006 (Vic) s 40].

Conclusion

A traffic offence that is dealt with by way of payment of a traffic infringement notice in Victoria is not part of the applicant’s criminal history as defined by the Health Practitioner Regulation National Law, the Paramedicine Board of Australia, Registration Standard: Criminal History (17 May 2018) or the AHPRA Registered Health Practitioners Registration Standard: Criminal History (1 July 2015).

Today’s question is:

‘Is the RFS responsible to supply drinking water, whether bottled or tap to RFS workers on duty?’

I ask this question as district staff complain about the supply of bottle water to brigades. This bottled waster is used when out and about fire fighting but many workers will grab a bottle when tap water is readily available.

I believe that the WHS Act would require the provision of water as water to fire fighters prevents dehydration and related effects on the body.

I would think it is axiomatic that a fire service has to provide water to firefighters when engaged in fire fighting.   The old Bushfire CRC did research on firefighter fatigue and safety (see http://www.bushfirecrc.com/projects/c-11-1/operational-readiness-rural-firefighters-during-bushfire-suppression), including issues of hydration – see http://www.bushfirecrc.com/sites/default/files/managed/resource/hydration_of_australian_rural_bushfire_fighters.pdf.  An article in Fire Engineering (Mike McEvoy and David Rhodes, ‘Hydration and Firefighter Performance’ (4/13/2015) <<https://www.fireengineering.com/articles/print/volume-168/issue-4/departments/fireems/hydration-and-firefighter-performance.html>>) reviews ‘the importance of hydration in firefighters…’  The authors concluded:

Hydration is critical to firefighter performance. Firefighters are often dehydrated, which may explain many fireground injuries; no two firefighters require the same fluid intake to maintain a euhydrated state… Every firefighter must assume personal responsibility for his hydration status. Departments need to provide the tools needed to maintain hydrated members.

I’m not an physiologist but I assume it is accepted that firefighters need to remain hydrated when fighting fires and if they don’t there is a risk to their health and safety.  If that’s correct then the fire service has to manage that risk and the obvious way to do that has to be to ensure an adequate supply of drinking water or other appropriate fluid.

My correspondent says that ‘district staff complain about the supply of bottle water to brigades. This bottled waster is used when out and about fire fighting but many workers will grab a bottle when tap water is readily available’.  Whether the water has to come in plastic disposable bottles is quite a separate question of whether it has to be provided.  Providing fire fighters with tap water and reusable bottles to take onto the field may be an appropriate response, subject to any need to balance risks of one form of delivery over another (eg can the quality, or supply of, potable water via tap or tank be guaranteed during a fire etc).

 

There are three new shows that have, or are soon to start, on Australian television

“Emergency Call” on Channel 7;

“Paramedics” on Channel 9; and

“Ambulance Australia” on Channel 10.

We’ve all seen these reality shows before and there have been shows from the UK riding along with the ambulance services or broadcasting emergency calls.  I’m sure they are great entertainment but how are they possibly legal or ethical?

From an ethical point of view people don’t ring 000 in order to be a source of entertainment. They ring in order to receive services at times when they are most vulnerable.  If an ambulance turns up either with cameras in the ambulance or on the paramedics, or worse, with a camera crew, those things are not there for the benefit of the patient.  The ethical duty on the service and on the paramedics (more so when they become registered) is to act in their patient’s best interests and filming them has no therapeutic benefit for the patient.

It is irrelevant to suggest that the footage will only be used with the patient’s consent as it is being recorded without their consent and there may be pressure on people too consent given the footage is already taken or they may be asked to consent when they are not able to do so in an informed way.

Although there is no common law right to privacy so people can film whatever they see form a public place, inside a patient’s home or inside an ambulance is not a public place. Further there is a right to confidentiality in relationships that come with that expectation.  Being in an ambulance (or a doctor’s surgery or an emergency department) would be the sort of places where an expectation of privacy is highest yet people are being filmed when they are at their most vulnerable.  And their experience is being used for entertainment, not to advance patient care.

With respect to calls to triple zero, it is an offence to share calls made to triple zero.  Under the Telecommunications Act 1997 (Cth) s 278 it is an offence for an ‘emergency call person’ (that is a person who receives triple zero calls and forwards them to the relevant emergency service) to:

… disclose or use any information or document that:

(a)       relates to:

(i)        the contents or substance of a communication that has been carried by a carrier or carriage service provider; or

(ii)       the contents or substance of a communication that is being carried by a carrier or carriage service provider; or

(iii)      the affairs or personal particulars (including any unlisted telephone number or any address) of another person;

A person rings the emergency services and discloses details about themselves to obtain an emergency response.  Those details may be very personal and may be admissible in court proceedings or at least relevant to subsequent investigations.  This legislation says that the person who takes the call is not allowed to share the information – what happens at work stays at work but not if a television station is allowed to record and rebroadcast that recording.

How are these programs legal?

I have no idea. I was asked this question some time ago and wrote to both NSW Police and NSW Ambulance media and received no response. I have no idea how the ambulance services can justify allowing these programs to be made. They may be great PR for the service and good recruiting they may even serve some role in community education but fundamentally they use the patient as a means to an end – the patient is being used for the purposes of the ambulance service or television station.  To film events within an ambulance without the patient’s consent (even if it not used without their consent) is a fundamental breach of confidentiality and trust.

 

Today’s question relates to the obligation of an RFS brigade to send minutes of meetings to members. I’m told that:

With the recent change in Constitution the RFS imposed I have a question regarding what the obligations are for a brigade in terms of access to Minutes by members.

Our brigade has recently moved from emailing a copy of General Meeting minutes to all members (including Life Members) to uploading them the MyRFS under Brigade Documents for the members to access.

It was our understanding that under the Constitution created for brigades by the RFS that there is no obligation to provide copies, unless a member individually asks and then they are to be made available within a reasonable time to the member to copy.

And that under the Brigade Management Handbook (section 15.9.1) by uploading the Minutes to MyRFS we have met the storage requirement for such documents and can therefore decline a request from a Life Member to send them an individual copy of all minutes each month.

In speaking to other brigades there seems a level of confusion as to what the minimum is that a Secretary must do in terms of disseminating Minutes to Members and Life Members.

Service Standard 2.1.2 sets out the constitution of the various RFS Brigades (see also Constitutions for NSW RFS brigades (May 21, 2014) but note that that post was written before the current version of Service Standard 2.1.2 which came into force on 20 December 2017).

With respect to the minutes, the current version of a Brigade’s Constitution, set out in Service Standard 2.1.2 says:

Minutes of meetings and other brigade records

6.27 The minutes of the AGMs, general meetings and executive committee meetings must be kept in a manner specified in the Brigade Management Handbook.

6.28 The minutes of the meetings must include the items specified in the Brigade Management Handbook.

6.29 The minutes of the meetings, copies of correspondence and other brigade records must be stored in accordance with the provisions of the Brigade Management Handbook.

6.30 Any member of the Brigade and the district manager may inspect and take copies of the minutes of the AGM, general meetings or executive committee meetings or other brigade record upon reasonable notice to the secretary, president or treasurer.

The place to look for answers is the Brigade Management Handbook. I can’t find a copy of that handbook online so I am not able to comment on it.  There is, however, nothing in the Constitution that says that members are to be sent a personal copy of the minutes.  The power to ‘inspect and take copies’ is not the same as the power to insist that a personal copy is delivered.  From what I can access it’s hard to see where confusion may lie but I’d be happy to comment further if anyone could supply a copy of, or a link to, the Brigade Management Handbook.

Post script

I have now been provided with a copy of the Brigade Management Handbook (2018) (thank you Kevin Griffiths) and it doesn’t say that minutes have to be personally delivered.  It does say at [15.1.4]:

Brigade meeting papers (e.g. previous minutes, notice of motions, financial reports, etc.) may be distributed as printed copies or by electronic means. Where it is appropriate and accepted by the brigade and individual members, consider the use of options such as:

› email

› closed groups on social media

› text messages on mobile phones

› the brigade web site

It is important, to ensure compliance with the Constitution that whatever method is selected for the distribution of the papers, all brigade members have access to such medium.

It follows that if there are members that cannot access material by electronic means it may be appropriate to send a copy of minutes by letter but there is no general obligation to do so.

Today’s question raises an issue of duty of care.  The question

is in regard to who has the higher Duty of Care in an out of hospital setting. Does a Medical Officer have a ‘greater’ duty of care to a sick or injured person out of hospital if paramedics are in attendance?? Can a Paramedic recommend strongly to a medical officer that the treatment needs to divert from the path that the MO is currently following?

The quick and strict answer is that no-one owes a ‘higher’ duty or standard of care.    Where there is a duty of care, the standard of care expected is the same for everyone.  The duty is a duty to act reasonably in the circumstances. But that is not helpful and I don’t think what I’m being asked. The relevant circumstances are that one person is ‘medical officer’ (read registered medical practitioner) and the other a paramedic so does someone have more responsibility or authority.

Like all good answers it depends on the circumstances.  If the patient is under the care of the medical practitioner and the medical practitioner has requested an ambulance to transport the patient to a hospital or nursing home then he or she will have established a treatment regime and would be asking the paramedics to continue that treatment as they transport the patient to their destination.

Alternatively if the person is previously unknown to the doctor and becomes suddenly ill or is injured the doctor is not somehow in charge of the patient and able to direct the paramedics.  The paramedics are not the doctor’s servant or agent, they are there to provide paramedic care and you would expect the doctor to get out of their way as they are the experienced out of hospital practitioners and they are the ones who have to transport the patient to hospital.

For a more detailed discussion, see Step aside – I’m a doctor (October 17, 2014).

We hope that law is about justice, but often it’s about semantics as my thoughts on today’s question demonstrate.  My correspondent is a volunteer with the NSW Rural Fire Service who:

… recently became aware of an email sent by an RFS brigade Captain to his brigade members saying:

“It has come to my attention that some members have altered or are planning on altering issued PPC (Bushfire Jackets/Pants and CABA Jacket and Pants). This is NOT to happen as it voids the PPC Australian Standard (AS) compliance for protection and integrity.

If any PPC has been altered it is unable to be used and will not be re-issued free of charge. You WILL have to pay for your replacement if you have altered any PPC at you own will without approval.

The only way for PPE/C to be altered is by the Original Equipment Manufacturer (OEM) to retain Compliance to AS.

All members are entitled to PPE/C that fits and sometimes the sizes provided may not fit safely, this is where you can request made to measure PPC fitted by consulting with you friendly FCC staff. This will be arranged through the PPC Manufacturer.

Please remember that NO PPC IS TO BE ALTERED whatsoever, and if you are found to have altered PPC you will NOT be allowed to use it, will have to return it and pay for your replacement gear.”

Firstly, I am unable to say if the Captain in question is personally ‘making up stuff’ in his claim members will be required to pay for their issued PPC or if that message has come from paid staff members higher up at District level. Certainly it’s not something mentioned anywhere in RFS state policy documents. My feeling is that the Captain concerned is just ‘making up stuff’ for their own purposes.

I’ll touch briefly for background purposes first on the issue of ‘alterations’ to PPC. The applicable RFS Service Standard  5.1.5 says at 2.5, “PPC garments are not to be modified or changed in any way.” This actually contradicts Appendix 2 of SOP 5.1.5-2, part of the same attached service standard where it states ‘name, rank, qualification/s and brigade name are to be sewn onto the pocket flaps’ – something which can only be done by the member as the PPC is provided without them attached.

The usual only other alteration traditionally done by members and this has occurred for years has been taking up of trouser legs (using a non flammable thread such as kevlar thread) as issued items are often too long especially for short and stout people, and the PPC is unsafe if people can trip over too long PPC trouser legs or the legs contact the ground and soak up contaminants such as oils and fuel at MVA’s etc.

There is no suggestion that any member of the brigade in question has wilfully damaged or destroyed any PPC.

The RFS recently has introduced made to measure PPC for members who do not fit standard sizes, however it can take 3 to 6 months and even longer for PPC to be received under this process.

So, onto the question of RFS volunteers being required to pay for issued PPC from a legal perspective.

1. How does this fit under WHS law? My understanding is that it is illegal for the RFS to charge members for the provision of PPC which they must issue to an active member. I refer to the Work, Health and Safety Regulation 2017 (NSW), clause 44 which effectively puts the requirement on provision without charge on the RFS. I also note clause 46 (3) which states ‘The worker must not intentionally misuse or damage the equipment’, but I’d suggest alterations for proper fit or to display badges etc would not fall under that clause.
2. RFS PPC is funded from the NSW Rural Firefighting Fund. Given that individual RFS members are none of local government, state government or insurance companies, what explicit legislation would legally empower the RFS to collect such funds from members and use for the purchase of their PPC?
3. Could charging RFS volunteer members a ‘fine’ equivalent to the value of any replacement ‘altered’ PPC be legal in its issuance and enforcement? I can find nothing at all that mentions fines as an available disciplinary action in any RFS policy document relating to discipline matters.
4. Any other thoughts or opinions on this matter?

Is the captain making it up?

I don’t know the answer to that question but I’m going to assume that he or she is not making it up and this is at least what’s been communicated to them from ‘higher up’.  If they are ‘making it up’ ie if it’s just their interpretation of Service Standard 5.1.5 Protective Clothing and Accessories and their attitude to what they’ll spend their brigade budget on then it’s irrelevant.

So for the sake of the argument I’ll assume that the message from the Captain does reflects the RFS position.

Service Standard 5.1.5 Protective Clothing and Accessories

As I said at the start I think this is really an exercise in semantics. As my correspondent has noted, RFS Service Standard 5.1.5 says, at [2.5]

PPC garments are not to be modified or changed in any way.

There are two attached Standard Operating Procedures (SOPs).  SOP 5.1.5-1  Protective Clothing and Accessories – Bush Fire and Non-BA Firefighting says at [2.1(f)] ‘Epaulettes, name, rank, brigade and certification badges must, where affixed, be in the locations as detailed in Appendix 2’.  There is however not appendix 2 to that SOP.

SOP 5.1.5-2 Protective Clothing and Accessories – Structural and BA Firefighting also says (at [2.1(d)] ‘Epaulettes, name, rank, brigade and certification badges must, where affixed, be in the locations as detailed in Appendix 2’ and there is an appendix 2 to this SOP. The Appendix 2 has the following version control details:

Date: 22 September 2010

SS 5.1.5 Protective Clothing and Accessories

Version 5.0

SOP 5.1.5-2

That is, it specifically refers to SOP 5.1.5-2, not 5.1.5-1.  Even so the Appendix does provide images of both Bush Fire and Non-BA Firefighting as well as Structural and BA Firefighting jackets and details where the ‘Epaulettes, name, rank, brigade and certification badges’ should be placed on both sets of PPC. One can infer that even though there is specific reference only to SOP 5.1.5-2, this is Appendix 2 to Service Standard 5.1.5 and the Appendix 2 referred to in SOP 5.1.5-1.

So, is sewing ‘name, rank, brigade and certification badges’ onto the uniform pocket flaps altering, modifying or changing the uniform?  On a literal interpretation it has to be.  The Oxford Dictionary (online) defines ‘alteration’ as ‘a change to something that makes it different’. For ‘alter’ the dictionary says ‘to become different; to make somebody/something different’; but as a transitive verb the dictionary says ‘alter something to make changes to a piece of clothing so that it will fit you better’.

As noted, a worker ‘must not intentionally misuse or damage the [provided PPE] equipment’ Work Health and Safety Regulation 2017 (NSW) r 46(3)).  My correspondent says ‘I’d suggest alterations for proper fit or to display badges etc would not fall under that clause’ but it is not clear why not.  To again refer to the Oxford Dictionary (online) damage is ‘physical harm caused to something which makes it less attractive, useful or valuable’. An alteration that means the PPC no longer meets the Australian standard makes the PPC less useful or valuable (but it may make it more attractive if it fits better) so that would be damage.

Herein is the problem.  Obviously, there is a relevant Australian Standard. I can’t comment on the standard itself as Standards Australia only make these available for a fee but that is in fact going to be part of my point.  If the RFS buys PPC that meets the Australian Standard they can issue it to the members.  If the members then ‘alter’ the PPC they may or may not alter it in such a way that it no longer meets the standard that is they can’t know if there alteration is also damage.  The member won’t know (unless they’re a tailor) and neither will any supervising officer.  They probably cannot access the standard and probably couldn’t tell even if they could access the standard.  My correspondent has said ‘The usual only other alteration traditionally done by members and this has occurred for years has been taking up of trouser legs (using a non flammable thread such as kevlar thread)…’ but how does anyone know whether a particular member used a Kevlar thread and not traditional cotton? And how does anyone know what the standard for seams on firefighting PPC requires?

There are a myriad of ways to write regulations.  For example the WHS Act says that it is the duty of a person conducting a business or undertaking (a PCBU) to ‘ensure, so far as is reasonably practicable, the health and safety of: (a) workers…’ (Work Health and Safety Act 2011 (NSW) s 19).  That is non-specific and imposes the obligation upon the PCBU to determine what is required in all the circumstances, and to face criminal penalty if they get it wrong.

Compare that to the Road Rules 2014 (NSW) cl 20 that says ‘A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving.’  Once you know the speed limit for the stretch of road and the speed at which the vehicle was driving then you know whether or not an offence has been committed.  There is nothing about the driving being dangerous in the circumstances. IF there was police and court time would be spent arguing about the merits of a case.  So here is a simple, measurable rule that allows police to use speed measuring devices and avoids unnecessary arguments where minds could differ on what is safe and what is not.

So too a rule to the effect that PPC must not be ‘altered’.  The member can’t know what makes an alteration dangerous (and therefore damaged) or not and neither can the supervising officer.  So you make a blanket rule – don’t alter your PPC and everyone can know what is required to comply and everyone can know whether there’s been compliance or not.

That doesn’t mean every alteration would be a breach of the WHS Regulation. If there was a prosecution for that offence then a member could lead evidence that whatever alteration they made did not detract from the PPCs protection and that it still met the relevant safety standards.  That would not be ‘damage’ and so would not be an offence even if it was a breach of the Service Standard.

What of the permission to sew on ‘name, rank, brigade and certification badges’? Does that constitutes an ‘alteration’ modification or change? It’s not an alteration if alteration, in context, means ‘to make changes to a piece of clothing so that it will fit you better’ but it has to be a change from how the uniform was provided.  One hopes that the placing of badges has been discussed with the manufacturer and it has been determined that it does not impact on the PPC effectiveness.  Assuming that is the case, one could read Service Standard  5.1.5 as saying ‘PPC garments are not to be modified or changed in any way other than provided in this Service Standard’.  But one can agree that the Service Standard does appear to be internally inconsistent.

The issue comes down to what do the words ‘alter’, ‘modify’ ‘change’ and ‘damage’ mean in context, hence my assertion at the start that this is an exercise in semantics.  The critical issue has to be that the PPC retains its functionality and provides protection to firefighter as required by the standard.  If ‘alter’, ‘modify’ or ‘change’ mean “’alter’, ‘modify’ or ‘change’ in a way that means the PPC no longer meets the relevant standard’ then you can see why making an alteration so that it ‘will fit you better’ is problematic. If a member starts cutting cloth or sewing seams they may well affect the ability of the PPC to protect.  Equally sewing badges on the uniform could have that effect (what do I know, I’m not a tailor) but one can infer that the RFS and the manufacturer accept that putting badges on the pocket flaps does not have that effect hence both giving permission to do so but also insisting where those badges go.  In that case sewing on the badges is not an alteration, modification or change that impacts upon the PPC’s ability to provide protection.

Conclusion on alter, modify or change

It would be my view that Service Standard 5.1.5 has to be read in context to mean that the PPC can’t be modified other than by applying name, rank, brigade and certification badges as these do not affect the ability of the PPC to protect (and, we hope, has been endorsed by the manufacturer).  For the purpose of the standard this is not a modification or change but rather part of the uniform.

The rule ‘PPC garments are not to be modified or changed in any way [other than described in the Service Standard]’ is a way to make a simple rule.  If the rule said ‘PPC garments are not to be modified or changed in any way that impacts upon their ability to protect’ it would be impossible to enforce or know when that applies so it makes sense to make the blanket prohibition.

Can the RFS make you pay for replacement PPC?

Rural Fire Service Service Standard 5.1.5 says, at [1.5]

In line with AFAC terminology, PPC is used for clothing (eg. Bush fire jacket and pants etc) while PPE is used for equipment (eg. helmet, goggles etc).

The Work Health and Safety Act and its Regulation do not make that distinction using only the term ‘personal protective equipment’.  Where the Act or Regulation refer to ‘personal protective equipment’ (or PPE) that includes PPC using the fire service language.

As my correspondent has noted the Work Health and Safety Regulation 2017 (NSW) r 44 says:

(2) The person conducting a business or undertaking who directs the carrying out of work must provide the personal protective equipment to workers at the workplace…

(3) The person conducting the business or undertaking … must ensure that personal protective equipment provided under subclause (2) is:…

(b) maintained … so that it continues to minimise risk to the worker who uses it…

(4) The person conducting a business or undertaking … must provide the worker with information, training and instruction in the:…

(b) … maintenance of personal protective equipment.

The RFS does provide the personal protective equipment when it supplies the PPC to members. Service Standard 5.1.5 with both provisions on the placing of badges and the edict that the PPC is not to be ‘be modified or changed in any [other] way’ are the instructions on the maintenance of that equipment.  The edict from the brigade captain (assuming it reflects RFS policy) could be seen as part of the RFS’ effort to ensure that the PPC is maintained to meet its safety purpose.

Regulation 46 relates to the duties of a worker (which includes a volunteer) with respect to PPE. That regulation says:

(2) The worker must, so far as the worker is reasonably able, use or wear the equipment in accordance with any information, training or reasonable instruction by the person conducting the business or undertaking.

(3) The worker must not intentionally misuse or damage the equipment.

Altering the PPC, other than in ways permitted by the Service Standard, would be to fail to use the equipment in accordance with the instructions and should it in fact affect its protection ability, would ‘damage’ the PPC.

As noted there could be an argument.  If a member did alter their PPC and could demonstrate that it did still meet the standard then I would agree there has been no ‘damage’ and there would be no need to stop their using their altered PPC; but that simply returns us to the starting question of how would anyone know?

Let us assume that the RFS issues PPC that the member then alters such that the RFS cannot know that it still meets the standard and provides the level of protection that a member should have on the fireground.  Why can’t the RFS insist that the member buy the replacement uniform? If they want the member to continue to turn out they would have to provide new PPC and then chase up the cost as a debt due.  Alternatively, they could refuse to provide new PPC until its paid for, during which time the member would not be able to respond to a fire.

The right to recover would have nothing to do with a question of whether an individual has to contribute to the firefighting fund or that it is akin to a fine.  It is instead a claim for damages.  If you damage my property I can make you pay for it.  doubt that the Crown actually transfers ownership of its uniform to its members – you don’t actually own the issued PPE.  If the RFS (the Crown) retains ownership of its uniform and you damage it then the Crown can ask you to pay for it in the same way that anyone can seek damages from someone who damages their own property.

In essence the worker can’t be required to pay for PPC that is required for the job, but they can be required to pay for PPC they have damaged.  And if the PCBU refuses to issue new PPC until the old has been paid for, then they can also direct the member not to turn out. In other words, if the RFS takes the view that PPC that has been altered is unable to be used but new PPC will be issued until the old is paid for, they not only cannot expect a member to turn out, they would have to insist that the member did not turn out.

Conclusion

To avoid the semantic debate it may be helpful to make some changes.  Service Standard 5.1.5 should, perhaps, say ‘PPC garments are not to be modified or changed in any way other than provided in this Service Standard’.

The Brigade Captain’s email (assuming it reflects RFS policy) should perhaps say “If any PPC has been altered it is unable to be used and you will not be re-issued PPC until you have reimbursed the RFS for the cost of the damaged PPC…”

Finally if making alterations such as shortening the leg length in no way affects the protection afforded by the PPC then there is no reason to prohibit that action save that neither the member nor the RFS can know whether a particular alteration has or has not affected the integrity of the PPC.  Given that a blanket rule against alterations makes sense but as with the badges, if the manufacturer says ‘it’s OK to ….’ then whatever’s OK should be allowed.