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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD, Australian Lawyer. Email: meburn@australianemergencylaw.com
Updated: 45 min 27 sec ago

Do police, undertaking body recovery at a motor vehicle accident, owe a duty of care to the victim’s family?

4 October, 2018 - 23:03

I previously reported on the decision in in Skillen v State of New South Wales; Fuller v State of New South Wales; Fuller-Wilson v State of New South Wales [2017] NSWDC 342 (see NSW Police owed no duty of care to the family of fatal accident victim (December 1, 2017)).

In that case the plaintiffs sued NSW Police where they attended the scene where Mr Wilson had died and

…discovered ‘part of a foot and ankle and clothing containing the deceased’s melted remains…’ As a result of discovering the remains and clothing at the scene, that the Plaintiffs suffered psychological harm.

The case was dismissed, without trial, by District Court Judge Hatzistergos.  At the end of my post I said: “To dismiss a case without trial is unusual and it may be that the plaintiffs will seek to appeal that decision to the Supreme Court”.  The plaintiffs did appeal to the NSW Court of Appeal – Fuller-Wilson v State of New South Wales [2018] NSWCA 218.

In allowing the appeal Basten JA noted that the case would not succeed on the current state of the law but the common law developed on a case by case basis and it was open to the appellants to argue ‘that the common law in Australia should recognise a wider scope of liability’ ([12]).  That is this may be the case where a court is persuaded to expand liability and the appellant’s should not have been denied the chance to make that argument.

His Honour said that the activities of the police in removing the body and undertaking investigations, whether for the purposes of detecting an offence or for assisting the coroner, were part of their ‘public duties and not for the protection of any individual or class of individuals’ ([37]).  To demonstrate that there was a duty owed to the victims family with respect to how those tasks were performed, the appellants would need to show there there was ‘an implied statutory purpose of protecting individuals’.  He continued (at [74]):

The present facts, surprising as they may seem, represent a novel situation … Whether there is a reasonable cause of action available to the appellants must turn upon an understanding of the circumstances in which duties of care have and have not been imposed with respect to the conduct of police in past cases.

Further (at [83]) the High Court’s statement in Graham Barclay Oysters v Ryan (2002) 211 CLR 540, that:

… the existence or otherwise of a duty of care will turn upon “a close examination of the terms, scope and purpose of the relevant statutory regime” suggests that a claim should not be summarily dismissed until it can be said that (a) the particular statutory regime has been properly identified and (b) an affirmative finding of conflicting claims or obligations has been made. It has not yet been possible to carry out that task in the present case.

White JA and Emmett AJA agreed with Basten JA and the appeal was upheld.

The Court of Appeal did not determine whether or not the police did owe the relevant duty of care nor did the court decide whether there had been any negligence.  The decision of the Court of Appeal was limited to the question of whether or not the case was so unarguable that it should be dismissed without trial.  They held that the argument that there was a duty of care could not be determined without allowing the parties to prove the facts they relied upon and to fully argue how the alleged duty would be consistent with the earlier legal authorities.

The matter will now return to District Court to resolve, unless, of course, the parties come to a settlement first.

Categories: Researchers

Administering drugs when paramedics are registered

3 October, 2018 - 23:01

Today’s question comes from a paramedic.  The question is generic and given pending national registration their jurisdiction does not matter.  The question is:

In light of registration quite a few paramedics are discussing the potential opportunities for paramedics to clinically practice in areas that have not traditionally employed paramedics; for example in hospitals or doctors’ offices.  However, it seems that one of the possible impediments to this is the fact that the ability to administer scheduled medications seems to be tightly controlled.  What impediments, if any, would a paramedic face if (for example) there was a will to employ one in an ER in order to allow them to work clinically to the same scope of practice as they would with a state ambulance service.  Would they be able to administer scheduled medications to the patients in the ER?  Would they be able to administer any medications?  Would this require the approval of the State Chief Health Officer (or equivalent).  Could a medical doctor ‘delegate’ the authority for the paramedic to administer medications – in effect, to grant the paramedic an ‘authority to practice’ similar to how an ambulance service does?  What legal requirements would have to be satisfied for a paramedic to administer medications to patients in a place of employment other than an ambulance service?

The answer to this question is ‘it depends’ but let me explain that in more detail.

First, 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.

Other things that I think will come with registration and was in fact part of the argument for registration is the scope for paramedics to move their practice from traditional jurisdictional ambulance services.  So work in hospitals and GP surgeries will open up and I would anticipate that entrepreneurial paramedics will find other business models, including private emergency ambulance services, where they can earn a living.  Again these things won’t happen overnight, but paramedic registration will mean that the term ‘paramedic’ means something and that in turn will open doors for new sorts of practice.

Currently it is not administering scheduled medicines that is regulated, it’s possession of those drugs.  Let me use NSW as an example.  A person who is employed by the Ambulance Service of NSW as an ambulance officer is entitled to carry scheduled drugs in accordance with an approval from Director-General (Poisons and Therapeutic Goods Regulation 2008 (NSW) r 101 and Appendix C, cl 7).   That is not a delegation from a doctor. Doctors (except in WA) do not have some general authority to allow other people to carry drugs – see Doctors delegating authority to carry drugs (August 20, 2014).  The reason an office holder like the Director General of Health or perhaps a medical director of a private ambulance service can identify who can carry scheduled drugs is because the relevant poisons legislation says they can, it is not a right or authority that comes with registration as a medical practitioner.

But the authority under the relevant legislation is a right to possess and supply the drugs.  For paramedics that means they can carry the drugs in their drug box and decide, without reference to a medical practitioner, whether the patient’s condition requires the drugs to be administered.   But a person may administer drugs to a person for whom the drugs have been prescribed (Poisons and Therapeutic Goods Regulation 2008 (NSW) rr 58 and 59).  That means a paramedic employed at a hospital or a GP could administer drugs if they have been prescribed for the patient by the medical practitioner.  Where the drugs are required to kept under lock and key the paramedic, without express authority, could not hold the key to the drug cabinet and therefore be ‘in possession’ of the drugs that have not been prescribed.

But  that’s the position in New South Wales.  In Western Australia the Medicines and Poisons Act 2014 (WA) s 25 says:

A health professional acting in the lawful practice of his or her profession is authorised to administer, possess, prescribe, supply or use a medicine if —

(a)         the health professional is a member of a class of health professional prescribed by the regulations; and

(b)         the medicine is prescribed by the regulations as one that may be administered, possessed, prescribed, supplied or used by a member of that class of health professional; and

(c)         the administration, possession, prescription, supply or use of the medicine is in accordance with the regulations.

Paramedics are already authorised health professionals and may carry schedule 2, 3, 4 and 8 medications. They may administer schedule 4 and 8 medications on the prescription of a medical practitioner or in accordance with a structured administration and supply arrangement (an SASA) (Medicines and Poisons Regulations 2016 (WA) rr 15, 61 and 62). Pending registration, a paramedic is ‘a person employed by the holder of a health service permit to provide ambulance or paramedic services’ (r 37).  Assuming that the definition of paramedic is amended with registration one can infer that in WA a paramedic will be able to carry and supply drugs in accordance with a relevant SASA but whether that would allow them to be in charge of the drug cabinet or make the decision, without referral to a medical practitioner, to administer drugs would depend on the terms of the SASA.

Further s 27 of the WA Act says:

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

If a paramedic is employed by a medical practitioner then the paramedic could administer a drug that has been prescribed for the patient by the employing medical practitioner.

Conclusion

The authority of paramedics to possess and make independent decisions to administer scheduled drugs is found in the state and territories poisons legislation.  The terms of the legislation varies from jurisdiction to jurisdiction.

Registration of paramedics will not automatically see paramedics authorised to carry and administer drugs on their own initiative but it will be a start.  It will be easier for health departments to grant that authority if they see the need and identify that the profession is sufficiently mature and well-regulated to protect patient safety.  Registration will not bring that but it will be a critical first step.  Health Departments will know that registered paramedics have had their qualifications assessed and can be disciplined if they abuse their position of trust so will be able to make a rule that applies to ‘paramedics’.

Identifying need will be essential and if paramedics are moving out of the traditional ambulance services and can bring pressure to make those changes, supported by those that may want to employ them, that will no doubt be considered by health departments in due course.

Pending that paramedics can help a patient by administering medication that has been prescribed for that patient, just as anyone can.

Categories: Researchers

Legal implications of administrative hiccups in NSW SES

30 September, 2018 - 19:23

With all the new rank and insignia with the SES I have a question. If someone is deemed not ‘job ready’, they are a part of a team, and something goes wrong where does that leave them legally? Likewise if they are not job ready and lead a team and again something goes wrong, where legally do they sit? They may have all the qualifications but because SAP has not ‘rolled up’ their qualification to the R&I requirements or the qualification is coded wrong in SAP they are deemed ‘not job ready’. I am hoping you can clarify so that the volunteers are protected and can make an informed choice about going into the field and understand where they sit legally.

This is the job ready explanation on the EOS site:

Courses / Skills to be attained All Members Member

Induction (staff/volunteers)

Flood Rescue Awareness

Beacon familiarisation

Introduction to Operate Communications Equipment

Introduction to Drive Operational Vehicles

Service Experience

Successful completion of all components.

Other Requirements

Meets behaviour and attendance criteria and is approved by their Controller/Manager.

Local Incident Control Centre familiarisation.

A lot of people have the qualifications, however due to coding or qualifications ‘dropping off’ the system, they are not ‘job ready’ in a report we received this week. My concern is that if they are not deemed ‘job ready’ by the service, but hold the qualification and something goes wrong what will happen to them legally?  A number of units have discovered that they only have a small handful of job ready people, for example [one unit] has about 40 members, but only three job ready

A number of members have raised this and been told that it will be ok, we just keep doing what we are doing… but we all thought that an emergency vehicle was an emergency vehicle and could use the turn arounds on the highway until that terrible accident and discovered that legally there is a different definition to an emergency vehicle than we all thought.

The short answer

It will be ok, just keep doing what you have been doing.

The long answer

Answering legal questions in the abstract is always difficult.  One needs to try to think about what sort of thing going wrong is contemplated.  I suppose there are two possibilities, one is that the member is injured, or they injure someone else.  Given the basic skills in this list it is hard to see how having or not having these basic skills pose a risk to someone other than the operator.  From the list the most practical sounds like ‘Flood Rescue Awareness’ so let us assume a member is injured during a flood rescue.

The legal consequences will be nothing at all. First compensation for that member is governed by the workers compensation scheme in NSW – and that is a no-fault scheme.  That is the applicant doesn’t have to show that someone was negligent and the insurer can not reduce damages for contributory negligence.

Putting that aside, courts are interested in what happened –assuming negligence was an issue, for example a person drowns during an unsuccessful flood rescue attempt. The court would be concerned with who did what, not what licence they had.  Having a qualification does not prove that your actions in a particular case were or were not reasonable.

Further courts understand that there are new systems and that they have teething problems.  If the qualification was an issue and the person can show that they did have it and it was an administrative error that caused the qualification to ‘drop off’ the list, then it was an administrative error. An administrative error does not cause anyone to get injured.

Anyone who calls the SES is calling the SES, not a particular member.  The SES responds and the SES is responsible for the consequences of the response (malicious misbehaviour excepted).  If there is liability, it belongs to the SES.

The reference to the accident on the M1 motorway is misplaced – see Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017).  The RFS driver was not convicted because he used a u-turn bay that said ‘no u-turn; emergency vehicles excepted’ when there was no emergency.  Further, he had the necessary licence but that did not mean that his driving was not negligent. He was convicted because he failed to take reasonable care and caused someone else’s death.  If an SES member manages to kill a bystander, the issue will not be whether he or she had the qualifications listed above.  The issue will be what happened and why.  In the RFS case the driver failed to give way to a vehicle travelling 110km/h, for no good reason.

Whilst it is true that an SES vehicle is not an emergency vehicle unless there is an emergency that means you may get a ticket if you use one of those u-turn bays just because it is convenient and not urgent. If you are in an accident and kill someone, that will be the least of your concerns.

Conclusion

The ‘job ready’ requirements are instructions to members and controllers to ensure that people have the basic qualifications to join a team.  But there’s a new system and like most systems it appears to be having teething problems. When it comes to making teams the real issue is ‘are the members qualified’ (ie do they have the qualifications) not ‘does the administrative system work’.   The failure of the system to pick up the qualifications has no legal significance.  In the event anything goes wrong and in the unlikely event the matter got before a court, the issue will always be ‘what happened’ not an obsession with administrative technicalities.

Categories: Researchers

Accessing information relating to complaints and disciplinary proceedings

28 September, 2018 - 11:17

In Speer v NSW State Emergency Service [2018] NSWCATAD 226 a former deputy region controller was seeking access to information held by the SES in relation to complaints that had been made about his performance and investigations by the SES.  The application was made under the Government Information (Public Access) Act 2009 (NSW) (“the GIPA Act”).  (This Act replaces the older, but perhaps more familiar, Freedom of Information or FOI Act).

It is a basic rule of natural justice that a person the subject of disciplinary proceedings is entitled to know the substance of the allegations against them in order to respond to them. It is also fundamental, at least to criminal justice, that a person has the right to face those who are giving evidence against them.  The Australian Law Reform Commission in its report on Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Interim Report 127) said:

10.81   The High Court has said that ‘confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial’. The right to confront an adverse witness has been said to be ‘basic to any civilised notion of a fair trial’. In R v Davis, Lord Bingham said:

It is a long-established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence.

10.82   This principle, Lord Bingham said, originated in ancient Rome, and was later recognised by such authorities as Sir Matthew Hale, Blackstone and Bentham.

The latter regarded the cross-examination of adverse witnesses as ‘the indefeasible right of each party, in all sorts of causes’ and criticised inquisitorial procedures practised on the continent of Europe, where evidence was received under a ‘veil of secrecy’ and the door was left ‘wide open to mendacity, falsehood, and partiality’.

10.83   The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.

Given that witness have to give evidence and be available for cross examination it follows that a potential witness may not be guaranteed anonymity and this may well discourage people coming forward with information relevant to wrongdoing.

These principles, at least the principle of the right to confront an opposing witness, are fundamental to the criminal law but they are also applicable in other decisions, such as disciplinary proceedings, where a person’s rights are being affected.   Note the objections from Lord Bingham, above, where ‘where evidence was received under a ‘veil of secrecy’’.

Under the GIPA Act a government entity had to consider both the public interest in disclosing information held by the agency, as well as the public interest in not disclosing that information.  The presumption is that government information should be disclosed.  The SES had released some information but withheld other information.  Some of the material was heavily redacted such that Mr Speer argued (at [7]) the ‘letters have been heavily redacted to the point that they supply me with no information as to what I have allegedly done to cause the staff members to feel as they do. … I seek information as to what the complaints are so that I might address them.’

The matter came before Senior Member Montgomery, sitting in the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal.  It was the Tribunal’s function to reconsider the SES response and to ‘determine the “correct and preferable decision” ([9]).  Senior Member Montgomery said (at [14]):

The Tribunal is to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure. Pursuant to section 5 of the GIPA Act there is a presumption in favour of disclosure of the information unless there is an overriding public interest against disclosure. In accordance with section 9(1) of the GIPA Act, Mr Speer has a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information.

The SES argued (at [24]) that release of the redacted or withheld information would or could:

  • prejudice the supply of confidential information that facilitates the effective exercise of the SES’ functions
  • reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of the government or the SES
  • prejudice the effective exercise by the SES of its functions
  • result in the disclosure of information provided to the SES in confidence
  • reveal an individual’s personal information;
  • contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (“the PPIP Act”).
Letters of complaint

With respect to letters of complaint, these were provided in redacted form.  The SES argued that to release the entire letters, including the identify of those who wrote them, would be a breach of the expectation of the letter writers that they would be confidential.  Further it would discourage future disclosure of concerns about senior members and this, in turn, would ‘prejudice the ability of the NSW SES to protect persons and property’ ([36]-[38]).

Senior Member Montgomery determined that the SES had correctly placed a high weight on the interest in releasing the information and also on the value in not releasing the information.   He concluded that the SES were correct to withhold the redacted information.  He said (at [44]):

I have considered the contents of the letters and the other information that is available to Mr Speer. Given the extent of the available information, it is my view that the release of the withheld information i.e. the authors’ details and specific details of their complaints, would not assist Mr Speer greatly in his quest to achieve procedural fairness. I note that Mr Speer is no longer employed by the SES and there are no ongoing disciplinary matters involving him. In these circumstances greater weight should be given to the public interest considerations against disclosure than those considerations in favour of release.

Ken Speer Performance Management.

With respect to this document the SES argued (at [48])

… that this document was prepared by a witness for the purposes of an investigation and that it was provided in confidence. It submits that investigations are necessary to resolve issues that would prevent it serving its functions and that disclosure of the withheld information could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of those functions.

And further (at [51]):

The SES decided to refuse access to this document because it was of the view that it would not be possible to redact the document in a way that would hide the identity of the witness.

At [56]-[57] Senior Member Montgomery said:

I accept that release of the withheld information could reasonably be expected to have some impact on the supply of information in the future. However, I do not accept that the prejudice would be so great that the agency would be unable to obtain the evidence that it would require for the investigation.

In my view, greater weight should be given to the public interest considerations in favour of disclosure than to those against disclosure. It follows that the SES decision to refuse to release the document titled Ken Speer Performance Management should be set aside. In its place the decision is made that the document is released.

Other witnesses identifying material

In other documents material that would identify witnesses and their phone numbers had been redacted.  Senior Member Montgomery confirmed the decision to withhold that information.  He said (at [62]):

I accept that there is a pubic interest consideration in favour of release of this information because it would allow Mr Speer to ascertain the identities of those who were prepared to give evidence in relation to him… However, I accept that if this information were released, it may mean that witnesses would be more reluctant to give evidence in the future. In the circumstances, given that most of the information contained within these documents has been released, it is my view that the public interest consideration against disclosure should be given greater weight than those in favour of release.

Mr Speer also argued that the SES must have had other documents in relation to her performance assessment that they had not identified.  The tribunal considered the obligations on an agency to search for information and determined that the searches conducted by the SES were reasonable and comprehensive.   That the applicant thinks the agency should have further documents does not determine that they do have extra documents.  All that they can produce is what they have.  As Senior Member Montgomery said:

Mr Speer has suggested that the failure to keep file notes is not in accordance with good governance practices and which are expected of senior officers. This suggestion does not assist. There must be reasonable grounds to believe that the agency holds more information than it has identified. It is not enough for an applicant merely to assert non-compliance on the basis of general distrust of the agency.

Final orders

Senior Member Montgomery confirmed the decision by the SES to withhold information that had been received in confidence and which may have identified those who gave information that was contrary to Mr Speer’s interests.  He did however order that the Performance Management document prepared by the SES be provided to Mr Speer.

It is not clear from this decision what remedy Mr Speer is seeking and whether he is making a claim for damages or unlawful dismissal or the like.  The actual reason he wanted the information was not a matter for NSW Civil and Administrative Tribunal, the Tribunal only had to consider the release of the information under the GIPA Act.  Given the information was about Mr Speer he was entitled to have that information unless there was a stronger public interest in not disclosing it.

The Tribunal did consider that issues such as the promise of confidentiality and the need to maintain confidentiality to ensure that the agency could receive and people would be willing to provide information was important.

As noted above the right to face one’s accusers is a fundamental tenant of criminal law but these were not criminal proceedings. As the Tribunal noted ‘Mr Speer is no longer employed by the SES and there are no ongoing disciplinary matters involving him.’

Legal lessons

Although natural justice does suggest that people should have access to all information that is used to make decisions that are harmful to them, there are competing interests including the need to reassure people that they can give information in confidence.  The results here may well have, in fact would have been different if Mr Speer was facing criminal charges but that was not the case.

The other legal lessons too is that you do not have to take decisions made by agencies as final. There are avenues to have the decisions reviewed by someone who is a step removed from the agency and can bring a more independent view to the issues.  That does not mean you will win or that they will overturn the original decision. But it does mean that there are avenues to have decisions reviewed where a person feels that the original decision maker has not correctly applied the law.

 

 

Categories: Researchers

Protecting the local community or following the IC’s command?

24 September, 2018 - 16:00

This question touches on a significant issue in rural or bush fire fighting.  The details provided by my correspondent, a volunteer with the NSW Rural Fire Service, are very extensive, but I have edited them down to distil the essential facts whilst trying not to identify the participants, the location or the fire.

The gist of the issue is that my correspondent was with a volunteer brigade that had been sent out of area to assist at a large campaign fire. The incident controller had determined ‘that there would be no active, direct firefighting’.  Even so the firefighters were approached by people whose properties were at risk.  They understood that they were ‘being directed not to help the local farmers when they are in effect begging for help’.

This is not the first time this has happened – see Self help firefighting in Victoria (August 30, 2014).

The questions

My correspondent refers to RFS standard operating procedures that ‘clearly states that the RFS should provide a “Service to those in need” and asks ‘can a member be directed not to follow these SOPs, ie not to provide a service to those in need?’  He goes onto say:

I do not believe that any member of the RFS, staff or volunteer has the authority to direct a member of the RFS not to follow Fireground SOP #1…

Even with large fires on the worst possible days there will always be parts of the fire and parts of the day when it is safe to conduct active direct firefighting. To deny the farming community RFS support when it is perfectly safe makes little sense and it would also contravene Fireground SOP #1.

As for commands issued by the IC:

 … do you have to follow them? According to a recently released Service Standard 1.1.7 Code of Conduct and Ethics they are directives and yes, you do have to comply with them. Importantly it also states that the directives have to be “lawful and reasonable”… [At this fire]… crews were directed not to help the community even when the farmers and their families were directly asking for help. [Our]… crews had no other tasking and it was safe to help. No explanation was given for this directive …

I believe this directive was definitely unreasonable and most probably unlawful in the sense that it directly contravenes Fireground SOP #1.

And then there is a question about the nature of the RFS.

The RFS is a community based fire service where members are appointed from within their local community rather than one of the three tiers of Government. As volunteer members of a local brigade we are in effect “community servants” rather than “public servants”….

I do not believe that any member of Government, be it the Premier of NSW or senior public servant as in the RFS Commissioner has the authority to direct RFS brigades not to help their communities…

I guess I am asking or would like to know is am I barking up the wrong tree and is it me that has got it totally wrong or does a local volunteer have some level independence in how a local community gets looked after come the day of a big fire?

Reference documents

The RFS is governed by a number of instruments.  The Act is at the top of the hierarchy, the service exists and operates because of the Act. Under the Act are the regulations – the Rural Fires Regulation 2013 (NSW) – that are endorsed by Parliament.  The Act and Regulations provide the overall structure but not the details of how the service is to operate.  That is left to the Service under the command of the Commissioner.  The procedures and policies are set out in documents such as Policies, Service Standards and Standard Operating Procedures.   As Service Standard 1.5.1 Management of NSW RFS Policy Documents correctly states:

1.5       In case of any conflict between a policy document [ie ‘NSW RFS Service Standards, Policies, Standard Operating Procedures (SOPs) and any other relevant documents issued by the Commissioner’] and an Operational Protocol, manual or guideline, the policy document will take precedence.

1.6       In case of any conflict between legislation and a NSW RFS policy document, the legislation will take precedence. In the event of any inconsistency, the legislation will prevail over any other document.

The RFS is very good at publishing its Service Standards, Policies and Operational Protocols online.   I was unable to find a copy of the Fireground SOPs on the RFS website but I did find a copy of the Rural Fire Service Fireground S.O.P.s (1999 Edition) on a brigade website.  I will refer to them on the assumption that they are the current version.

The legal structure of the RFS

The RFS may have begun as a collective of brigades, where people joined their local bushfire brigade that was in turn linked to the overarching organisation that set standards and helped ensure consistent equipment.  That has not been the case since the passage of the Rural Fires Act 1997 (NSW).  The Office of the NSW Rural Fire Service led by the Commissioner of the NSW Rural Fire Service is a government executive agency related to the department of Justice (Government Sector Employment Act 2013 (NSW) Sch 1).   The Rural Fire Service itself is not a legal entity in its own right, it is part of the government that is sued and can sue in the name of the Crown in Right of NSW. The RFS consists of the Commissioner, the staff and the volunteers of the RFS.

The Commissioner is (s 12):

…responsible for managing and controlling the activities of the Service and has such other functions as are conferred or imposed on the Commissioner by or under this or any other Act.

(2) The Commissioner may determine the various duties that members of the staff of the Service are required to perform and allocate the duties to be carried out by each member of the staff.

The Commissioner may delegate any member of the RFS to perform the Commissioner’s duties or exercise the Commissioner’s powers (s 14).  A list of delegations is set out in Service Standard 1.3.1 Delegations and Authorisations.  Further, the Commissioner can nominate officers to exercise the powers listed under s 22 of the Act.  The designations under s 22 are set out in Service Standard 1.3.2 Powers of Officers.

The Commissioner sets the functions of an RFS brigade (s 21).  Brigades may believe that they are a community organisation but they are part and parcel of a government service – see ‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015).

The Commissioner, not the community, appoints the members of the RFS even though, necessarily they come from the community that they serve (Rural Fires Act 1997 (NSW) s 20 and Service Standard 1.3.1 Delegations and Authorisations).

In a covering email my correspondent said ‘From my perspective, a community based volunteer fire service must have some fundamental differences than a fire service like NSW Fire & Rescue’ but that difference is not clear.  FRNSW also depends on community members as retained firefighters and even permanent officers relocated to a new station become members of their own community. The legislative and command/control arrangements for FRNSW and the RFS are not significantly different.  Both are government operated fire brigades although the RFS depends on unpaid volunteers in a way that FRNSW does not.

The chain of command

Regulation 9 of the Rural Fires Regulation 2013 (NSW) says

An officer or member of a rural fire brigade or group of rural fire brigades is guilty of a breach of discipline if the officer or member:

(a) contravenes the Act or a provision of this Regulation, or…

(c) fails to comply with the Service Standards.

Penalties for a breach of discipline can range from a reprimand to termination of membership.

Service Standard 1.1.7 Code of Conduct and Ethics says:

All members must also comply with any lawful and reasonable direction or instruction given to by another NSW RFS member empowered to make such a direction or instruction under legislation, regulation, delegation or authorisation.

The role of Standard Operating Procedures

My correspondent says that the RFS Standard Operating Procedure (SOP) ‘clearly states that the RFS should provide a “Service to those in need”…’  That is an incomplete statement of what is in the SOP.  S.O.P. #1 Basic Priorities says:

Procedure

  • The priorities at all fires and other incidents are as follows:
    • Overriding Priority – Firefighter safety
    • First Priority – Protect people
    • Second Priority – Protect property
    • Third Priority – Help restore normality.

When it comes to ‘Service to those in need’ it says:

Consistent with safety, all officers and firefighters should provide the firefighting and related services reasonably needed and wanted by the community.

My correspondent’s first question was ‘can a member be directed not to follow these SOPs, ie not to provide a service to those in need?’ the answer has to be ‘yes’.  The obligation to provide ‘service to those in need’ is not absolute.  It is subject to safety, so there can be a direction to withdraw service when it is the risk to safety exceeds any perceived benefit.

Where there is no risk to safety the SOP begs the question of what is meant ‘by the community’?  Community is a vague term that can mean so much. A crew may see the community as those in their immediate vicinity; the sector commander may see the community as those on the rural land in the villages.  The Commissioner may see the community as ‘the community of NSW’.

Further what services are ‘reasonably needed and wanted by the community’ not only depends on the definition of community but also perspectives of what is likely to be effective.  Two people could read SOP 1 and Service Standard 1.1.7 Code of Conduct and Ethics guidance for ethical decision making (see [3.3]) and come to quite different opinions of what is the appropriate response in all the circumstances.

Because there can be different views someone has to decide – and that is the role of the person delegated by the Commissioner to make that decision – ideally the incident controller.  Given that the rural fire service is the New South Wales rural fire service, the incident controller, and ultimately the Commissioner has to decide how to allocate resources to best serve the community of NSW.  It may mean withholding service from some part of the community in order to deal with threats to other areas.  In my summary of the decision in Warragamba Winery Pty Ltd v State of New South Wales [2012] NSWSC 701, I said:

With respect to fighting the fire, he [Walmsely AJ] held that there was no legal obligation or duty owed to the plaintiffs.  The RFS is established to provide fire fighting services for the common good, not for individual benefit.  The RFS had to provide fire fighting across the state and on that day there were fires all across the state and providing a much more direct threat to different communities.  If the RFS owed a duty to these plaintiffs then it owed similar duties to other homeowners across the state.  The RFS had to make decisions about how to allocate scarce resources, how to manage and protect its own staff, and how to make decisions for the greatest good.  All of these factors move against holding that they owe a duty to any identifiable individual that would, in turn allow a person to sue the RFS for failing to extinguish a fire.

One thing that decision makers’ must consider (Service Standard 1.1.7 Code of Conduct and Ethics [3.3]) is:

Is what I am proposing to do in the best interests of the NSW RFS and the Community? (i.e. Will it yield the greatest benefit or least harm to the most people and minimize the number of people who might be disadvantaged in the short or long term).

Holding crews back to be available to meet other demands etc may disadvantage some people but bring the greatest benefit to the most people.  A fire service such as the RFS has to make decisions that may see them allow, or even cause, some properties to be lost in order to protect the broader community (Malverer v Spinke (1538) 73 ER 79; Warragamba Winery Pty Ltd v State of New South Wales [2012] NSWSC 701; Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales [2014] ACTCA 45).

The chain of command is there to provide a state wide fire service, not a combination of independent brigades, and to allow resources to be allocated where the Commissioner or his or her delegate determines.  If brigades are free to ignore those commands there is no coordinated effort and each community could only rely on its local brigade that will have insufficient resources to deal with many fires.  Even so there are fires that will exceed the capacity of any fire service and so tough decisions have to be made.

Where the obligation is to obey ‘any lawful and reasonable direction’ then there is an ‘out’ if a member thinks the directive is not lawful or not reasonable.  In that case Service Standard 1.1.7 does not compel obedience but a member has to recall that interpretations of what is reasonable, and to a lesser extent lawful, can vary.  If you take the view that you are not going to obey a command because it is unreasonable or unlawful then that may be accepted.  But if it’s not, if in some after action review it is alleged that there was a failure to comply with a ‘lawful and reasonable direction’ the members will have to be prepared to justify their decision and the review authority may, or may not, agree with their analysis.

Does a local volunteer have some level independence in how a local community gets looked after come the day of a big fire?

Notwithstanding the above, the answer has to be ‘yes’ because volunteers are just that.  And they can decide they’re not going to volunteer.  The ultimate sanction is that they can be dismissed from the RFS, but equally their ultimate power is that they can withdraw their service.  If one brigade refuses to follow direction, the members may be removed from the RFS.  If all the brigades refuse, the Commissioner may be removed.

If we look at the letter of the law however, it is the Commissioner that is ultimately responsible for the management of the service and its response to any fire.  The Commissioner can delegate his authority to officers and importantly to the incident controller.  The legislation provides for a chain of command and Service Standard 1.1.7 requires members to follow those directions from the authorised officers.  The Standard Operating Procedure is the lowest ranked document and it does not clearly determine the matter.  Opinions about what constitutes the ‘community’ and what are the ‘services reasonably needed and wanted by the community’ will vary depending on the perspective of the decision maker. In a campaign fire, decisions must be made about the allocation of resources and priorities and brigades and members are expected to implement those decisions.

What is essential, however, is not to be found in law.  What is required, I suggest, is good communication and trust.  Everyone will see the situation from a different perspective. The IC who is located away from the brigade, doesn’t have the on-the-ground view but hopefully trusts brigades to be flexible and adaptive to adjust to local conditions whilst still trying to meet the commander’s intent or objectives.  The brigades don’t have the whole picture that we hope the IC has but hopefully trust the IC to be making decisions that are in the best interest of the whole community.  Communication on the fire ground and making sure everyone has a common operating picture is always difficult if not impossible.  But this blog isn’t about decision making in a crisis, it’s about the law.

 

 

Categories: Researchers

Drugs in a private first aid kit

22 September, 2018 - 19:57

Today’s correspondent is a volunteer with an ambulance service in Western Australia.   My correspondent is trained and authorised to use some schedule 2, 3 and 4 drugs in the course of his volunteering.  My correspondent wants to know if it is permissible to carry schedule 3 drugs in a private first aid kit.  I am told:

My training authorises me to use some S2/S3/S4 medications with a scope of practice. However, I would like to know if I can be legally sued for one particular medication that falls under S3. We use epipens in the volunteer service. Outside the service, Adrenaline ampules are available over the counter. The autoinjectors are extremely expensive and expire within a matter of months dependent on storage, and the chance of use is low.

However, I would like to carry adrenaline for anaphylaxis and severe bronchospasm only, not for use in cardiac arrest as this does not fall in my scope. If I were to use the ampules (which requires me drawing up the medications in a needle and administered into a muscle) to rectify a life threatening issue.

I would not be willing to branch into the areas of S4 due to requirements for prescription and the chances of use being low for their specific purposes. Most of the S3 medications that I would consider using are life saving, for example salbutamol (for asthma). Naloxone is also another one I would consider carrying as there is now a push for this to be carried by the layperson.

I came across this article while reading through your blog: Good Samaritan legislation and scope of practice (March 27, 2015).

For clarification – the carrying of S3 medicines will be outside of my service – eg in the back of my car with a personal kit.

Schedule 3 medications are defined in the Poisons Standard June 2018 (made under the Therapeutic Goods Act 1989 (Cth)) as:

Pharmacist Only Medicine – Substances, the safe use of which requires professional advice but which should be available to the public from a pharmacist without a prescription.

There are 10 Schedules in the Poisons Standard (though Schedule 1 is ‘intentionally blank’).

The Medicines and Poisons Regulations 2016 (WA) r 62 authorises paramedics to carry scheduled drugs.  The term paramedic is defined to mean ‘a person employed by the holder of a health service permit to provide ambulance or paramedic services’ (r 37).  As my correspondent is not ‘employed’ the authority vested in volunteers must be subject to the relevant health services permit issued to the ambulance service for which my correspondent volunteers.

Without going into details I infer that carriage in a private car is not endorsed on the ambulance service permit, hence my correspondents reference to my earlier post –  Good Samaritan legislation and scope of practice (March 27, 2015).  I infer that perhaps it is hoped to rely on the good Samaritan legislation (Civil Liability Act 2002 (WA) Part 1D) to authorise carrying these drugs.

For persons without relevant authority (and I infer that includes my correspondent when off duty) the Medicine and Poisons Act 2014 (WA) s 13 says, relevantly:

(1)         A person who … supplies a Schedule 2 or 3 poison commits an offence unless —

(a)         the person does so —

(i)         under and in accordance with an appropriate licence or a professional authority; and

(ii)         in accordance with the regulations; or

(b)         the person does so in accordance with subsection (2) or (3).

(2)         A person may supply a Schedule 2 or 3 poison to another person (the patient) if —

(a)         the person reasonably believes that the use by the patient of the poison would be appropriate for therapeutic purposes; and

(b)         the amount of the poison supplied is reasonable in the circumstances; and

(c)         the person reasonably believes that the patient will use the poison for therapeutic purposes.

(3)         A person may supply a Schedule 2 or 3 poison to another person (an agent ) if —

(a)    the person supplies the poison to the agent for the purpose of it being supplied or administered to another person or to an animal (the patient ); and

(b)         the person reasonably believes that the use by the patient, or the administration to the patient, of the poison would be appropriate for therapeutic purposes; and

(c)         the amount of the poison supplied is reasonable in the circumstances; and

(d)         the person reasonably believes that —

(i)         the agent will —

(I)         supply or administer the poison to the patient; or

(II)         supply the poison to another person for the purpose of it being supplied or administered to the patient;

and

(ii)         the poison will be used by, or administered to, the patient for therapeutic purposes.

Section 8 says:

For the purposes of this Act a person is taken to supply a poison if the person does any of the following — … (c) has possession of the poison for the purpose of supplying it.

What follows from that is that if my correspondent has purchased the drugs and put then in a kit for the purpose of using them should the need arises, then he or she ‘has possession of the poison for the purpose of supplying it’ and is therefore guilty of the offence under s 13(1). The maximum penalty is a fine of $30 000 (s 115).

My correspondent may want to rely on s 13(2).  That may be a defence if and when the drugs are actually administered but that doesn’t authorise obtaining the drugs ‘just in case’.   I would suggest that clause is there so people can share their drugs eg if I lawfully have the drug in my possession and someone else needs it I can give it to them even though I’m not a pharmacist.

Clause 13(3) allows a person to buy drugs for someone else so a person can go to the pharmacist and buy a schedule 3 drug for their family member.  In that case the person buying the drug can receive advice and give the drug to the person in need. Critically both ss 13(2) and (3) refer to the ‘patient’ that is a person who currently needs the drugs for therapeutic purposes.  Again s 13(3) does not authorise the purchase of drugs ‘just in case’.

The good Samaritan provisions of the Civil Liability Act 2002 (WA) may protect my correspondent from liability if he or she used the drugs when assisting a patient in actual need, but it would not be a defence to being in possession of the scheduled drugs ‘just in case’.   Further by definition the Civil Liability Act 2002 (WA) deals with civil liability, not criminal liability and possession of schedule 3 drugs is a criminal offence.

The whole basis of the scheduling of poisons, and then the extensive legislation in each state and territory is to restrict the supply of those drugs.  Schedule 3 drugs are to be supplied by a pharmacist.  They may not need a prescription but it requires professional advice.  A person cannot just buy schedule 3 drugs and then supply them to others.

The matter is further complicated by the fact that naloxone is a schedule 3 drug and has been placed there so people can obtain it to treat drug overdoses – see Department of Health – WA Lifesaving medicine now available over the counterSee also Simon R Lenton, Paul M Dietze and Marianne Jauncey, ‘Australia reschedules naloxone for opioid overdose‘ Med J Aust 2016; 204 (4): 146-147 (doi: 10.5694/mja15.01181)).  Lenton et al conclude:

While OTC [over-the-counter] access removes the need for a doctor’s prescription, the requirement for dispensing by a doctor or pharmacist remains…

We recommend that the rescheduling of naloxone be followed by regulatory changes that allow current THN [take-home naloxone] programs to dispense naloxone directly to their clients for later use in an overdose situation.

Rescheduling the drug does not get past provisions such as s 13(1).  It may be that pharmacists supply naloxone to drug users so that it is available to treat their drug overdose and if having obtained it they then use it on someone else that’s fine (s 13(2)).  

What can’t be lawful (as it would defeat the point of the scheduling system and s 13(1)) is to go to a pharmacist and buy a supply of scheduled drugs to create one’s own drug kit and then use them when the purchaser sees fit.  The point of scheduling medications is to protect people from harm and to restrict the supply of dangerous drugs.  The person who needs advice from the pharmacist is the very person for whom the drugs are intended or a person who is going to give the drugs to the person who needs them now.

The difference is in intention.  If I buy the drug for me or for someone else who currently needs it, that is with the intention of using it for an identified ‘patient’.  If I buy it not for me but for an unidentified potential patient the pharmacist can’t give me advice as the pharmacist can’t know, nor can I, which patient I will use it for.   If people want to carry drugs, including Schedule 3 drugs, ‘just in case’ then they need an authority or permit.

My correspondent’s authority comes via the ambulance service for which they volunteer.  If my correspondent could lawfully carry drugs outside that authority, then authorities issued to the ambulance service would be unnecessary.

Conclusion

My correspondent has asked the wrong question. I was asked ‘can [I] be legally sued…?’  To be sued is to be sued in a civil case for the use of the drugs.  It is unlawful to carry a concealed hand gun but it may not be illegal to use that handgun in self defence.  Equally, here, it may be unlawful to carry the drugs but that may not make it unlawful to use them if there is a patient who needs them.  My correspondent may be sued if it is alleged that the use of the drugs in a particular case was not a reasonable response and caused damage.  On the other hand if it was a reasonable response the fact that the drugs will illegally in their possession will be irrelevant.  In that case my correspondent may be able to rely on the Civil Liability Act and s 13(2) of the Medicine and Poisons Act 2014 (WA).

That however is not the issue.  Buying the drugs in order to put them in a first aid kit because it may be useful one day for a yet unidentified patient is to acquire restricted substances for the purpose of supply and that is a criminal offence.  The Civil Liability Act won’t help there.

See also Restricted drugs in the church first aid kit? (August 22, 2017)

 

Categories: Researchers

Training from someone other than an RTO

21 September, 2018 - 15:35

Today’s question comes from

… a member of a mine emergency response team [jurisdiction not stated] … [who holds] HLT41115 a Cert IV in Health Care.

There is an expectation that I should use an ECG (HLTCAR001 qualification) and perform cannulisation on patients (HLTHPS009 qualification).  Neither of these two qualifications are on the Cert IV course list of core or elective units. In October we are being ‘trained’ by a provider to use interossa (sic) cannulas.  On checking on Training.gov the provider does not have HLTHPS009 on their scope which I believe would render the training inadmissible.

I have served in a foreign emergency service and have always believed, medically, we can only perform tasks within our sphere of qualified competency.

My concern for both my ‘younger’ colleagues and myself is that in the event of an injury being exacerbated or worse, a fatality at the coronial enquiry/or any subsequent investigation we would be complicit and held to task.

Are you able to provide any clarity on this subject?

There is no list of procedures that says ‘you can only do these procedures if you hold these qualifications’.  The rationale of the national training framework is to ensure that Registered Training Organisations (RTOs) meet relevant standards and that the training from one RTO can be equated to that from another RTO teaching the same competency. It is that which makes the qualifications nationally transferrable.

But you don’t have to be an RTO, or have the qualification in your listed scope, to provide the training.  I could train someone in first aid but I could not issue a recognised first aid certificate and no-one would know whether my training was any good or up-to-date.  It would be a silly person that paid me for first aid training.

An employer would, one hopes, want to provide training to staff that could be certified by an RTO as it would give them some confidence about the quality of training, knowledge about the competencies covered, and would give the employee a certificate that they can add to their CV.  The use of an RTO would go so way to demonstrating, should it be necessary, that they have taken ‘reasonable care’ to ensure staff were trained and competent in the relevant task.  It may also be necessary to demonstrate compliance with Work Health and Safety legislation, but it’s not mandated.  As with both common law and work health and safety, it is always a risk assessment issue.

In this case the employer may be satisfied that the trainer can provide training that will make the employees’ competent in the skill that the employer wants them to perform.  You don’t need a licence or a certificate to use an ECG or to cannulate.  If you know what to do and how to do it, then it’s not illegal to do so.  In any review the issue will be was the person competent more than what certificate did they have, though in some cases that will be relevant.

Let me assume then that my correspondent completes the training, cannulates and ‘an injury [is] exacerbated or worse, a fatality …’ (though I find it hard to imagine that it could cause a death, but I’ll accept that possibility for the sake of the argument).

My correspondent is an employee.  As an employee they are held out by the employer to be competent and appropriate for the task. Other employees do not have a choice from who they receive care, they will receive care from the employer’s mine emergency response team.  If there is negligence by the mine emergency response team, whether it is because they were not properly skilled, or being trained just got it wrong that day, then the employer is liable.  Those responders are the hands and eyes of the employer, so their default is the employer’s default.  Equally if the employer made a poor choice in the selection of the trainer that is also the employer’s problem.

If a person dies and the matter is investigated by the coroner or the work health inspectorate, it’s hard to imagine how the issue of cannulation would be relevant.  But if we assume that it could be, and the coroner asks questions then my correspondent has the answers: “We were trained by the company, we did what we were trained to do”.  If the training was substandard then that’s the employer or the trainer’s problem.  Remember coroner’s cannot determine any liability – the coroner may make a recommendation eg that the employer should use an RTO for future training.

Conclusion

If my correspondent thinks that there is a risk to health and safety in the proposals that should be raised through the health and safety consultation processes at the workplace.  My correspondent will not be personally liable for adverse consequences from undertaking tasks assigned by the employer in accordance with training that the employer has determined is sufficient.  It may be that the employer is being imprudent in not using an RTO with the relevant training scope and maybe they don’t know that the trainer they have selected is not endorsed to issue that training, so make sure that is brought to the employer’s attention, but my correspondent is not going to be ‘complicit and held to task’ for doing that which the employer has directed and which is not illegal.

 

Categories: Researchers

“Providing first aid in emergencies”

20 September, 2018 - 16:47

Safer Care Victoria says:

“Whether it’s holding someone’s hand or providing cardiopulmonary resuscitation (CPR), you can give someone much-needed comfort or even save a life in an emergency.

This fact sheet aims to help you feel safe and confident in approaching someone who needs help. It should also reassure you that if you act honestly, you are legally protected – regardless of the outcome.”

You can read more in their fact sheet published 19 September 2018.  I’m pleased to report that I was invited to, and was able to contribute to the development of this important publication.

You can download the fact sheet from Safer Care Victoria at https://bettersafercare.vic.gov.au/reports-and-publications/providing-first-aid-in-emergencies

Categories: Researchers

Is it illegal to put out fire with a private firefighting equipment in Victoria?

19 September, 2018 - 20:36

Today’s question came via email in response to the post Private fire appliances and the CFA (December 2, 2017):

… my question is “is it illegal to put out fire with a private firefighting equipment?” Some people are saying that it’s illegal but in the CFA private firefighting equipment handbook it says that its legal. What happens when I come to a fire first; will there be any problem with people saying that it’s illegal?

Also l have done a leadership course and my plan was a private firefighting equipment and follow to the letter from the CFA private firefighting equipment handbook but I am getting different opinions and I have been told that if continue with this I will be reported to the CFA  and the police. This person hasn’t seen the private firefighting equipment handbook.

I assume that the reference to the CFA handbook is the Country Fire Authority Guidelines for Operating Private  Equipment at Fires (Edition 2 – June 2016).  Those guidelines start with the comment:

The responsibility for individuals to fight fire on their own land has always been a part of Victoria’s fire fighting suppression regime. It was recognized in the Royal Commission into the disastrous 1939 Black Friday fires where Commissioner Stretton recommended that when a fire breaks out on private land “it should be made the duty of the landholder…to take immediate steps to check and suppress such fire”. This recommendation is reflected today in Section 34 of the CFA Act, 1958.

It has always been the custom and practice in Victoria that members of the community attend fires with their own equipment to protect their property and that of others. For that matter, CFA developed from such beginnings.

The Country Fire Authority Act 1958 (Vic) s 34 says:

Where a fire … is burning on any land in the country area of Victoria at any time during a fire danger period the owner or the occupier or the person in charge of that land whether or not he has lighted the fire or caused the fire to be lighted shall—
(a) immediately upon becoming aware of the fire, take all reasonable steps to extinguish the fire…

In Stephens v Stephens (1970) 92 WN(NSW) 810 Mason JA found that no legal authority was necessary to extinguish a bushfire.

Conclusion

It is absolutely legal to try to fight a fire with private equipment.  The idea that the CFA and only the CFA can fight bushfires would deny both reality (ie that others can indeed fight fires) and the whole idea of resilience to natural disasters.  People can help themselves and their neighbours.

Extend that to all fires and can you imagine telling people it’s illegal to use a fire extinguisher to try and put out a fire before the fire brigade arrives?  That scenario shows the stupidity of a suggestion that people cannot attempt to put out a fire with whatever equipment they have.

It might be illegal to create a fire brigade, impersonate the CFA, interfere with the operations of the CFA, but those issuers were not the subject of the question.

For further discussion, see:

Categories: Researchers

Choosing not to install an AED for spurious reasons

10 September, 2018 - 15:54

This question was posted as a comment on my post Liability for failing to install an AED? (April 7, 2016).  In that post I concluded that:

The statement ‘the standard of care has now shifted creating a potential liability for organizations that do not have AEDs installed’ is just too broad and simply does not reflect Australian law.   It may be true for some places, so your local Westfield may be remiss if they don’t have one or two, but saying that this would or could actually lead to a finding of negligence or liability is a very long stretch.

Today’s question flows on from that discussion. My correspondent asks?

I was recently told that some medical clinics don’t have AEDs installed because they’re worried that if they have one, it will give rise to some additional duty of care that could wind up with them getting sued. I am wondering if this is true?

I note your article above specifically says that it’s not “intended for a doctor’s surgery or nursing home”. Thinking about those situations, I would assume that the likelihood of cardiac distress would be much higher in a medical surgery than it is in say a shopping mall or office block. And patients are specifically attending medical clinics to seek medical help. So if anything, I would assume that negligence would be a bigger risk if the doctors *don’t* install an AED, than if they do?

I can intuitively believe that if a doctor completely bungles the use of an AED the tort of negligence could come in to play. But surely any time a patient attends a doctor’s surgery and the doctor completely bungles up the treatment in a negligent manner than similar risk of an action in tort arises?

I would be very interested to hear your thoughts on this?

Could you imagine a medical practice that fails to have necessary equipment because they’ll be liable if they do?  I suppose we’d see the doctor practising in a bare room.  If the doctor’s that scared of his or her own capacity to actually use medical equipment one would have to question whether they should continue as a medical practitioner.

The duty on a medical practice is to provide reasonably competent services.  There would be some equipment that it would be negligent to operate without – eg a medical practice that did not have facilities for handwashing and disposal of contaminated waste would be negligent if, as a result, someone suffered an injury.  The question of whether an AED meets that ‘minimum’ standard would be a question of risk assessment.  What sort of practice is it and what sort of patient’s do they see.

But, as my correspondent notes, a medical practice is very different from a shop or shopping centre.  People come to a medical clinic for medical care.  Even if the practice does not generally see people at risk of cardiac arrest people may come in seeking emergency help if they’re having difficulties and see that the medical practice is there.  I agree with my correspondent the legal risk has to be higher by not having one, than having one (which is not to say that it’s much of a risk either way).

I’m not sure how you can completely bungle the use of an AED but certainly a medical practitioner is expected to provide reasonable care and one might reasonably expect a medical or nursing practitioner to be competent and trained in the use of an AED in a way that a bystander may not be.

Conclusion

My thoughts are that a medical clinic should be thinking about what we should do that will provide the best service for our patients, not how do we do the least possible.  Not installing an AED for fear that one somehow be liable if it’s used is ridiculous.  They are intended to be used by anyone.  Further medical, nursing and other health practitioners should be confident in using fairly standard equipment.  If not, why are they in practice?

It may be reasonable to choose not to install one on a cost-benefit basis, but it can’t be reasonable to choose not to install one for fear that ‘it will give rise to some additional duty of care that could wind up with them getting sued’.  It won’t.

 

Categories: Researchers

Insurance does not come with a first aid certificate, nor is insurance required.

9 September, 2018 - 18:50

Today’s question comes via the National Institute of First Aid Trainers ‘Ask an Expert’ page – see https://www.nifat.com.au/ask-expert/.

The question is:

If someone acting as a first aider is sued or litigated against (and as long as they act within their training and their certificate is current) who pays any costs of court for instance?

Do HLTAID003 Certificate holders have any indemnity cover under their certificate/RTO, etc?

The answer is no, there is no insurance that comes with a first aid certificate.  If someone ‘acting as a first aider is sued or litigated against’ then they have to meet the costs unless they have insurance.  They may have insurance if they are acting in the course of their employment or are a member of an organisation that provides that sort of cover for its members, but insurance is not automatic. Nor is insurance required – see Insurance for first aiders (August 13, 2014).

Categories: Researchers

No need to change uniforms with paramedic registration

6 September, 2018 - 01:35

Today’s question comes from a member of ACT ambulance, but my correspondent is not a paramedic.  My correspondent says:

I have been advised at work that our teal green uniforms we wear will have to be changed as it is “illegal” under national registration of paramedics for Communications Officers and ACTAS Patient Transport Officers not qualified as paramedics to wear the uniform as they could be “purported to be paramedics”.

Could you please inject some legal and common sense logic into this verbal opinion please?

I note your previous blogs on registration and lifted this very paragraph from one of your replies;

The Health Practitioner Regulation National Law (as adopted in Victoria) says at s 113:

(1) A person must not knowingly or recklessly—

(a) take or use a title in the Table to this section, in a way that could be reasonably expected to induce a belief the person is registered under this Law in the health profession listed beside the title in the Table, unless the person is registered in the profession, or

(b) take or use a prescribed title for a health profession, in a way that could be reasonably expected to induce a belief the person is registered under this Law in the profession, unless the person is registered in the profession.

Knowingly or recklessly? If I have a uniform that is the same except for the epaulettes saying for example “Ambulance Support Officer” and printed name on back of uniform says “ambulance”, I am not “knowingly or recklessly” putting myself forward as a paramedic. And if the public are mistaken or confused about who is what in the ambulance profession, isn’t that their issue?

S113b states “take or use a prescribed title”. We are not taking or using the title of paramedic.

My uniform does not state I am a paramedic, I submit that this conclusion that uniforms have to be changed is false.

One does wonder how these stories start, and my correspondent is correct.  There is no restriction on various uniforms or colours.    As my correspondent has noted, the Health Practitioner Regulation National Law protects titles – see Health Practitioner Regulation National Law (ACT) s 113. A green uniform is not a ‘title’.

Further a person who wears a uniform issued by his or her employer where that uniform does not have the title ‘paramedic’ is not ‘knowingly or recklessly’ using the title.  If the employer puts some words on the uniform  with the intention of misleading people, then it is the employer who is doing the wrong thing.

The point of a uniform is to show that people are part of an organisation and to distinguish ranks and qualifications.  If an ambulance service uniform says ‘paramedic’ on the epaulettes and on  the back of the uniform issued to paramedics and has other markings on the uniform of other employees to show that they are communications officers, the chaplain, NEPT officers etc there is no use of the protected title.

It may be that, in due course, an ambulance service may choose to vary the uniform of paramedics from others if there is some evidence of confusion. But until then there is nothing in the Health Practitioner Regulation National Law that would compel an ambulance service like ACTAS to change the uniform of its non-paramedic employees provided that their uniform does not say ‘paramedic’ on it.

Categories: Researchers

Taking photos inside a hospital

1 September, 2018 - 18:40

A nurse from WA has a:

… question relating to the public taking photographs of medical staff in a patient’s hospital room.  I know in most circumstances a person can take photos of anyone regardless of consent except in certain situations ie customs processing hall where photography is prohibited by law. As a nurse can I ask someone not to photograph me whilst I’m treating a patient, and even if the patient consents to the photo but I don’t.

That’s an interesting question and the answer is not obvious.  Landowners can make it a condition of entry that cameras are restricted and that is indeed what happens at theatres and concert venues.  The back of your ticket will have terms and conditions and will probably tell you that photography and filming is prohibited.  Further they mean it and at least in some venues security will take action if you are caught using your camera.

I can’t imagine however that this is a term upon which people are given permission to enter hospitals.  There is no ‘ticket’ system and public hospitals are pretty much open to anyone.

As a nurse you can of course ask someone not to take your photo but what could you do if they do take their photo.  You wouldn’t have the right to seize their camera see (Lifesavers as law enforcers? (July 6, 2014)) and it’s not like the old days where if you did get the camera you could remove the film.

If someone takes a photo and posts it on social media you may have some rights to ask that it be taken down and may have a cause of action if you can prove some damage.

If a person takes the photo and keeps it in the family photo album – here’s our family member in hospital and their lovely nurse – I can’t see that you could do anything about that.

If the photo was used because it demonstrated some professionally inappropriate behaviour, then no-one is going to be concerned that the photo was taken without your permission.  The issue then will be what does the photo show and what should be done about that?

There’s no actionable breach of privacy because a person is not an entity bound by the privacy laws. They are not collecting personal data for a particular purpose and are therefore obliged to keep that data and use it for that purpose.  They are just a person with a camera, and there is no ‘right’ to privacy.

Conclusion

The question was ‘As a nurse can I ask someone not to photograph me whilst I’m treating a patient….?’  The literal answer to that question is ‘of course you can ask’.  The more difficult question is ‘and what can I do if they refuse to honour my request?’

If their presence and photographing is interfering with patient care I would suggest contacting a more senior nurse eg the nurse unit manager or security.   But if they take the photo and put the camera away I can’t see any obvious legal remedy unless and until they chose to publish it.

If any other lawyers who read this blog and know more about privacy or media law and have a different view, I’d love to hear it.

 

Categories: Researchers

Regulation of Australia’s health professions: keeping the National Law up to date and fit for purpose

27 August, 2018 - 19:44

Bill Madden’s WordPress is reporting that:

The COAG Health Council has released a consultation paper regarding the National Law, with submissions requested by 31 October 2018. Also available is a summary of the proposals and issues included in the paper.

The issues include:

  • Reporting of professional negligence settlements and judgements;
  • Reporting of charges and convictions for scheduled medicines offences;
  • Whether whether the National Law should be amended to clarify the powers of a National Board following preliminary assessment, including a specific power to enable the National Board to refer a matter to be dealt with by another entity including a Court in the case of an expert witness;
  • Whether the National Law should be amended to restrict the use of the titles ‘cosmetic surgeon’ and ‘surgeon’;
  • Whether the National Law should be amended to provide AHPRA with the power to record on the public registers additional names or aliases under which a practitioner offers regulated health services to the public;
  • Whether the National Law should be amended to enable a National Board / AHPRA to disclose information to an unregistered person’s employer if, on investigation, a risk to public safety is identified; and
  • Whether  the National Law should be amended to empower a National Board / AHPRA to issue a public statement or warning with respect to risks to the public.

Given that paramedics are about to join the 14 other professions regulated under this law, paramedics may have an interest in making submissions on these issues.

Categories: Researchers

Application of anti-discrimination laws to volunteer applicants

24 August, 2018 - 22:08

Today’s correspondent asks:

  1. Do people who want to volunteer for an emergency service have protection under anti-discrimination laws if they are refused membership and believe that they were discriminated against under the usual grounds (race, sex, religion etc)?
  2. The emergency services have paid employees and volunteer members; do the various anti-discrimination laws apply equally to both groups? For example in relation to promotion (volunteers get promoted to various ranks) and access to courses.

I’ll refer to the relevant Commonwealth laws.  The Commonwealth doesn’t have a comprehensive anti-discrimination Act, rather it has specific ones:

  • Racial Discrimination Act 1975 (Cth);
  • Sex Discrimination Act 1984 (Cth);
  • Disability Discrimination Act 1992 (Cth); and
  • Age Discrimination Act 2006 (Cth).

The Sex Discrimination Act 1984 (Cth) deals with sex discrimination as well discrimination on the ground of sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding and family responsibilities.  The Act prohibits discrimination in the areas of employment and superannuation as well as in the provision of education, goods, services and facilities, accommodation, land transactions and clubs.

With respect to the provision of ‘goods, services and facilities’ s 22 says:

It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:

(a)       by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b)       in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c)        in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

This would apply to an emergency service when it comes to responding to a request for assistance.  To refuse to respond or to respond on different terms because of the callers’ gender etc would be unlawful.

This could, arguably apply to an emergency service in terms of the ‘goods, services and facilities’ it provides to members but that’s not the same as the issue of whether its unlawful to discriminate when considering a person’s application for membership.

A club (s 4) is ‘an association (whether incorporated or unincorporated) of not less than 30 persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that: (a) provides and maintains its facilities, in whole or in part, from the funds of the association; and (b) sells or supplies liquor for consumption on its premises’.  Clearly an agency like the SES is not a club nor is it an employer of its volunteers.

There is an exception for voluntary bodies.  Section 39 says:

Nothing in Division 1 or 2 renders it unlawful for a voluntary body to discriminate against a person, on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, breastfeeding or family responsibilities, in connection with:

(a)  the admission of persons as members of the body; or

(b)  the provision of benefits, facilities or services to members of the body.

A voluntary body does not include ‘a body established by a law of the Commonwealth, of a State or of a Territory’.  The various Emergency Services (except St John Ambulance in WA and the NT) are all established by laws of the relevant states or territories so that exemption does not apply to them.

There are similar provisions in the Disability and Age Discrimination Acts.

The Racial Discrimination Act is broader. It says (s 9):

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

Without defining every term in that section, prima facie that would make it unlawful to discriminate against a member of an agency such as the SES on the basis of race.

The problem for the Commonwealth is that it has limited capacity to make laws.  Laws of the Commonwealth have to be a law about a subject matter set out in the Constitution.  Discrimination isn’t one of those areas, so the Commonwealth law is only able to regulate areas that fall within the Commonwealth’s legislative authority.  To fill the gaps there is relevant state laws.

I don’t know what jurisdiction my correspondent is in, so I’ll look at NSW State Law.  The Anti-Discrimination Act 1977 (NSW) is very similar to the Commonwealth laws. Again there are exemptions for volunteer bodies but that would not include one of the states emergency services (s 57).

The agencies are therefore bound by the Anti-discrimination legislation and must not discriminate in the way it provides its services but there are no specific rules that would seem to apply to the question of whether to accept a person’s application for membership or the terms on which that application is accepted.

Conclusion

What follows, much to my surprise is that it appears that the anti-discrimination laws don’t apply in the circumstances described.  This is confirmed by:

Justice Connect in Victoria – ‘Discrimination in recruiting employees and volunteers:

The anti-discrimination laws in the Equal Opportunity Act do not specifically apply to volunteers. However, anti-discrimination laws may still apply where the volunteering situation gives rise to other areas covered by the Equal Opportunity Act. For example, discrimination laws may apply to protect volunteers with respect to club membership, sporting activities and where goods or services are being provided.

The NSW Anti-Discrimination Board – ‘Volunteers and voluntary organisations’:

Because volunteers are not generally regarded as employees, they may not be covered by most parts of the NSW Anti-Discrimination Act (ADA).

However, the ADA’s sexual harassment provisions do cover volunteers, so it is against the law for a volunteer to be sexually harassed during their voluntary work.

What follows is that people who want to volunteer for one of the emergency services do not appear to have protection under anti-discrimination laws if they are refused membership and believe that they were discriminated against because of age, sex, or disability. There may be protection if they are discriminated against on the basis of race.

Where a person is a member then the anti-discrimination legislation provides greater protection for employees than volunteers.  The agency cannot discriminate against volunteers where the agency is providing goods, services and access to facilities.

 

 

Categories: Researchers

Assessing capacity when the patient won’t cooperate

24 August, 2018 - 20:04

Today’s correspondent, a NSW paramedic, seeks:

… advice about how to ascertain C+C [Competency and Capacity] when a patient won’t engage with the Paramedics, and what the Paramedic’s obligations are.

In the case where Paramedics are responded by a third party to a patient due to concerns over the patient’s mental health or welfare status, and the patient refuses to interact with Paramedics, instead repeatedly saying they are fine and don’t require Paramedics and didn’t ask for their help, how can we ascertain if they have the C+C to refuse assessment/treatment/transport?

If the patient has a history of mental health issues, but is not behaving in a way that would display any current mental health issue and is refusing to answer questions or interact, where does the Paramedic stand if they can’t ascertain C+C, but leave the patient who was refusing assessment and there is an adverse outcome for the patient?

Do patients have the right to refuse assessment, treatment and transport if they refuse to answer questions regarding competency and capacity?

I’ll answer the last question first.  Yes ‘patients have the right to refuse assessment, treatment and transport if they refuse to answer questions regarding competency and capacity’.  There is no obligation to cooperate with paramedics (or police) or answer their questions.

The law

Where a patient is not competent to consent, or refuse consent, treatment that is reasonably necessary and in their best interest may be administered (see The doctrine of necessity – Explained (January 31, 2017)).  Further, an ambulance officer (Mental Health Act 2007 (NSW) s 20):

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

For a discussion on the interplay between consent and mental illness see Mentally ill, mentally disordered, mentally disturbed or just injured and in need of medical care in NSW? (August 27, 2017).

One thing a paramedic may need to do is to assess if the person is competent and/or mentally ill.  A person is competent to consent, or refuse consent, to medical treatment if he or she is able to understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision (In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 169. For a further interesting discussion with a New Zealand focus on capacity see Philip Arnold, ‘The Practitioner Knows Best? Assessment of Patient Capacity and Responses to Refusal of Treatment in Emergency Healthcare’ (2013) 3 New Zealand Law Students Journal 23. I don’t agree with all the author says about treatment after suicide and I note that on that subject the article does not discuss Stuart v Kirkland-Veenstra [2009] HCA 15 and the High Court’s analysis about why attempted suicide is not evidence of reduced capacity or mental illness.  With that reservation, it’s a useful and interesting paper).

A person is mentally ill (Mental Health Act 2007 (NSW) s 14(1)) if they are:

… suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:

(a) for the person’s own protection from serious harm, or

(b) for the protection of others from serious harm.

Mental illness means (s 4):

… a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:

(a) delusions,

(b) hallucinations,

(c) serious disorder of thought form,

(d) a severe disturbance of mood,

(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d).

A critical case, as it is with respect to so many posts in this blog, is Stuart v Kirkland-Veenstra [2009] HCA 15. In that case two members of Victoria police observed Mr Veenstra apparently preparing to commit suicide.  He spoke to police who formed the view that he was not displaying any of the symptoms of mental illness as listed in the Mental Health Act 1986 (Vic).  Deciding that there was no evidence of mental illness the police officers determined that they did not have the power to detain Mr Veenstra under s 10 of the Victorian Act.  Mr Veenstra went home and took his own life.  His widow sued alleging the police had been negligent for failing to take more active steps to detain Mr Veenstra.

If the police were to have a legal duty to do something, they also had to have a legal power.  French CJ said (at [5]):

In my opinion … there was no legal duty of care … The existence of a power to apprehend Mr Veenstra under s 10 of the 1986 Act was critical… However, it was a power which was never enlivened. The officers said, and the trial judge held, that they did not think Mr Veenstra was mentally ill… The officers, after talking with him, did not believe that he was going to take his own life. In the circumstances they could not have apprehended him unless they believed him to be mentally ill and likely to attempt suicide. The case for a duty of care depended upon the existence of the power to apprehend. That power did not exist in this case.

We can return to the facts given here.  The paramedics duty of care can’t extend to doing that which they have no authority to do.  If the patient refuses to cooperate with paramedics, refuses to answers questions, or responds by ‘repeatedly saying they are fine and don’t require Paramedics’ and ‘is not behaving in a way that would display any current mental health issue’ there is little that the paramedics can do.

In Collins v Wilcock [1984] 3 All ER 374 the English and Wales Court of Appeal had to consider the power of a police officer to detain a person to ask her a question.  The headnote (a summary of the case) says:

Two police officers on duty in a police car observed two women in the street who appeared to be soliciting for the purpose of prostitution. One of the women was known to the police as a prostitute but the other, the appellant, was not a known prostitute. When the police officers requested the appellant to get into the car for questioning she refused to do so and instead walked away from the car. One of the officers, a policewoman, got out of the car and followed the appellant in order to question her regarding her identity and conduct and to caution her, if she was suspected of being a prostitute… The appellant refused to speak to the policewoman and walked away, whereupon the policewoman took hold of the appellant’s arm to detain her. The appellant then swore at the policewoman and scratched the officer’s arm with her fingernails. The appellant was convicted of assaulting a police officer in the execution of her duty… She appealed against the conviction, contending that when the assault occurred the officer was not exercising her power of arrest and was acting beyond the scope of her duty in detaining the appellant by taking hold of her arm. The police contended that the officer was acting in the execution of her duty when the assault occurred because the officer had good cause to detain the appellant for the purpose of questioning her to see whether a caution for suspicious behaviour should be administered.

Held – (1) Except when lawfully exercising his power of arrest or some other statutory power a police officer had no greater rights than an ordinary citizen to restrain another. Accordingly, whether a police officer’s conduct was lawful when detaining a person to question him in circumstances where the officer was not exercising his power of arrest or other statutory power depended on whether the physical contact the officer used to detain the person was no more than generally acceptable physical contact between two citizens for the purpose of one of them engaging the attention of the other and as such was lawful physical contact as between two ordinary citizens. If the conduct used by the officer went beyond such generally acceptable conduct, eg if the officer gripped a person’s arm or shoulder rather than merely laying a hand on his sleeve or tapping his shoulder, the officer’s conduct would constitute the infliction of unlawful force and thus constitute a battery…

(3) Since the policewoman had not been exercising her power of arrest when she detained the appellant, and since in taking hold of the appellant’s arm to detain her the policewoman’s conduct went beyond acceptable lawful physical contact between two citizens, it followed that the officer’s act constituted a battery on the appellant and that she had not been acting in the execution of her duty when the assault occurred. Accordingly the appeal would be allowed and the conviction quashed…

In the course of his judgment Lord Goff said (at p. 378):

The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery. So Holt CJ held in 1704 that ‘the least touching of another in anger is a battery’: see Cole v Turner 6 Mod Rep 149, 90 ER 958. The breadth of the principle reflects the fundamental nature of the interest so protected; as Blackstone wrote in his Commentaries, ‘the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner’ (see 3 Bl Com 120). The effect is that everybody is protected not only against physical injury but against any form of physical molestation.

In Neal v Ambulance Service of NSW [2008] NSWCA 346 Mr Neal refused assistance from paramedics who remained concerned that he may have suffered serious head injuries.  In the face of his refusal they advised police that they could not treat or transport him to hospital.  Mr Neal did indeed have serious injuries and sued the Ambulance Service.  His case did not dispute that the paramedics did not have authority to detain or treat him but, he argued, the paramedics should have advised the police of their concerns as police could detain him under the Intoxicated Persons Act 1979 (NSW) (now repealed).   The District Court Judge found that notwithstanding the patient’s refusal the paramedics still had to do what they reasonably could, given the limitations imposed upon them. What the Court found that they should have done, but did not do, was tell the police that they had not been able to examine the patient, what the possible consequences of that were and ‘tell the police that the plaintiff may have a head injury and should be medically assessed’ (Neal v Ambulance Service of NSW [2007] NSWDC 123, [39]-[40].

It is axiomatic that a relationship that is as close as that between the Ambulance Service, acting through its employees the ambulance officers, and the patient, must give rise to a duty of care. On appeal the Court of Appeal said the correct question was not whether the paramedics owed Mr Neal a duty of care but whether the duty, in the circumstances, extended to giving advice to the attending police that they should take Mr Neal to hospital (Neal v Ambulance Service of NSW [2008] NSWCA 346, [23]-[24]).

The Court of Appeal did not decide that issue finding that even if the paramedics had given that advice to police, and even if police had taken Mr Neal to hospital, he would have refused treatment there too and so the consequences would have been the same (see Ambulance Service v Neal (January 29, 2009)).

Discussion

The implications of all of that is:

  1. Paramedics do owe a duty of care to those that they are called to assist.
  2. The duty is a duty to provide reasonable care in all the circumstances. It cannot be a duty to do that which the paramedic has no lawful authority to do.
  3. A person can refuse treatment even if that will lead to their death. Their refusal does not have to be objectively reasonable or based on reasons at all.
  4. Paramedics (in NSW) do not have a power to detain a person who refuses to cooperate except under the Mental Health Act 2007 (NSW) s 20. Where a person refuses to cooperate with paramedics they have no authority to detain them or compel them to answer their questions.  If they do answer by insisting that they do not require assistance the best a paramedic can do is form a view, based on the person’s ability to answer the questions whether they are displaying signs of a mental illness.
  5. Where a person refuses to cooperate paramedics may owe a duty to do something but what will depend on all the circumstances.

In the situation described a paramedics duty may be to try and persuade the patient to cooperate. If they hold a genuine fear that the patient does in fact require assistance the duty may be to consider calling for assistance from family, the police or mental health teams.  If the patient is ‘not behaving in a way that would display any current mental health issue’ there is nothing anyone can do if the person refuses to cooperate.  Any attempt to compel the person to cooperate, particularly if it involves physical force (ie touching the person) would be a battery.

“[W]here does the Paramedic stand if they can’t ascertain C+C, but leave the patient who was refusing assessment and there is an adverse outcome for the patient?”  The best answer to that is the answer from Stuart v Kirkland-Veenstra [2009] HCA 15.  In that case Mr Veenstra went home and took his own life.  Whilst it’s true the police had to go to the High Court for an answer the answer will assist others – and the others was there was no duty to protect a person from harm that the police (or paramedics) did not cause.   The police were not liable in Stuart v Kirkland-Veenstra, the ambulance service was not liable in Neal v Ambulance Service of NSW.

Conclusion

Where a paramedic is faced with a refusal to cooperate all they can do is their best. They can’t compel the patient to cooperate.  If they have no reason to suspect, from the person’s response, that they are not competent or that they are mentally ill, there is nothing they can do to compel compliance.  They paramedics may, in the circumstances, need to advise the person that they should seek medical aid, or that there is a concern for their well-being. They may in some circumstances seek help from family, other health professionals or police. But if, at the end of the day, the patient refuses to cooperate then the paramedics need to write detailed notes (as the police in Stuart v Kirkland-Veenstra did) of what they did and what steps they took to assess the patient.

Categories: Researchers

Grandparenting for paramedic registration – some will be ‘in’ and some will be ‘out’.

18 August, 2018 - 09:54

This comment was made in response to my earlier post –Paramedic registration if you are “working as a paramedic”? (August 6, 2018).

Following in from this, even after the consultation process, it would seem someone has decided to change the goal posts. Now you need 1700 hours with the jurisdictional ambulance service.

By what I am being told, military and private paramedical roles, careflight etc are not regarded as JAS hours.

I recall there is a federal law which states that a person has a right to earn a living. If employment requires someone to be a paramedic and loses their job because of a procedural change, the federal law comes into play. I wished I could remember the law the lawyer used to successfully defend a change to registration in another industry.

Your thoughts would be appreciated on these new unsolicited grandfather clause changes.

My response was so long I thought it warranted its own post.

The issue is that today, 18 August 2018, we don’t know what it means to be a paramedic (ignoring those provisions in Tasmania, SA and NSW that have paramedic title protection legislation).  The Board has to decide who is a ‘paramedic’.  I would suggest that there is an archetype” the paramedic working for the ‘jurisdictional’ ambulance services.  People who want to be registered but who don’t have an ‘adequate qualification’ have alternative paths to demonstrate that they have the skills and experience sufficiently akin to the archetype to warrant registration.

One path is the ‘Combination of qualifications/training and further study or a period of supervised practice’.  Under this pathway an applicant has to demonstrate, amongst other things ‘at least 1700 hours of supervised practice in a JAS or under a registered paramedic or passed a Board approved assessment’.  You can see that the ‘1700 hours with the jurisdictional ambulance service’ is one of three options.  It’s impossible at the moment to show practice ‘under a registered paramedic’ as today there is no such thing (at least not in Australia). But this may be applicable to people who seek registration during the next three years.

There is also a third pathway, the ‘Hours of practice pathway’ where an applicant has to show ‘5 years practice as a paramedic in the past 10 years’ and provide evidence of the ‘your competence as a paramedic’.  The suggested evidence for this pathway does not refer to hours of practice in the say way as pathway two.

The first comment is that registration under the grandparenting provisions does not require ‘1700 hours with the jurisdictional ambulance service’, that is one, but not the only, piece of evidence that may be used to support a claim for registration under the grandparenting provisions.

The second comment is that there has to be such a process. Your argument ‘a person has a right to earn a living. If employment requires someone to be a paramedic and loses their job because of a procedural change, the federal law comes into play’ implies that people who currently call themselves a paramedic should continue to do so.  Consider for example someone who works in a factory and they have an occupational first aid certificate.  Assume further that they are given the title ‘Paramedic’ by their employer – so the first aid procedures tells people to contact someone from the list of ‘paramedics’ and the first aid room is labelled ‘Paramedic room’.  In states other than Tasmania, NSW and SA there is nothing wrong or illegal in that. That person now says ‘I will lose my job as with registration my employer will now know that there is a difference and will, for all the reasons in favour of registration, change the job to require a person to be a registered paramedic.  I have been working as a paramedic for five years (that’s how long I’ve had the title) so I want to be registered. If that’s not accepted then the Board isn’t recognising non-JAS service and I’m being disadvantaged’.  That’s the same argument but probably no-one would suggest that a factory first aider is or should be a registered paramedic.

Equally a person may be a volunteer with an event first aid service. They may be trained in and respond with some scheduled pain relief drugs, oxygen, salbutamol, adrenaline and a defibrillator.  They may have 20 years’ experience and believe that they are as well trained and competent as any newly employed university graduate.  They too could argue that they deserve registration and under pathway 3 may be able to get registered given ‘practice as a paramedic’ is still an unclear issue. In fact, the Board will have to determine if that sort of practice constitutes ‘practice as a paramedic’. As those decisions are made, we will learn what that concept means.

That is why I say it’s inappropriate of the Board to say ‘Students, medics, volunteer ambulance officers and emergency medical technicians (EMTs) do not need to apply for registration’ (http://www.paramedicineboard.gov.au/documents/default.aspx?record=WD18%2f26029&dbid=AP&chksum=I3xOvykPdg9hdAPXZmbqEA%3d%3d; See also  Are St John volunteers paramedics? Should they be? (July 19, 2012)).  It’s inappropriate as it assumes that there is a clear line between those that practice as a paramedic and others; a there isn’t and won’t be until the Board starts making decisions on who gets registration and who does not. People who are employed under the title ‘medics, volunteer ambulance officers and emergency medical technicians (EMTs)’ or any other title don’t need to register if they don’t want to use the title ‘paramedic’ but that doesn’t mean that they won’t discover that their training, experience and practice means they can register.  Equally people who currently use the title ‘paramedic’ do need to register if they want to continue to use that title and they may discover that even though they’ve been called a ‘paramedic’ before the commencement date, that what they have been doing is not paramedic practice or paramedicine.

Employers may well say ‘we’ve employed someone and called them a paramedic but that title didn’t really mean anything, now it does mean something we’ve either got to change the title of our employee or we now see that the person we had in the job wasn’t actually the person we wanted to have in the job and so now we’re going to employ a registered paramedic for all the benefits that registration requires’. To do that presumably there would be industrial issues involved in regarding the position so that the job description of ‘factory paramedic’ has to be rewritten and the person currently in that job finds that they are no longer qualified for the job.  But that sort of thing happens all the time – jobs get redefined and people get ‘spilled’ and have to reapply for their own job and if the requirements have changed they may not be qualified for the new job.

The second comment then is that the transition to registration will necessarily require determinations as to who is a paramedic and what it means to practice as a paramedic.  The decision maker is the Board.  No doubt some people who currently call themselves a paramedic will find that they are not a modern paramedic.  And some people who perhaps did not use the title or thought they were not a paramedic will discover (or be able to establish) that the qualifications and experience mean they are able to register as a paramedic.  A person’s current job title – that they are currently called a paramedic – will not determine the matter.  And that may mean that some employers who thought they were employing a paramedic will discover that the person in the job is not a paramedic and if they want to employ a paramedic, that person will not be able to keep their job if they can’t get registered.  That is one of the advantages of paramedicine, it will mean employers won’t have to try and work out what qualifications an applicant has, they will be able to look to their registration, you either are a registered paramedic or you are not.

I have no idea what ‘federal law’ is being referred to (there are indeed laws about restraint of trade) but this won’t breach them.  A person who has used the title ‘paramedic’ but can’t get registered could keep their job if the employer says ‘we don’t need a paramedic, we’ll just change the job title’ but can’t if the employer says ‘we won’t a paramedic, we thought you were one, but now we know you’re not so we’ll have to go through the industrial process that may involve changing the job description, terminating your employment and readvertising’. The fact that this would be horrible for that person is not sufficient to allow them to register as a paramedic.

Conclusion

It’s taken time for the term ‘paramedic’ to develop meaning and it’s an ongoing process. Like all definitions as it develops some people will be clearly ‘in’ or ‘out’ and for others it will be less clear.  Some will get registered, some won’t. The process will give the concept and the profession meaning but no doubt will disappoint some people who think they are or should be considered paramedics but find they are not.  That is an essential process.

Categories: Researchers

UK doctor successful in appeal against decision to remove her name from the register following manslaughter conviction

14 August, 2018 - 13:59

I have previously reported on the case of Dr Dr Hadiza Bawa-Garba, a UK doctor who was convicted of manslaughter and struck off as a medical practitioner following the death of a young patient. See:

Bill Madden’s WordPress, a blog on medical-legal issues is reporting that Dr Bawa-Garba has been successful in her appeal against the decision to remove her name from the register of medical practitioners.  Her conviction for manslaughter remains.

Bill’s blog says:

A media summary of the appellate decision is available online.

Bawa-Garba v General Medical Council [2018] EWCA Civ 1879 opened with a comment from the Court that the central issue on this appeal is the proper approach to the conviction of a medical practitioner for gross negligence manslaughter in the context of fitness to practise sanctions under the Medical Act 1983 (“MA 1983”) where the registrant does not present a continuing risk to patients.

The Court concluded at [91] – [93]:

It is clear from that analysis that Ouseley J approached the matter on the basis that (1) the gross negligence manslaughter verdict meant that the Tribunal had to accept that Dr Bawa-Garba’s failings in her care and treatment of Jack had been truly exceptionally bad and had caused him very serious harm, (2) such culpability would require a sanction of erasure in order to maintain public confidence in the medical profession and its procedures for maintaining its professional standards unless there were sufficiently significant reasons for imposing a lesser sanction. That seems to us to be materially the same as a presumption that a conviction for manslaughter by gross negligence should lead to erasure in the absence of exceptional or truly exceptional circumstances, a proposition which Ouseley J rightly said (at [40]) was not correct.

As the Professional Standards Authority has emphasised, the present case is unusual. No concerns have ever been raised about the clinical competency of Dr Bawa-Garba, other than in relation to Jack’s death. This is so even though she continued to be employed by the Trust until her conviction and for a significant part of that time carried out clinical work as a doctor. She was described before the Tribunal as being in the top third of her Specialist Trainee cohort. The Tribunal was satisfied that she had remedied the deficiencies in her clinical skills, and it accepted the evidence of two consultants that she is an excellent doctor. The Tribunal was satisfied that the risk of her putting a patient at unwarranted risk of harm in the future was low in the sense, as stated in the Impairment Decision, that the risk of her clinical practice suddenly and without explanation falling below the standards expected on any given day is no higher than for any other reasonably competent doctor. The Tribunal also accepted the evidence that she was honest and reliable and had reflected deeply and demonstrated significant and substantial insight, even though it was unable to conclude that she had complete insight into her actions as it did not hear from her directly. It found that her deficient conduct in relation to the care and treatment of Jack was neither deliberate nor reckless and that she did not present a continuing risk to patients.

The Tribunal was an expert body entitled to reach all those conclusions. Indeed, none of them have been challenged by the GMC. The Tribunal was entitled to take into account, consistently with Bijl v General Medical Council [2001] UKPC 42, [2002] Lloyd’s Rep Med 60 at [13], that an important factor weighing in favour of Dr Bawa-Garba is that she is a competent and useful doctor, who presents no material danger to the public, and can provide considerable useful future service to society.

Categories: Researchers

Powers of first officers within the Rural Fire Service, Queensland.

14 August, 2018 - 11:40

Today’s correspondent is:

… the First Officer of a Queensland Rural Fire Brigade. We have been recently advised that the Powers of an Authorised Officer can only be given to the First Officer and brigade officers 2-8 only (in my absence). We are told they cannot be conferred onto of the members of the brigade if an officer is absent, I.e the next most senior member who is not an elected officer as per the Rural Fire Brigade Manual.

This has caused considerable concern as previously it has been assumed that in the absence of the First Officer or a brigade officer, the powers would be transferred onto the next senior officer (which I can’t find a definition for in the Act) to allow fire fighting activities to be conducted I.e backburn, remove vegetation, gain access, cuts locks etc.

The other issues that has now arisen is surrounding the task of backburning for the purpose of extinguishing a Fire. Recent fire activity where out of area task forces have been sent to the incident has seen the incident control team send brigade officers to the location to authorise the crew to conduct a backburn (they had to wait for permission to be given in person rather than via radio from the incident control team). This obviously raises the issue of is this necessary and if this is necessary to have physical presence, does that person have to stay on site for the entire backburn? Or is it just the initial authorisation etc? The process of a backburn can range from anything from one hour to several days. The Act only authorises a Rural Fire Brigade Officer as an authorised Officer in their own brigade area and the powers do not apply out of area, hence how this has now come up.

Also, can the powers of an authorised Officer be approved over the phone by a First Officer or other authorised Officer? That is, can I authorise a backburn via phone call if I am not present at or near the incident (let say I am home and unable to respond but I am on the phone to crews that are)? Also, if I am at the incident control do I have authorise every action that needs the powers of an authorised Officer – let’s say 5 Locks have to be cut to get access to the fire on 5 different properties – or can the instruction access the fire and cut locks if necessary be sufficient?

Lastly, since the vast majority of our dispatches come via a fire communication centre, which follows established protocols and guidelines authorised by the Commissioner, would a response page to an incident confer the powers of the Commissioner onto us as an authorised officer or delegate etc for the purposes of firefighting? For example, if I am tasked to an incident and I am not an officer or I am not responding to an area that is my brigade area, can I cut a lock to access the fire or start a backburn on the basis that the dispatch by the communication centre is a delegation of the Commissioner’s authority?

The relevant powers of an authorised fire officer listed in the Fire and Emergency Services Act 1990 (Qld) s 53 ‘Powers of authorised officer in dangerous situations’.  I will not repeat them here but they are the standard range of powers you would expect a fire commander to have when responding to a fire or other emergency.  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) Schedule 6).  A volunteer ‘First Officer of a Queensland Rural Fire Brigade’ is not a ‘fire officer’ as he or she is not an employee. It follows that he or she can’t be an ‘authorised fire officer’.

Sections 79-86 deal with Rural Fire Brigades.  Section 83 deals with the powers of a First Officer.  It says:

(1) Where, pursuant to notification given under section 82(2), a rural fire brigade is in charge of operations for controlling and extinguishing a fire, the first officer of the brigade has, for that purpose—

(a)          the powers of an authorised fire officer, subject to any limitation imposed by the commissioner; and

(b)          the control and direction of any person (including any fire officer) whose services are available at the fire.

(2) Any power exercisable by the first officer of a rural fire brigade may be exercised by any person acting at the direction of the first officer.

(3) Any person exercising a power or discharging a function under this section must comply with any code of practice and with any direction of the commissioner.

(4) In this section—

“first officer” includes, where the first officer of a rural fire brigade is unavailable to act, the next senior officer of the brigade who is available.

(5) Where a rural fire brigade is assisting in operations for controlling or extinguishing a fire, the person who pursuant to this Act or any direction given by the commissioner is in charge of those operations has the control and direction of the members of the rural fire brigade.

A notice under s 82(2) is a notice from the Commissioner identifying ‘the area for which and the circumstances in which the brigade is in charge of fire fighting and fire prevention’.

A first officer therefore is not an authorised fire officer but he or she may exercise all the powers of an authorised fire officer where the brigade is operating within the area defined in the s 82(2) notice.

Who is the next senior officer is not clear.  The Act (s 81) says this about officers:

(1) A rural fire brigade must elect a first officer to be in charge of the brigade.

(2) A rural fire brigade may also elect such other officers as it considers necessary.

Discussion

My correspondent’s first point is:

We have been recently advised that the Powers of an Authorised Officer can only be given to the First Officer and brigade officers 2-8 only (in my absence). We are told they cannot be conferred onto of the members of the brigade if an officer is absent, I.e the next most senior member who is not an elected officer as per the Rural Fire Brigade Manual.

The powers of an authorised officer are not ‘given’ or delegated to anyone by executive action.  The power to exercise those powers is set out in the Act.  The first officer, or in the first officer’s absence, ‘the next senior officer’.  The Act does not say that the first officer has to be present, it says the first officer has to be ‘unavailable to Act’.  What that might mean could vary in many circumstances.

Note also s 83(2) ‘Any power exercisable by the first officer of a rural fire brigade may be exercised by any person acting at the direction of the first officer’.   This allows a first officer to give ‘directions’ to anyone (not just a member of the fire brigade) and their action is in effect the exercise of those powers.  In other words, the first officer doesn’t personally have to do the things listed in s 53, he or she can direct others to do so.  Any other position would be impossible and would defeat the idea of being an officer that is the leader of the Brigade.

Reading s 83 the most senior officer can exercise the power of an authorised fire officer either personally or by directing someone else.  The Act does not require that officer to be present but to be available to Act.   If the officer is the Brigade commander (within the meaning of the Australian Interagency Incident Management System (‘AIIMS’)) he or she may be directing others but they may not be physically present together.  For example, a large brigade may have more than one appliance and crew; the first officer may be with one crew but still exercising command over the other.   In a reasonably small fire the first officer may be the incident controller and at a command post directing his or her own brigade as well as another ‘rural fire brigade [that] is assisting in operations for controlling or extinguishing [the] fire’.  If the first officer had to personally present it would beg the question of present where?

The second point is

This has caused considerable concern as previously it has been assumed that in the absence of the First Officer or a brigade officer, the powers would be transferred onto the next senior officer (which I can’t find a definition for in the Act) to allow fire fighting activities to be conducted I.e backburn, remove vegetation, gain access, cuts locks etc.

The problem here is what does ‘officer’ mean?  It’s not defined so does it mean ‘officer’ in the way the military use the term to distinguish between the officers and ‘other ranks’ or is an officer just any member in the way even a junior constable is described as a police officer?    The definition of ‘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.’  That isn’t making reference to rank and if it includes a trainee firefighter they are not an ‘officer’ in the way the military might use the term.

On the other hand the fact that a brigade is to elect a first officer and ‘such other officers as it considers necessary’ would suggest that an ‘officer’ is someone elected to an ‘office’ not any firefighter.

The conclusion is that we simply don’t know what ‘officer’ in s 83(4) means.  If ‘officer’ means a person elected to an office under s 81 then a brigade that responds to a fire without an ‘officer’ would be unable to take effective action.  I can’t imagine that is what the people of Queensland expect or want.  Given that outcome, and given the fact that when talking about QFES the Act refers to all members as ‘officers’ and assuming that the term means the same thing wherever it is used, I would infer that ‘officer’ in s 83(4) includes a ‘member’.  How seniority is determined within the Brigade is not defined so presumably that is a matter for Brigade rules (s 80).

Next my correspondent says:

The other issues that has now arisen is surrounding the task of backburning for the purpose of extinguishing a Fire. Recent fire activity where out of area task forces have been sent to the incident has seen the incident control team send brigade officers to the location to authorise the crew to conduct a backburn (they had to wait for permission to be given in person rather than via radio from the incident control team). This obviously raises the issue of is this necessary and if this is necessary to have physical presence, does that person have to stay on site for the entire backburn? Or is it just the initial authorisation etc? The process of a backburn can range from anything from one hour to several days. The Act only authorises a Rural Fire Brigade Officer as an authorised Officer in their own brigade area and the powers do not apply out of area, hence how this has now come up.

Given the wording of s 83, it makes sense to send local brigade officers to take command of the operations.  Why they can’t give the permission via radio or other means I have no idea. The Act says that the relevant commander is the first officer or ‘where the first officer of a rural fire brigade is unavailable to act, the next senior officer of the brigade who is available’.  Given modern communications technology and the concept of command and control as defined in AIIMS the commander can’t be where every firefighter is.   I can’t see that ‘available’ equals ‘physically present where the action is to be taken’.

Next:

Also, can the powers of an authorised Officer be approved over the phone by a First Officer or other authorised Officer? That is, can I authorise a backburn via phone call if I am not present at or near the incident (let say I am home and unable to respond but I am on the phone to crews that are)?

I think I have answered that.  The Act says that anyone can exercise the powers of the authorised fire officer if they are ‘acting at the direction of the first officer’.   It would be pointless if the first officer couldn’t direct a crew that is ‘over there’ to act.

Whether one is available to act may however depend on the circumstances.  And if you are at home, or on holidays, you may be in a position to take a phone call but you may not be in a position to assess the situation – to have adequate situational awareness – to make a proper decision.  A first officer would seriously need to consider what information was required, and if they had that, before making a decision or whether it would be better if you can’t turn out to leave the firefigting to those that can.  If you are at an Incident Control Centre on the other hand, that may indeed be the very best way to have the ‘bigger picture’ to make the decisions and communicate those decisions to the firefighters actually engaged in firefighting.

Also, if I am at the incident control do I have authorise every action that needs the powers of an authorised Officer – let’s say 5 Locks have to be cut to get access to the fire on 5 different properties – or can the instruction access the fire and cut locks if necessary be sufficient?

I can’t see that every step needs to be authorised. The power to ‘enter any premises’ and ‘bring any apparatus or equipment onto premises’ (s 53) would seem to broad enough to say ‘make your way from A to B and fight the fire there’.

Finally

Lastly, since the vast majority of our dispatches come via a fire communication centre, which follows established protocols and guidelines authorised by the Commissioner, would a response page to an incident confer the powers of the Commissioner onto us as an authorised officer or delegate etc for the purposes of firefighting? For example, if I am tasked to an incident and I am not an officer or I am not responding to an area that is my brigade area, can I cut a lock to access the fire or start a backburn on the basis that the dispatch by the communication centre is a delegation of the Commissioner’s authority?

I can’t see that this would work.  The Commissioner may have the power to delegate but that would be intentionally done, not by implication.  Where a brigade is responded the Commissioner can’t know each person on the truck and to imply that each carried the Commissioner’s authority would be to make a section like s 83 meaningless.  It would have no work to do. However a first officer doesn’t exercise the powers of an authorised fire officer because he or she has a delegation from the Commissioner, they can exercise those powers because the Parliament of Queensland has said that they can.

First conclusion

My first conclusion is that pretty much everything my correspondent has been advised is wrong.   It is my view that a rural fire brigade First Officer when operating within the Brigades area of responsibility can exercise the powers of an authorised fire officer.  The next most senior officer may exercise those powers where the first officer is unavailable to act.  I would infer that the Act uses ‘officer’ to mean ‘member’ (as in ‘police officer’) not ‘leader’ (as in ‘military officer’).    The Act refers to the officer being ‘unavailable to act’ not ‘present’.

But that’s not the end of the matter

The next question is who gave the advice?  If it is a middle manager saying ‘this is my interpretation of the Act’ it is, in my view, wrong.

But s 83 says, emphasis added:

Where, pursuant to notification given under section 82 (2) , a rural fire brigade is in charge of operations for controlling and extinguishing a fire, the first officer of the brigade has, for that purpose—

(a) the powers of an authorised fire officer, subject to any limitation imposed by the commissioner;…

So if the ‘advice’ is contained in an edict from the Commissioner that limits how first officers (and others) are to exercise their powers then that has to apply. So if the Commissioner has said that a first officer has to be present at wherever any of the powers listed in s 53 are to be exercised then that would be a ‘limitation imposed by the commissioner’ and would override the ‘default’ position that is set out in the Act.

Equally an edict from the Commissioner that a first officer cannot give directions by ‘phone or radio would also be a ‘limitation imposed by the commissioner’.

Ultimate conclusion

The final conclusion depends on who gave the advice and on what basis.  If they are reporting on a policy decision of the Commissioner (which one would expect to see in ‘standing orders’ or ‘handbook’ or however the Commissioner’s rules are communicated) then the Commissioner can impose limitations on a first officer’s power to exercise the powers of an authorised fire officer.  If the Commissioner has done that, then those limitations have to be applied.

If on the other hand it’s someone’s ‘interpretation of the Act’ in my view they are wrong. In an earlier post (Rural Fire Brigades as part of Queensland Fire and Emergency Services (not Queensland Fire and Emergency Service) (August 6, 2018)) I said ‘People who aren’t lawyers should stop giving legal advice and people should stop taking legal advice from people who aren’t lawyers…’  That still feels like good advice.

Categories: Researchers

WA volunteer firefighters as public officers

13 August, 2018 - 15:20

A council in Western Australia is drawing up a code of conduct for the bushfire fighting volunteers.  The draft document says:

6.1 Misconduct

(1)          For the purposes of this clause, misconduct is defined in accordance with section 4 of the Corruption Crime and Misconduct Commission Act 2003 (C&CM Act) [sic].

(2)          The Chief Executive Officer has a statutory obligation to report to the Corruption and Crime Commission any suspected misconduct by a VBFB member/s.

(3)          As public officers, VBFB Members should immediately report to the Chief Executive Officer any instance of suspected misconduct as defined in the C&CM Act.

(Note that the Corruption and Crime Commission Act 2003 (WA) was amended and renamed the Corruption Crime and Misconduct Act 2003 (WA) with effect on 1 July 2015 (see Corruption, Crime and Misconduct Act 2003 (WA) Compilation table and Corruption and Crime Commission Amendment (Misconduct) Act 2014 (WA)). The reference to the Corruption Crime and Misconduct Commission Act 2003 is reference to a non-existent Act and is a confusion of the titles of the Act from before and after 2015. It would appear to confirm my correspondent’s suggestion that the document has been ‘cut and paste’ from somewhere else rather than being written by reference to the current law).

The question I’m asked is ‘can volunteer firefighters generally be considered to be public officers, i.e. does it follow that in becoming a volunteer firefighter you become a public officer by default?’   My correspondent continues:

I know in some instances it’s quite clear that a volunteer is a public officer when;

They are an FCO [Fire Control Officer] exercising an authority given to them as an FCO specifically [Bush Fires Act 1954 (WA) ss] 14, 28, 39 (4), 56, writing permits etc.

When a volunteer firefighter turns out to a fire and exercises an authority under Secs 39A, 44, and including all the other volunteers and persons working under his/her command.

A member of a duly elected committee of a bush fire brigade.

A member of BFAC [Bush Fire Advisory Committee] under Sec 67.

A volunteer firefighter however does other duties described as functions of a brigade under 35A, as well as conducting HR [Hazard Reduction] burns where he/she isn’t exercising any authority, can they still be considered public officers? Probably in some instances they could be but in others not. Where is the line drawn?

Discussion

The answer won’t be found in the Bush Fires Act 1954 (WA) but in the Corruption Crime and Misconduct Act 2003 (WA).

The definition of misconduct in s 4 of the Corruption Crime and Misconduct Act 2003 (WA) is:
Misconduct occurs if —

(a) a public officer corruptly acts or corruptly fails to act in the performance of the functions of the public officer’s office or employment; or

(b) a public officer corruptly takes advantage of the public officer’s office or employment as a public officer to obtain a benefit for himself or herself or for another person or to cause a detriment to any person; or

(c) a public officer whilst acting or purporting to act in his or her official capacity, commits an offence punishable by 2 or more years’ imprisonment; or

(d) a public officer engages in conduct that —

(i) adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of a public authority or public officer whether or not the public officer was acting in their public officer capacity at the time of engaging in the conduct; or

(ii) constitutes or involves the performance of his or her functions in a manner that is not honest or impartial; or

(iii) constitutes or involves a breach of the trust placed in the public officer by reason of his or her office or employment as a public officer; or

(iv) involves the misuse of information or material that the public officer has acquired in connection with his or her functions as a public officer, whether the misuse is for the benefit of the public officer or the benefit or detriment of another person,and constitutes or could constitute —

[(v) deleted]

(vi) a disciplinary offence providing reasonable grounds for the termination of a person’s office or employment as a public service officer under the Public Sector Management Act 1994 (whether or not the public officer to whom the allegation relates is a public service officer or is a person whose office or employment could be terminated on the grounds of such conduct).

A fundamental part of this definition is that the person is a ‘public officer’ and as sub-para 6.1(3) of the draft Code Of Conduct anticipates that volunteer fire fighters are public officers.  Judicial officers and parliamentarians are not employees and in some jurisdictions neither are police.  Their office of ‘judge’ or ‘constable’ is a public office.  Volunteers are by definition not employees but if they hold a relevant office they are a public officer even though they are not an employee.

So what is a public officer? In Bonney v Ngunytju Tjitji Pirni Aboriginal Corporation [2009] WASC 209 Beech J had to consider whether the defendant corporation was a public officer.  He said:

The concept of the holder of a ‘public office’ … is a broad one: Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317. Most commonly it has been applied to persons who exercise executive administrative powers, including a sheriff and police officers: Farrington v Thomson [1959] VicRp 49; [1959] VR 286; stock inspectors: Northern Territory v Mengel; and a Minister: Sanders v Snell. It may also include those who exercise a judicial function: Cannon v Tahche [41] – [47]…

In many cases, it has been said that a public office ‘must be one the holder of which owes duties to members of the public as to how the office shall be exercised’: Tampion v Anderson [1973] VicRp 70; [1973] VR 715, 720; Henderson v McCafferty [2000] QSC 410; [2002] 1 Qd R 170. In Cannon v Tahche the Victorian Court of Appeal suggested that that criterion may be over-inclusive. In other words, their Honours doubted the sufficiency of satisfaction of that criteria. They concluded that it was essential that the office have, as an incident of it, a power in the discharge of which the public has an interest.

The cases emphasise that ‘ public officer’ may bear different meanings in different contexts. See, for example, Henderson v McCafferty [32] – [33].

In Powell v The State of Western Australia [2010] WASC 54 it was not disputed that a bus driver was a public officer.  I would suggest that many of the things a bus driver does is not explicitly set out in the relevant legislation.

According to the Corruption, Crime and Misconduct Act 2003 (WA) s 3 ‘public officer has the meaning given by section 1 of The Criminal Code’.  The Criminal Code appears as Appendix B to the Criminal Code Act Compilation Act 1913 (WA).  The Criminal Code s 1 defines public officer as:

(a) a police officer;

(aa)        a Minister of the Crown;

(ab)        a Parliamentary Secretary appointed under section 44A of the Constitution Acts Amendment Act 1899;

(ac)        a member of either House of Parliament;

(ad)        a person exercising authority under a written law;

(b)          a person authorised under a written law to execute or serve any process of a court or tribunal;

(c)           a public service officer or employee within the meaning of the Public Sector Management Act 1994;

(ca)        a person who holds a permit to do high-level security work as defined in the Court Security and Custodial Services Act 1999;

(cb)        a person who holds a permit to do high-level security work as defined in the Prisons Act 1981;

(d)          a member, officer or employee of any authority, board, corporation, commission, local government, council of a local government, council or committee or similar body established under a written law;

(e)          any other person holding office under, or employed by, the State of Western Australia, whether for remuneration or not;

Without checking the definition of ‘public service officer’ I suggest the paragraphs that may capture a volunteer firefighter are (ad) and (d), highlighted in bold, above.

Bushfire brigades are established by local governments (Bush Fires Act 1954 (WA) s 41).   A ‘member’ of a local government is the mayor, president or councillor (Local Government Act 1995 (WA) s 1.4).  The term ‘officer … of any … local government’ is not used in the Local Government Act.   A volunteer is, by definition, not an employee.

It follows that a registered member of a bush fire brigade is a public officer if he or she is ‘exercising authority under a written law’ or if the fire brigade of which they are a member is a ‘similar body’ to an ‘authority, board, corporation, commission, local government, council of a local government, council or committee’.

As my correspondent has noted firefighters exercise at different times, authority under the Bush Fires Act 1954 (WA) so when they are doing that they are a public officer.

The Fire Brigade is established by the local government authority for the purpose of assisting the Council to meet its obligations under the Bush Fires Act.  The council is required to ‘keep a register of bush fire brigades and their members’ (Bush Fires Act 1954 (WA) s 41(2), emphasis added).  It follows that firefighters are ‘a member’.  The council ‘may, in accordance with those local laws, equip each bush fire brigade so established with appliances, equipment and apparatus’ (s 41(1)). Council provides the means for the appointment or election of officers (s 43).

Whilst it would be open to debate I would think that a fire brigade established by a council is relevantly similar to an authority, board … or committee established under a written law’ as it will be established by a written law both of the State and the local government local law.  The fact that is not a separate legal entity I don’t think makes a difference as neither is a committee (usually) a separate legal entity and an authority or board don’t need to be separate legal entities.

Bush fire brigades are established by virtue of the Bush Fires Act, they are established to perform functions in the public interest and are equipped from the public purse.  Exercising the powers and functions of the brigade, members are exercising power and authority ‘of which the public has an interest’.

If that’s correct then membership of a volunteer fire brigade is a public office and a volunteer firefighter is a public officer.  We can conduct a ‘reality test’ to see if that offends our sense of justice.  If a firefighter is a public officer then a member who ‘corruptly takes advantage of’ his or her membership of the fire brigade ‘to obtain a benefit for himself or herself or for another person or to cause a detriment to any person’ would be guilty of misconduct. That sounds rights.

Further, a firefighter would be guilty of misconduct if they engage in conduct that —

(i) adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of a public authority or [another] public officer …; or

(ii) constitutes or involves the performance of his or her functions [as a firefighter] in a manner that is not honest or impartial; or

(iii) constitutes or involves a breach of the trust placed [in firefighters…]; or

(iv) involves the misuse of information or material that the [firefighter]… has acquired in connection with his or her functions as a [firefighter]… whether the misuse is for [his or her] …benefit … or the benefit or detriment of another person,

and which could constitute ‘a disciplinary offence providing reasonable grounds for the termination of a person’s office or employment as a public service officer under the Public Sector Management Act 1994 [even though the firefighter is not a] … a public service officer or … a person whose …. employment could be terminated’ because they are not an employee.  Again that sounds like a reasonable outcome.

Conclusion

It is debatable, but I would accept that membership of a bushfire brigade in WA is a public office for the purposes of the Corruption Crime and Misconduct Act 2003 (WA).  It follows that on balance I would accept that a member is a public officer by virtue of their membership.

Categories: Researchers