Today’s question is:

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

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

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

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

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

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

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

 

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

“Emergency Call” on Channel 7;

“Paramedics” on Channel 9; and

“Ambulance Australia” on Channel 10.

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

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

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

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

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

… disclose or use any information or document that:

(a)       relates to:

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

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

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

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

How are these programs legal?

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

 

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

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

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

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

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

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

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

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

Minutes of meetings and other brigade records

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

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

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

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

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

Post script

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

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

› email

› closed groups on social media

› text messages on mobile phones

› the brigade web site

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Is the captain making it up?

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

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

Service Standard 5.1.5 Protective Clothing and Accessories

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

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

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

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

Date: 22 September 2010

SS 5.1.5 Protective Clothing and Accessories

Version 5.0

SOP 5.1.5-2

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

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

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

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

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

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

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

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

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

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

Conclusion on alter, modify or change

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

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

Can the RFS make you pay for replacement PPC?

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

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

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

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

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

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

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

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

(b) … maintenance of personal protective equipment.

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

 

 

A correspondent has sent me “A suggested topic for your Emergency Law blog – the  State Emergency And Rescue Management Act 1989 (NSW) s 63”.   That section says:

Except as expressly provided by this Act, this Act does not limit the operation of any other Act or law.

My correspondent says:

I raise this somewhat rarely-quoted section of the SERM ACT in seeking to understand what is the intent of s63. I Understand that the SERM ACT is ‘an Act relating to the management of State emergencies and rescues’.  It is also provides the cement that binds the various parent legislation of emergency management agencies.  However is s63 suggesting that the SERM has application in relation to ESOs and government agencies but not if it limits the operation of the parent legislation of those agencies?

S63 does have minor form in this respect. Several years ago, a government agency determined on the basis of a number of matters, that the normal EM hierarchy as established under the SERM Act should not limit the operation of, and the duties imposed by, that particular agency’s parent legislation.

I understand those provisions that are “expressly provided” particularly in relation to a state of emergency. Your view in relation to 63 would be appreciated. I understand that it is something that is rarely needed or applied, however there it remains in the SERM Act.

The explanatory note that was written with the Emergency And Rescue Management Bill 1989 does not give any explanation as to why the section was included.  I can’t locate the Hansard for the Bill’s second reading speech so I can’t see if the Minster had anything to say about s 63 when introducing the Bill into parliament.

The Act has to be interpreted based on the words used.  Where an Act of Parliament provides for some rule whether that is to allow someone to do something, or impose or restrict liability etc then that law is not limited by the SERM Act.  So if an agency has the power to do something or not do something the SERM Act doesn’t affect that power except where the Act expressly provides. I think it’s a fair enough description that ‘the SERM Act [does] not limit the operation of, and the duties imposed by, [a] particular agency’s parent legislation’.

I do note that during a state of emergency (State Emergency and Rescue Management Act 1989 (NSW) s 36):

(1) … the Minister is responsible for controlling and co-ordinating the activities of such government agencies, and the allocation of such available resources of the Government, as the Minister considers necessary or desirable for responding to the emergency.

(2) For that purpose, the Minister may direct any government agency to do or refrain from doing any act, or to exercise or refrain from exercising any function.

(3) If a direction is given to a government agency under this section:

(a) the government agency must comply with the direction, and

(b) the direction prevails over anything to the contrary in any Act or law, except the Essential Services Act 1988.

Those directions would certainly limit the operations of any Act or other law.  I note that this power is not as extensive as the Minister in Victoria.  During a state of disaster the Victorian Minister has similar powers to the NSW Minister, above, but in Victoria he or she may also (Emergency Management Act 1986 (Vic) s 24; emphasis added):

if it appears … that compliance by a government agency with an Act or subordinate instrument, which prescribes the functions powers duties and responsibilities of that agency, would inhibit response to or recovery from the disaster, declare that the operation of the whole or any part of that Act or subordinate instrument is suspended;

But why it was thought important to put s 63 there or what problem it was intended to address, I cannot say.

Today’s question relates to linking emergency service brand to private products.  What has caused my correspondent’s concerns is a video promoting the Astrien navigation and sitrep tool – http://astrien.com.au/.

The video is on YouTube https://www.youtube.com/watch?v=647gHFVZ1J0

The high quality video has RFS members in uniform and driving an RFS appliance to promote the virtue of the device.  The notes with the video say ‘The Astrien SITREP Aid and Navigator is a compact display developed for volunteer members of the NSW RFS.’

My correspondent asks:

1)            is it legal for a private company to use NSW Government equipment and logos to promote a product for profit without explicit permission, and

2)            If permission was given, is it legal for the Government as a whole or even just someone at the RFS to give that permission to companies selected possibly arbitrarily?

In answering this question I have no idea what the position of the RFS is with respect to this particular product and whether the RFS has endorsed it and/or given permission for RFS members to appear, in uniform, in the video.  I will assume for the sake of the argument that they have not (because if they have, there is no question to answer).

It is probably not legal to use the RFS logo and vehicles without permission.  First, the government owns the intellectual property in the logos that appear so their use to promote a product (without permission) would infringe the rights with respect to those logos.  I don’t think that’s criminal but it would allow the owner (the government) to seek orders to restrain that behaviour and to get damages if the use of the logos had lead to profit for the vendor (Copyright Act 1968 (Cth) s 36 and 115; see also Rural Fire Service, Service Standard 1.4.2 RFS Brand (23 November 2015).

More interestingly the State Emergency and Rescue Management Act 1989 (NSW) s 63B(2) says:

A person who:

(a) uses or displays emergency services organisation insignia …

with the intention to deceive is guilty of an  offence .

This video clearly displays the RFS logos on the members’ uniforms.  If the intention is to deceive potential customers, that is to imply that the product has an RFS endorsement that it does not in fact have, then that would be an offence.

Equally a vendor in trade or commerce must not engage in conduct that is misleading and deceptive (Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth), cl 18).  Further they must not (cl 29):

(d)  make a false or misleading representation that a particular person has agreed to acquire goods or services; or

(e)  make a false or misleading representation that purports to be a testimonial by any person relating to goods or services; or

(f)  make a false or misleading representation concerning:

(i)  a testimonial by any person; or

(ii)  a representation that purports to be such a testimonial;

relating to goods or services; or

(g) make a false or misleading representation that goods or services have sponsorship, approval…; or

(h) make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation;…

Again noting that I do not know what the attitude of the RFS is to this product, and assuming that the RFS has not endorsed it, then aspects of the video could well imply that the RFS approves or endorses the product and is in effect giving a testimonial as to its value.

My answer to question 1 is no, it is not legal for a private company to use NSW Government equipment and logos to promote a product for profit without explicit permission.

As for question 2 I can’t see why the government or the RFS could not endorse a product if it wanted to but whether it wants to or should is another question. Answering this question requires knowledge of the law of government contracting which is not an area I’m familiar but so far as I know, there is no illegality that I can see if an appropriately delegated officer holder in the RFS has approved this video and endorsed the product in question.

In July 2015 the Victorian Government commissioned a report ‘on the resourcing, operations, management and culture of the MFB and the CFA’. The report ‘raised concerns about the presence of discrimination and sexual harassment within the ranks of those fire service agencies’ (United Firefighters’ Union of Australia v Victorian Equal Opportunity and Human Rights Commission [2018] VSCA 252, [14]).

At the direction of the Minister, the Secretary to the Department of Justice and Regulation wrote to the Victorian Equal Opportunity and Human Rights Commission (the VEOHRC) asking it to undertake a review of the practices within the CFA and MFB.  The request referred to s 151 of Equal Opportunity Act 2010 (Vic).  That section says (with emphasis in italics provided in the judgement of Maxwell P and Priest JA, at [19]):

151 Commission may conduct review of compliance

(1) On request of a person, the Commission may enter into an agreement with the person to review that person’s programs and practices to determine their compliance with this Act.

(1A) An agreement to review may provide for payment of the Commission’s reasonable costs of undertaking the review.

(2) If, after undertaking a review, the Commission gives the person advice about whether programs or practices are compliant with this Act, the giving of that advice does not give rise to—

(a) any liability of, or other claim against, the Commission; or

(b) any right, expectation, duty or obligation that would not otherwise be conferred or imposed on the person who has been given the advice; or

(c) any defence that would not otherwise be available to that person.

In law a person is a natural person (you and I) or a corporate entity that can sue and be sued.  Both the MFB and CFA are separate corporate entities capable of being sued and conducting litigation in their own name (Country Fire Authority Act 1958 (Vic) s 6; Metropolitan Fire Brigades Act 1958 (Vic) s 6).

It was not the CFA nor the MFB that requested the inquiry but the government that is the Minister via the Secretary of the Department.

The United Firefighters’ Union of Australia (the UFU) objected to the inquiry and commenced proceedings on 15 June 2017 to obtain a declaration that the inquiry was beyond the power of the VHREOC.  Ginnane J dismissed the unions application.  The union then appealed to the Court of Appeal.

The role of the court

The role of the court was described by Maxwell P and Priest JA at [12]-[13]. They said:

Finally, we wish to make clear, in the interests of informed public discussion, that this Court (like the trial judge) is not concerned with, and expresses no view about, the desirability of the Commission conducting a compliance review of the MFB and CFA. Whether such a review should take place is a matter for those agencies. The courts play no part in evaluating the merits of such decisions.

The role of the courts in a case such as this is quite different. It is to ensure that government operates according to law and, relevantly, to ensure that powers conferred on statutory bodies such as the Commission are exercised within the legal limits imposed by Parliament. In this case, we have held that those legal limits were exceeded, and hence that the Review was beyond the Commission’s power.

Maxwell P and Priest JA

In the Court of Appeal, Maxwell P and Priest JA said (at [22]) ‘It was common ground that the phrases ‘a person’, ‘the person’ and ‘that person’ in s 151(1) and (2) all referred to the same person.’  The VEOHRC could only conduct an inquiry into the programs and practices of the CFA/MFB it if was requested to do by the CFA/MFB, but the request did not come from them and so the VEOHRC had no authority to conduct the inquiry or publish its report.  At [56] they said:

… we consider that s 151(1) conferred no authority on the Commission to carry out the Review. Put shortly, the person which made the request to the Commission — the Government — was not the person whose programs and practices were to be, and became, the subject of the Review.

Other grounds

The UFU also argued that the inquiry by VHREOC went beyond its mandate as a review of compliance with the Equal Opportunity Act 2010 and became (at [85]):

…an investigation of ‘safety, respect, inclusion and bullying generally’ at the workplaces of the MFB and the CFA. Further, it was said, the Commission was conducting a general review of workplace behaviour and culture at the MFB and the CFA.

Ginnane J disagreed. He said, in part:

The use of the word ‘safety’ [in the terms of reference] does not mean that the Review is reviewing workplace safety generally, but reviewing workers’ safety from matters such as discrimination, sexual harassment or victimisation that might be associated with bullying

The UFU further argued that the online survey used by VHREOC was so flawed it could not be relied on.  Ginnane J said:

Any limitations in the data obtained from the surveys can be assessed, acknowledged and taken into account in any resulting analyses and reporting of the data. The Commission as a public body with important functions would be expected to clearly state those limitations.

In short Ginnane J rejected both these arguments and Maxwell P and Priest JA agreed with him.

Tate JA and the Equal Opportunity Act 2010 s 157

Tate JA agreed that the Commission had no power to conduct the investigation under s 151.  She was of the view that there was a power under s 157(1). That section says:

The Commission may undertake research into any matter arising from, or incidental to, the operation of this Act that it considers would advance the objectives of this Act.

The majority (Maxwell P and Priest JA) disagreed, they said (at [83]):

On no view, however, does s 157 authorise the Commission to conduct a compliance review of a person’s programs or practices, nor does it authorise the publication of the results of a survey conducted as part of such a review.

The Result

All three judges (Maxwell P and Priest JA; Tate JA dissenting) agreed that given the request to conduct the inquiry came from the Minister via the Secretary to the Department of Justice and Regulation, and not from either the CFA or the MFB, the VEOHRC had no authority under s 151 to conduct the inquiry or publish its report.  Tate JA would have found that there was authority under s 157 but she was in the minority in that view, the majority finding there was no alternative source of power to authorise the inquiry.  The result was that the Court of Appeal upheld the appeal from the decision of Ginnane J and found that the actions of VHREOC in conducting the inquiry and proposing to publish the report were beyond power.

What could have been done

This seems like a terrible result due to a simple administrative mix up. Both the CFA and the MFB are subject to direction from the Minister (Country Fire Authority Act 1958 (Vic) s 6A; Metropolitan Fire Brigades Act 1958 (Vic) s 8).  Presumably, the Minister could have directed both the CFA and the MFB to make a request to VHREOC and even if there was no formal direction they would have made the request if asked by the Minister to do so. Taking this course of action may have been prudent when the UFU first raised these objections to the authority of the VHREOC (which they did on 9 June 2017 (see [16])) and could have saved a great deal of heartache and money.

It further seems plausible, to me, to argue that the cooperation by the CFA and MFB with the inquiry was at least an implied request to the VHREOC.  That argument was not made. I cannot know why the lawyers involved chose not to make that sort of argument and I certainly don’t pretend to know more about their case than they did so there must have been some reason not to make such a suggestion.

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.

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.

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.

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.

 

 

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.

 

 

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 counter.  See 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)

 

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.

 

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

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:

• Self help firefighting in Victoria (August 30, 2014);
• Neighbours helping neighbours during a Victorian bushfire and the powers of the CFA (November 28, 2014);
• Splitting from the CFA (June 13, 2016); and
• Private fire appliances and the CFA (December 2, 2017).

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.

 

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).

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.