Today’s questions are:

1. Can a minor consent to treatment, when a parent is not available to give consent on the minor’s behalf?; and
2. Can a minor consent to treatment, when a parent declines treatment on his/her behalf?

I think I have answered those in earlier posts – see

• Paramedics treating children (May 5, 2016);
• The need for parental consent in Emergency situations (NT) (July 16, 2016); and
• Consent, first aid and minors in Queensland (October 13, 2016).

The details are in those posts. The short answers are:

1. Yes, a minor can consent if he or she is ‘Gillick competent’ that is the has ‘a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’ (Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112). The critical question is not his or her age, but her understanding which will be different for different children but also different depending on the complexity of the issues at stake. A child may be able to consent to the application of a band-aid, but not to the administration of sutures etc.  Where a child does not have the capacity to consent, and there is no one ‘in loco parentis’ to consent for him or her, then the doctrine of necessity applies and justifies whatever treatment that ‘a reasonable person would in all the circumstance [give], acting in the best interests of the assisted person’ (see The doctrine of necessity – Explained (January 31, 2017)).
2. Yes, that was the issue in Gillick’s case where the court said that once the child met the standard of competency, he or she could give consent and that was sufficient. In New South Wales the Minors Property and Contracts Act 1970 (NSW) s 49 provides that a child over 14 (provided they are competent) can give consent, and the parents of a child under the age of 16 can give consent. Where a child is between those ages then the consent of either is sufficient.  So a 15 year old can consent to treatment which can then be given (assuming the child is Gillick competent) even if the parents object.  Equally the treatment that the parent’s consent to can be given even if the child objects. (It would not be an assault to touch the child in those circumstance but I don’t address the question of whether treatment that the child doesn’t want is therapeutic and putting aside ethical question of whether such treatment is appropriate or in the best interests of the child).

Today’s correspondent comes from Tasmania. The question and issues can be linked to the earlier post – Dash cams and NSW SES (February 25, 2018) – but this time it’s not a dash cam doing the recording but a defibrillator!

My correspondent says:

I work for Ambulance Tasmania and they have just decided to go with the Zoll monitor defibrillator.

I just found out (by accident) there is a feature on there that records audio as soon as the monitor is switched on. Many staff are not aware of this and we are certainly not asking patients if they consent to having the interaction with us recorded. The Paramedic doing the Zoll training told me it isn’t a problem because management are only going to use the recordings to audit cardiac arrest cases.

I don’t care when or how they say they will use the recording, in my mind, the issue is, it exists and it is currently being obtained without staff or patient consent.

I’m very uncomfortable with this and do not want to be recording patients without their consent. There is also no policy associated with this so I don’t see anything stopping police demanding recordings every time we go into homes of people they are investigating. Then there is the issue that if we ask a patient if they consent to being recorded and they decline, we literally cannot turn the monitor on.

I feel outraged that I will be recorded without my consent and also that I am effectively being asked to record patients without their consent.

Any advice?

I’m not sure which model Ambulance Tasmania have decided to purchase, but the Administrator’s Guide for the ‘Fully Automatic AED Plus’ says:

If installed and configured, the Fully Automatic AED Plus contains an audio recording option that records and stores 20 minutes of continuous audio and clinical event data during a rescue. (The unit records and stores at least 7 hours of clinical event data if the audio recording option is disabled.) The recorded audio data is synchronized to the clinical event data.

It’s not clear to me why one wants that data. When handing over a patient who’s been in cardiac arrest I can understand why the medical team would want any recording of the patient’s heart rhythm and the impact of the defibrillator but for clinical purposes, who is ever going to want to listen to 20 minutes of audio?

Putting that aside, the device is recording information so let us consider the law.

The patient Listening Devices Act 1991 (Tas)

In Tasmania, a listening device is ‘any instrument, apparatus, equipment or device capable of being used to record or listen to a private conversation simultaneously with its taking place’ (Listening Devices Act 1991 (Tas) s 3)).  That the AED can record ‘20 minutes of continuous audio’ would mean that it is a ‘listening device’.  A private conversation (s 3) is:

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

(a) by themselves; or

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

It is unlawful (s 5) to use:

… a listening device –

(a) to record or listen to a private conversation to which the person is not a party; or

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

It is not an offence if the recording of the private conversation by means of a listening device was unintentional (s 5(2)(d)).

The penalty for unlawfully recording or listening to a private conversation via a listening device is, for an individual a fine of up to 40 penalty units or imprisonment for 2 years or both, and for a corporation the maximum penalty is a fine of 500 penalty units (s 12). The current value of a penalty unit in Tasmania is $159 (Department of Justice, Value of Indexed Amounts in Legislation: Penalty Units and Other Penalties Act 1987).  So the maximum fine for an individual is 40*$159=$6360. For a corporation it’s 500*$159=$79500.

One can imagine that during a cardiac arrest the conversation is not ‘private’ within the meaning of the Act. If the patient is in cardiac arrest they are not taking part in a conversation.  The paramedics are probably talking to each other about the situation at hand and what they are doing and going to do.  They are not discussing their private lives and whilst they may prefer not to be overhead one couldn’t infer that the conversation was private as defined by s 3, particularly if they are in a public place.  (To return to my earlier post, Dash cams and NSW SES (February 25, 2018), one might assume also that there are not private conversations in an SES truck, but there may be. People returning from a job may well be having a conversation that they intend is to be heard only by the people in the truck, so it is very likely that a dash cam could, unintentionally, record a private conversation).

Presumably, however, a cardiac monitor may be put on people who are not in cardiac arrest and they may say something. One can imagine a patient in an ambulance saying something private to the paramedic, whether it’s an admission of something, a reflection on their life, who knows. And this may be recorded by the defibrillator.  The intention may be to record clinically relevant data so this recording may be unintentional so it may not be an offence under s 5, but that is not the end of the matter.

Section 10 says:

(1)  A person who has been a party to a private conversation and has used, or caused to be used, a listening device to record the conversation (whether in contravention of section 5 or not), shall not subsequently communicate or publish to any other person any record of the conversation made, directly or indirectly, by the use of the device.

(2)  Subsection (1) does not apply where the communication or publication –

(a) is made to another party to the private conversation or with the consent, express or implied, of all of the principal parties to the conversation; or

(b) is made in the course of legal proceedings; or

(c) is not more than is reasonably necessary for the protection of the lawful interests of the person making the communication or publication; or

(d) is made to a person who has, or is, on reasonable grounds, by the person making the communication or publication, believed to have, such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made; or

(e) is made by a person who used the listening device to record the private conversation pursuant to a warrant granted under Part 4 or pursuant to an authority granted by or under the Telecommunications (Interception) Act 1979 of the Commonwealth or any other law of the Commonwealth.

Let us assume that, facing a near death crisis, a patient makes an admission to the paramedic that she has regretted remaining in her marriage for the last 10 years.  That is communicated in the ambulance with the obvious expectation that it is private.  She would not want her partner to know this.  So, what happens with the data?  From what I gather from the Zoll brochure’s it could be (perhaps should or even must be) downloaded and form part of the patient’s record.

Tasmania Ambulance and the paramedic has ‘used, or caused to be used, a listening device to record the conversation’. Let us assume that it is not an offence contrary to s 5 but even so neither Ambulance Tasmania nor the paramedic may ‘subsequently communicate or publish to any other person any record of the conversation’ in which case the audio file can’t be given to the hospital team as part of the patient record. Most of the exceptions under s 10(2), above, can’t apply. Section 10(2)(c) doesn’t apply because it’s not made ‘for the protection of the lawful interests’ of Ambulance Tasmania or the paramedic.

Section 10(2)(d) might apply if the treating team have ‘such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made’ but the reality is that they have no interest in that communication. They may want to know what signs and symptoms the patient had and what treatment they received but her admissions as to the state of her marriage are irrelevant to them.

And at some point, the partner as a person responsible for her care, or as the beneficiary of her estate, or as an appointed guardian or in some other capacity may well get access to that medical record and be given details, and hear a conversation, that was clearly not intended to be heard by the partner.  It would seem that handing over the recording where it involves a ‘private’ conversation between the patient and the paramedic that is not clinically relevant would be an offence under the Listening Devices Act 1991 (Tas).

Personal Information Protection Act 2004 (Tas)

Basic personal information means ‘the name, residential address, postal address, date of birth and gender of an individual’.  Health information is:

(a) personal information or opinion about –

(i) the physical, mental or psychological health at any time of an individual; or

(ii) a disability at any time of an individual; or

(iii) an individual’s expressed wishes about the future provision of health services to him or her; or

(iv) a health service provided, or to be provided, to an individual; or

(b) other personal information collected to provide, or in providing, a health service; or

(c) other personal information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances; or

(d) genetic information about an individual that is or may be predictive of the health at any time of the individual or any of his or her descendants –

other than prescribed information, a prescribed class of information or information contained in a prescribed class of documents;

The information contained in the ambulance clinical record will be ‘personal information … about … a health service provided … to an individual’.   That would include the details of the patient’s cardiac condition as well as the discussion between those providing the health service, that is the paramedic(s) and others at the scene.  It would appear then that the audio recording would form part of the patient’s health information.

The Personal information protection principles (s 16 and Schedule 1) say

Collection

1. A personal information custodian must not collect personal information unless the information is necessary for one or more of its functions or activities.
2. A personal information custodian must collect personal information only by lawful means…

With respect to details of a personal conversation (as in my example above) there is no reason to record that sort of conversation for the purposes of Ambulance Tasmania or patient care.  And as noted the use of the listening device may be illegal.

With respect to use and disclosure the Personal information protection principles go onto say:

(1) A personal information custodian must not use or disclose personal information about an individual for a purpose other than the purpose for which it was collected unless –

(a) both of the following apply:

(i) that purpose is related to the primary purpose and, if the personal information is sensitive information, that information is directly related to the primary purpose;

(ii) the individual would reasonably expect the personal information custodian to use or disclose the information for that purpose; or

Further disclosure can be justified where it ‘is necessary to lessen or prevent – (i) a serious threat to an individual’s life, health, safety or welfare…’ (cl 2(1)(d)).

Ambulance services collect and record personal information about the patient including their name and address, a relevant history, details of treatment administered etc all the time. Collecting that information is part of the health care delivery and handing it on to the hospital medical team is directly related to the purpose for which it was obtained and recorded and a person would, I think, reasonably expect a paramedic to hand that data over to the hospital so in that sense making the material available, particularly if there is no private conversation recorded, would not be an issue.

One of the issues in the discussion about SES and dash cams was the need to maintain the data. Equally in Tasmania ‘A personal information custodian must take reasonable steps to protect the personal information it holds from misuse, loss, unauthorised access, modification or disclosure.’  Just as Ambulance Tasmania will need a way to secure its patient records it will also need to ensure that it can store the recordings made by the defibrillator.  And they will need to maintain that data for as long as they maintain other patient records.

The paramedics

The paramedics may indeed be engaged in a private conversation in the presence of the patient.  Whether they are reflecting on their own conduct, or the patient, or the ambulance service itself, they may well be having a conversation in the expectation that no-one else will hear it.  (And I note that may not be professional if one should always assume the patient can hear, but regardless it may well happen).

In that case their own private conversation has been recorded by a listening device.  It is not an offence to record a private conversation if ‘all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used’.  If the paramedics are aware that their conversation could be, or is being, recorded then one might infer that they consented (ie that they have given their ‘implied consent’). But my correspondent says that they aren’t being told that the defibrillators are capable of audio recording.  As my correspondent says:

I … found out (by accident) there is a feature on there that records audio as soon as the monitor is switched on. Many staff are not aware of this …

In that case neither they nor their patients can give consent nor could their consent be implied.

Tasmania does not appear to have an equivalent to the Workplace Surveillance Act 2005 (NSW).

The police

It’s true that the police could seek access to the recording in the same way they could seek access to a clinical record where that is relevant to their investigation (eg search warrant or subpoena). There are limits on the use that can be made of a recording that has been made contrary to the Listening Devices Act 1991 (Tas) ss 13-15 but even if the material can’t be used in evidence, it doesn’t mean it can’t inform police and be an important part of their inquiry, and that recorded may be harmful to the interests of those recorded.

Conclusion

The use of audio recording features on a defibrillator is problematic. It raises issues on how the recording is to be stored and protected.

More importantly the device is a ‘listening device’ and the use of a listening device to record a private conversation is unlawful. I would suggest the discussion that is limited to the clinical procedures is not a private conversation for the purposes of the Listening Devices Act but if the paramedics and/or the patient are unaware that they are being recorded they may well have a private conversation, that is a conversation that they do not intend, and would not want, anyone else to hear.  To record that without consent is an offence. Equally it is an offence to pass that information on which may be problematic when handing the patient onto hospital or other services.

One solution may be to make sure every paramedic is aware of the audio recording feature and put a sign on the device, and in the ambulance saying, in effect ‘Warning: Your conversation may be recorded’.

Feedspot has kindly noted this blog as # 3 of the top 25 Australian law blogs, using search and social metrics. According to their website the blogs are ranked based on following criteria:

• Google reputation and Google search ranking
• Influence and popularity on Facebook, twitter and other social media sites
• Quality and consistency of posts.
• Feedspot’s editorial team and expert review

The #1 nominated blog is the excellent Melbourne Law School “Opinions on High” discussion of Australian High Court decisions.

Whatever their method of calculation I thank them for the vote of confidence.

A member of NSW SES has sent me a copy of Fleet Bulletin – 3/2018 relating to Dash Camera Audio/Visual Recording Devices.   The Bulletin directs all units remove dash cams from their vehicles.  It says:

This action is required due to the responsibilities of NSW SES members and the NSW SES as a service under the Privacy and Personal Information Protection Act 1999 [sic] (NSW) (Privacy Act) and Government Information (Public Access) Act (GIPA Act) [sic].

Key issues under these acts include

• The need for there to be a clear purpose for the use of Dash Cams and the relationship to the functions of NSW SES,
• The requirement that the use of the recording device not intrude to an unreasonable extent on the privacy of individuals,
• The requirement for prominent signage that notifies individuals of the reason, legislative authority and agency disclosure relevant to the dash cam footage.
• The requirement for the service to provide community access to information about how NSW SES capture footage and the potential for third parties to access footage, including with respect to the GIPA Act and in relation to subpoenas and statutory notices.
• The need for the service to store the data and safeguard areas where dash cam footage is viewed, retained, stored and overwritten and the implementation of standards for the disposal of data and auditing of same.

The issue

Today’s correspondent says:

I’m concerned about this as my Volunteers no longer have protection from others drivers with what actually happened/who’s at fault. I’m especially concerned regarding response driving as having a dash cam is just a little more reassurance.

It also provides a training tool afterwards.

NSW Police Force vehicles use dam cams and don’t have signage on the vehicle. Why would the SES be any different?

Really, can we use dash cams? At a unit/volunteer level what should/must be regarding notification/disclosure to the public, storage (or simply overwriting old footage unless needed) etc?

The rules

The Office of the NSW State Emergency Service is an Executive agency of the NSW government (Government Sector Employment Act 2013 (NSW) Sch 1).  The State Emergency Service is a fundamental part of government. It follows that the SES is bound by the Privacy and Personal Information Protection Act 1998 (NSW) (the Privacy Act) and the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act).

The Privacy Act says (s 8)

A public sector agency must not collect personal information unless:

(a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and

(b) the collection of the information is reasonably necessary for that purpose.

Section 10 says:

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following:

(a)       the fact that the information is being collected,

(b)       the purposes for which the information is being collected,

(c)        the intended recipients of the information,

(d)       whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided,

(e)       the existence of any right of access to, and correction of, the information,

(f)        the name and address of the agency that is collecting the information and the agency that is to hold the information.

Personal information means ‘information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion’.

Under the Workplace Surveillance Act 2005 (NSW) an employee includes a volunteer (s 3, definition of ‘employee’). The cabin of the SES truck is therefore a workplace for the purposes of that Act.  Surveillance of an employee (s 3) means:

… surveillance of an employee by any of the following means:

(a) “camera surveillance”, which is surveillance by means of a camera that monitors or records visual images of activities on premises or in any other place …

(c) “tracking surveillance”, which is surveillance by means of an electronic device the primary purpose of which is to monitor or record geographical location or movement (such as a Global Positioning System tracking device).

Before conducting surveillance an employer must notify employees that they are to be subject to surveillance and the use that will be made of the data that is obtained (s 10).  Notices are not required where there is camera surveillance ‘at a workplace of the employer that is not a usual workplace of the employee’.  Where there is camera surveillance (s 11):

(a) cameras used for the surveillance (or camera casings or other equipment that would generally indicate the presence of a camera) are clearly visible in the place where the surveillance is taking place, and

(b) signs notifying people that they may be under surveillance in that place are clearly visible at each entrance to that place.

The Surveillance Devices Act 2007 (NSW) s 7 says:

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

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

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

But that prohibition does not apply to the ‘unintentional hearing of a private conversation by means of a listening device’ or ‘all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used’.

With respect to optical surveillance devices, the Act says (s 8)

A person must not knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves:

(a) entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or

(b) interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object.

Under the Government Information (Public Access) Act 2009 (NSW) s 4 ‘”government information” means information contained in a record held by an agency’.  This Act says there is a presumed right to be able to access government information unless there are overriding interests why access should not be granted (s 5). IT doesn’t say anything about record keeping or how long records should be kept for.   I will assume, without establishing it, that the Office of the NSW State Emergency Service and the State Emergency Service are agencies for the purposes of this Act.

Finally, the State Records Act 1998 (NSW) s 3 defines a state record as ‘any record made and kept, or received and kept, by any person in the course of the exercise of official functions in a public office, or for any purpose of a public office, or for the use of a public office, whether before or after the commencement of this section.’

Application of the rules to the issue

A dash cam, as I understand it, can do two things. It can record video and sound. When properly installed it is facing forward and recording video of what is happening outside of the vehicle.  It has a loop recording function so as the memory fills it overwrites earlier images.   When there is an accident or sudden stop the dash cam can, either automatically or by operator action, protect those images so they are not overwritten.

At the same time the dash cam records sound. That will include road sound that comes into the vehicle as well the sound of people in the vehicle, so it can record conversations.  The sound recording feature can be turned off.

The first question then is, is the dash cam recording ‘personal information’?  With respect to its video recording function I suggest not.  As noted elsewhere on this blog there is no right to privacy and a person is free to photograph whatever they can see (see Photographing a rescue scene (November 11, 2016)).  By filming the traffic and events outside the vehicle, events that are public, there is no breach of the privacy act.  Even if you enter private property and the film continues that is not, in my opinion, recording ‘personal information’

Recording conversations in the vehicle is another matter (see Taking photos, recording sound (February 23, 2015)).  The conversations themselves may or may not contain personal information, it depends on the subject under discussion.

Even if the intention is to have the dash cam operate to provide ‘protection from others drivers with what actually happened/who’s at fault’ there is no doubt that it does form surveillance of the driver.  One might think the accident will always be the other driver’s fault but that is not the case.  The dash cam may well record (as may GPS tracking) that it was the SES driver at fault.  That’s not a bad thing.  The State is meant to be a model litigant. If it turns out the SES driver is at fault then the State won’t put the other side to protracted litigation. If the state was at fault then the state needs to pay for the damages as does anyone. Any evidence that establishes what happens is good, regardless where the ultimate conclusion falls.  But even so it is, no doubt, a form of surveillance of the conduct of the driver and does, therefore, constitute ‘workplace surveillance’ with all the obligations for notice that this brings.

With respect to the use of the dash cam as an optical surveillance device, a dash cam mounted on the windscreen is a camera that is clearly visible.  Where it has been installed with the knowledge of the unit controller or the person (if any) responsible for maintaining the vehicle it will have been installed with the express or implied permission of the person having lawful control of the vehicle.  As for its role as a listening device it is not intended or put there to record private conversations and, further, if everyone knows it’s there then the people in the vehicle may be taken to have given implied consent to the recording.

The GIPA Act does say that there is a right to access a government record. That would suggest that if someone wanted to view the recording from a dash cam, they would have a right to do so, but only if that recording still exists.  The State Records Act requires agency to take appropriate care to keep and store their records, but not for ever.  The implementation guide to the new Standard on Records Management says (at p. 18):

Organisations should implement policy, business rules and procedures to ensure that records and information are kept for as long as they are required …

Without going into the details (in part because the links to further ‘Key guidance for implementing this requirement’ don’t work, which is not a good look for a State Archives Office that is trying to set the standard for the digital storage of government records) we can say that this does not require records to be kept forever.  Even if a recording on a dash cam is a state record, it may be something that is only required to be kept until it is over recorded given that nothing happened during that time.

It could be argued that recording the driving of the vehicle is not a record made for ‘the exercise of official functions in a public office, or for any purpose of a public office, or for the use of a public office’ and so it is not a State Record.  If that is true, however, it would run into difficulties as it would mean the recording is not made ‘for a lawful purpose that is directly related to a function or activity of the agency’ (Privacy Act 1998 (NSW) s 8).  But again that’s only relevant if what’s being recorded and ‘collected’ is personal information.

Conclusion on the SES directive

Fundamentally the SES directive is correct though I would suggest it’s a very cautious or conservative approach.  It is the case that the use of dash cams in SES vehicles does raise issues under the legislation listed above.  Much of that could probably be dealt with by turning off the audio record feature and putting a sign in the cabin that says ‘Warning: Conversations in this truck may be recorded’ (just in case the audio feature gets turned on, again.)

That does not however deal with issues of how the recording is to be dealt wth and how it is to be stored and accessed and those are important considerations. It would be incumbent on the SES to actually consider how long recordings should be kept for and ensure people are trained to know how to turn off the audio recording, how to set the protection to ensure video that needs to be kept is kept and then provide adequate storage for that video.  If you are keeping video of an accident no doubt it may be required to be produced under subpoena or other legal process so it does need to be retained and be locatable.

The question of do we really have to worry about all that at volunteer/unit level forgets that units are not independent agencies, they are part and parcel of the government agency that is the State Emergency Service (see How autonomous are NSW Rural Fire Brigades? (February 25, 2015)). As part of the government units have to comply in the same way the local branch of any state agency has to comply with laws governing that agency or state agencies in general.

Why don’t police have to comply with these rules?

The answer to that is because they have special rules. The Surveillance Devices Act 2007 (NSW) s 50A provide for the use of body-worn video by police officers. The Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) Part 8A (ss 108A-108H) deals with the use of police in car video equipment.  It deals with many of the issues raised here; they include giving the authority to record private conversations (s 108C and 108D ‘Person to be informed that conversation will be recorded’) included that they can be recorded without the person’s consent (s 108D(3)).  The use of police recording devices ‘does not constitute the use of a listening device for the purposes of the Surveillance Devices Act 2007’ (s 108F) and so all the provisions set out in the Surveillance Devices Act with respect to notice and consent etc do not apply.   Recordings made by police must be retained for 2 years.

My correspondent asked:

NSW Police Force vehicles use dam cams and don’t have signage on the vehicle. Why would the SES be any different?

The Answer is because the police have the benefit of the Surveillance Devices Act 2007 (NSW) s 50A and the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Part 8A, and the SES does not.

A possible alternative

One alternative, that may produce a different conclusion, is if the driver, rather than the unit, owned the dash cam.  Whilst the driver is volunteering for the SES and is in an SES truck and is therefore representing and part of the SES he or she is still entitled to keep their own records.  If I keep a diary of what I did it remains my diary even if I keep a record of what happened when I was volunteering.  If it is the driver that owns the dash cam there can’t be an issue of ‘workplace surveillance’ as it is not the workplace that is conducting the surveillance. He or she is recording information about him or herself and their driving.  If there are any private conversations recorded that is not intentional and further, given the driver is there and party to the conversations that is not an offence nor is using the device to record in order to protect his or her legal rights should an accident occur (Privacy Act 1998 (NSW) s 7(3)(b)).  And again that issue could be largely resolved by turning off the audio recording feature.

It may be. therefore, that if the driver owns the dash cam and sets it up before driving and does so with the intention of having his or her own record of their driving, that may well avoid most of these issues.   However, as a member of the SES one is required ‘to comply with, the procedures or instructions of the State Emergency Service’ (State Emergency Service Act 1989 (NSW) s 18A).  Accordingly if the Commissioner directs that members are not to use dash-cams in SES trucks a member who fails to comply may be subject to disciplinary action.

Conclusion

The directive from the SES does seem like an over-the-top reaction to what is surely a good idea. Dash cams are cheap, easy to operate and really useful to resolve issues should a motor vehicle accident or near miss occur – whether they are resolved in favour of the SES or not.  As a general rule a private citizen can do anything unless there is a law that says they can’t; a government can’t do anything unless there’s a law that says it can.

I can put a dash cam in my car as I’m not a state agency. I’m not required to comply with the Privacy and Personal Information Protection Act 1998 (NSW), the Government Information (Public Access) Act 2009 (NSW), the State Records Act 1998 (NSW) etc. Equally my car is not a workplace so I don’t have to worry about workplace surveillance.  The Surveillance Devices Act does apply to me but if I’m in the car I’m recording a conversation to which I’m a part (though in truth, I’ve turned off the audio recording on my dash cam for that reason, I don’t want to record those conversations and if there is an accident, I don’t want to reveal to the other side what was being said in case it was private).   In any event I would suggest that any recording of the conversation is ‘unintentional’, the intention being to record the video of the event and the audio immediately before and after the collision, if there is one.

And that brings me back to my earlier point as to this being a conservative approach. I think there could be arguments that these devices are not recording personal information and to the extent that they do that is unintentional, so they do no breach the Privacy Act.  Agencies produce much data that is lost, note book scribbles, phone messages etc.  Not everything that is produced is a ‘state record’ so not keeping recording where nothing happens does not, arguably, offend the State Records Act.

The use of a dash cam would be workplace surveillance but that is OK where the camera is obvious and it’s not the person’s regular workplace.  That provision means if you have video surveillance and today someone who works in office A is asked to go to office B you don’t have to give all the notice as it’s obvious when you see the camera that surveillance is happening.  Members who work out of a truck could be given notice but also, arguably, it’s not their regular place of work as that is the headquarters or even outside the truck.  That might be stretching the imagination but then it’s all about risk management.  How likely is that the regulator of the Workplace Surveillance Act is going to get concerned about the SES using a dash cam?  If everyone’s happy about it and it’s used to prove the other driver was at fault, not very likely at all. If, on the other hand, the SES driver is being prosecuted and the Crown is relying on evidence in the video tape, the driver may well make complaints about surveillance that he or she was not warned about. IT may not go anywhere but it may muddy the waters.

As for data storage and record keeping that is relevant as there at least needs to be consideration of what use is made of the video and when and how and for how long it is to be stored.

What I mean by a conservative approach is, as I say, about risk management. One might think the risk of anyone being concerned about alleged breaches of the legislation listed above is very slight.   And one can think of arguments to suggest that most of those provisions don’t apply.  A person might think that for the benefit, they’ll run the risk that no-one will care and if they do they can argue that they didn’t break the law. That’s fine for a private individual and we all do it all the time, we weigh up the benefit of our action against the risk of the consequences and no doubt some chose to break the law, or come very close, because they think the benefit is worth the risk.

An example of that type of approach may be for an individual to buy their own dash cam and install it when they are driving in order to have their own recording to protect their own interests should that be an issue. There are arguments that this would remove most of those issues but those arguments are not necessarily correct – the driver is in SES uniform and driving an SES vehicle – he or she is the SES so it may be determined, if it were ever challenged, that the documents are still owned by the SES.  And for that reason the SES may still want to direct that a dash cam is not to be used.

A conservative response, and perhaps one to be expected from a government agency that is not meant to ‘sail close to the wind’ is to say that no risk of being in breach is permissible. Clearly the use of dash cams does raise issues of privacy and whether the collection of private information by the camera is justified and permitted under the Privacy Act.  It is workplace surveillance (given s 3) so signage is required to ensure compliance with the Surveillance Devices Act and the Workplace Surveillance Act. If one is going to produce this sort of recording where the clear intention is to have it for legal proceedings, consideration does have to be given to storage and how it is made accessible.  The SES does have to consider the implementation of standards for the disposal of data and auditing of same.  It may be that all of that can and should be managed, but until it is, there is a risk and perhaps a risk that can’t properly be identified because consideration of all those issues has not been completed.  The SES response may be the ‘conservative’ response but it’s not wrong at least when the dash cams are owned by the unit rather than the driver of the vehicle.  The Commissioner, on behalf of the SES is the one charged with managing that response and if he chooses to take the ‘no risk’ response then that is within the ambit of his office.

And the answer to the question ‘why can the police do it?’ is because the police (and the government) have thought about those issues and passed special legislation to allow them to use their body worn and camera mounted video equipment.  That legislation applies to the police, it does not apply to the SES.  ‘Why would the SES be any different?’ Because policing is a very different business to what the SES does.

A Paramedic

… works in a large regional city in Western Australia –  population >30,000. We work under the Volunteer/Paramedic module where volunteers are tiered into level 1 and level 2 with in house training, not accredited qualifications. They are signed off and permitted to then form an ambulance crew with a Paramedic.

Are there restraints around how busy areas are (jobs completed per year) and the appropriateness of utilizing volunteers instead of full career staff?

There is no general legal principle that would set a minimum service level. (And consider the number of volunteer fire and ambulance companies in the United States including major cities. If there was a common law rule that could be applied to limit those services I’m sure it would have been found and used there).

In Western Australia, a person could not sue the government for failing to provide what they thought was a higher level of service.  Service levels could always be improved but services have to be delivered with the resources that are available – see Civil Liability Act 2002 (WA) s 5W.

The only relevant industrial agreement that I can find online is the St John Ambulance Australia (Western Australia) Inc Ambulance Officers’/Paramedics Enterprise Agreement 2011-2014. I assume that even though it was meant to end in 2014, it still governs employment in WA.  If it doesn’t I’m sure someone will let me know.

The 2014 Agreement only says this with respect to volunteers:

18.17   A Country Training Skills Allowance, as set out in Appendix 2, will be paid to qualified Ambulance Paramedics working in country locations, who provide ambulance tutoring/training skills to volunteers whilst working together as a paid/volunteer crew.

26        Where employees are required to work with volunteers, St John Ambulance will, as soon as practicable, ensure that volunteers receive volunteer driver training.

At the Broome and Headland Sub Centres ([34.1] and [35.1]):

(c)        Employees on standby shall:…

(iii)      be available to immediately commence work if volunteer Ambulance Officers are not available for that period.

(g)       Employees are required to support, work with and encourage the recruitment and training of volunteer Ambulance Officers. Employees are required to conduct up to a total of 42 hours of training per calendar year, in consultation with CPHC payment of these hours are accounted for in accordance with clause 34.3(g) (Broome/Hedland Allowance).

(j)        If additional ambulances are required they will be staffed by available off duty employees when volunteer Ambulance Officers are not available. Payments of these additional hours are accounted for in accordance with clause 34.3(g) (Broome/Hedland Allowance).

And at Headland ([35.1(h)])

If additional ambulances are required they will be staffed by available off duty employees when volunteer Ambulance Officers are not available. Payments of these additional hours are accounted for in accordance with clause 35.3(g)

And at [35.2]:

(a) Employees will work a roster that will be determined by agreement between those employee’s employed in the Sub-Centre, subject to the following:…

(ii)       1 employee and 1 volunteer Ambulance Officer will comprise a standard crew;

(iii)      when a volunteer Ambulance Officer is not available a second employee must be on stand-by; …

That is there is nothing in the Enterprise Agreement to say that stations with a certain workload must be staffed only by employed paramedics.

The other source of an obligation may be in the agreement between St John Ambulance (WA) and the Western Australia government, but I do not have access to that agreement so can’t comment on what it may, or may not, say.

In the absence of the agreement between WA and St John Ambulance, there are no restraints around how busy areas are staffed, and the appropriateness of utilizing volunteers instead of full career staff.

 

 

 

Today’s correspondent comes from NSW RFS.  The question relates (again) to the status of volunteer brigades see:

• Constitutions for NSW RFS brigades (May 21, 2014);
• How autonomous are NSW Rural Fire Brigades? (February 25, 2015);
• RFS brigades entering into a contract (March 1, 2015); and
• Is an incorporated bush fire brigade a ‘bush fire brigade’ for the purposes of the Bush Fires Act 1954 (WA)? (May 5, 2017).

Today’s question says:

The RFS have just released the new 2018 model brigade constitution. They, to their credit have gone through a very comprehensive process in delivering a model to brigades that standardizes but also maintains some flexibility for brigades to personalize their process’s. More importantly it is up to date with current legislation etc.

Our brigade is one of the older, formerly community, then council based “Bush Fire Units”. In the early 2000’s when our current constitution model was released, there were concerns within the brigade around liability, to itself and to its members. At that time the then brigade members made a decision to become an Incorporated Association in what they hoped would then give them additional protection under the Associations Act as I understand it.

I believe a number of brigades had done so at that time.

The previous model constitution allowed brigades in the past to apply additional clauses/rules  etc (subject to approval of course and within the spirit of the constitution etc) and as such, clauses were added to ours to ensure we were compliant with the Association Act, specifically around the requirement of wording on the subject of liability. The new model allows us to modify brigade rules to a certain extent (eg, voting methods etc) but does not allow for any alteration or addition to its body for any of these other such amendments. As such we believe we would not be fully compliant with the “Associations” model. The service has encouraged us to revoke our incorporation as all liability for the brigade and its members are now covered under the NSW Rural Fire Act. Many/most brigades have long before done this.

Finally to my question, is there any advantage or in fact disadvantage in us remaining as an incorporated entity?

The new constitution is available online as Service Standard 2.1.2 Brigade Constitution.

An incorporated entity under the Associations Incorporation Act 2009 (NSW) is a legal entity, separate from its members, that can enter contracts and sue and be sued (s 19).  An incorporated entity must have rules that comply with the requirements of the Act and must meet management and financial obligations under the Act.

A brigade of the NSW Rural Fire Service is established by a ‘local authority’ (but for all practicable purposes, that is the Commissioner of the RFS – see Rural Fires Act 1997 (NSW) s 15 and Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades, [1.2])).   A brigade is not a separate legal entity and is subject to the direction and control of the Commissioner.   The Rural Fires Regulation 2013 (NSW) r 4 says that ‘The constitution for a rural fire brigade is to be in a form approved by the responsible authority…’ (ie the Commissioner).

In short, a group of people who get together and form an associated entity called the Kickatingalong Bushfire Brigade Inc. have created an entity that is different from the Kickatingalong Bushfire Brigade established by the Commissioner of the Rural Fire Service.  The Kickatingalong Bushfire Brigade Inc. is not a brigade created by or under the Rural Fires Act 1997 (NSW).  Its members and the managers are not acting pursuant to the RFS Act in their management of the Brigade.  Under what authority they are acting on the fire ground could well be open to question.

In short there is every advantage in giving up one’s incorporated status.  If you are afraid of legal liablity it’s better that any plaintiff sue the Crown in Right of NSW and look to the NSW Treasury Managed fund rather than sue the Kickatingalong Bushfire Brigade Inc. and hope they have insurance.  In terms of management of the Brigade the captain etc are subject to the direction of the Commissioner but a management committee of the Kickatingalong Bushfire Brigade Inc. has obligations that they must personally meet under the Associations Incorporation Act.

I’m not usually this strong but here goes – you’re completely mad to try to retain incorporated status under the Associations Incorporations Act.  You are just making life complex, creating two Acts to comply with and putting any protection you have as members of the RFS at risk.  If actions can be attributed to the Kickatingalong Bushfire Brigade Inc then it will be the managers of the incorporated entity that have to deal with it rather than simply say ‘we’re servants and agents of the RFS, Mr Commissioner, it’s your problem’ (whatever the problem is).

A NSW paramedic writes:

With the imminent start of registration for the paramedic profession will ambulance state awards needs to be updated to reflect this new registration board requirements to maintain employment.

The current NSW ambulance Award has no specific requirements to obtaining and maintaining employment as a paramedic to being registered.

If an individual does not apply for registration then the current award would not be breached and so the employment of that officer must continue without registration.

Yet at the same time use of the term paramedic and employment in that role would presumably be in breach of some other award or standard under which the registration board has been created.

If the ambulance award needs to be updated to cover a requirement to obtain and maintain registration this would take time as any change to the award must be negotiated and approved by the relevant unions, employers and industrial bodies.

No such negotiation has yet apparently started, which raises the question what happens when registration comes into effect.

It’s true that the Operational Ambulance Officers (State) Award (NSW) does not deal with registration.  It says (p. 4) that a person is a paramedic if they are:

… an employee who has successfully completed the necessary and relevant training and work experience as determined by the Service to become a Paramedic and who is appointed to an approved Paramedic position. Provided that such an employee shall be required to undertake and successfully complete further instruction/in-service courses necessary for the maintenance of their clinical certificate to practice and the reissue of their clinical certificate to practice every three (3) years.

In Queensland (Ambulance Service Employees Award – State 2016 (Qld), p. 44) a paramedic is:

(a) … an employee [of QAS] who provides a high standard of pre-hospital emergency patient care and the provision of ambulance transport services for members of the community.

(b) A Paramedic must possess at least a Certificate IV in Basic Emergency Care or Associate Diploma of Applied Science (Ambulance) with no additional skills or qualifications or recognised equivalent (as determined by the QAS Commissioner) at the Paramedic P1 skill level.

Once registration comes into effect only a person who is registered with the Paramedicine Board as a paramedic will be able to use that title. Just that one example makes it clear that these awards will have to change to reflect the changing nature of what it is to be a paramedic.

The use of the term ‘paramedic’ by someone who is not registered will be an offence under the Health Practitioner Regulation National Law (see Is ‘Doctor’ a protected title? (February 14, 2018)) but the National Law does not set details of scope of practice or the like so there is no offence to practice paramedicine, or nursing, or as a medical practitioner – only an offence to use a protected title.  So a person who is currently employed as a paramedic but who, for whatever reason does not register, could keep doing what they are doing, they just couldn’t call themselves ‘a paramedic’.  So the use of the ‘term’ is a breach of the national law, not an award.  But continuing in the role will lead to interesting industrial issues because, no doubt, the Ambulance Service will need (or want) to amend the award to say that a paramedic must be a registered paramedic but where does that leave a person who’s been performing their job under the current award, but who doesn’t want to register?

I can’t say what will happen when registration comes into effect, but it is something ambulance services should certainly be discussion with their employees.

 

Today’s correspondent wants to know why emergency call centres are not required to notify callers that phone calls are being recorded.  My correspondent says:

Under the Privacy Act 1988, an organisation must declare at the beginning of the conversation if this call is to be recorded or monitored. They can do it by a simple announcement or by interjecting a tone signal every 30 sec. into the call.

Some emergency command or security dispatch centres are excluded from this requirement. This is understandable during a crisis situation as we may not have the time to listen to the announcement and “opt out”.

However, during regular operations they are still not required to advise that the call may be (or as a matter of fact, is) recorded.

I am interested on which piece of legislation, such command / dispatch centres, can seek exclusion from the Privacy Act. Secondly, is there a publicly available list of all companies who obtained such exclusion?

The Privacy Act 1988 (Cth) is not the Act that requires people to be advised that a telephone call is being recorded.  That obligation arises under the Telecommunications (Interception and Access) Act 1979 (Cth) s 6.  That section says (emphasis added):

For the purposes of this Act, but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.

By telling a person that their call is being recorded and giving the person to hang up, or opt out, is to avoid the prohibition on telecommunication interception.

Emergency services are however exempt.  The Act says

(2A)       An emergency service facility is premises that are declared by the Minister, by written instrument, to be an emergency service facility.

(2B)        The Minister may declare premises to be an emergency service facility if the Minister is satisfied that the premises are operated by:

(a)          a police force or service of the Commonwealth, of a State or of the Australian Capital Territory; or

(b)          a fire service of a State or of the Australian Capital Territory; or

(c)           an ambulance service of a State or of the Australian Capital Territory; or

(d)          a service for despatching, or referring matters for the attention of, a force or service referred to in paragraph (a), (b) or (c);

to enable that force or service, or another force or service, to deal with a request for assistance in an emergency.

…

(2F)  If a person who is lawfully engaged in duties relating to the receiving and handling of communications to or from an emergency service facility listens to or records a communication passing over a telecommunications system to or from the emergency service facility, the listening or recording does not, for the purposes of this Act, constitute an interception of the communication.

With respect to the Northern Territory the definitions section (s 5) says that for the purpose of this Act, ‘State includes the Northern Territory’ so the references to ‘a State’ in s 6 includes the Northern Territory.

Further

(4)            If:

(a)          a person makes a call to a publicly-listed ASIO number; and

(b)          another person who is lawfully engaged in duties relating to the receiving and handling of communications to that number listens to or records a communication passing over a telecommunications system in the course of that call;

the listening or recording does not, for the purposes of this Act, constitute the interception of the communication.

Details of declarations made under the Act can be found at https://www.legislation.gov.au/Browse/Results/ByTitle/LegislativeInstruments/InForce/Te/0/0/principal.  For example the Telecommunications (Interception and Access) (Emergency Service Facilities — Australian Capital Territory) Instrument 2015 declares that the Australian Federal Police at Barton, Belconnen, Greenway, Hume, Majura is an emergency service facility whilst the ACT Emergency Services Agency and Airservices Australia – Aviation Rescue and Fire Fighting Service are ‘Service[s] for despatching, or referring matters for the attention of, a force or service’.  See also:

• Telecommunications (Interception and Access) (Emergency Service Facilities — Northern Territory) Instrument 2013
• Telecommunications (Interception and Access) (Emergency Service Facilities — South Australia) Instrument 2013
• Telecommunications (Interception and Access) (Emergency Service Facilities – Tasmania) Instrument 2012
• Telecommunications (Interception and Access) (Emergency Service Facilities – Victoria) Instrument 2012
• Telecommunications (Interception and Access) (Emergency Services Facilities — New South Wales) Instrument 2015
• Telecommunications (Interception and Access) (Emergency Services Facilities – Queensland) Instrument 2015
• Telecommunications (Interception and Access) (Emergency Services Facilities — Western Australia) Instrument 2015

(See also The Telecommunications (Interception and Access) Act 1979; Annual Report 2015–16 , p. 30).

The section does appear to exclude the various state and territory emergency services.  In some states the State Emergency Service is part of a bigger fire and emergency service (eg Queensland) or call taking may be coordinated within a central agency such as ACT’s Emergency Services Agency or Victoria’s Emergency Services Telecommunications Authority. Those combined call taking centres can be declared an emergency service facility as they are a facility described in s 6(2B)(d).

But what of say NSW SES where calls are received at a dedicated state headquarters? The NSW SES has also been declared to be an emergency service facility as a ‘Service for despatching, or referring matters for the attention of, a force or service’ – Telecommunications (Interception and Access) (Emergency Services Facilities — New South Wales) Instrument 2015.

What follows is that subject to a declaration under s 6(2D) calls to the emergency services may be recorded without prior notification to the person making the call.

This question comes from a paramedic with SA Ambulance but it’s not a paramedic or a SA question, but it’s relevant given forthcoming registration of paramedicine.  Today’s correspondent says:

I noticed one of our staff members uses the title Dr. (Holding a PhD). I have a PhD from an overseas university with no affiliation with Australian universities. Am I legally entitled to preface with Dr…. (PhD)?

As noted in earlier posts (see The use of protected titles by students and others (January 30, 2018)) it is an offence to use a title that is protected under the Health Practitioner Regulation National Law. For medical practitioners the only protected title is indeed, “medical practitioner”.  The term ‘Doctor’ is not a protected title indeed because it used by people other than medical practitioners. Dentists, vets (http://www.vsb.qld.gov.au/policygeneral.html#title) and, of course, the holders of doctoral degrees, PhD, SJD etc.

The use of the term Doctor (or title Dr), even by medical pracitioners is an honorific and use of the title is really governed by convention alone.  The only limit is one should not use the title in a way to mislead or deceive others, so if you use the title in circumstances where you hope to obtain a benefit or other advantage, or improve your standing or credibility by making people believe you are something you are not, then you may be committing an offence (eg under Fair Trading law about not engaging in misleading and deceptive conduct in trade or commerce; or criminal law with respect to obtaining a benefit by deception).

If you got your PhD by buying it from a US mail order company perhaps not, but if you hold a PhD from a genuine overseas (or Australian) university you are absolutely entitled to call yourself ‘doctor’.

I’ve decided to expand my blogging interests so I’ve started a blog on Caravan and Motorhome law.  If, when you’re not working or volunteering for the emergency services, you want to head off in your caravan, campervan or motorhome, come here to ask the legal questions.  See https://campinglaw.wordpress.com/

 

Today’s question comes from:

… an organization that promotes drug policy frameworks that are based on evidence and promote human dignity.

One of our main areas of work is assisting drug services and other organisations to develop and roll-out Narcan/naloxone programs.  Naloxone is a medicine that temporarily reverses an opioid overdose.

One thing we would like to see is drug outreach workers carrying naloxone so they can administer it if they encounter someone experiencing an overdose. However, there is a lot of anxiety about whether they would be covered by Victoria’s Good Samaritan laws (the Wrongs Act 1958) and so many of our stakeholders are reluctant to have their outreach workers carry naloxone kits. Given there has not been a test case, the Department of Health and Human Services in Victoria is being very cagey about this and is refusing to offer advice or clarification.

I came across your blog post on Good Samaritan laws in Australia and was wondering what your take on it would be? While we have told services it is unlikely that an outreach worker would not be covered in these circumstances, the uncertainty (and anxiety) remains.

Naloxone is ‘is a drug that can reverse opioid overdose. It … can be injected intravenously (into a vein) or intramuscularly (into a muscle)’ (see Alcohol and Drug Foundation, Naloxone, February 9, 2018). Further naloxone is now listed as in Schedule 3 of the Australian Poisons Standard (February 2018), that is it is anyone can buy it from a pharmacist in order to be able to treat opioid overdose.

The relevant provision is the Wrongs Act 1958 (Vic) s 31B. It says:

(1)       A good samaritan is an individual who provides assistance, advice or care to another person in relation to an emergency or accident in circumstances in which—

(a) he or she expects no money or other financial reward for providing the assistance, advice or care; and

(b) as a result of the emergency or accident the person to whom, or in relation to whom, the assistance, advice or care is provided is at risk of death or injury, is injured, is apparently at risk of death or injury, or is apparently injured.

(2)       A good samaritan is not liable in any civil proceeding for anything done, or not done, by him or her in good faith—

(a) in providing assistance, advice or care at the scene of the emergency or accident; or

(b) in providing advice by telephone or by another means of communication to a person at the scene of the emergency or accident.

(3)       …

(4)       …

There have been amendments to deal with the use of naloxone in other jurisdictions, but these do not appear to have been put in place in Victoria.  For example, in the ACT a good Samaritan does not, normally, enjoy the benefit of the Civil Law (Wrongs) Act 2002 (ACT) s 5 if his or her ‘capacity to exercise appropriate care and skill was, at the relevant time, significantly impaired by a recreational drug’ (see s 5(2)(b)).  That exclusion does not, however, apply:

…  if a good samaritan administers the drug known as naloxone, honestly and without recklessness, to a person apparently suffering from an overdose of an opioid drug for the purpose of resuscitating the person,

even if they were, at the time, impaired by a recreational drug.  The point of that provision is to encourage people who are themselves affected by a drug to use naloxone to resuscitate their friends and fellow drug takers should that be required (and for a commentary see Excluding good Samaritan protection for the intoxicated (March 17, 2016)).

That Victoria does not have an equivalent to the Civil Law (Wrongs) Act 2002 (ACT) s 5(3) is interesting, but not relevant as I don’t infer from my correspondent that drug outreach workers are themselves affected by drugs.

Are they a good Samaritan?

The question becomes: if a drug outreach worker finds someone affected by drugs and goes to assist them, are they are a good Samaritan?  Let me assume that the person suffering the drug overdose is ‘at risk of death’ without assistance so the criteria in the Wrongs Act 1958 (Vic) s 31B(1)(b) is met.  Let me also assume that the outreach workers are employees not volunteers. As employees they are expected to get paid for their work but are they being paid for ‘for providing the assistance, advice or care’?  I don’t actually have a duty statement so I’m guessing here.

My guess is that they are not.  North Richmond Community Health in Victoria recently advertised for a person to fill the role of Alcohol and Drug (AOD) Outreach Worker (the ad is still on the web, but it says it’s now closed). The worker’s

… responsibilities will include (but will not be limited to):

• Engaging at-risk marginalised people who use alcohol and other drugs;
• Provision of an outreach case work service;
• Assessing and monitoring clients at risk of overdose and/or who manifest other signs of high level or risky substance use;
• Developing and providing culturally appropriate educational and training resources, tailored to the needs of groups and individuals;
• Employing a range of strategies to deliver harm reduction messages that address safer drug use;
• Implementing an effective NSP to reduce / prevent the spread of blood borne viruses such as HIV, hepatitis B & C and sexually transmissible infections (STIs);
• Provision of a needle/syringe retrieval service and monitoring the area around the NSP for inappropriate drug use and discarded equipment; and
• Routinely collecting data and providing reports as required.

The job is not to provide supervision of those injecting and to be available to provide first aid.  That an outreach worker will be called upon to assist is foreseeable but that doesn’t necessarily make it part of the job they are being paid for.  What I have in mind is the outreach worker who goes to visit a client and finds them suffering an apparent overdose, rather than a worker who is called and asked to come because there’s been an overdose.

It would be different, I suggest, if the worker were at say a supervised injecting room because there they are there, and being paid, to not only provide supervision but I suggest to actually make it safe (that being the point of a supervised injecting room).  In that case if they provide first aid (whether or not that includes naloxone) they are not acting as ‘good Samaritan’s’ but rather performing an essential part of the job.

Why does it matter?

The bigger question is why do the services care about whether or not the workers are good Samaritans for the purposes of the Wrongs Act?  I’d be more concerned about an outreach service not issuing naloxone to workers.  Presumably it’s foreseeable that an outreach worker will go to a person’s home where the client is likely to be affected by the drug, when the worker finds them there may be no one else to help and there is a pre-existing client relationship. The outreach worker and the service will have a duty to do something; they can’t just walk away from their drug affected client. Further, the organisation that employs the worker has a duty both to the worker and the client. It is foreseeable that to issue naloxone to the worker will allow them to provide immediate care to the patient then it may be that a ‘reasonable’ organisation would do that. Failure to ensure that the worker has the necessary tools, in this case an over the counter drug, to do his or her job may be negligent.  A client may have more luck suing a service that failed to equip its staff with the necessary tools to deal with a foreseeable emergency than suing one that did give them those tools.

Further under WHS legislation an employer has a duty to ensure a safe workplace. Part of that duty is to provide first aid in the workplace (see WorkSafe Victoria ‘Compliance Code: First Aid in the Workplace’ (1st ed, September 2008)).  No doubt the outreach workers have a first aid kit in any car they are required to drive to work, it begs the question of why doesn’t it have naloxone given the nature of their work?

And if the worker is a supervisor at a supervised injecting room failure to ensure naloxone was available on site would, in my view, be clear evidence of negligence.

Conclusion

Without specific duty statements it’s impossible to be definitive but I would infer that an outreach worker who does provide assistance in an emergency with his or her client is a ‘good Samaritan’ as it’s not specifically part of their job to provide emergency care even though it is foreseeable that they may be called upon to do so.  I think that would be different if they were say, working in a supervisory capacity in a safe injecting room.

The bigger question is what are they scared of and why do they think they need the protection of the Wrongs Act?   Further if they are not good Samaritans, and so don’t benefit from that protection, then given the risk of finding their patients with an overdose it would be easier to argue that there is negligence (by the employer) in not issuing naloxone and that risk is likely to be higher than training the staff in how to use it and putting it in their work kits.

Again it’s one of those questions where I ask ‘what do people think is going to go wrong?’ And how can it be better not to give lifesaving equipment because of a fear of liability when the risk of liability for trying to save someone’s life is less than the risk of saying ‘I could have helped my client (not a stranger) but I didn’t want to because I’m afraid of the law’? That’s not acting ‘in good faith’.

In simple terms – either they are good Samaritans in which case let them carry naloxone; or they’re not in which case issue naloxone so they can meet their duty to their vulnerable clients in circumstances where it is foreseeable that they may find their client suffering an overdose or it’s act now or watch them die whilst waiting for the ambulance.

Today’s correspondent not only asked the question, but did most of the research to find the answer! The issue relates to the right of a rescuer to compensation for injuries (both physical and mental) when coming to the aid of those involved in an aircraft accident.

Relevantly, for this discussion, the flight is intra-state that is the aircraft left from and was intended to arrive at an airport all within one state. The rescuer pulled both the pilot and the student pilot from the wreck and performed CPR on one.  During the course of the CPR he injured his shoulder and suffered psychological injuries rendering him now unfit for work.

My initial reaction was:

I can’t see that an aircraft crash is any different to a motor vehicle accident – see “Cop sues offender’s family” (May 22, 2013) and Death of a good Samaritan (June 17, 2012).  The issue is more complex if you are seeking compensation for ‘nervous shock’ rather than physical injuries but not a degree of complexity that should pose a problem for experienced personal injuries lawyers, see Rescuers and nervous shock or mental illness; Wicks and Sheehan v SRA (June 17, 2010).  There are issues to do with the level of loss or impairment suffered by you but again that should not be an issue of too much complexity.

My correspondent, however, refers me to the Damage by Aircraft Act 1999 (Cth) and the Wrongs Act 1958 (Vic) s 31.  The Damage by Aircraft Act 1999 (Cth) s 10(1) says that the Act applies

… if a person or property on, in or under land or water suffers personal injury, loss of life, material loss, damage or destruction caused by:

(a)       an impact with an aircraft that is in flight, or that was in flight immediately before the impact happened; or

(b)        an impact with part of an aircraft that was damaged or destroyed while in flight; or

(c)        an impact with a person, animal or thing that dropped or fell from an aircraft in flight; or

(d)       something that is a result of an impact of a kind mentioned in paragraph (a), (b) or (c).

In ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28 (5 August 2009) French CJ, Gummow, Heydon, Crennan and Bell JJ had to consider liability for an aircraft accident.  In that accident an aircraft operated by ACQ Pty Ltd brought down a power line. Electrical technicians attended to deal with the downed power line.  The plaintiff

…  entered the field before the conductor was isolated in order to see what damage had been caused and assess what repair work might be required… The conductor, being thin, was difficult to see against the overcast sky. The plaintiff approached the conductor, about 65m from his truck, by crossing through lines of plants in a slightly diagonal direction. The plaintiff then stumbled or fell in the muddy conditions and came within 60mm of the conductor. An electric arc between the conductor and the plaintiff took place, injuring him badly.

The appeal dealt with the question of what was meant by s 10(1)(d)- was the plaintiff’s electrocution ‘something that is a result of an impact of a kind mentioned in paragraph (a), (b) or (c)’.   The New South Wales Court of Appeal held that ‘… the “something” which caused the plaintiff’s personal injuries was the creation of a danger to persons who got close to the conductor’ ([8]).

In the High Court of Australia (at ([10]):

The appellants … submitted that the legislation did not provide a universal comprehensive scheme to award damages to every person who sustained an injury that was in some way connected to the impact of an aircraft, part of an aircraft, or something which fell from an aircraft whilst in flight. In particular they submitted that “something that is a result of an impact” of those kinds should be construed as being a thing (for example, a fire or a collapse of a building) which “has an immediate (or reasonably immediate) temporal, geographical and relational connection with an impact.”

The appellants argued (at [11])  that the words ‘on, in or under land or water’ used in s 10:

… did “not obviously include” persons brought to the scene by reason of the impact (including those who came to rectify or repair the state of affairs created by the impact). Thus, the words required plaintiffs to be at a place on, in or under land or water which was linked with the impact at the time of the impact.

The appellants (at [15]) conceded that if a plane exploded on landing

… thus setting alight structures nearby and causing death or injury to a plaintiff whose house is burned down. They conceded that a fire fighter who was summoned to fight the fire and who was injured by it would be within s 10(1)(d), even if the scene of the fire was some distance from the fire station. That concession was correct because, as the appellants accepted, there was no reason not to conclude that the fire fighter’s injury was caused by “something” that was a result of an impact between the aircraft and the ground, namely the fire. The appellants, however, distinguished that case from the present one:

“There is the world of difference between a rescuer who is answering the call of either nature or society to save another person … from peril, on the one hand, and on the other hand, a person who comes to a scene of evident danger precisely because the danger is evident and because of their skills, experience and position, occupation, in order to repair or rectify that dangerous position where there is no peril to another person … requiring the risks to be undertaken in order to answer the calls of nature or social duty.”

The court rejected the purported distinction. If the fire fighter was protected so was the linesman who had come to deal with the downed powerline.  At [17] the High Court said ‘The words “on, in or under land or water” serve to distinguish those accidents to which s 10(1) applies from accidents in the air, to which other legal regimes apply.’

It follows, and further it was not challenged in ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook that providing rescue to those in a plane crash would be ‘something’ that is the result of the aircraft impact (s 10(1)(d)).

A person who has the benefit of s 10(1) can recover damages without proof of ‘intention, negligence or other cause of action’ rather it is deemed that ‘the injury, loss, damage or destruction had been caused by the wilful act, negligence or default of the defendant or defendants’ (s 11). Section 10(1) doesn’t apply where a person suffers ‘mental injury … unless the person… suffers other personal injury, material loss, damage or destruction caused by such a thing’ (s 10(1A)).

The problem is that this Act cannot apply to all aircraft.  My correspondent says ‘aviation Is a federal power’. Given the Australian Constitution came into effect on 1 January 1901, it had to be written before then and indeed the Constitution was written during a number of conventions held in the 1890’s.  Writing in the 1890’s no-one would have thought to give the Commonwealth the power to make laws with respect to aviation.  The Commonwealth does however have the power to make laws with respect to interstate and international trade and commerce (Australian Constitution s 51(1)) so the Commonwealth can make laws with respect to air travel that crosses state or national borders.  The limited power of the Commonwealth is shown in the Damage by Aircraft Act 1999 (Cth) s 9 which says that the Act only applies to:

(a)       Commonwealth aircraft;

(b)       aircraft owned by a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution);

(c)        aircraft (including foreign aircraft) engaged in:

(i)        international air navigation; or

(ii)       air navigation in relation to trade and commerce with other countries and among the States; or

(iii)      air navigation conducted by a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution); or

(iv)       air navigation to or from, or within, the Territories; or

(v)        landing at, or taking off from, a place acquired by the Commonwealth for public purposes.

(Note that by virtue of the Australian Constitution s 122 and the Damage by Aircraft Act 1999 (Cth) s 10(1)(c)(iv) the Damage by Aircraft Act 1999 applies in the Northern and Australian Capital Territories.)

What follows that an aircraft that is taking off and landing within one state (not Territory), and even more importantly from the same airport eg an aircraft that is doing circuits for flight training, will not meet these definitions other than, possibly, s 9(b) where the aircraft is being operated by ‘a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution’). (For a discussion on what is a ‘trading corporation’ see United Firefighters Union of Australia (‘UFU’) v Country Fire Authority (‘CFA’) [2014] FCA 17 (31 January 2014) (February 12, 2014)).

If that’s correct, then a person injured by a private aircraft operated solely within a state cannot benefit from the Commonwealth Act.  To fill that gap, state legislatures have passed matching legislation. In Victoria, the Wrongs Act 1958 (Vic) s 31(1) says:

Where material loss or damage is caused to any person or property on land or water by or by a person in or by an article or person falling from an aircraft while in flight taking off or landing then … damages in respect of the loss or damage shall be recoverable from the owner of the aircraft without proof of negligence or intention or other cause of action as if the loss or damage had been caused by the wilful act neglect or default of the owner.

(The legislation is in the same terms in the other jurisdictions – see Air Navigation Act 1937 (Qld); Civil Liability Act 1936 (SA), s 61; Civil Liability Act 2002 (NSW), s 73; Damage by Aircraft Act 1963 (Tas); Damage by Aircraft Act 1964 (WA), s 5(1)).

As with the Commonwealth legislation, the injured plaintiff doesn’t have to prove a lack of reasonable care.  In this case of course the injury was caused during the rescue of the persons from the wreckage of the aircraft rather than from say the impact of the aircraft with the ground or the person on the ground.

This section is very similar to the Commonwealth provision discussed above but it does not have the ‘catch all’ reference to ‘something that is the result’ of the impact.  On the other hand the section doesn’t use the word ‘impact’.  In her article, Pam Stewart (‘Drone danger: Remedies for damage by civilian remotely piloted aircraft to persons or property on the ground in Australia’ (2016) 23 Torts Law Journal 290) says:

‘Not all State provisions contain that form of words [ie “something that is the result of an impact of a kind mentioned”]. In NSW, Tasmania, Victoria and Western Australia, the strict liability provision does not depend on an ‘impact’ and does not refer to “something that is a result of an impact” with an aircraft.

The question then, if the aircraft involved is a private aircraft involved in intra-state flight, is whether the injury was caused by an aircraft while in flight taking off or landing, by a person in an aircraft or by an article or person falling from an aircraft.

The NSW Court of Appeal when deciding Mr Cook’s case said that the question of whether the collision with the powerline caused his injuries (see ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28 at [25]) was:

… a question of fact to be answered by reference to commonsense and experience, and one into which considerations of policy and value judgments necessarily enter. When causation is so regarded, the law has no difficulty in recognising that there can be multiple causes of the one damage.

Without specific authority one can infer that the Victorian Act (is intended to create, along with the Commonwealth legislation, a scheme of strict liability for damage caused by aircraft to those on the ground or water below the aircraft (that is this legislation does not apply to persons travelling in the aircraft – see Leith v Medhurst [1991] 2 VR 362).  It follows that even given the slight differences between the Damage by Aircraft Act 1999 (Cth) s 10 and the Wrongs Act 1958 (Vic) s 31 a rescuer who immediately comes upon the scene and is injured trying to affect the rescue will enjoy the benefit of either provision.  They will rely on the state Act if the aircraft is a private aircraft operating within and the Commonwealth Act in other cases.

Conclusion

A person injured effecting a rescue at the scene of an aircraft accident or at a place of damage caused by the accident and where the aircraft is involved in interstate travel or operated by ‘a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution)’, has the right to recover damages from the owner or operator of the aircraft without the need to prove negligence particularly.

Where the aircraft is an aircraft owned by an individual or an entity that is not a foreign, trading or financial corporation operating solely within one state (but not Territory) then the position is not so clear, but I would suggest that the intention is to extend similar protection to those injured by an aircraft impact and that the link between a rescuer and the accident is sufficiently close to extend the strict liability regime.

 

 

This is one of many questions relating to the Mental Health Act 2007 (NSW) s 20.  See:

• Detaining a voluntary patient in NSW (March 31, 2017);
• More on the treating the mentally ill by paramedics in NSW (April 17, 2017);
• Further commentary on the Mental Health Act 2007 (NSW) s 20 (April 17, 2017); and
• Again revisiting the Mental Health Act 2007 (NSW) s 20 (April 18, 2017).

To repeat, s 20(1) says:

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

Compare s 20 with s 19(1). That section says (emphasis added):

A person may be taken to and detained in a declared mental health facility on the basis of a certificate about the person’s condition issued by a medical practitioner or accredited person. The certificate is to be in the form set out in Part 1 of Schedule 1.

There is a prescribed certificate for s 19 because a doctor fills it out, it is passed to others and those others (hospital, ambulance officers, police etc) can detain the person on the basis of that certificate.

There is no form prescribed for s 20 – ie there is no form set out in the Act or its regulations.  Section 20 authorises ambulance officers, to take action. Ambulance officers no doubt keep patient care records in order to record their observations that justified their detention and like any clinical record, to pass on to those involved in treatment to ensure continuity of care.  The ambulance service has created a form for that purpose.  In that sense the document is a ‘legal document’ (whatever that means – see What is a ‘legal document’? (February 23, 2017)).  But a document that is produced by the ambulance service and completed as a clinical record is not the same as a medical certificate completed under s 19 and which must be in the form set out in the Act.

Once at a mental health facility the patient may be detained on the basis that the person was brought to the facility by paramedics who in turn relied on s 20 (see Mental Health Act 2007 (NSW) s 18(1)(b)). To that end the record kept by the paramedics will go on the patient’s file both to demonstrate that the condition for ongoing detention has been met (s 18(1)(b)) and to ensure the patients ongoing care.  The document itself is evidence of the fact that the person was detained by paramedics and the observations that they made to justify their decision.  It does not have some special legal status, so, the question are photocopies of the clinical record ‘legal’ is not really relevant or even meaningful.  The document is what it is, a record of the paramedic’s observations; a photocopy is just another copy.  A copy can be used in evidence to proof the contents of the original (Evidence Act 1995 (NSW) s 48) so if the hospital ever had to prove that the patient was transported to hospital by ambulance, that the paramedics had relied on s 20 and had given details of their observations, then yes, the copy is ‘legal’.

There is Australian commentary on the case involving Dr Hadiza Bawa-Garba.  See Esther Han ‘Australian doctors ‘disturbed’ by manslaughter conviction against Dr Hadiza Bawa-Garba’ The Age (Online) (February 1, 2018). See also my earlier post on this case, Professional discipline after serious criminal conviction – lessons from the UK (January 29, 2018).  There are however things that are problematic in the article in The Age.

First, a doctor is quoted as saying ‘Generally, criminal convictions have been against those with criminal intent, or who were unethical or doing something illegal, whereas this case is different, and it’s truly disturbing.’  That’s simply wrong.  Offences such as murder require a proof that the accused intended to kill.  And one can be guilty of manslaughter by an unlawful and dangerous act; but there has always been offences that do not require either an intent or illegal conduct.  Manslaughter by criminal negligence along with dangerous driving and negligent driving are examples of those sort of offences.  This doctor just doesn’t know the law. but that doesn’t make the law knew or unknowable.

As for the question ‘”How on earth was the doctor convicted of manslaughter? We don’t understand it…’ The issue was determined by a jury. A jury represents the community standard. Placing the matter before a jury of 12 reassures the community that it is not the profession protecting its own. Rather it is asking the community whether or not the defendants conduct was so far below the standard of care expected from a reasonable practitioner as to warrant criminal punishment.  As the High Court said ‘Full respect had to be given by the Tribunal to the jury’s verdict: that Dr. Bawa-Garba’s failures that day were not simply honest errors or mere negligence, but were truly exceptionally bad.’  hat is the jury heard the evidence about the systemic failings and the contribution of those failings to this outcome but nonetheless they determined that Dr Bawa-Garba’s mistakes were not ‘mere mistakes with terrible consequences. The degree of error, applying the legal test, was that her own failings were, in the circumstances, “truly exceptionally bad” …’

The problem is that this was not a lessons learning process; this was a criminal process. Further some commentary has blamed the General Medical Council (the GMC) or ‘the system’, for example ‘it was “inconceivable” that a system designed to support patients and doctors would wholly and excessively lay the blame on a doctor for its failures.’  But the Criminal Justice system is not designed to support patients and doctors, it is there to determine whether or not there has been a breach of the criminal law.

In my study with the US Forest Service they acknowledged that whilst they could adopt a no-fault fact-finding inquiry, they couldn’t determine what others such as the police or Crown Prosecution Service (in the UK; the Director of Public Prosecutions in Australia) might do. Equally here this outcome is not a function of the hospital or medical lessons learned process.  If it is true that ‘prosecutors used sections of Dr Bawa-Garba personal appraisals – required in the UK for learning and reflection – as evidence against her’ (something that is not discussed in the decisions of the Court of Appeal or the High Court) that is problematic. I do not that in the inquest into the Sydney Lindt Café siege, the coroner accepted that documents and reflections produced by police in after action review should not be admissible, and there are provisions in Australian evidence law to limit the use of the sort of documents referred to here, but without more detail one can’t know what the implications here would be.

The problem with building a learning culture that aims to be no fault etc is that it must at times run into conflict with the criminal law that has its own objectives.  Whilst most judges would say that part of the aim of the criminal law is to identify fault and then communicate via the finding and punishment both what legal wrong was done and to warn others not to do it, it is the case that it is not a ‘learning system’. Whilst reform of the criminal law may be in order it’s a long way to go from the work currently being done on reforming the way agencies and those that claim to be a no-fault tribunal (the Royal Commission and the Coroner) go about their business.

I have previously written on this subject – see:

• Withholding resuscitation in first aid (November 21, 2017) and
• ‘Medical tattoos offer important health information’ (March 3, 2012).

The subject has now been considered in an interesting discussion on the ABC’s Health Report – (‘Do-not-resuscitate tattoos: What’s a doctor to do?’, Radio National, Monday 29 January 2018).

There is an interesting discussion there about the role of these tattoos and whether medical practitioners’ can, or should, or will honour them.   One of the commentators, Professor Ian Olver, Oncologist and bioethicist at the University of South Australia, says:

Under, say, common law, the doctor would be expected to satisfy themselves about three things. One is was the patient competent when they issued whatever instruction about treatment, but a DNR? Was it an informed choice, that they weren’t coerced and they had all the information necessary? And particularly, and perhaps the most difficult one, did it apply to the situation that the patient is now in? Was that what they meant by it?

I agree that these three elements are essential for a valid refusal.  A doctor who was assisting a patient to execute an advanced care directive would need to be satisfied those criteria were met, but I don’t agree that a doctor, faced with a refusal, has to satisfy him or herself that the criteria were met when the decision was made.  In Malette v Shulman (1990) 67 DLR (4th) 321, Dr Shulman was faced with a critically ill patient who carried a card saying she did not want a blood transfusion under any circumstances, based on her religious faith.  Counsel for the doctor argued that

…  it could properly be doubted whether the card constituted a valid statement of Mrs. Malette’s wishes in this emergency because it was unknown, for instance, whether she knew the card was still in her purse; whether she was still a Jehovah’s Witness or how devout a Jehovah’s Witness she was; what information she had about the risks associated with the refusal of blood transfusion when she signed the card; or whether, if she were conscious, she would refuse blood transfusions after the doctor had an opportunity to advise her of the risks associated with the refusal.

Robins JA said:

With deference to Mr. Royce’s exceedingly able argument on behalf of the appellant, I am unable to accept the conclusions advocated by him. I do not agree, as his argument would have it, that the Jehovah’s Witness card can be no more than a meaningless piece of paper. I share the trial judge’s view that, in the circumstances of this case, the instructions in the Jehovah’s Witness card imposed a valid restriction on the emergency treatment that could be provided to Mrs. Malette and precluded blood transfusions.

Just as the card was not a meaningless piece of paper, neither would a tattoo be meaningless, though as discussed below, the meaning may not be clear.

To return to Mrs. Malette and her card, Robins JA found that she had:

… chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes, that she does not consent to blood transfusion…

Further, in respecting those wishes, and withholding the treatment that had been refused:

The doctor cannot be held to have violated either his legal duty or professional responsibility towards the patient or the patient’s dependants when he honours the Jehovah’s Witness card and respects the patient’s right to control her own body in accordance with the dictates of her conscience. The onus is clearly on the patient. When members of the Jehovah’s Witness faith choose to carry cards intended to notify doctors and other providers of health care that they reject blood transfusions in an emergency, they must accept the consequences of their decision. Neither they nor their dependants can later be heard to say that the card did not reflect their true wishes. If harmful consequences ensue, the responsibility for those consequences is entirely theirs and not the doctor’s.

For the patient who has DNR tattooed on their chest as ‘a joke, [because] he’d lost a bet with his medical buddies and because he lost it while drunk he had to have DNR tattooed across his chest and he just did it’ then it is that person who carries the risk that their tattoo will be honoured with inevitable consequences.

In the absence of any reason to suggest that the wishes, however expressed, do not represent the patient’s wishes, there is I suggest no need for the treating doctor to consider whether or not, at the time that the decision was made, whether the patient was informed or competent.

As the Health Report demonstrates, the meaning of a particular tattoo may not be clear. Does ‘DNR’ mean ‘do not resuscitate’ or is it the person’s initials?  If it does mean ‘do not resuscitate’ does that mean ‘do not perform Cardio-pulmonary resuscitation’ or does it mean do not:

… put him on intravenous fluid … [give] medication to increase his blood pressure, …[give] antibiotics, and … put him on a bi-level positive airway pressure. It’s a pretty tight mask on the face that helps to ventilate for the patient. It’s one procedure short of putting the tube down the throat, which a lot of people consider full resuscitative effort. So you might call it resuscitation-light while we start to figure out what to do[?]

A tattoo that says ‘Do not perform Cardio-pulmonary resuscitation under any circumstances’ is much less ambiguous than ‘DNR’.

There is legislation in some, but not all, Australian jurisdictions that create a more formal means for making advance care directives but these Acts apply along side, and not instead of the common law rules.  They are an alternative means but they do not deny pre-existing common law rights to refuse treatment. A DNR tattoo may be useful in drawing the health care team’s attention to the idea that there may be a more formal declaration. A person may not carry their Advanced Care Directive in their pocket but the DNR tattoo would alert the team that it may exist.  As Dr Greg Holt, Assistant Professor of Pulmonary Critical Care Medicine at the University of Miami says about his care of a patient with a DNR tattoo:

Part of me says what it really did is cause more confusion than clarity. Because our first initial impression was, whoa, is this real, is this not real, and made us really contemplate the veracity of it and really push to find this person’s documentation at home. But then you have to think this is what the man really wanted, so in fact it actually really did work because I don’t know if someone would have gone through his house trying to find the ‘do not resuscitate’ document if he didn’t have such a tattoo. And so I think it was both good and bad at the same time. It caused a bunch of confusion, but in the end we abided by the man’s wishes.

It should be noted that in that case the team had decided to abide by the tattoo even before the formal documentation was found.  As he says:

… our ethics consultation came down, they evaluated the case, goes through everything we have on the patient. And he comes to the conclusion that it is most likely that this is his true wishes to withhold life-sustaining therapy. And so using all the available evidence that we have on this patient at that point, we’re going to honour his DNR tattoo, and the man died probably about I’d say 24 hours after he presented to the emergency room.

… Probably about four to six hours after the ethics consult has told us that we should probably abide by the DNR tattoo, our social worker tracks down who this person is, I think through their fingerprints. They track him down to his home, they find that he has this legal form in Florida that states that he wanted to be ‘do not resuscitate’. It corroborated perfectly our ethics consult and we all felt better from that.

In other words finding the formal documentation made them feel better about the decision that they had already made, it did not determine what the decision was.

Possible legal consequences

The Health Report does not detail possible legal consequences but I’m going to suggest there are four.

1. Resuscitation is applied, and the patient dies anyway. If it’s found that the tattoo did not reflect the patient’s wishes there’s no problem. There was no valid refusal so emergency care was applied as permitted by the doctrine of necessity – see The doctrine of necessity – Explained (January 31, 2017). If the tattoo does represent the patient’s wishes then the treatment was a battery. Battery is ‘actionable per se’ that means you can sue for battery, and win, without having to prove actual damage. The unlawful interference is damage enough. But without actual damages any award of damages, ie any award of money, is likely to be small. And where the patient has died there is no ability to compensate him or her so any award is a windfall to the beneficiaries of the estate.  Whilst an action in battery may be possible (ignoring a myriad of defences that could be raised) it is unlikely and the damages (if any) would be minimal.
2. Resuscitation is not applied and the patient dies. As noted in Malette v Shulman ‘The onus is clearly on the patient … they must accept the consequences of their decision. Neither they nor their dependants can later be heard to say that the [tattoo] did not reflect their true wishes.’
3. Resuscitation is applied, and the patient makes a full recovery. Again there could, at least in theory, be an action for battery but it seems unlikely. In Malette v Shulman, Mr Malette did receive Canadian $20 000 in damages for the battery but in that case the violation of her religious beliefs and the doctrine of her church had consequences that extended beyond the treatment.  If a person does not want to be resuscitated because of the fear of the outcome, rather than a religious conviction (and I don’t know of any church that objects to resuscitation per se) then the fact that they survive would again make any damages award nominal, at best.
4. Resuscitation is applied, and the patient survives but with significant disability. This may be the very outcome that they didn’t want. And now they (or their family) face a life that they don’t chose with costs both financial and otherwise.  As Jill Elliot says:

They’ve got no right to tell me, when I’m unconscious, whether I should live or die. I’m a lonely old lady now, why the hell would I want anybody dictating my life.

But if you refuse to honour the person’s decision that is what you are doing – dictating their life.  In this blog and in the absence of specific facts one can’t canvass the various defences that would be available, but if we accept that the tattoo did reflect the patient’s wishes then the battery (ie treatment contrary to their wishes) has led to a significant and on-going loss and the damages awarded could be very high.

There is no doubt these decisions would be very complex and difficult, and also rare.  As Dr Holt says of his reaction to seeing a DNR tattoo on his patient:

My first reaction to this was, wow. I thought this was an urban legend. We have always joked around about it in medicine. After somebody has a cardiac arrest, somebody will always say, ‘Boy, I never want this to happen to me, I’m going to tattoo DNR on my chest.’ But you never thought you’d see one, and now I’m looking at one.

As noted in In Re F [1990] 2 AC 1, treatment of the unconscious cannot ‘be justified when it is contrary to the known wishes of the assisted person’.  The critical issue is ‘known’ wishes. As noted the tattoo certainly gives evidence that the person has expressed wishes but, as also noted above, tattoos (and other directions) may be ambiguous.  In that case the actions demonstrated by Dr Holt – ‘buy some time’ – would appear appropriate, or at least it was in that case.

Conclusion

A DNR tattoo cannot be ignored. A person has a right to refuse treatment, even lifesaving treatment, and to communicate that wish in any way that is capable of communicating that wish. A formal advanced care directive is one way, but so is a card or I would suggest, a tattoo.

Whether a tattoo has to be honoured on its face will depend on all the circumstances including the terms of the tattoo.  Where it is unambiguous – ‘Do not peform Cardio-pulmonary resuscitation under any circumstances’ – it would seem appropriate to honour it.  Where it is ambiguous – ‘DNR’ – then it may be appropriate to take action to ‘buy time’ but the team is put on notice that further inquiries are required.

In a blog discussing general principles I can’t give advice on what is to be done in a particular case, other than to say, in any case, one cannot infer that the tattoo is the equivalent to ‘meaningless piece of paper’, meaningless ink.  It has some meaning and it would be incumbent on the medical team to enquire as to what that meaning, if it is not clear, is.

 

 

 

 

 

Today’s question relates to the use of protected titles.  Whilst this question relates to nurses, it will also be relevant to paramedics. Once registered under the Health Practitioner Regulation National Law the title of ‘paramedic’ will, like the title of ‘nurse’ be a protected title.

The question is:

Given that the word nurse is a protected title under law and may be taken as someone who is registered with AHPRA. What would be the legal standing of an assistant in nursing who is not eligible for registration under AHPRA identifying themselves as a nurse? I ask as we have student nurses (RN etc) working as AINs in acute hospitals and nursing homes etc and identifying themselves as nurses. Could they be placing future registration at risk by identifying themselves as “nurse”?

As with most questions the answer depends on the context. The word ‘Nurse’ is both a noun ‘a person trained to care for the sick or infirm, especially in a hospital’ and a verb ‘give medical and other attention to (a sick person)’ (Oxford Dictionaries Online).  A person can nurse another without being ‘a nurse’.  One might imagine that in a nursing home or other place a person may describe the person who is providing nursing type care as a nurse without distinguishing the various categories of nurse that there may be.  And a person may chose not to correct that or may identify that they are ‘nursing’ Mr Jones or say ‘I’m one of your mum’s nurses’ in order not to confuse matters where the people they are talking to are not aware of all the different categories of people involved.  If a person is not trying to pass themselves off as something they are not, are not trying to obtain any advantage or mislead anyone then I can imagine the health regulators may not see that as an issue.

But let us turn to the letter of the law.  The Health Practitioner Regulation National Law is set out as a schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) and is then adopted, with some local variation, in each state and territory to create the national scheme.   To answer this question I’ll refer to the national law as adopted in Queensland, that is the Health Practitioner Regulation National Law (Queensland) but the answer will be the same nationwide.

The Health Practitioner Regulation National Law does not define scope of practice nor does it make it an offence to practice one of the registered professions without being registered.  There is not clear definition therefore of what it is to be, or practice as, a nurse or a medical practitioner or in due course, a paramedic. What it does do is make it an offence to adopt or use any of the protected titles.  Section 113(1) says:

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.

Note, consistent with my opening comments, the offence is committed not so much by the use of the title, in this case ‘nurse’, but the use of the title ‘in a way that could be reasonably expected to induce a belief [that] the person is registered under this Law…’ as a health professional. For an individual the maximum penalty (at least in Queensland) is a fine of $30 000.

With respect to nurses, the protected titles are ‘nurse, registered nurse, nurse practitioner, enrolled nurse, midwife, midwife practitioner’ (s 113).

A person may be registered as a student health professional (ss 86-93).  There is nothing in the National Law about the title for students’ but I would suggest someone who described themselves as a ‘student nurse’ is not adopting the title ‘nurse’ in a way that would mislead anyone into thinking they are registered as a nurse.  And of course, a registered student nurse is registered in the profession of nursing, albeit as a student.  Accordingly, although there is no specific mention of the title ‘student nurse’ it seems that the use of that title by a registered student of nursing is unproblematic.

When considering whether or not a person should be registered as a health professional, the relevant Board must determine whether or not ‘the individual is a suitable person to hold general registration in the health profession’ (s 52).  Section 55(1) says:

A National Board may decide an individual is not a suitable person to hold general registration in a health profession if—

(a) …

(b) having regard to the individual’s criminal history to the extent that is relevant to the individual’s practice of the profession, the individual is not, in the Board’s opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or …

(h) in the Board’s opinion, the individual is for any other reason—

i. not a fit and proper person for general registration in the profession; or

ii. unable to practise the profession competently and safely.

If the Board is satisfied that the person has been using a protected title and holding themselves out as a registered health professional or at least acting in a way that is likely to mislead others, then even without conviction the Board may determine that this indicates that the person is ‘not a fit and proper person for general registration’ (s 52(1)(h)).  Where the person has been charged with and convicted of an offence contrary to s 113 then a finding that the person is not a fit and proper person is even more likely (s 52(1)(b)).

Conclusion

It is illegal to use the term ‘nurse’ ‘in a way that could be reasonably expected to induce a belief the person is registered under this Law’.  Where a student nurse is practicing, in any capacity, to describe themselves as a ‘nurse’ may well induce a belief that are registered as a nurse (and not as a student of nursing).   The aim behind the legislation is that anyone who is not eligible for general registration as a nurse should not, indeed must not, use the title ‘nurse’.  Anyone who does could well be asking for trouble if they later seek registration as a nurse and that practice is brought to the attention of the Board.

The same answer will apply if, in the future, a person uses the title ‘paramedic’ without being registered as a paramedic and who subsequently does apply for registration in that profession.

A correspondent has brought an English case to my attention and says:

Although it relates to the UK and to a doctor it could have salient lessons for paramedics when they become registered… it raises some good debating points around organisational vs personal responsibility.

The story is set out in the link. below:

http://www.pulsetoday.co.uk/your-practice/regulation/gmc/bawa-garba-timeline-of-a-case-that-has-rocked-medicine/20036044.article#.WmviGZLcmTA.twitter

The gist of the story is that Dr Hadiza Bawa-Garba was ‘convicted of manslaughter on the grounds of gross negligence’ and given a 24-month suspended sentence. She was also suspended from practice as a medical practitioner for 12 months.  The General Medical Council (the GMC) appealed to the High Court which upheld the appeal and ordered that Dr Bawa-Garba be struck off the medical register.  (Note that in the UK the High Court might be considered akin to an Australian Supreme Court. In Australia the Supreme courts hear trials of serious cases and hear appeals from lower courts. To confuse things, there is an appeal from an Australian Supreme Court to the High Court of Australia. In the UK there is an appeal from the High Court to the UK Supreme Court).

In trying to understand if this decision has implications for Australian paramedics, we need to consider what is meant by negligent manslaughter and what implications a similar result may have for paramedics when they are registered under the Health Practitioner National Law.

Under Australian common law there are two categories of manslaughter. Voluntary manslaughter where the accused intended to kill the deceased but can take advantage of one of the partial defences – provocation or diminished responsibility (there may be slight variations in the name in the jurisdictions).  Involuntary manslaughter is where the accused kills the deceased without intending to kill. Rather the death was due to an unlawful and dangerous act or criminal negligence.

In Nydam v R [1977] VR 430 the Victorian Supreme Court said:

In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.

In Wilson v R (1992) 174 CLR 313 the High Court of Australia said that ‘For manslaughter by criminal negligence, the test is “a high risk that death or grievous bodily harm would follow”.’

The problem with the test for criminal negligence, ie ‘circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised … that the doing of the act merited criminal punishment’ is that there is no clear definition of when that arises. It is a question for the jury. One might object that this does not give certainty nor guidance to allow people to know, in advance what the law requires. On the other hand, for those that complain about the judicial system, it is a test that allows the jury, as representatives of the community, to determine whether or not conduct in the circumstances is so gross as to warrant punishment.

There is a difference between negligence that leads to an order for compensation and criminal negligence.  The diagram below may help:

If we consider the relevant conduct, in Dr Bawa-Garba’s case, conduct as a medical practitioner or for this discussion, conduct of a paramedic there is the standard of the ‘reasonable’ practitioner.  The ‘reasonable’ practitioner is not necessarily the best so there is conduct above and beyond the reasonable standard, but the minimum expected is ‘reasonable’ performance, as shown by green line above.  Where a person fails to perform at that reasonable standard and causes damage to a person to whom they owed a duty of care then that would be the tort (or wrong) of negligence. The negligent practitioner would be liable to pay compensation for that loss but as noted in earlier posts, where the person is an employee, it is their employer that is liable.  Also, one can insure against liability to pay damages in tort so it is very rare that the defendant pays damages for negligence. It is either their own, or their employer’s insurer, that pays.

Where conduct amounts to gross negligence (the red line, above) the negligence moves to the criminal sphere.  At this point there is no vicarious liability (your employer can’t go to gaol on your behalf) nor can one insure against the risk (your insurance broker won’t go to gaol on your behalf, either).  In criminal negligence the Crown must prove the case beyond a reasonable doubt and the sentence imposed by the Court is intended to punish and deter the offender, and others.  It is not an order to pay compensation to any one that is injured.

For those interested, you can read the decision of the UK Court of Appeal – Bawa-Garba v R [2016] EWCA Crim 1841 – that upheld her conviction of manslaughter.  The facts of that case aren’t however vital for this discussion. For Australian paramedics what needs to be considered is there some conduct that a paramedic could engage in that is so far below the standard to be expected of the reasonable paramedic to warrant criminal punishment?  One can imagine giving the wrong drugs, asking the spinal injury patient to walk or the like. I’ll leave to clinicians reading this blog to consider what might meet that threshold test of conduct that involves ‘such a great falling short of the standard of care which a reasonable [paramedic] would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment’.  It is likely to be conduct that you think ‘no-one would do that’ but that is of course the point. The conduct that everyone thinks ‘no-one would do that’ is the type of conduct that is criminally negligent when someone does.

The first conclusion is, therefore, that although it’s hard to imagine the circumstances where it would arise it is indeed theoretically possible that in the right circumstances, a paramedic could be guilty of manslaughter by criminal negligence (as may anyone).

So what does it mean if a paramedic is convicted of this offence and what difference will registration make?  One can assume that a paramedic was convicted of manslaughter by criminal negligence he or she would be likely to lose his or her job as a paramedic.  I can’t imagine that an ambulance service could defend retaining the employment of a paramedic who had been found, beyond reasonable doubt, to have contributed to a patient’s death due to gross negligence. One can also, I think reasonably, assume that a paramedic convicted of that offence would have difficulty finding ongoing employment with another ambulance service given that conviction.

What different will registration make?  Under the Health Practitioner National Law ‘unprofessional conduct’ includes ‘the conviction of the practitioner for an offence … the nature of which may affect the practitioner’s suitability to continue to practise the profession’ (s 5).  Conviction of negligent manslaughter would fit that definition. Professional misconduct is ‘unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience’ (s 5). By definition, criminal negligence requires conduct substantially below the standard expected of a reasonable health practitioner and relevantly in this context, a reasonable paramedic.

A paramedic convicted of manslaughter by gross negligence could also expect to be subject to disciplinary proceedings (s 243) and, like Dr Bawa-Garba, could expect to be suspended or struck off.  However, there are advantages for everyone.

In the absence of registration, a paramedic convicted for example in Queensland may lose his or her job with QAS but may get a job with Tasmania Ambulance as Tasmania Ambulance may not be aware of that conviction. There is no central place where that conviction is recorded. That may be unlikely if the paramedic needs to apply for a police check, but it is possible.  If the prosecution is known, the paramedic could expect to never work as a paramedic again.

With registration then, to continue my example, Tasmania Ambulance could verify that the paramedic has been suspended or struck off by checking the paramedic’s registration so there would be less risk of the paramedic slipping through the cracks in the process.  For the paramedic, if they are suspended they know when they will be able to return to their profession. Even if they are ‘struck off’ it is not necessarily forever.   In due course the paramedic (like Dr Bawa-Garba) could apply again to be registered if he or she could show that there has been a sufficient time and circumstances that would satisfy the relevant board that the person is not a risk to the community and in all the circumstances, can show that they are again a fit and proper person to be registered. Once registered by the relevant Board, one would anticipate that an employer could look beyond the earlier conviction given the Board has determined that the person is again fit to practice. That is not to say that would be an easy process or that a person could re-register, but at least it is an option.

The impact of the jury’s decision

There is one issue in Dr Bawa-Garba’s case that I think my correspondent particularly wants me to address. The issue is the role of institutional or system contribution to the outcome. There were systemic failings and Dr Bawa-Garda argued that these were the cause of the poor outcome but this was rejected by the jury as shown by their decision to convict her.

On the question of the appropriate professional penalty, Counsel for the GMC said (General Medical Council v Dr Bawa-Garba [2018] EWHC 76 (Admin), at [26]) ‘the Tribunal had in effect allowed evidence of systemic failings to undermine Dr. Bawa-Garba’s personal culpability, and to do so even though those failings had been before the Crown Court which convicted her…’  That is when determining to suspend her, the Tribunal accepted arguments that the jury had rejected.

Mr Justice Ouseley concluded that the Tribunal had made an error and that Dr Bawa-Garba must be struck off the register of medical practitioners. He said (at [38]):

Full respect had to be given by the Tribunal to the jury’s verdict: that Dr. Bawa-Garba’s failures that day were not simply honest errors or mere negligence, but were truly exceptionally bad. This is no mere emotive phrase as one witness, Dr. Barry, before the Tribunal appeared to suggest, nor were her mistakes mere mistakes with terrible consequences. The degree of error, applying the legal test, was that her own failings were, in the circumstances, “truly exceptionally bad” failings. The crucial issue on sanction, in such a case, is whether any sanction short of erasure can maintain public confidence in the profession and maintain its proper professional standards and conduct. We consider that Mr Hare is right that the Tribunal’s approach did not respect the true force of the jury’s verdict nor did it give it the weight required when considering the need to maintain public confidence in the profession and proper standards.

And later (at [41]):

… a fair reading, shows that the Tribunal did not respect the verdict of the jury as it should have. In fact, it reached its own and less severe view of the degree of Dr. Bawa-Garba’s personal culpability. It did so as a result of considering the systemic failings or failings of others and personal mitigation which had already been considered by the jury; and then came to its own, albeit unstated, view that she was less culpable than the verdict of the jury established. The correct approach, however, enjoined by R34 of the Rules, is that the certificate of conviction is conclusive not just of the fact of conviction (disputed identity apart); it is the basis of the jury’s conviction which must also be treated as conclusive, in line with what the Rule states about Tribunal findings. Mr Larkin did not dispute that the Tribunal had to approach systemic failings or the failings of others on the basis that, notwithstanding such failures, the failures which were Dr. Bawa-Garba’s personal responsibility were “truly exceptionally bad”, and those are summarised in the judgment of the CACD. Although Mr Larkin is right that such factors may reduce her culpability, they cannot reduce it below a level of personal culpability which was “truly exceptionally bad”. The Tribunal had to recognise the gravity of the nature of the failings, (not just their consequences), and that the jury convicted Dr Bawa-Garba, notwithstanding those systemic factors and the failings of others, and the personal mitigation it considered. The jury’s verdict therefore had to be the basis upon which the Tribunal reached its decision on sanction.

The implication of this part of the decision is not directly applicable to Australian paramedics. The extent to which a tribunal in Australia could make decisions that might be inconsistent with a jury’s verdict will eventually depend on the rules promulgated by the relevant board.  One can expect however that where, in disciplinary proceedings, it is alleged that the paramedic’s conviction is what constitutes unprofessional conduct/professional misconduct then it would have to be the case that it is the facts as found by the jury that are relevant in determining whether that conviction does or does not demonstrate unprofessional conduct or professional misconduct.  If the ‘prosecution’ is relying on the conviction the Tribunal would have to look at the conviction and facts as found by the jury. It could not dismiss the case on the basis that the Tribunal would not have convicted the practitioner. It is the conviction, and therefore the facts that form the basis of that conviction, that constitute unprofessional conduct so it can’t be open to the Tribunal to find that the facts established by the jury are not the facts to determine the professional sanction.

Conclusion

My conclusions are:

1. A paramedic could be convicted of manslaughter by criminal negligence but I can’t really imagine an appropriate example where that may arise.
2. Whether there is registration or not, a paramedic would expect to lose their ability to practice as a paramedic. At least with registration the fact that the paramedic has been ‘struck off’ could be verified by any potential employer and so ensure that the person can’t slip through and get another job in another jurisdiction. Further it may open to the door to a return to practice if, after a sufficient time, the paramedic can convince the Board that he or she is again a fit and proper person to practice.
3. Where a person is convicted and professional disciplinary action is commenced on the basis of that conviction, the relevant decision maker would have to make a decision consistent with the conviction and could not find or base the decision on a view of the facts that is inconsistent with that verdict. The exact reasoning in General Medical Council v Dr Bawa-Garba [2018] EWHC 76 (Admin) would not apply in Australia as it is an English case and the rules of Paramedicine Board are not going to be exactly the same as the Sanctions Guidance issued by the GMC but the general principle will still apply where the conviction is the basis of the complaint of professional misconduct. The decision maker will have to accept the facts are as determined by the jury.

 

Today’s question comes from a paramedic. The state doesn’t matter as the answer will be the same across Australia.

Recently my Ambulance service issued a Work Instruction regarding “Commencement of Shift”. The Instruction includes the (very reasonable) direction that all paramedics are to complete a “Mandatory” pre-shift check of equipment, communications devices and the vehicle itself.

The Instruction then states that the crew may be tasked to a job even if the “mandatory” check has not been completed.

In the event of a serious incident occurring (to either patient or staff) following a crew being dispatched after explicitly being instructed to not complete a pre-shift check, what grounds do you think the workers would have to defend themselves?

Let me draw you a hypothetical scenario.

Upon arrival at work, a paramedic receives a phone call from a dispatcher.  They are instructed to immediately get into an ambulance and drive to an urgent job. The paramedic protests that the mandatory pre-shift vehicle check has not been completed and that they are unprepared to commence work. The dispatcher invokes the instruction then states that the crew may be tasked to a job even if the “mandatory” check has not been completed. The paramedic is fearful of the repercussions of acting against policy, so they get in the car and go.

Part of the mandatory pre-shift check involves the paramedic letting the dispatch team know which portable radio they are carrying. The portable radio has a duress button which can be pressed if the paramedic should require urgent police assistance.

At the job, the paramedic is confronted with a violent and intoxicated patient. The situation escalates, and the paramedic is assaulted. The paramedic has activated the duress button, but the dispatcher does not know who is carrying that particular radio or where the radio is located, so they are unable to send police to the scene. The paramedic receives significant injuries and the patient flees the scene.

In the subsequent police investigation, the paramedic makes a claim of negligence against the dispatcher, alleging breaches of the WHS Act and Regulations. The dispatcher defends their actions as being in line with the policy of the employer and blames the paramedic for not leaving the scene earlier. The paramedic also makes a report of a notifiable incident to SafeWork.

In this situation, do you think a claim of negligence against the dispatcher would be successful? Would this be a criminal or a civil matter? And would the safety regulator investigate what is already a police matter?

Separating legal issues

We lawyers like to put things into pigeon holes. There are different legal boxes and the issues are different in each. Negligence is a common law (ie comes from judge made law). Work Health and Safety law is all based on statute and is enforced by criminal law.  Each cause of action has its own elements and legal issues.

In an action for negligence a plaintiff (the person doing the suing) has to prove that the defendant owed the plaintiff a duty of care, failed to act reasonably to meet that duty and that, in turn, caused the plaintiff’s damage.  It may be relevant to plead a breach of the Work Health and Safety Act but a civil court hearing an action in negligence cannot determine whether or not someone has committed a criminal offence. The statement ‘the paramedic makes a claim of negligence against the dispatcher, alleging breaches of the WHS Act and Regulations’ suggests some confusion and we’ll deal with the issues separately ie 1) an allegation of negligence and 2) an allegation of breach of the WHS legislation, but they are not the same issue.

Police do not investigate negligence, they investigate crime. If, in a ‘subsequent police investigation, the paramedic makes a claim of negligence’ the police would suggest that is not their concern (unless the negligence is so extreme as to amount to gross criminal negligence).  Again, the statement ‘in the subsequent police investigation, the paramedic makes a claim of negligence’ again suggests a confusion of the legal rubric.  The police are looking for evidence of a crime, not negligence.

Claim of negligence against the dispatcher

The first question I’m asked is ‘In this situation, do you think a claim of negligence against the dispatcher would be successful?’ My answer is there is no chance, whatsoever, that a claim against the dispatcher would succeed.

The dispatcher is, like the paramedic, an employee of the ambulance service or some other agency (eg the Emergency Services Telecommunications Authority in Victoria).  As has been noted on this blog before, the doctrine of vicarious liability says that an employer is liable for any negligence of an employee (see Vicarious liability for the actions of fire wardens (March 5, 2016)). If there is any negligence then it will be the dispatcher’s employer, not the dispatcher that will be liable.

But where is the negligence? The ambulance service says that the crew can be despatched before the check is complete. What’s the alternative? First the crew that’s coming off duty, could be despatched on overtime but that too carries risks for that crew who may have had a busy shift.  Alternatively, there is a 10-minute period at the start of each shift when the ambulance service simply can’t respond to a triple zero call.

Some things do require shift checks – eg making sure that all the scheduled drugs are accounted for and the ambulance is stocked. Other things may not require a check every shift but asking crews to do that ensures that faults are located as soon as possible and also builds in a redundancy. For example, let’s assume that it’s part of the list to check the oil (I don’t know if it is, but let’s assume it is).  It probably doesn’t matter if the oil isn’t checked every day. Perhaps it could be checked once a week. But if it was listed as a weekly check and it was missed it will be another week before it is next checked. If it’s on the shift check list and it’s missed, then it will be checked next shift – building in a redundancy into the system.

In determining whether there has been negligence (assuming there is a duty of care) a court considers how a reasonable defendant may respond to the risk. In doing that the court considers:

… the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities (Wyong Shire v Shirt (1980) 146 CLR 40, 48).

In determining the policy response, the ambulance service has to consider risks to crews coming off shift, crews starting their shift and the patients who need an emergency service. None automatically trumps the other, all have to be considered.  The risk to the patient of saying ‘we’ll be there in 10 minutes’ seems much greater than the risk to the crew from any potential risk.  Even the risk of the hypothetical scenario suggested by my correspondent is much lower (ie it’s not likely to happen and remember the defendant has to make decisions not knowing what’s going to happen so the defendant has to ask how likely is that something like the situation described will occur) than the risk to a person who calls triple zero but does not receive a timely response.

Then there is the question of did any breach actually cause any damage. It’s impossible to say that the failure to complete the check list is the cause of the damage.  In the example given it’s the conduct of the patient that causes the paramedics injury. The High Court has been reluctant to impose liability in negligence on person A for the criminal conduct of B (Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61).  Even if the patient is ‘not guilty’ of an offence it is still the patient’s conduct, not the failure to complete a check list, that caused the injury.

There could be no success as the requirement to respond if called upon, even if the check list has not been completed, seems axiomatically reasonable.

But if we assume that is not the case, the dispatcher is not negligent.  He or she is as bound by the policy as the paramedic. If the paramedic is ‘is fearful of the repercussions of acting against policy, so they get in the car and go’ one would or could infer that the dispatcher is also ‘fearful of the repercussions of acting against policy’. If there is negligence by the dispatcher, then his or her decision is the same as the paramedic so there would be negligence there too (but there isn’t).

So, an action against the dispatcher won’t succeed:

1. Because it is the employer not the individual that would be liable for any negligence (if any);
2. It is difficult to see how the policy is anything other than reasonable.
3. The dispatcher is as bound by the policy as the paramedic, if there is negligence (and I can’t see how there is) then it must be the service as the owner of the policy that is negligent.

Work Health and Safety

The ambulance service is the primary duty holder. I haven’t identified a jurisdiction but for this discussion I’ll assume the model 2011 Act applies (as it does in each jurisdiction other than WA and Victoria).  Under the Work Health and Safety Act 2011 s 19, the person conducting a business or undertaking has to ensure a safe workplace. Paramedics could be made safe from violent patients if the employer refused to send them to any job, but that would not be an effective or ‘reasonable’ response.

In determining what is reasonably practicable a court or person conducting a business or undertaking has to consider (s 18):

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about:

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

Again, the ambulance service has to consider the potential risk to those coming on shift who have to complete the checklist and the crew ending their shift, and patients, if the crew who are on station but who have not completed the checklist are not available for a response.  Whilst I don’t know what’s on the daily list I would suggest that the risk of injury etc of not doing it, when compared to the risk of delaying a response would suggest that it is not unreasonable to allow crews to be despatched.

Would this be a criminal or a civil matter?

I can’t see how the ambulance service or the dispatcher has committed any criminal offence.

And would the safety regulator investigate what is already a police matter?

Again it’s important to remember different legal boxes have their own rules, elements and processes. The police would be investigating general criminal matters, given the scenario there focus is likely to be on whether there is evidence to support a prosecution of the patient.

The industrial/safety issue is another reason. There is nothing to stop the work safety regulator conducting an investigation into whether there have been breaches of WHS law at the same time, and independently of police.

I would suggest, however, in the scenario given, neither the police nor the work safety regulator would be concerned about the checklist.

Conclusion

I was asked

In this situation, do you think a claim of negligence against the dispatcher would be successful?

No, I think a claim of negligence against the dispatcher would stand no chance of success.

Would this be a criminal or a civil matter?

The action of the patient would be a criminal matter.  An allegation of negligence is a civil matter, but I can’t see any negligence. An action by the safety regulator under WHS legislation would be criminal in nature but again I can’t see that anyone would think there has been a criminal offence here.

And would the safety regulator investigate what is already a police matter?

Safety investigators run concurrent investigations all the time.

Today’s question comes from an academic in a Victorian nursing program. Part of their class work involves a discussion on:

… the difference between private and public hospitals in Australia.

When looking at the issue, I came across a comment from the US that said that in the US, Private hospitals can refuse treatment whereas public hospitals cannot.

Is this the case in Australia?

I know that Private hospitals want payment up front, I’m not sure however what would happen if a patient was not able to make that payment (presumably it would be determined by the severity of the patient’s condition, and how this would be determined, I’m not sure – is life-threatening enough?).  In my experience AV always ask if a patient is privately insured before transport to a Private facility and also advise that there is an upfront cost.  If they are not prepared to pay, AV has suggested that they go to a Public hospital instead.  I’ve also heard of an ED doctor tell a patient to leave the Private hospital and had refused to treat them.  Are you able to let me know the legal position?

It stands to reason that private hospitals can refuse to treat patients. They are a business and are entitled to decide who they contract with. Provided they service isn’t refused on grounds that are unlawful under anti-discrimination legislation a private hospital is free to decide who it will accept as a patient.  They can refuse treatment if you can’t pay, but not on the grounds of gender, race etc.

In light of the content of this blog and the specifics of the question I infer that the real question is can they refuse to assist a person in an emergency.  That is a slightly different issue.

In Victoria public hospital service principles are established by agreement between the State and the Federal Governments (Health Services Act 1988 (Vic) s 17AA).  Let us assume that the principles established ensure that a public hospital must treat all persons that arrive at the hospital including emergency patients even if they do not have an emergency department. In that case the expected care may be limited but they couldn’t simply shut the door and say ‘we don’t treat emergency cases’.

The Minister may enter into an agreement with a private hospital for that hospital to provide ‘health services to public hospital patients’ (Health Services Act 1988 (Vic) s 69B).  A private hospital or day procedure centre may be specifically licensed to provide emergency health care services (Health Services (Private Hospitals and Day Procedure Centres) Regulations 2013 (Vic) rr 6 and 7).  If a private hospital is licensed to provide emergency services and has an agreement with the state government to provide those services to public hospital patients then, whilst it might depend on the specific terms of the agreement, one can infer that the hospital could not refuse to treat any emergency patient that arrived at the hospital. (For an example of that sort of public/private arrangement to deliver public emergency health care in the Australian Capital Territory, see the Calvary Public Hospital in Bruce, ACT).

What of other private hospitals.  Not all private hospitals provide or have the capacity to provide emergency services, or other specialised health services. It must be the case that they can refuse to provide treatment to a person who needs treatment that the hospital cannot offer.

There are no regulations in the Health Services (Private Hospitals and Day Procedure Centres) Regulations 2013 (Vic) that says a private hospital must provide treatment to emergency patients that arrive.  There is no equivalent, at least in Victoria, to the Emergency Medical Treatment & Labor Act 1986 (USA).   Under that Act a hospital that operates an Emergency Department within the United States must examine a person who requests emergency care to determine if there is an emergency and must provide treatment or stabilise the person and transfer them to another hospital.  But note that is limited to hospitals that operate an emergency department, not ones that do not.

The critical issue in Australia is going to be the obligation upon a medical practitioner.  In Lowns v Woods (1996) AustTortsReps ¶81-376 (Kirby P and Cole JA; Mahoney JA dissenting) a doctor was found negligent for not providing emergency care when asked to assist with a patient who was nearby. The finding that there is a duty will be even easier if the doctor is at work at a hospital and the patient has been brought to that hospital.  That does not mean the doctor has to provide the full range of emergency medical services, but he or she could not simply wash their hands and say ‘this is a private hospital and this patient has no insurance’.

By the same reasoning one would also argue that the hospital, particularly if it operated an emergency department, would also owe a duty to assist a person who arrived at their door seeking help, but what that duty would require would depend on all the circumstances.

The matter is made even more clear by the Good medical practice: a code of conduct for doctors in Australia (17 March 2014) published by the Medical Board of Australia.   That document says (at [2.5]):

Treating patients in emergencies requires doctors to consider a range of issues, in addition to the patient’s best care. Good medical practice involves offering assistance in an emergency that takes account of your own safety, your skills, the availability of other options and the impact on any other patients under your care; and continuing to provide that assistance until your services are no longer required.

Doctors have an independent professional obligation to those that require their services that exist above and despite any edict from their employer.  What follows is that if a doctor is at a private hospital and is aware that a person needs emergency assistance, that doctor is required, subject to all the considerations listed in [2.5] to offer ‘assistance … and continu[e] to provide that assistance until … no longer required’.

The assistance provided may be quite minimal and amount to not much more than first aid and calling an ambulance to have the person treated by paramedics and transferred to a public hospital, but the patient can’t be ignored. That’s true even if the hospital management say ‘we don’t provide an emergency service’.

Conclusion

What follows is that private hospitals must be able to refuse treatment to people. They are a private business and can determine their business model and who they accept as a patient and who they do not (subject to anti-discrimination legislation at both state and commonwealth level).

They don’t have to treat people who insist on being treated but who cannot pay for their services. For those people there is the public health network and Australia’s comprehensive health insurance scheme, Medicare.

Private hospitals don’t have to treat people who need services that they do not provide.

Although the hospitals are not compelled to provide public emergency health services, a doctor at the hospital will have professional obligations to assist at a medical emergency that occurs in the hospital so that might involve a patient, a visitor or someone who comes to the door and asks for help.

A doctor and the hospital would also have a common law duty to assist a person who needed emergency medical care at the hospital but what that might involve would be limited by all the circumstances.

If AV (Ambulance Victoria) was treating an emergency patient I fail to see why they would take a patient to a private hospital. If they did and if the hospital operated an emergency department, there would no doubt be some obligation upon the hospital and staff to provide assistance but that would not extend to having to admit the patient and provide ongoing care.  It may be no more than to assist to stabilise the patient pending their transfer to a public hospital.  If the hospital did not operate an emergency department even less could be expected.

If the hospital operated a public emergency unit, in particular if it had entered into an agreement with the government to provide public hospital services then it would have to accept a patient on the same terms as any public hospital and emergency health services are provided free in Australian public hospitals.

On 19 January 2018 a Full Bench of the Industrial Relations Commission (NSW) made a new award relating to Death and Disability for firefighters employed by Fire and Rescue NSW (‘FRNSW’) – Re Fire and Rescue NSW Firefighting Staff (Death and Disability) Award 2017 [2018] NSWIRComm 1003.

These matters are usually determined by agreement rather than a determination of a three member bench. What made this one different was a provision that, in the argument of FRNSW, would have put it in breach of the Occupational Health and Safety Act 2011 (NSW) (see [7]).

The previous award provided that where a question of a firefighter’s fitness for duty arose, a firefighter would obtain a medical clearance from their own ‘nominated medical practitioner’. That practitioner would forward the report to an ‘independent occupational physician nominated by FRNSW’. The independent occupational physician would review the report and advise FRNSW that the firefighter was fit for duty, fit for duty ‘with specified requirements or restrictions’, temporarily unfit for duty as a firefighter but fit to perform alternative duties, temporarily unfit to perform any duties or ‘permanently unfit to perform the firefighter’s ordinary duties’ [12].  No other information would be given to FRNSW.

FRNSW said without detailed information about a firefighter who was assessed as either unfit for duty, or fit for duty but subject to restrictions, it could not take steps to ensure a safe workplace for that firefighter ([7]). It wanted a clause that said, in effect, where a firefighter was assessed as ‘unfit by the independent occupational physician (“IOP”), either temporarily or permanently, the IOP is to also supply FRNSW with all related medical information’ ([13]).  At [14] the Tribunal said:

The position adopted by the FBEU [Fire Brigade Employees’ Union of New South Wales] was that the firefighter’s nominated medical practitioner would review and discuss the firefighter’s health and fitness check, together with the results, with the firefighter and advise FRNSW that the firefighter had attended and completed their required health check. No other information would be provided to FRNSW.

In support of its position, FRNSW relied on the evidence of a ‘an occupational physician employed by FRNSW’ ([15]).  The FBEU relied on ‘the “Ethical Guidelines for Occupational and Environmental Physicians” prepared by the Royal Australasian and [sic] College of Physicians which emphasised the need to protect the confidentiality of information about the health status of employees’ ([16]).

The result (at [17]) was that the Full Bench inserted the following clause into the award (underlining provided in the judgement):

The independent occupational physician will provide no other information or advice to FRNSW concerning the firefighter’s health and fitness without the firefighter’s consent apart from such information regarding the specified requirements or restrictions as, in the professional opinion of the independent occupational physician, is necessary for the safe management of the firefighter. If the firefighter disagrees with the independent occupational physician’s advice to FRNSW, then it will be open to the firefighter to seek a determination of their fitness for duty under Clause 8.

That it is up to the IOP to determine what information should be given to FRNSW may, no doubt, lead to disagreement something which the Tribunal noted.  They said (at [18]):

In the view of the Full Bench the addition of these words … appropriately, at least at this stage, balances the right to privacy on the part of employees and the employer’s need for information to meet its responsibilities to ensure the safety and welfare of its employees at work. As information is gathered in the operation of these provisions there may be a need to adjust the balance, but that consideration will be undertaken in the light of practical experience rather than theoretical possibilities.

It will be possible for the parties to return to seek an amendment to the award if, ‘in the light of practical experience’ the balance between the needs of FRNSW and firefighters has not been appropriately made.