A correspondent has drawn my attention to a story appearing in the Brisbane Courier Mail headed ‘Coast Guard volunteer sues Queensland for $750,000’.  The Courier Mail article is behind a pay wall but you can find the story in other news outlets – see:

• https://www.themorningbulletin.com.au/news/coast-guard-volunteer-sues-after-horror-dead-body-/3311029/
• https://www.themorningbulletin.com.au/news/coast-guard-volunteer-sues-after-horror-dead-body-/3311029/
• http://expressdigest.com/volunteer-sues-coast-guard-after-pulling-a-body-from-water/
• https://en.mogaznews.com/World-News/782968

The headline may be correct but is phrased in pejorative terms. I can imagine some would be outraged by the claim that a volunteer is ‘suing’ and for that some of money but the headline would be equally accurate if it said ‘Volunteer injured during rescue seeks compensation for his losses’; and most people would probably think that a volunteer who is injured in the course of his or her duties should be compensated for their losses as an employee would be.  In New South Wales, for example, the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) extends the workers compensation scheme to emergency service volunteers even though they are not employees.

Workers compensation is ‘no fault’ that is an injured worker does not have to prove negligence, merely that their injury occurred as a result of their work.   That does not meant they don’t sometimes have to ‘sue’.  Courts are a dispute resolution forum, so where a person claims compensation the other side may deny that claim. The defendant or respondent may argue that the accident or injury does not fall within the scheme, that the injuries are not as bad as the claimant alleges, that the treatment claimed is not necessary or the like.  Where the parties can’t agree then someone has to resolve that issue and across the countries there are various tribunals and ultimately courts that do that.  Where a claimant ‘sues’ it may not mean that they are being greedy and seeking something extra (though it is often presented that way), they are instead asking a court do what courts are there to do – that is determine the facts; apply the law to those facts and making a binding order that adjusts each parties rights and obligations.

Historically rights to compensation depended on the common law of negligence.  In some jurisdictions that right has been replaced entirely by statutory schemes, the most comprehensive example of that is in New Zealand where all accident compensation is governed by statute and there is no longer a right to sue in negligence (Accident Compensation Act 2001 (NZ)).  In most Australian states one can still bring a ‘common law’ action if various thresholds regarding the seriousness of the injury are met.

When bringing this story to my attention my correspondent said ‘It might be worth following this one to see what tortious duty is alleged to have been breached, and the outcome in due course. Interesting that the State has been joined.’  Indeed it will be worth following it and considering who the defendants are.

The website for the Australian Volunteer Coast Guard says ‘The Australian Volunteer Coast Guard is an organisation composed entirely of volunteers. Formed in 1961, its aim is to promote safety in the operation of small craft’.  It does not say under what legislation, and therefore what State, the Coast Guard is incorporated or whether there is a separate incorporated entity in each state and territory.

I’ve previously discussed compensation for Queensland SES volunteers – Workers compensation for Queensland SES volunteers (August 23, 2017).  As noted there the, Commissioner of QFES is required to enter into a contract with WorkCover Queensland to provide workers compensation for SES volunteers (Fire and Emergency Services Act 1990 (Qld) s 154C).  Because the Australian Volunteer Coast Guard is not established by an Act of Parliament there is no similar obligation upon the Coast Guard.   The Workers’ Compensation and Rehabilitation Act 2003 (Qld) says ‘WorkCover may enter into a contract of insurance for this subdivision with a church, non-profit charitable organisation or benevolent institution (“institution”)’ (s 18) or a ‘non-profit organisation’ (s 19).  The Coast Guard might be considered a ‘benevolent institution’ and/or a ‘non-profit organisation’ so they may have insurance with WorkCover or they may have their own insurance to protect volunteers. The Workers’ Compensation and Rehabilitation Act 2003 (Qld) retains rights for workers to seek common law damages in particular cases.

If the claimant in this case is seeking common law damages from either the Coast Guard, or Queensland (presumably on the basis of alleged negligence by police) then as my correspondent has noted, he or she will have to show that there was some common law negligence by one or both agencies.  What is alleged is not known at this stage.

As noted by my correspondent, if this matter proceeds to trial it will be interesting to see what is alleged and how the court resolves the issues.  It should be remembered however that most cases settle and if it does, we may never know the details of the legal cause of action.

Today’s question was inspired by a youtube video demonstrating what happens if a trailer is not properly loaded – see https://www.youtube.com/watch?v=5rH-g7LDHeI. The question for this come from a NSW SES member’s discussion page and is this:

If a towed emergency services trailer becomes unstable because of the loading pattern:

1. Is it solely the responsibility of the driver?
2. Or if the designated driver has not been trained or tested as competent to load trailer so it does not become unstable; is the agency also liable?
3. What might represent adequate training or a test of sufficient competence?

The answer depends on what type of legal issue you are considering.

Civil liability

That is the liability to pay damages for injury caused by an accident.  If the accident involves personal injury or death, then it is the vehicles Compulsory Third Party (CTP) insurer that will meet the cost.  For government vehicles that will probably be the Treasury Managed Fund established to meet government liabilities. In the case of vehicles that aren’t required to be registered (some NSW RFS vehicles) it will be the ‘nominal defendant’, an insurance scheme established by the Motor Accidents Compensation Act 1999 (NSW) to meet the needs of people injured by the drivers of uninsured or unregistered vehicles or where the vehicle at fault cannot be identified.    The CTP policy (Motor Accidents Compensation Act 1999 (NSW) s 10):

… insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle.

The vehicle includes any trailer (s 3, definition of ‘motor vehicle’).

If the question is referring to liability to pay for damage done to any person injured as a result, the claimant would probably claim against both the driver and the owner (ie the agency) but the practical result is that it is the CTP insurer that is liable and they have no right to recover against the owner or driver. That is the point of insurance, to shift the loss so regardless of whose name appears on any claim, the liability lies with the CTP insurer.

If the accident causes damage to property, then the agency as both the owner of the vehicle and the manager of the volunteer or employed worker will be liable.  An employer is vicariously liable for any negligence by an employee.  With respect to volunteers, the Civil Liability Act 2002 (NSW) s 61 says:

A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work:

(a) organised by a community organisation, or

(b) as an office holder of a community organisation.

It follows that it will be the agency (or again, the Treasury Managed Fund) that will be liable for any damage done to any other vehicle or indeed to the agency vehicle.

Criminal law

It is the ultimate responsibility of the driver to ensure that the vehicle is safe but that does not mean that any accident will necessarily lead to liability.  Consider the case of the Victorian firefighter who was convicted of dangerous driving causing death –  Suspended jail sentence for firefighter involved in a fatal accident (October 24, 2009).  In that case the driver was not exceeding the speed limit but, according to the sentencing judge, because he ‘knew the truck was top-heavy when filled with water, was driving it ‘‘just too fast’’.

The driver of a vehicle towing a poorly loaded trailer may be guilty of offences such as negligent driving or dangerous driving if he or she knows that the load is unsafe in the circumstances (as that DSE driver did) or if a reasonable person in the driver’s position would have known. In deciding whether or not the driver had committed any of those offences their level of training and instruction would be taken into account as well as the question of who loaded the trailer. A driver is less likely to be negligent if the agency provides a ‘standard’ trailer, a ‘standard’ kit list for the trailer and packing instructions in order to ensure that a member who goes to a trailer owned by another unit will know what is in there and where to find it.  The driver may well, reasonably, think that way the trailer is packed is packed has taken into account load requirements.  Where the trailer is packed by the unit, or the driver, the issues will be different.

A reasonable driver who is going to tow a trailer would take steps to ensure that he or she understands the risks and how to manage the vehicle and its load. The fact that a licensed driver is allowed to tow a trailer without any training or endorsement does not deny that a ‘reasonable driver’ (that hypothetical reasonable person of legal fiction) would not do so without informing him or herself as to what that requires.

In short, where there is a criminal offence there is no vicarious liability for that offence so if police allege an offence has been committed by the driver, it is the driver that is liable. That’s not an issue of the agency ‘leaving the member out to dry’ or the like.  The issue of criminal liability is a matter for police and ultimately the court.   The extent to which the agency’s training and processes are relevant would depend on the offence charged.

See also Driving overweight vehicles in the NSW emergency services (February 8, 2016).

Work Health and Safety

The Work Health and Safety laws impose an obligation on a person conducting a business or undertaking (a PCBU) to take steps, including training and the provision of information, to ensure a safe workplace (Work health and Safety Act 2011 (NSW) s 19; Work Health and Safety Regulation 2017 (NSW) r 39 ‘Provision of information, training and instruction’).  The obligation extends to protect all workers, which includes volunteers (s 7).

If an agency allows members to drive and tow trailers without giving instruction on how to load the trailers, the towing capacity of the vehicle (Road Rules 2014 (NSW) r 294-2 Towing by vehicles under 4.5 tonnes) and some instruction to ensure the driver is competent to tow the vehicle then that may represent a breach of the agencies duties under the WHS Act.

The volunteer or employee also has an obligation to ‘take reasonable care for his or her own health and safety’ and ‘comply … with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act’.  What is ‘reasonable’ will depend on what instruction and training (if any) has been given and any directives from the agency regarding trailers and their loads. In the absence of any information or training, the failure to ensure a safe workplace would belong to the PCBU.

What might represent adequate training or a test of sufficient competence is not something I can answer.  The answer to that question depends on a risk assessment taking into account (Work health and Safety Act 2011 (NSW) s18):

(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.

The whole focus of the WHS Act is not to prescribe what has to be done, but to impose obligations upon the PCBU to consider the risks in their undertaking and to tailor risk control measures that are applicable to that undertaking.

Conclusion

If a towed emergency services trailer becomes unstable because of the loading pattern is it solely the responsibility of the driver?  The simple answer is ‘no; it’s not the sole responsibility of the driver’.

The more complex answer is that the agency for which that member volunteers or works also has obligations.  Everyone is responsible for their own decisions. The agency is responsible, or accountable, for the decisions it made when selecting trailers, providing training and information etc. The driver is responsible for the decisions he or she made whilst driving and for the decisions he or she made about the load.  What they could or should have done will depend on what they knew or should have known.  That in turn will also be affected by the training and instructions offered (if any).  How responsibility will be allocated in particular circumstances will depend on what happened and what if anyone knew of the risks.   Remember that in the case of the Victorian firefighter referred to above, he knew ‘the truck was top-heavy when filled with water’.  The outcome may have been different if he did not know that.

For a related post, see also: Maximum speed when responding with a trailer in tow, in NSW (January 16, 2017)

The first question of 2018 deals with the application of New South Wales State Rescue Board policies to agencies that attend a rescue but are not accredited rescue units, in particular NSW Rural Fire Service brigades that attend motor vehicle accidents to provide fire protection rather than rescue.  My correspondent says:

In early December 2017, it appears … [a] Regional Emergency Management Officer (REMO) from the NSW Police has sent out to at least the NSW RFS, but also it would appear other agencies, the following;

“Colleagues,

Just a reminder please to ensure that all your Units/Stations/Brigades who have accredited Rescue Units or resources that attend Rescue Jobs are meeting with the State Rescue Board Policy regarding photos taken at Rescues and subsequently posting them on Facebook Sites or Internet pages.

Annex B – Taking of Photographic Images at and from a Rescue Incident states

“B.01 – The taking of photographic images or film at a rescue incident can result in considerable undue stress to those people involved as well as their friends and relatives. In addition the taking and use of such images may be in breach of the Privacy and Personal Information Protection Act 1998 or the Occupational Health and Safety Act 2000.”

It further enhances this around the Public Display of Images by stating

“B.08 The Board considers that it is not acceptable to publicly display any images of dead or injured people. The only exceptions are when such images are presented in court or with the written permission of the NSW Police Force Commissioner.

B.09 Public display includes:

1. publication in State Rescue Board or Emergency Service Organisations books, manuals, journals, videos, or other publications that can or could be accessible to the public;

2. publication in external publications such as newspapers, journals or conference papers;

3. use of images on display stands at events;

4. images displayed in premises used by Board accredited rescue units including notice boards, lockers, etc;

5. images on internet sites; and

6. any other use where the images would be accessible by the public. “

I do not want for any of your workforce to be compromised or have official action taken against them for breach of this policy.

Regards

However, it seems that the REMO has conveniently forgotten to include

 “B.02 Members of accredited rescue units are to comply with the directions of this policy in relation to the taking of photographic images or film at a rescue incident.”

which of course would mean that the REMO’s statement “that all your Units / Stations / Brigades who have accredited Rescue Units or resources that attend Rescue Jobs are meeting with the State Rescue Board Policy regarding photos taken at Rescues” is in fact not correct in respect of the (non SRB accredited) “resources that attend Rescue Jobs”, a typical example being the RFS attending to provide fire protection.

Now, I’m not advancing any argument that non accredited units should in principle act any differently to SRB accredited units with regard to images and the publication of the same (although I contend the relevant policy in those circumstances is the RFS Service Standard 1.4.5 Social Media which you can find here; https://www.rfs.nsw.gov.au/__data/assets/pdf_file/0007/8827/SS-1.4.5-Social-Media.pdf.

I’m also aware of the powers of NSW Police Officers to seize any still or video images of an incident scene as potential evidence.

I’m purely interested in the legal aspect of the REMO’s email and the applicability to non SRB rescue RFS units (currently all brigades except Mungindi RFB).

Therefore my questions are;

(1) Can a REMO lawfully interpret the SRB Rescue Policy with respect to Annex B which specifically states only “Members of accredited rescue units are to comply with the directions of this policy in relation to the taking of photographic images or film at a rescue incident” as having a wider application than the policy explicitly states to include non SRB accredited units (“or resources that attend Rescue Jobs”)?

(2) What sort of ‘official action’ could a REMO under State Rescue Policy take against a member of a non SRB accredited RFS brigade?

(3) Could the NSW RFS legally use Annex B of the State Rescue Policy as opposed to state NSW RFS policy (SS1.4.5 etc) in any disciplinary action against a member of a non SRB accredited unit?

(4) Are there any other issues in connection with this you think of relevance?

The law and policy framework

The State Emergency and Rescue Management Act 1989 (NSW) (‘the SERM Act’)

When first enacted, s 26 said:

(1) The State Emergency Service is to provide executive support facilities for each District Emergency Management Committee and District Emergency Operations Controller in its area.

(2) The principal executive officer is to be known as the District Emergency Management Officer.

In 1995 the reference to the State Emergency Service was removed and instead it was the Police that were to provide the executive support and the District Emergency Management Officer (State Emergency Legislation Amendment Act 1995 (NSW), Sch 1 [13] [14]).  In 2012 the word ‘District’ was replaced by the word ‘Region’ and s 26(2), that is the definition of District Emergency Management Officer was repealed (Emergency Legislation Amendment Act 2012 (NSW), Sch 3 [12] [16] [24]).  Today s 26 says ‘The NSW Police Force is to provide executive support facilities for each Regional Emergency Management Committee and Regional Emergency Operations Controller in the region concerned’ but there is no specific title of Region Emergency Management Officer or REMO.

Today there is still reference to the office of REMO in the NSW State Emergency Arrangements.  Frequently Asked Questions on the Regional Emergency Management Planning Guideline say:

Who is responsible for the overall completion of the Regional EMPLANs?

The SERM Act 1989 requires the NSW Police Force to provide ‘executive support’ to the REMC and Regional Emergency Operations Controller (REOCON). This role is known as the Regional Emergency Management Officer (REMO). Within this planning process, the REMO is responsible for facilitating and collating the Regional EMPLAN for endorsement.

(See also the multiple references to the REMO in the Regional Emergency Management Planning Guideline, 2016).

It is not explained in the Minister’s second reading speech (NSW, Parliamentary Debates, Legislative Council, 22 August 2012, pp. 14161-2 (Michael Gallacher, Minister for Police and Emergency Services)) why the title was removed from the Act but we can infer (given that there a number of people who hold the office of REMO) that the position continues as an administrative position. The deletion of s 26(2) didn’t abolish the position or the role, it just removed the statutory requirement to use the title ‘Region Emergency Management Officer’ but that title does still remain and the REMOs continues to provide administrative support to the relevant Regional Emergency Management Committee (s 22) and the Regional Emergency Operations Controller (s 24).

The SERM Act 1989 (NSW) also creates the State Rescue Board (SRB) and provides for the accreditation of rescue units.   It is a function of the SRB to produce relevant policies ‘to promote the provision of comprehensive, balanced and co-ordinated rescue services throughout the State’ (s 48).

The establishment of Regional and Local Rescue Committees is provided for in s 48A.  Section 48A(4) says: ‘Rescue committees are to assist the State Rescue Board in the exercise of its functions within the region or local government area concerned.’

Finally, s 49 says:

(1) The agency which manages or controls any accredited rescue unit is required to implement (in accordance with law) the decisions of the SRB under this Part in connection with rescue operations carried out by that rescue unit.

(2) Except as provided by subsection (1), nothing in this Part affects the exercise by such an agency of its functions or the exercise of the management functions of the chief executive of the agency.

State Rescue Policy

The New South Wales State Rescue Policy (v 3.5, 13 December 2015) can be found at https://www.emergency.nsw.gov.au/Documents/publications/policies/State-Rescue-Policy.pdf.  Clause 5.08 says:

The Chairperson of each Regional Rescue Committee has the services of the Regional Emergency Management Officer (DEMO) to assist them with rescue matters; provide operational assistance; support Local Rescue Committees; and provide executive support to the Regional Rescue Committee.

Like other aspects of the Rescue Policy this appears to be out of date.  The fact that they have retained the DEMO (rather than REMO) acronym suggests that this clause is a holdover from before the 2012 amendments but as noted above, the office of REMO continues even if the title is no longer provided for in legislation.

Clause 1.55 of the policy says:

The Board’s policy in relation to the taking and use of photographic images by State Rescue Board registered rescue operators at any rescue incident is specified at Annex B.

Annex B (pp. 30-32) sets out the policy on Taking of Photographic Images at and from a Rescue Incident.   As my correspondent has noted, clause B.02 says:

Members of accredited rescue units are to comply with the directions of this policy in relation to the taking of photographic images or film at a rescue incident.

The conclusion so far

What this allows us to conclude is:

1. The SRB is responsible for developing policies relevant to rescue and they have created the policy on Taking of Photographic Images at and from a Rescue Incident.
2. Agencies which control accredited rescue units are required to comply with SRB policy ‘connection with rescue operations carried out by that rescue unit’.
3. The REMO is to assist the Regional Rescue Committee in meeting its tasks.

By inference then it is appropriate for the REMO to remind agencies that operate accredited rescue units ‘to ensure that all your Units/Stations/Brigades who have accredited Rescue Units … are meeting with the State Rescue Board Policy regarding photos taken at Rescues and subsequently posting them on Facebook Sites or Internet pages’.

The controversial issue is whether that advice extends to ‘resources that attend Rescue Jobs’ eg NSW RFS units that are not accredited rescue units and who attend in order to provide fire protection.

Discussion

The obligation to comply with SRB policy is directed to the agency that operates an accredited rescue unit (which now includes the RFS) rather than particular rescue squads but the obligation to implement Board policy is only ‘in connection with rescue operations carried out by that rescue unit’ (s 49(1)). Further that obligation does not affect ‘the exercise by such an agency of its functions’.

It is a function of the NSW Rural Fire Service (‘the RFS’) ‘to provide rural fire services for New South Wales’ (Rural Fires Act 1997 (NSW) s 9(1)(a) and see s 9(4) for the definition of ‘rural fire services’).  An RFS appliance that attends an accident to provide fire protection is exercising a function under s 9(1)(a) and to that extent s 49(1) of the SERM Act and the obligation to comply with SRB policy would not apply.

On the other hand, the RFS may be called to assist in a rescue, eg to provide resources and labour that are not related to fire protection.  Assisting other emergency services is also a function of the RFS (Rural Fires Act 1997 (NSW) s 9(1)(b)). Where an RFS brigade is attending to assist the accredited rescue unit, rather than to provide fire protection, then it is appropriate to consider that they are acting under the control of the rescue unit. The obligation is upon the rescue unit to ensure that the SRB policy is applied so if the rescue squad became aware that someone they had asked to assist was taking photos or, later, displaying photos, then it would be incumbent on the squad, and ultimately the agency that operates the squad, to take steps to stop that behaviour.  Where the RFS is assisting a rescue squad (noting that they do not provide fire protection to assist a rescue squad) then the rescue squad has an obligation to ensure the policy is applied.  No doubt that would be made easier if, as suggested by the REMO, operators who might be called to assist are reminded of the terms of the policy.

Conclusions

I think the issue is really what is meant by ‘resources that attend Rescue Jobs’ and what is a rescue job.  A motor vehicle accident involves many ‘jobs’. There is the job of the paramedics to provide emergency medical care, the job of the fire brigade to provide fire protection, the job of police to coordinate the rescue, manage traffic and conduct investigations and the job of the rescue squad to effect the rescue.  I would suggest that an RFS unit that is attending the scene to provide fire protection is not attending a rescue job, even if a rescue is taking place.  The SRB policy won’t apply in those circumstances but the RFS service standard will.

On the other hand, the RFS may attend to assist the rescue squad, eg to provide labour to help carry a person out of the danger area. In that case they are attending a rescue job.

A way to see the difference may be to consider issues of ‘command’ and ‘control’.    When providing fire protection the RFS are not subject to direction from the rescue squad, they can stand-by with their fire hoses at the ready, but the rescue occurs independently of them. They are in ‘control’ of the fire operations if not the whole scene.  On the other hand when RFS members roll up their sleeves and are subject to direction by the rescue squad – hold this, go there, do that – then they are attending the rescue job.  They are not directly bound by the SRB policy but the rescue squad is, so it would be incumbent on the rescue squad commander to stop an RFS member taking photos and also to take it up with an RFS commander if there is a discovered breach of the policy with respect to images that are taken.

Let me then go to the specific questions:

1. Can a REMO lawfully interpret the SRB Rescue Policy with respect to Annex B which specifically states only “Members of accredited rescue units are to comply with the directions of this policy in relation to the taking of photographic images or film at a rescue incident” as having a wider application than the policy explicitly states to include non SRB accredited units (“or resources that attend Rescue Jobs”)?

I think the REMO can if one takes a narrow view of what it is to attend a ‘rescue job’. Just because a rescue is taking place does not make it a ‘rescue job’ but if the crew are involved in the rescue, not merely being ‘near’ the rescue whilst performing their statutory function of fire protection then that does seem an appropriate extension.  But in that case the obligation is upon the rescue squad and the agency that operates the squad to ensure that those that are assisting in the rescue are not stopping to take photos.

What the REMO is doing, I suggest, is asking agencies to remind their staff that this does exist and to ask them to comply to assist the rescue squads in their task.

2. What sort of ‘official action’ could a REMO under State Rescue Policy take against a member of a non SRB accredited RFS brigade?

The REMO is an administrative officer.  He or she have no official ‘power’.  The REMO may bring an alleged breach to the attention of the relevant agencies but the resolution would be up to them and ultimately the SRB.  No doubt if there was an issue the rescue agency would take it up with their colleagues in the other agency for example if the rescue squad was operated by the SES and they asked RFS members to assist, the issue would be between the SES and the RFS and no doubt it would be dealt with by relevant officers in each agency rather than ‘official’ action by the REMO or the SRB.  The issue is not one of ‘official action’ between state operated emergency services but rather cooperation.  The non-accredited member can’t be stripped of accreditation as a rescue operator but that is hardly to the point.

The REMO doesn’t however say ‘I do not want for any of your workforce to be compromised or have official action taken against them, BY ME, for breach of this policy.’  The reference to office action could include action taken by the member’s own agency, which leads to the next question.

3. Could the NSW RFS legally use Annex B of the State Rescue Policy as opposed to state NSW RFS policy (SS1.4.5 etc) in any disciplinary action against a member of a non SRB accredited unit?

I don’t think they could directly, as a member of the RFS who is not a member of a rescue squad is not directly bound by the policy and certainly not if they are providing fire protection.  But whether they are providing fire protection only, or actually assisting the rescue squad, taking photos of the rescue and posting them on boards or on social media is likely to breach the RFS Service Standard, in particular it may:

a. bring the NSW RFS into disrepute [particularly where it embarrasses another agency by suggesting the rescue squad has failed to ensure that those assisting do not take inappropriate photos];

b. could reasonably be found to breach the NSW RFS Code of Conduct and Ethics;

c. are not consistent with the NSW RFS Organisational Values;

d. depicts the NSW RFS in an unprofessional light;…

g. portrays content of a confidential or sensitive nature such as serious or critical injury, fatalities or incidents that are under investigation;

h. could reasonably be found to cause distress to members of the community …

If I was advising the RFS and they were seeking to discipline a member for breach of the SRB Policy, I would indeed recommend that they phrased the alleged breach as a breach of the RFS Service Standard, but the fact that it was contrary to the SRB policy, particularly if that policy has, as suggested by the REMO been brought to their attention, would be part of the case to demonstrate that the conduct did indeed breach that Service Standard.

4. Are there any other issues in connection with this you think of relevance?

I think I have addressed them in the discussion of what it might mean to attend a ‘rescue job’.

Welcome back to readers of Australian Emergency law. It’s been a long hot summer so far and with record temperatures set in Sydney today, that is likely to continue. This blog will continue to report on developments in the law relating to emergency management and the emergency services.

Here’s some things that have happened or been reported in the last month:

1. On 8 September 2017 I reported, via FaceBook, on a plea by two women convicted of bashing a paramedic that they be spared gaol time (see https://www.9news.com.au/national/2017/09/07/13/55/bashed-vic-ambo-still-can-t-return-to-work). On 11 December 2017, it was reported that they had been sentenced to gaol for eight and six months respectively.  They have now appealed those sentences and are on bail pending determination of that appeal – see https://www.3aw.com.au/drunk-mothers-who-viciously-bashed-a-paramedic-given-jail-time/.  I will try to report on the outcome of the appeal when a result is handed down.
2. On 14 December it was reported that a Queensland coroner has referred police to the DPP for possible prosecution for failing to providing assistance to a person who was unconscious in a Gold Coast apartment – see http://mobile.abc.net.au/news/2017-12-14/police-may-face-charges-for-failing-to-help-unconscious-student/9258952?pfmredir=sm&sf176293019=1.   This outcome is not inconsistent with earlier posts, based around the decision in Stuart v Kirkland-Veenstra. Although there is no general duty to rescue, that is different in a situation where police have entered premises and de facto detained those inside (consider whether this person would have been allowed to leave if he’d woken up and tried to do so). In those circumstances and where the person is apparently unconscious there would be no inconsistency in finding that police did owe a duty of care.  Whether or not these police were negligent, and whether or not that negligence was of such a degree as to warrant criminal punishment, remains to be seen.
3. On 18 December the Volunteer Fire Fighters Association (NSW) issued a ‘Safety Bulletin’ headed ‘NSW RFS Volunteers at Risk of Prosecution without Support or Assistance’ – see http://volunteerfirefighters.org.au/nsw-rfs-volunteers-risk-prosecution-without-support-assistance. The gist of the story is that a volunteer was prosecuted for a traffic offence.  Unfortunately the statement gives no details on what the driver did or the charges that he or she was convicted of.  The statement says ‘The VFFA is deeply concerned that this case sets a precedent; Volunteer Firefighters can be subject to prosecution if salaried staff, without question or any internal investigation, call the NSW Police to report alleged actions of a Volunteer Firefighter based on hearsay…’  It’s not the RFS staff that determine whether or not someone is subject to prosecution, it’s the police and they make that decision on the basis of admissible evidence (even if they have obtained inadmissible information along the way which may cause their inquiries to move in a particular direction).  Given the police in this case must have formed the view that there was sufficient evidence to warrant a prosecution, and given the court was satisfied that the case was proved ‘beyond reasonable doubt’ it is unclear what the issue is. More detail from the VFFA would be required before anyone could take any lesson from this matter.
4. On 19 December the ABC delivered a story on ‘Filming an emergency on your phone or camera? Know your rights before you press record’ (ABC Radio Brisbane, Hailey Renault) – see http://www.abc.net.au/news/2017-12-19/what-you-need-to-know-about-filming-an-emergency/9267910?sf176717959=1. I was interviewed for that story and my comments are included.  As noted in some FaceBook comments on the story, there is a duty to rescue in the Northern Territory (see https://emergencylaw.wordpress.com/2016/10/31/nt-police-officer-gaoled-for-failing-to-render-assistance/ ). It’s true that this section doesn’t get a comment here but it is impossible to give a detailed analysis in a short interview where the journalistthen writes the story.  My reference to ‘no duty to rescue’ was making reference to the Australian common law.
5. Finally a big shout out to Darren and the crew of HEST Paramedical

who were ‘on duty’ at the 2017-18 Woodford Folk Festival and who provided outstanding care for one of my party who suffered a debilitating injury. Effective immediate care with compassionate follow-up care until we could get our party member on a plane home was much appreciated.

And now we turn to 2018 and I look forward to your questions and comments as we continue to explore aspects of Australian Emergency Law.

Australian Emergency Law is taking leave until 8 January 2018. During that time I don’t expect to post any updates or answer questions or comments.  Have a great, and safe, Christmas and New Year.

Regards

Michael Eburn.

In 2016 ACT Fire and Rescue (ACTFR) commenced a rare recruitment campaign. They wanted to employ 16 new fire fighters and made the decision that, if possible, at least 8 of those new positions would be offered to women.  All the candidates had to pass the same physical fitness and other tests for recruitment.  At the end of the campaign employment was offered to 4 women, and 12 men.

One person, Mr Macca, believed that he was disadvantaged in the process and brought proceedings alleging unlawful discrimination contrary to the Discrimination Act 1991 (ACT).  The matter was heard in the ACT Civil and Administrative Tribunal – Macca v ACT represented by the Emergency Services Agency [2017] ACAT 101 (4 December 2017).

The Emergency Services Agency (the ESA) did not deny that the campaign, with the stated aim of reserving 8 of the 16 positions for woman, constituted discrimination on the grounds of sex under the Discrimination Act (see [25]).  The ESA’s argument was that the discrimination was permitted by s 27. That section says that it is not unlawful

… to do an act if a purpose of the act is—

(a) to ensure that members of a relevant class of people have equal opportunities with other people; or

(b) to give members of a relevant class of people access to facilities, services or opportunities to meet the special needs they have as members of the relevant class.

In essence, section 27 allows ‘positive’ discrimination and that is what ESA said was the purpose of the quota.  The issue was one of ‘equality’ v ‘equity’ as summed up in the famous (and I apologise, very American) picture, below:

(http://interactioninstitute.org/)

The applicant, Mr Macca argued that there was equality in firefighting recruiting as women were entitled to apply and everyone had to pass the same tests.   As Senior Member Robinson said (at [20]-[21]):

Key to the applicant’s position is his particular definition of ‘equal opportunity’. Further to this, the applicant also made the following observation about the nature of ‘equal opportunity’ in his final submissions:

The applicant contends that the use of the equal opportunity policy by ACT Fire and rescue in the 2016 recruitment campaign was done in a discriminatory fashion, and the equal opportunity actually already existed prior to this recruitment campaign, i.e. Female applicants were already considered on an equal footing with male applicants, but simply had a low success rate in achieving a position as a firefighter, despite the equal opportunity to apply, equal testing protocols employed for both male and female applicants.

All recruitment procedures prior to this one in 2016 were based on merit, and not on any political manoeuvring.

In other words, the applicant contends that ‘equal opportunity’ means treating all applicants the same. In the applicant’s submission, because male and female candidates were subject to the same testing and processes prior to the 2016 campaign, there was no need for a ‘special measure’ to ensure equality of opportunity, because it already existed.

In other words he was looking for ‘equality’ (as shown in the picture above).

The respondent (the ESA) on the other hand, argued that their plan was to overcome more general ‘inequity’ in firefighting given the low number of women in the service.  At [28] Senior Member Robinson said:

The respondent does not dispute the applicant’s contention that female applicants already had, prior to the 2016 Campaign, the kind of formal ‘equality’ contended for by the applicant. However, the respondent contends that the Discrimination Act calls for a much broader definition of equality:

…in the employment context, the pursuit of equality of opportunity under s 27 permits the provision of advances to women that are intended to address disadvantages or barriers that have resulted in women being underrepresented in a particular profession, such as firefighting.

It is not so much about ensuring applicants in this round were on an equal footing, but that women in firefighting were able to overcome historical barriers that meant women as a class were underrepresented in the ACTFR service.

The Tribunal (at [37]-[41]) made it clear that it’s job was not to decide whether the policy choice was a good policy choice or not. At [40] it was said:

In exercising its role under the Discrimination Act, the Tribunal does not act as some kind of de facto ‘house of review’ or policy decider, oversighting the decisions of the Government or its agencies, searching for errors, or ‘unfairness’ or assessing or substituting other outcomes the Tribunal may think are preferable. In considering whether an act amounts to unlawful discrimination, the Tribunal does not need to consider whether the act was good or bad policy, the best available option, or even at all effective. It does not consider whether something is, objectively or subjectively, ‘fair’. Indeed, the Tribunal would be in error were it to approach a complaint referred to it such a way.

The tribunal then had to consider what sort of conduct s 27 was intended to allow. The applicant (at [49]) argue ‘for a definition of ‘equality’ that equates “ensuring that members of a relevant class have equal opportunities with other people” with ensuring that everyone starts from the same place and is treated exactly the same …’ ie the notion of ‘equality’ above, everyone gets the same size box.

The ESA on the other hand, argued (at [50})

… that equality of opportunity “must permit something more than formal equality.” Equality, the respondent contends, must allow for processes and procedures that “address underlying substantive inequalities that persist despite formal equality.” This kind of equality is commonly called ‘substantive equality’. Proponents of substantive equality contend that persons of relevant classes may need to be treated differently so that they can, in the end, enjoy their human rights equally.

Giving women a priority may advantage women in this recruiting round but is intended to benefit the class of women in firefighting and to allow the ACTFR to overcome low representation of women within its ranks.   The Tribunal said (at [53] and [60]):

I accept the respondent’s arguments about the kind of ‘equality’ it is intended to facilitate. The purpose of the provision is clearly, on its face, to permit the enactment of a ‘special measures’ to address the ‘special needs’ of persons with relevant protected attributes. I agree with the respondent that in order for this provision to have work to do, and to not be devoid of meaning or effect, it must mean more than the elimination of formal discrimination. It must permit the implementation of some ‘special’ measure.

… the concept of ‘equality of opportunity’ in the Discrimination Act encompasses more than mere formal equality, and that section 27 is designed to permit processes to remove or address disadvantages or barriers – that is, that it permits special measures intended to achieve substantive equality.

Having decided that the Act allowed an ‘affirmative action program’ ([57]) the question became ([64]): ‘did the decision-maker [ie the Chief Officer] implement the Target and the 2016 campaign processes in the belief that they were capable of ensuring women had equal opportunities to be firefighters?’

In evidence the Chief Officer noted, amongst other things (see [34]):

…

(e)       There was no “hard target” that reserved eight places for women – female applicants had to pass the same standards as male candidates.

(f)        Gender diversity in this ACTFR has historically been “extremely poor”. As at 2015 women represented 2% of career firefighters in the ACTFR, which was the lowest in any of the agencies comprising the Emergency Services Agency. It was also the lowest rate of representation of women among the major Australian urban firefighting services.

(g)       That said, all urban firefighting units have struggled “for a long time” to attract female recruits.

(h)       One of the difficulties in recruiting women in the past has been the perception amongst both genders that firefighting was not a realistic option for women, in part because the physical strength required…

(l)        ACTFR does not recruit often, so the opportunities to address gender imbalance are “relatively rare.” When recruitment programs run, very few women apply – during the last round in 2012 only 6.5% of applicants were female. None were found suitable for employment…

(p)       Although the Program did not ultimately achieve its target of offering eight positions to suitable female applicants he considered the initiative to be a success in the effort to improve gender diversity in the organisation and reduce the barriers traditionally faced by women. He noted that 25% of new recruits were women, compared to 0% in 2012, and around three times as many women relative to men applied in the latest round, compared to 2012.

The Tribunal accepted the unchallenged evidence from the Chief Officer.  At [67] the Tribunal said:

I accept that Mr Brown, and the relevant executives within the ACTFR and the ACT Government, considered it a desirable thing to increase diversity within ACTFR. I accept that Mr Brown thought the Target and the procedures adopted for the 2016 Campaign would assist to do so.

The tribunal found that the adoption of an informal and ‘soft’ quota, that is an intention to offer 8 of the 16 positions to women provided that they passed the physical tests for recruitment, was permitted under the Discrimination Act even if it did discriminate against male applicants.  The policy did not achieve its aim in that only 4, not 8 women were recruited but that did not detract from the aim of the policy and the objective to adopt special measures to increase the number of women within ACTFR was lawful.

Having read the comments on this post (particularly on FaceBook) it is worth making the point that there is no evidence that the 4 women who were recruited in 2016 were selected on the basis of their gender. To put that another way, there is no evidence that there were up to 4 men who might have been ‘better’ candidates and who ‘but for’ the informal quota would have been appointed ahead of the female candidates.

The applicant, Mr Macca argued that he had been discriminated against but there was no evidence that he was even an applicant for appointment as a firefighter. At [16] the Tribunal said: “The applicant claims to have been a participant in the 2016 Campaign. Other than his correspondence and unsigned submissions, he has provided no probative evidence of this… Nonetheless, for the purpose of dealing with what the applicant calls the “merits” of his application, I will assume that he is male, that he was an applicant, and that he was unsuccessful.”

I’m pleased to report that my latest publication is now available.  My colleague Geoff Cary, Associate Professor within the Fenner School of Environment and Society at the ANU, and I have co-authored a paper entitled ‘You own the fuel, but who owns the fire?’  It currently appears as a peer-reviewed and edited version before inclusion in a printed issue of the International Journal of Wildland Fire.  You can download a free copy of the article from the IJWF Online Early webpage.

This paper is a development of a paper that we presented at the 2016 AFAC Conference in Brisbane (Eburn, M. and Cary, G., You own the fuel, but who owns the fire?, 1 September 2016).   Following feedback from that conference we further developed the paper and the ideas in it.  The abstract for the published paper now says:

In this paper, we argue that the statement ‘Whoever owns the fuel owns the fire’ implies a duty on landowners to manage fuel on their land to reduce the likelihood of bushfires, however started, from spreading to neighbouring properties. However, the notion ‘Whoever owns the fuel owns the fire’ has not been analysed from a legal perspective. This paper reviews Australian law to identify who is legally responsible for fire that starts on privately owned land. We argue that the correct interpretation of existing Australian law is: ‘Whoever owns the ignition owns the fire’ – that is, liability to pay for losses caused by bushfire has always fallen on those that intentionally start a fire, not on the owner of the fuel that sustains the fire. That legal conclusion could have dramatic implications for fire management policies. It will be shown that liability for starting a prescribed burn is clear-cut whereas liability for allowing accumulated fuel loads to contribute to the spread of fire is almost unheard of. As a result, we argue that the law is pushing landowners in a direction away from the policy direction adopted by all Australian governments. After identifying the current legal position, we recommend changes to align the law with the national policy direction.

We hope that the paper will me a significant contribution to the policy debate around hazard reduction burns and the development of ‘shared responsibility’ for hazard management.

Today’s question raises issues of admiralty law rather than emergency law. My answer will therefore be incomplete and confirm my correspondent’s own conclusion ‘that these things are “complicated”’.  The answers below are much more ‘gut feeling’ than my usual answers and reflect more the sort of questions a lawyer would need to consider and research in detail if  a case arose – they are more ‘issue spotting’ rather than issue resolution.

My correspondent is:

… an Intensive Care Paramedic with NSWA, and recently I was on holidays on a cruise ship with my family. Shortly after leaving Sydney via the heads, we were walking through one of the restaurants when I came across a teenage female on her side, having a generalised convulsive (tonic-clonic) seizure…   After checking ABCs and taking a history, I had concluded that this was a seizure and that the patient had not had one before. I did some basic observations … The patient had a good radial pulse, and reasonable respiratory effort…

At this stage one of the cruise ship staff came over and wanted to start CPR. I told him it wasn’t necessary and to please get the ships doctor and medical team. I further identified who I was but my credentials were never checked, and interestingly I was never asked for my room number or any identification.

A short time later, another member of staff came along, who was obviously part of the medical team (nurse maybe?). I again identified who I was and asked if the nurse would like a handover. She said no and told me to remove myself from the area as my presence was not wanted or something to that effect…

For your information the, ship was …  registered in Malta. The incident occurred in Australian waters (within sight of land and just outside the heads)…

This case did raise some questions though;

• Does the Civil Liabilities Act still apply on a cruise ship in Australian and NSW waters?
• Common sense prevailed here, but what would have happened if the first staff member insisted on starting CPR? Would the provisions in the law to stop paramedics being obstructed in the course of their duty come into play here?
• Does registration make a difference when it comes into force?

I have tried to get some answer via research, but most of the literature I have read, even around criminal matters seems to conclude that these things are “complicated” and that competing jurisdictions come into play.

At the time my thought was “Aussie paramedic, in Aussie waters, and an Aussie patient – no worries!” But thinking about it later it might be more complex than that.

This is an issue where the choice of laws (or ‘conflict of laws’) comes into play. The jurisdictions that could be relevant would be New South Wales (if the ship was still within 3 nautical miles of the shore, it’s in NSW waters, see Meaning of ‘marine’ and ‘land’ rescue in NSW (June 18, 2012)); the country in which the ship is registered (Malta), the country where the company that actually operates the cruise (which is probably different to the company that actually owns the boat) is based and then there would be any conditions set out on the ticket that may identify which law applies to the contract between passengers and the cruise company.

It can’t be that the relevant law is necessarily the law of the port of last departure. If that were the case the industrial standards on the ship would change with each port.   If someone died on the boat, the NSW Coroner would have jurisdiction as the death would be related to the state and whilst the boat is within state waters, the body is also within the coroner’s jurisdiction.  Equally criminal law would appear to be the state’s law whilst the ship is in port, it would be less clear once the ship has sailed and certainly once it’s sailed into international waters.  In that case it might be the criminal law of the next port that the ship sails to that is relevant as it would be the police from that port that would have to come on board to investigate the matter.

What that means is that if someone wanted to sue, the relevant law may be who they want to sue. If the patient described in this story wanted to sue the cruise companies staff they would probably be bound by the terms of the ticket and sue in whatever country the ticket said governed the terms of the contract.  If they sued over the conduct of the ship’s company (who may be different to the cruise company staff) then the issue would be where are they employed. If the allegation was about the state of the ship itself, then the relevant jurisdiction may be the country of registration.  If they wanted to sue the paramedic, my correspondent, they could not doubt chose the jurisdiction that they thought would be most favourable.

The very poor answers to the questions asked are:

• Does the Civil Liabilities Act still apply on a cruise ship in Australian and NSW waters?

It would if the potential plaintiff brought any legal action in a NSW court, but I’m not sure that is what they would have to do.

• Common sense prevailed here, but what would have happened if the first staff member insisted on starting CPR? Would the provisions in the law to stop paramedics being obstructed in the course of their duty come into play here?

That begs the question of whether a paramedic on holiday provided that care is acting in the ‘course of their duties’.  That would be the case if the paramedic flew to the ship to take part in a medical evacuation of a patient because in that case they represent a NSW Agency performing its statutory role. In that case (and without being able to quote authority) I think it would be much more certain that if there was an allegation made about the paramedic the relevant law would be NSW law. The paramedic who is despatched to the ship is authorised and acting under NSW law.  The passenger on the boat, even if he or she is a paramedic, is not exercising any NSW authority at that time.

• Does registration make a difference when it comes into force?

Not that I can see.

Today’s question comes from a Victorian based private event and other first aid/medical services provider.  My correspondent has:

… read your posts about doctors not being permitted to authorise the use of scheduled medications for paramedics use and similar topics.

I am wondering if you could clarify about the purchase and storage of scheduled medications by doctors for patients [see note 1, below].

The context is that we deploy medical teams to remote sites, normally in a public event setting. The teams include Doctors and nurses. Let’s assume that we don’t have a health services permit. The information included here – https://www2.health.vic.gov.au/public-health/drugs-and-poisons/medical-practitioners-medicines-control/managing-drug-dependency/medicines-storage-in-gp-clinics [see note 2, below] – states that the we can purchase, store and administer s4 and s8 medications as long as the medications are only accessible by doctors. The article states this includes PBS drug bag items and pharmaceutical samples but it doesn’t clarify if it is limited to these items.

I am seeking clarification if a Doctor can purchase quantities of s4 and s8 medications for the purpose of storing them and having them on standby to administer to patients that they will encounter when they are deployed to remote sites. Once again, assuming that we don’t have a health services permit and assuming that only doctors will have access to the medications. I am also referring to medications which are not in the PBS Drug bag list.

If the answer is ‘yes’ under what authority and by what means would they make the purchase (eg we already know it’s illegal for a doctor to write a script in their own name to obtain the medications so how would they obtain these heavily controlled substances to keep on standby).

I assume the question would be a similar logistical problem that clinics without health services permits would face.

Notes

1. I assume that the post ‘about doctors not being permitted to authorise the use of scheduled medications for paramedics’ was Doctors delegating authority to carry drugs (August 20, 2014)).
2. The web page my correspondent has referred to (above) discusses the Drugs, Poisons and Controlled Substances Regulations 2006 (Vic). The 2017 regulations came into force on 23 May 2017.  Without checking every statement in the web page, the 2017 regulations do appear to be substantially the same as the 2006 regulations described on that page.

Discussion

Section 13 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) says:

any registered medical practitioner … is hereby authorized to obtain and have in his possession and to use, sell or supply any poison or controlled substance (other than a Schedule 1 poison) or drug of dependence in the lawful practice of his profession as a registered medical practitioner …

Despite the gendered language (‘his possession’) this applies to all medical practitioners, not just men – Interpretation of Legislation Act 1984 (Vic) s 37.

A medical practitioner may also supply a scheduled drug to a person for the purpose of providing medical treatment to that person (Drugs, Poisons and Controlled Substances Regulations 2017 (Vic) r 36)).

The medical practitioner in possession of schedule 4 drugs must kept ‘locked and secured’ and is only opened when the medical practitioner or another person authorised to possess the drugs (eg a nurse) is present (Drugs, Poisons and Controlled Substances Regulations 2017 (Vic) r 73 ‘General security requirement—Schedule 4 poisons’).  Schedule 8 poisons must also be secured under more stringent conditions (rr 74 and 75).

A registered medical practitioner can therefore, be in possession of, and supply schedule 4 and 8 drugs without the need for a ‘health services permit’.

I was asked:

1. Can a Doctor purchase quantities of s4 and s8 medications for the purpose of storing them and having them on standby to administer to patients that they will encounter when they are deployed to remote sites. Once again, assuming that we don’t have a health services permit and assuming that only doctors will have access to the medications. I am also referring to medications which are not in the PBS Drug bag list.

Answer: Yes.  The doctor can carry any s4 and s8 drugs that are necessary ‘in the lawful practice of his profession as a registered medical practitioner’.

2. If the answer is ‘yes’ under what authority and by what means would they make the purchase (eg we already know it’s illegal for a doctor to write a script in their own name to obtain the medications so how would they obtain these heavily controlled substances to keep on standby).

Answer: The authority comes from section 13 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).  A doctor can’t write a prescription to obtain drugs in order to treat themselves (Drugs, Poisons and Controlled Substances Regulations 2017 (Vic) r 17) but that is not to the point. The point of a prescription is to allow another person ie a pharmacist to supply a drug to a person who needs it for their care and that in turn allows that person to be in possession of the drugs that are prescribed for his or her treatment.

To answer this question, however, requires advice from a pharmacist but it would appear to me that a doctor could simply buy schedule 4 and 8 drugs from a licensed wholesale or retail drug supplier (ie a pharmacist).  No doubt there are forms to be completed to ensure that the supply is recorded and that the purchaser is a medical practitioner so, as I say, the details would come from a pharmacist.

As noted my correspondent comes from ‘a Victorian based private event and other first aid/medical services provider’ and wants to know the answers for the no-doubt commercial activities of that supplier.  This blog is a source of general information and discussion, not legal advice. A business that is operating in this field cannot rely on this blog for advice on the requirements for their actual practice. For advice that can be relied on my correspondent needs to get, and pay for, local legal advice or approach the Department of Health

A correspondent has sent a link to a YouTube video where the CFA discusses the valuable role played by private fire appliances. You can see the video here – https://www.youtube.com/watch?v=2F_eGkXzwL8.

My correspondent:

Was curious on the legal implications- their privately owned by CFA vols. Is there issues for insurance, liability, road-worthiness, etc? I gather from the video, that the use of these is endorsed by the CFA. I wonder if they have MOU’s or similar in place.

I can’t see much in the way of legal implications or issues.  The vehicles need to be registered if they are going to be driven off private property.  If they are registered they will carry compulsory third party insurance. This ensures that the driver or owner is not personally liable for any injuries received from the use of the vehicle (Road Safety Act 1986 (Vic) and Transport Accident Act 1986 (Vic)).

If they are registered they will also have met whatever roadworthy tests or conditions are applied to those vehicles given their age, size etc.

In terms of damage that may be done to property in the event of a collision then there would be an issue if the vehicle is not insured.

Section 92 of the Country Fire Authority Act 1958 (Vic) provides extensive immunity to members of the CFA. From the video, it would appear that the people responding in these private vehicles are indeed members of the CFA acting under the direction of the CFA. There is no reason to think that s 92 would not apply just because they are driving private, rather than CFA owned appliance.  (And for a discussion on private appliances and the road rules, see Red/blue lights on CFA Slip on unit revisited (May 21, 2014)).

A CFA incident controller would have to consider the safety of the vehicles when considering where to despatch them. Using these vehicles may be riskier than a modern appliance with heat shields and defensive sprinklers but risk assessment is always a balancing act. One can take into account the benefit to be gained (without private appliances response rates would be slower and there would be fewer appliances to assist with the fire which in turn might increase the risk of the fire doing more damage) and consider what the risk is. With local landowners using their own appliances on land they are familiar with and with CFA training the risks can be mitigated.  The IC does have to consider risk but that is necessarily true in all cases.  The IC has to deploy the appropriate equipment to deal with the task at hand

The CFA, like most Australian firefighting services, grew out of a self-help response. Farmers and locals saw the need for fire brigades so they created their own. Eventually these were brought together under the umbrella of an organisation like the CFA to standardise their equipment and practices and to facilitate training.  But farmers and private landowners will still be first responders and will still set about trying to extinguish fires on their land, or their neighbours land. To that end no doubt they will buy and have firefighting equipment that also serves other useful purposes on the land.

An organisation like the CFA can try to pretend that they are ‘in control’ and that only the CFA can fight fires, and that one can only use the latest high-tech equipment but such a belief would simply not reflect reality.  Alternatively, organisations like the CFA can, and clearly do, recognise that people are able to provide services for their own protection and it’s better to work with them.  In short the CFA could refuse to allow private appliances on the fire ground because of fear of ‘the legal implications’ but that won’t stop those appliances being there, nor would it stop locals choosing to fight the fire rather than calling the CFA (see Self help firefighting in Victoria (August 30, 2014) and Neighbours helping neighbours during a Victorian bushfire and the powers of the CFA (November 28, 2014)).

Without someone raising specific issues I can’t see any significant legal issues or at least any that can’t be managed by the procedures set out in the video, which talk about training, communications, operating guidelines and checklist for the use of the units.  As the video acknowledges, the use of the appliances does bring risks but with appropriate planning the benefits outweigh the risks.  I have no reason to doubt that conclusion.

That is the essence of the finding in Skillen v State of New South Wales; Fuller v State of New South Wales; Fuller-Wilson v State of New South Wales [2017] NSWDC 342 (28 November 2017).

Keith Arthur Wilson was killed in motor vehicle accident on 18 June 2013.  His body was severely burned in the accident.  Police attended and took control of the accident site and arranged for Mr Wilson’s body to be removed from the accident scene by government contractors.

On 14 February 2014 (8 months after the accident) Mr Wilson’s wife, along with two other Wilson family members, attended the accident scene.  There they discovered ‘part of a foot and ankle and clothing containing the deceased’s melted remains…’ As a result of discovering the remains and clothing at the scene, that the Plaintiffs suffered psychological harm.  They sued the state of New South Wales as the appropriate defendant when claims allege negligence by police (a claim against NSW Ambulance was discontinued).

The plaintiff that the police had taken control of the site by virtue of provisions of the Coroners Act 2009 (NSW) (see Body recovery, the police and the SES in NSW (December 29, 2012)) and the State Emergency and Rescue Management Act 1989 (NSW).  The plaintiff’s argued that failing to ensure that all of Mr Wilson’s remains were collected from the accident site, the police failed to take reasonable steps to protect them from the foreseeable risk of psychological injury.

The essential elements of any negligence action are that the defendant owes the plaintiff a duty of care, fails to exercise reasonable care and that as a result the plaintiff suffers a compensable injury. The defendant, ie New South Wales, argued that the plaintiff’s claim revealed no cause of action, that is the case as pleaded was doomed to fail, and that therefore the court should dismiss the claim without trial.  Hatzistergos DCJ agreed (“DCJ” means ‘District Court Judge’).

Whether or not a defendant owes a plaintiff a duty of care is a complex legal question. That it is foreseeable that the actions of the defendant may cause harm to the plaintiff is a necessary element but it is not sufficient, on it’s own, to show that a legal duty of care exists.  In Caltex Refineries (Qld) v Stavar [2009] NSWCA 258, Allsop P reviewed the law to come up with a list of ‘salient features’ that may be relevant in deciding whether a duty of care exists.  That list went from paragraph (a) to (q), ie 17 separate issues. And it was conceded that the list wasn’t complete, there may be more! (For the list and a more detailed discussion, see Distributing warnings via Facebook and potential legal liability (November 16, 2014)).

There are many cases that recognise police do not owe a duty of care to individuals, starting with Hill v Chief Constable of West Yorkshire [1989] AC 53 where police were not liable for failing to detain a suspect who later killed a family member of the plaintiffs.  This case has been approved in Australia: Sullivan v Moody [2001] HCA 59, Cran v State of New South Wales and Another [2004] NSWCA 92 and Australian Capital Territory v Crowley [2012] ACTCA 52 (and see No liability for police shooting (February 13, 2013)).  Police are given wide discretion as to how to undertake their many tasks, how to allocate resources, how to set priorities etc and that would be constrained if they owed a duty of care to individuals.  If police diverted resources to investigate a crime that had a higher priority, then the victim of the lower ‘priority’ crime could sue etc. These results would impose too many constraints on the decision of police.  Further police detect and investigate crimes (and deaths) for the public good not necessarily for the benefit of the victims of those crimes. Police can and do prosecute crimes where the victim doesn’t want them to, and they investigate deaths, like Mr Wilson’s to assist the coroner in his or her functions.  The public nature of policing does not suggest that their action (or inaction) should give rise to private rights to sue.  (I note here that this is similar reasoning that has led to findings that fire brigades don’t owe a duty of care to individuals as their actions are for the public good – see for example ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires (November 3, 2014) and No liability for Yarnell (Arizona, USA) fire (April 3, 2017)).

At [41]-[42] the judge said:

In my view … the law ordinarily would not subject police conducting investigations or exercising powers in the public interest to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting obligations… [Further] unless extraordinary circumstances or a special relationship of control or assumption of responsibility has been created, courts will not impose a duty in negligence on the police in the investigation and prosecution of crimes for various policy reasons.

Although the police were in control of the accident scene they did not control the accident nor had they taken control as they would if they had arrested someone. Police do owe a duty of care to a person in their custody but that was not the sort of control that was being exercised here (see [45]).  The judge went on to say (at [53]-[55] and [58]-[59]):

It can be accepted that police were acting in their public duty in going to the site with a view to protecting passers-by from the danger of the scene. It can also be accepted that as part of the coronial investigation scene order the police exercised functions that include seize and detain all or part of a thing that might provide evidence and taking possession of the remains and property of the deceased.  The statutory premise for these functions involved the exercise of discretion. No argument was presented that the terms, scope or purpose of the statutory regime erected or facilitated a relationship that in all the circumstances displayed sufficient characteristics answering the criteria of intervention by the tort of negligence. In the case of the function of collecting the remains and property of the deceased it was for the purposes of the coronial investigation. The width of the class of persons for whose benefit those duties were exercised (being the public at large) is a factor against recognition of a duty of care specific to the Plaintiffs.

There is no allegation that the police controlled the scene at the time the Plaintiffs visited the scene some eight months later.

The police had not created the risk of harm and did nothing that increased the risk…

Nor did police assume any responsibility towards the Plaintiffs as individuals…

The case in my view is far removed from the kind of relationship which could invoke an implied assumption or undertaking of responsibility found in cases such as solicitor and client; teacher and pupil; and, banker and customer.

To reiterate, the police were performing their functions, including body recovery, for the public good, not for a private right and that suggested that here was no duty owed to individuals that would allow them to sue.

Another issue is the plaintiff’s vulnerability to harm. The plaintiffs were more likely to suffer psychological injury by finding their loved one’s remains than a stranger, but with respect to the police, if they owed a duty to the plaintiffs they would owe a duty to everyone who might stop at that scene. ‘[T]here was nothing in the relationship between the Plaintiffs and the police that place them in any different position to that of other members of the public who subsequently attended the scene’ ([63]).  Courts are reluctant to find a duty of care that would be owed to the world at large.

Police only have the resources they have. It is not possible to sue a public authority for the decisions it makes in how to allocate resources (Civil Liability Act 2002 (NSW) s 42).  The plaintiffs alleged that the police were under a duty to ensure complete body collection in order to protect them from injury.  Hatzistergos DCJ said (at [64]):

I accept that the police were responding to an emergency requiring them to assist in the coordination of the scene of the accident, investigate the circumstances of the accident including speaking to the driver of the other vehicle, identify the deceased and control surrounding traffic. All of those functions need to be considered in determining whether a duty of care arises; not just the function of preserving and collecting evidence at the scene being the matter to which the proceedings relate

Further (at [65]):

Police officers are charged with the primary responsibility of detecting and preventing crime such as to improve the general welfare of all members of society. When the NSW police attended the scene of the accident in the present case, their task was not only to remove the body from the scene, but to investigate the circumstances of the accident (including whether the driver of the other vehicle or the deceased was at fault as well as the identity of the deceased) and manage the emergency created by the accident… To impose the duty contended for which would require the NSW police officers attending the scene to devote additional resources in scanning the area to make sure that all the debris at the scene of the accident was removed would divert police from their statutory duties and obligations as defined in s 6 of the Police Act and set out above as well as their common law duty to enforce the criminal law.

That is police would be forced to divert resources to clearing the scene and not on other tasks such as the investigation of the cause of the accident. It is not for a court considering the law of negligence to dictate priorities to police in the conduct of their investigations and public safety duties.

His Honour concluded (at [68]):

I am satisfied that … the case pleaded is such that it is not reasonably arguable that a duty of care was owed by police to the Plaintiffs.

Accordingly the case was dismissed without trial.

There have been other cases with similar results relating to emergency response rather than criminal investigation.

In State of NSW v Tyszyk [2008] NSWCA 107 Campell JA found that NSW Police did not owe a duty of care to a person who was injured when a down pipe fell on him, even thought police had been responded to the scene because of concerns of safety.

In NSW v Brown [2003] NSWCA 21 a van containing an adult woman and her four children left the road and collided with a power pole. The woman was thrown from the vehicle and became unconscious. Rescuers safely removed the three eldest children and the mother was taken to hospital. However, despite inspecting the interior the police did not discover a 7 weeks old baby who had not been secured in a baby capsule and was lying injured and unconscious under the rear seat. When the police became aware that there was a missing child they contacted the tow truck driver who searched the van and found the baby.  As a result of finding the injured baby the driver suffered a psychiatric illness and sued the police for negligence. On appeal Handley JA (with whom Giles and Hodgson JJA) agreed) said (at [22]):

In my judgment the Judge erred in law in holding that the police had a statutory duty “as well as a commonsense duty to locate all persons who are injured in motor vehicle accidents”. There was no statutory duty and the common law duty was not absolute.

To dismiss a case without trial is unusual and it may be that the plaintiffs will seek to appeal that decision to the Supreme Court.  The district court is not a superior court on the judicial hierarchy and the decision does not set a precedent in the way the decision of a Court of Appeal or the High Court does (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)) but even so rescuers may find the decisions reassuring – confirming again that the courts do recognize the complexity of emergency response and that emergency services operate primarily for the public good.

Many people in the emergency services will seek to rely on their service to demonstrate their standing or skills.  Leaders may be asked to write a reference in order to support applications and, in some cases, to support a member who is appearing before court.

The issue of a person’s ‘good credit’ can arise in two circumstances in criminal cases. A defendant may want to raise his or her good standing to argue ‘I’m not the person who would commit this sort of offence – and the jury (or judge) may have a doubt or be more inclined to believe me if they know the sort of person I am’.  This is a dangerous tactic as raising credit as a defence does allow the prosecution to explore all of one’s background and bring up otherwise irrelevant material.  But in some cases it is appropriate.

The more common recourse to a person’s credit and standing is when they are being sentenced, having entered a plea of guilty or having been found guilty after a trial. Then the argument is that the person’s good standing may demonstrate that this offence is out of character and they are unlikely to offend again, and when balancing the offending against their previous good conduct, a sentence toward the more lenient end of the scale is warranted.

But what should be in a reference?  Whether a person want’s a reference in order to show  that they should get a licence or some other authority, or they want to put it before a court, it is important that the reference does not read like it’s been written to help a person get a job. It has to refer to the reason it has been written and address the issues of concern. Where the person has a criminal past that is most important and was an issue discovered by a former NSW firefighter in Ashford v Roads and Maritime Services [2017] NSWCATOD 170.

Mr Ashford applied for an authority ‘to drive public passenger transport vehicles’ – in particular a bus.  In 2008 Mr Ashford had been convicted of a number of drug related offences and sentenced to 2 and ½ years imprisonment, with a non-parole period of 12 months.  Upon his release from prison he appeared to be an exemplary citizen and served as NSW Fire and Rescue retained firefighter for 5 years.

The Roads and Maritime Services (RMS) declined to issue a public transport authority on the basis of Mr Ashford’s criminal history. The RMS determined that Mr Ashford did not meet the tests for the issue of a public transport authority as required by the Passenger Transport Act 1990 (NSW).  In particular the RMS said that Mr Ashford was:

1. Not a fit and proper person to hold a public transport authority; and
2. Not of good repute.

Mr Ashford appealed, first through the RMS’ internal processes and then to the NSW Civil and Administrative Tribunal.  In making his appeals he tendered a number of reference that spoke to his good character.  This included a reference from the NSWF&R Station Commander who attested to Mr Ashford’s exemplary service as a firefighter.  Unfortunately none of the reference spoke to the fact that Mr Ashord was applying for a public transport authority and none of them made mention of his prior criminal history.

With respect to being a ‘fit and proper’ person, the Tribunal said that the fact of a prior conviction does not necessarily mean that a person is not a fit and proper person to hold a licence.  The issue of what makes a person ‘fit and proper’ does not lend itself to precise definition.

Senior Member Robertson said (at [19]):

… In Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 the ACT Administrative Appeals Tribunal Professor LJ Curtis, President put the test to be applied in relation to “fit and proper character” in the case of taxi driver licensing in this way, at [12]:

“One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant’s criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi.”

Senior Member Robertson found that Mr Ashford was a fit and proper person to hold a public transport authority. He said (at [22]):

In determining whether Mr Ashford is a fit and proper person to hold an authority to drive buses under the Passenger Transport Act, I would take into account that it has been 7 years since Mr Ashford’s sentence concluded and nearly 9 years since he was released from prison and that he has apparently been a law-abiding citizen since that time with no further convictions or charges. I would also take into account that he has been working in that time as a fireman and a delivery driver and apparently has had a clear driving record since his release from prison. I recognise that Mr Ashford’s offences were serious and resulted in his serving a prison sentence… A reasonable person with whom Mr Ashford comes into contact, including the parents of children whom he might be called upon to drive, would recognise the possibility, indeed likelihood, of rehabilitation.

The sticking point was Mr Ashford’s ‘repute’ or reputation.  The tribunal relied (at [11]) on the decision in Loye v Director General, Department of Transport [2000] NSWADT 145 where it was said that a criminal history does not necessary prove that a person has a bad reputation.

… an assessment of repute is a matter for the Tribunal, weighing all the evidence, and not determined only by the existence of a criminal history.

This Tribunal has on a number of occasions invoked the authority of Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 to the following effect:

A person’s reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession (per Waddell J at page 393).

… Previous convictions are relevant to this extent:

They are the raw material upon which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are acted on by people generally as the best guide to his reputation and standing (Cross on Evidence 6th Aust ed 2000 Sydney, at para 19165 citing Goody v Oldhams Press [1967] 1 QB 333; [1966] 3 All ER 369 concerning defamation cases)

… As a matter of law, a criminal history is not evidence of bad repute, but creates a presumption that the person has, among those who know of that history, a bad reputation. It puts the onus on the person to establish their good reputation.

As a matter of fact in the particular case, the criminal history is relevant to the extent that it is known in the community, and that it bears on the person’s reputation in that community…

There is no saying what effect knowledge of the criminal history might have on the estimation of a person’s character, although a positive estimation in spite of knowledge of a criminal history would ordinarily weigh in favour of the person. Whether the person’s criminal history is known in the community will be a factor in assessing what weight to give to the evidence of repute.

The Department having identified a history of convictions, the applicant must show that in spite of that history he enjoys a good reputation. Evidence of a person’s repute comes from people who can say what a “specific group of people” think of the person. As well, a person may hold a position in the community from which it is reasonable that a person is well regarded. It is necessary to receive evidence relating to the estimation of those groups referred to in Re T and the Director of Youth and Community Services above. The probative value of that evidence will be the greater the more current it is.

In essence a person can have a good reputation even with a criminal history; but if the people don’t know of that criminal history their assessment of the person’s reputation will be of less value.

In this case all of Mr Ashford’s referees spoke of his good character, but none addressed his criminal history. None said that they thought he had a good reputation even though he had been served time in gaol for drug offences.  In concluding Senior Member Robertson said (at 14):

Although each of the referees speaks highly of Mr Ashford and his character, none of the references include any suggestion that the referee was aware of Mr Ashford’s conviction. Without evidence that the referees were explicitly aware of Mr Ashford’s conviction and, despite that knowledge, attested to his good reputation, with knowledge that that attestation is to be tendered in the Tribunal for the purpose of establishing that Mr Ashford has a good reputation, the references are of limited value in assessing Mr Ashford’s reputation.

The Tribunal found that the onus was on Mr Ashford to show that a “specific group of people” thought highly of him even though he had those convictions. He failed to do that so failed to overcome the ‘presumption that the person has, among those who know of that history, a bad reputation’ and so the application for a public transport authority was again declined.

If you are going to ask for a reference make sure that your referee knows why you want the reference and what you intend to do with it.

If you are asking for a reference to be put before a court make sure the reference is addressed to the court (not ‘to whom it may concern’) and it addresses the reason why the person is before the court.  In this case the referees needed to say words to the effect that they knew Mr Ashford was applying for a public transport authority, they knew of his criminal history and even so they were prepared to attest to his good character.

If you are seeking a reference to support a plea in mitigation, the reference has to be addressed to the court and indicated that the referee writer knows the offences for which you are to be sentenced. The referee must not say words to the effect of ‘I don’t think he or she committed the offence …’, or worse, that ‘he or she did not commit the offence’.  When a reference is being used for sentencing the person has either entered a plea of guilty or been found guilty after a trial.  The referee writer has to accept that the person is guilty.  IF they don’t the reference is unhelpful. IF they assert that the person ‘did not’ commit the offence, then the referee writer should have been giving evidence at trial.

Failure to have a reference that explicitly addresses why it has been given and which addresses the issue that needs to  be addressed, in Mr Ashford’s case, his reputation amongst the community given his criminal record, then they serve little purpose.

Between the 4 and 14 January 2017, Mark Ganon lit a number of grass fires in the North West metropolitan area of Melbourne by attaching weights to sparklers that were lit and then throwing them into grass from his vehicle.  The fires burned out 431,274 square metres of grassland. Some of these fires burned ‘close to residential properties, posing a risk to the public and major freeways causing traffic delays.  Self-evidently, this type of criminal behaviour poses a great risk to the safety of people who may be nearby and those tasked with fighting the fire, as well as a great risk of damage to property.  Fortunately,  the damage from [Mr Ganon’s] conduct was confined and no one was injured’ (DPP v Ganon [2017] VCC 1314, [7] (Lacava J)).

Police detected Mr Ganon driving a vehicle, similar to one identified on CCTV, with stolen number plates. He was stopped, and after a struggle with police, arrested. He was found to be unlicensed, driving an unregistered vehicle and in possession of a small amount of methylamphetamine. He was charged on 17 January 2017 and was held in custody until hs sentencing on 14 September 2017, a total of 226 days.

Mr Ganon entered a plea of guilty to all offences – six charges of intentionally causing a bushfire and one charge each of possession of a drug of dependence; handling stolen goods; committing an indictable offence whilst on bail; resisting an emergency worker on duty; unlicensed driving and driving an unregistered vehicle.  Whilst Mr Ganon had 9 previous convictions, none were for arson or related offences. This was his first time in prison. Whilst on remand the judge noted (at [22]) Mr Ganon ‘have behaved well, remained drug-free and [had] a job.’

In sentencing Mr Gannon, Lacava J said (at [16], [18]-[19]):

You endangered the safety of people and property on a fairly large scale.  The offending extended over a period of almost two weeks and it involved repeated acts of lighting fires.  Any sentence must properly impose a measure of protection of the community from you and reflect deterrence, both general and specific, and must appropriately denounce your offending and impose just punishment and take into account your prospects for rehabilitation, which I assess as being only fair.  One cannot be more certain, because you must rid yourself of drug dependency and have appropriate treatment for your mental health problems…

By your guilty pleas, you have saved the time and cost of a trial.  I also treat your pleas of guilty as indicative of genuine remorse on your part for your actions.

Because you pleaded guilty at the earliest opportunity, you are entitled to a reduction in sentence …

Counsel for the defendant pointed to support that Mr Ganon had from his family and that he had ‘already made significant progress towards [his] own rehabilitation’ ([30]).   He suggested ‘a term of imprisonment of not more than 12 months and have you assessed for a community corrections order’ ([31]).

The judge did not agree that this would be an appropriate sentence, he said (at [31]):

In my opinion, your offending is too serious and having regard to the purposes of sentencing which must be taken into account when sentencing you for this offending, I am of the opinion that a term of imprisonment of 12 months and a community corrections order would not properly serve the purposes of sentencing in this case.  For these reasons I will impose a term of imprisonment and fix a non-parole period.

Mr Ganon’s sentences ranged from a $200 fine for driving an unregistered vehicle to three years for one of the arson charges.  Some sentences were to served consecutively (ie one after the other) others, or at least part them, concurrently (ie at the same time).  The effect was a total sentence of 5 years imprisonment with a non-parole period of 3 years and 4 months.  The sentence and the non-parole period were all back dated to the date that Mr Ganon was first arrested.  Had Mr Ganon entered a plea of ‘not guilty’ and been found guilty after trial, the appropriate sentence would have been ‘seven and a half years and I would have fixed a non-parole period of five years’ ([46]).

I make no comment on whether this, or is not, an appropriate sentence. Sentencing is a complex process taking into account a multitude of factors both personal to the offender and the objective risk to others. Judges have experience in dealing with people and placing the offending before them on a scale. For people with no experience of the criminal justice system every offence is as bad as it gets if that’s the only one they’ve seen. Judges, with extensive experience in law before their appointment to the Bench, realise that the range of human behaviour is extreme and its causes complex.  Whether readers of this blog think 5 years is lenient, harsh, or just right, I shall leave to them to decide.  Hopefully this summary (or reading the full judgement) at least shows the factors that are taking into account and some insight into the judge’s reasoning.

I do say that it is appropriate to give a discount for a guilty plea as it does allow and encourage offenders to take responsibility for their action and it saves the state and victims (where there are victims) the time and trauma of a trial. If there were no discount it would always be worth going to trial and seeing if the Crown case, for some reason, fails to prove the case to the required standard. (The discount for a guilty plea does, however, also put pressure on people who are not guilty to enter a plea rather than take their chances at trial).

It is also important to set a non-parole period. Without a non-parole period an offender would be released at the end of his or her sentence with not assistance to fit back into society.  With parole, there is an incentive to take steps to behave whilst in prison and to deal with whatever issues are in the offender’s background. The offender can be rewarded with parole for good behaviour, and when released their release can be subject to terms and the supervision of the parole service both to monitor their behaviour and to assist them with the transition back into society.

Today’s question is a question relating to the use of video cameras by Victorian Paramedics. Today’s correspondent says:

I’m an ALS paramedic with Ambulance Victoria and am involved in the Body Camera Trial. I have a question regarding consent with these cameras and was hoping you could help. We have been instructed to inform patients that they are being recorded (visual and audio) at the time that we choose to turn the cameras on.

Is this necessary and for what purpose must we gain this consent? I ask the question because we recently attended a very busy house, with lots of people whom I would have filmed. Must I gain consent from, say, each person who I speak with?

I fear this process could:

1. be impossible, imagine attending a large house party and
2. ‘silently’ activating my camera may provide less cause for grievance. I have already had patients, in their home, refuse to be recorded.

All in all, my colleagues and myself are very confused regarding this issue.

I think I have, to a large extent, answered the questions in my original post on this subject – Body cameras for Victorian paramedics (December 19, 2016) – but today’s question does raise a couple of issues for clarification.   In answering this question I do not have access to any protocols or procedures published by Victoria Ambulance on the appropriate use of these cameras.

In my post of December 2016 I said:

Cameras worn by paramedics will largely be recording conversations and activities to which the paramedic is a party, ie conversations and interaction between the paramedic and someone else in which case the recording may be made without the need to obtain the patient’s consent.

In a media release issued on 21 June 2017 the Victorian Premier, said:

Paramedics who opt to wear the cameras will start recording if they feel at risk or are threatened, warning people they are being filmed. Vision can then be used as evidence for police investigations and prosecutions.

I think the critical word in the Premier’s statement is that paramedics will warn people they are being recorded.  As my correspondent also says ‘We have been instructed to inform patients that they are being recorded…’ Informing someone that something is happening is not the same as getting their consent.  In simple terms the statement ‘I’m recording this conversation’ is different to ‘I would like to record this conversation, is that ok?’

Based on my understanding of the law and of the trial (an understanding which is limited to the Premier’s media release) paramedics do not need to obtain consent to record the interaction, they just need to tell the person they are doing it.

The first question I was asked was:

Is this necessary and for what purpose must we gain this consent?

The answer is that asking for consent is not necessary but it is wise to tell people they are being recorded as that will reduce potential objections to the use of the video in evidence if that is later required. Police are required to caution a person that what they say may be used in evidence against them. Paramedics are not police and are not arresting a person so they don’t have to issue that caution but there can be objections to the use of evidence where a person did not know it was being collected. For example, one can object to the use of evidence if its use, or the manner in which it was collected, is unfair to the accused. Telling a person that they are being recorded will help remove that objection if they then commit an offence, or make admissions about an offence, whilst being recorded.

Must I gain consent from, say, each person who I speak with?

As noted you do not need to gain consent, the requirement is to inform people.  Certainly if you are at a scene with lots of people I can’t see that you either need to, nor could inform everyone.  I would suggest that the appropriate response would be to activate the camera and inform people you have direct contact with, eg the patient and those looking after him or her.  It would also be prudent to inform anyone else you engage with if the communication is more than trivial and certainly if you think they pose a threat to you. The hope is that if someone is being aggressive telling them they are being recorded may make them stop and think twice (of course it also may not, I have no idea if there is any evidence one way or the other).

It’s always going to be a matter of judgement. If you enter a large, complex scene with lots of people you might turn the camera on as you don’t know what you’re going to and as you simply interact with people you can’t inform them.  Once you get to a patient and start treating you may say to them ‘I’ll just let you know I am recording our conversation and my treatment’ and that would be sufficient.  The question of whether the presence, or not, of a warning would make any difference to later use of the video would depend on all the circumstances.

Today’s interesting question is:

I was wondering about the term MEDICAL OFFICER; does that refer to only a doctor or can a first aider be called a medical officer as well?

The regulation of health professionals in Australia is governed by the Health Practitioner Regulation National Law. This law is set out in Schedule 1 to the Health Practitioner Regulation National Law Act 2009 (Qld). In an exercise in cooperative federalism, the other states and territories either copy the Queensland law or simply adopt it as part of the law in their jurisdiction, giving rise to the national registration scheme.

The Health Practitioner Regulation National Law provides for protected titles, that is only registered health professionals can use the title associated with that profession.  For medical practitioners the only restricted title is ‘medical practitioner’ (cl 113).  (That can be compared to say nursing and midwifery where the restricted titles are ‘nurse, registered nurse, nurse practitioner, enrolled nurse, midwife [and] midwife practitioner’).

It follows that to use the title ‘Medical Officer’ is not a breach of cl 113 of the Health Practitioner Regulation National Law.  Clause 116(1), however, goes on to say:

A person who is not a registered health practitioner must not knowingly or recklessly—

(a) …

(b) take or use a title, name, initial, symbol, word or description that, having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate—

(i) the person is a health practitioner; or

(ii) the person is authorised or qualified to practise in a health profession …

I don’t know, and can’t imagine, the circumstances in which a first aider would want to use the term ‘medical officer’ but I would suggest that it may well indicate to someone that the person is a ‘medical practitioner’ in which case it would be an offence contrary to cl 116.  The maximum penalty for that offence is a fine not exceeding $30 000.

If the title was used in trade or commerce, for example if the first aider was operating an event health service and used the title in the hope that it would encourage potential customers to contract that service, then the relevant consumer protection laws would also apply. The Australian Consumer Law is relevant if the business entity is a company whereas state consumer laws apply to individuals, but again in an example of cooperative federalism, the laws do mirror each other to ensure that consumers are protected regardless of the business structure being used.

The Australian Consumer Law is set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).  There are provisions about making misleading statements with respect to the supply of goods and the nature of services. The overarching rule can be summed up by cl 18 that says ‘A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.’  If a person used the term ‘Medical Officer’ in the expectation or hope that someone would be misled as to the nature of the person’s skills or services that they could provide, that would be an offence.  Equally it would be an offence if the use of the title, in all the circumstances, was ‘likely to mislead or deceive’ even if the person using the title did not intend or did not realise that people were likely to be misled or deceived.

It is not an offence to use the title ‘medical officer’.  It is an offence to use that title if, in all the circumstances, the use of the title might infer that the person using it is a registered health practitioner and the person using the title intends that result (that is they ‘knowingly’ use it in that way) or they realise that it may be understood in that way (ie they use it ‘recklessly’; Health Practitioner Regulation National Lawn cl 116).  It is also an offence if the title is used ‘in trade or commerce’ and, in all the circumstances, it does mislead or it might mislead potential customers or patients as to the person’s skills, qualifications or the services that they can offer (Australian Consumer Law cl 18).

A request for civility.  If you plan to comment on this post, and you’re welcome to do so, please remember that the question asked does not imply that the person who asked it is a first aider who wants to use the title medical officer.  For all we know my correspondent may be aware of someone else who is doing that, or wants to do it and they want to understand the legality of the position.  So if you are going to comment, please don’t criticise the person who asked the question.

It is with great pleasure that I announce that I have agreed to accept a role as a co-opted member of the Board of Paramedics Australasia (PA).

PA (https://www.paramedics.org/about/) is ‘… the peak professional organisation representing practitioners who provide paramedic services to the community’.  I have had the privilege of being an Honorary Fellow of PA since 2014.

The PA Constitution (rule 7.2.1.1) provides that the Board is to be made up of up to 13 Directors.  Seven are elected from the members of PA; two are elected from ‘the wider community’ and both the Secretary and Treasurer are co-opted members of the Board, giving a total of 11. Rule 7.2.1.2 then says:

The Board may co-opt up to two (2) additional Directors, drawn from either the PA membership, or the wider community, for a period of up to twelve (12) months on any one occasion. These Directors must be elected by a 75 percent majority of the Board voting for this specific purpose.

It is under rule 7.2.1.2 that I have been asked to serve on the Board for the next 12 months as paramedics make the transition to registered health professionals.

It is with pleasure that I accept this role and I look forward to making a contribution to this important development in paramedic professional development.  My full time working life began in 1988 when I commenced employment as a probationary ambulance officer with NSW Ambulance. It is nice, now, to be offered the opportunity to use the expertise that I have developed in nearly 30 years as a lawyer and academic, in direct and practical service to my original profession.

As a member of the Board of PA I may be limited in my ability, on this blog, to discuss matters that are being considered by, or have been adopted by, the PA Board. Subject to that I intend to retain my independence and to continue to comment on, and answer questions relating to, paramedic and ambulance service practice.

I look forward to making a contribution to the development of paramedicine over the next 12 months.

Today’s question revisits the difficult problem that faces paramedics, first responders, first aiders and others who may be called upon to provide emergency care and who are told that the patient has previously refused resuscitation. This issue has been talked about before – see the various results posts that a search ‘refuse resucitation’ brings up on this blog. It was also the subject of my first refereed journal paper – Michael Eburn, ‘Withholding, Withdrawing and Refusing Emergency Resuscitation‘ (1994) 2 Journal of Law and Medicine 131-146.  Even so it’s worth returning to the subject.  Today’s correspondent says:

Last week first aiders at a hotel attended a gentleman who had suffered a cardiac arrest in the hotel carpark. On arrival they commenced CPR and applied an AED. Full resuscitation efforts were made. While attending to the gentleman the wife was becoming increasing agitated saying that he had a Do Not Resuscitate order in place and was constantly asking them to stop all resuscitation efforts. The wife had no documentation available to show that her husband was DRN.

Should first aid/cpr have stopped once the wife verbally indicated that the patient had a DRN in place and if not, what is required in order for a first aider to withhold or stop CPR?

The law is not complex. It says (in summary):

1. Medical care (emergency excepted) must be preceded by the patient’s consent (Rogers v Whitaker (1992) 175 CLR 479).
2. A person can refuse medical care for any reason, or no reason. Their decision does not have to be judged as ‘reasonable’ by anyone else (Malette v Shulman (1990) 67 DLR (4th) 321).
3. To validly refuse treatment a person must be competent, informed and the refusal applies in the circumstances that have arisen (In Re T [1992] EWCA Civ 18).
4. To treat someone who does not consent to the treatment is a battery (Collins v Wilcock [1984] 1 WLR 1172).
5. Care can be provided in an emergency provided that it is care that a reasonable person would provide, acting in the patient’s best interests (In Re F [1990] 2 AC 1).
6. Care cannot be provided that is contrary to that persons known wishes (In Re F [1990] 2 AC 1).

That simplicity however conceals the complexity that is knowing whether those circumstances exist. That is, the law is not complex, but its application is.

Talking generally, the law says:

If facts A, B and C are true – then this is the legal conclusion.

(That summary is true whether you’re talking about murder, negligence or a speeding ticket).   Courts spend most of their time deciding if A, B and C are true, not what the law is or what the conclusion must be if those facts are true.

Let us put that discussion in context.  If the ‘gentleman who had suffered a cardiac arrest in the hotel carpark’ had:

• previously decided that he did not want CPR, and
• in making that decision he was informed about what that would mean and its implications, and
• he meant that refusal to apply if he had a sudden and unexpected cardiac event (ie his ‘refusal’ was not just some general statement ‘if I become unwell and dependent, don’t proceed with heroic measures); and
• if the first aiders knew all that (or at least knew (1) and had no reason to question or doubt (2) and (3) – Malette v Shulman (1990) 67 DLR (4th) 321)

then the first aiders should withhold CPR.

But how do they know (1) or make any assessment of (2) and (3)?  One might say they know he’d refused CPR as a person purporting to be his wife said so. But that may not be sufficient. They can’t assess the nature of the relationship between them and they certainly can’t take time to explore with her the circumstances in which the stated refusal were made or the circumstances in which it was meant to apply.  Perhaps they had a discussion about his future and possible consequences but were they thinking of a sudden event in a car park? The statement by the wife is not ‘he has refused resuscitation’ it’s at best ‘I believe he has refused resuscitation’.  Courts, in all the cases listed above, have had time to consider the issues and hear evidence about what happened and what people said and to hear counsel’s submissions on what the evidence shows and what conclusions the court should draw. A first aider does not have that luxury.

So how might a first aider or paramedic know any relevant facts. First might be a written document.  At common law (as opposed to the various legislative provisions in some states and territories) there is no required ‘form’.  Any evidence of the person’s wishes is indeed evidence that they have refused resuscitation.  I have previously argued that I think a ‘Do Not Resuscitate’ tattoo (‘Medical tattoos offer important health information’ (March 3, 2012) but that position is not without controversy) or a medic-alert bracelet (Ignoring a medic-alert bracelet (July 19, 2015)) is pretty clear evidence.  In Malette v Shulman the court said carrying a card that set out the patient’s refusal (in that case to blood transfusions) was sufficient.  The court was concerned with a person who 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…

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.

The first question to be considered then is there anything from the patient (not his wife) that communicates’ his wishes. The tattoo, the DNR bracelet, the card or a DNR ‘order’ signed by him (even if produced by her) and ideally (but not necessarily) counter-signed by the person’s treating doctor?  In the story told by today’s correspondent we know the answer is ‘no’.

The next issue I would want to consider is does any purported refusal, particular where the only evidence of it is the wife’s statement, apply in these circumstances. One might imagine first aiders at a community event that is designed for the very elderly or the terminally ill. It might be easier to accept then that there is a DNR request that is meant to apply at that point.  One does not have to be terminally ill to refuse CPR but it would seem, if the person is at the end stage of a terminal illness, that their direction is meant to apply at that time.

In today’s question, we’re told that the ‘gentleman who had suffered a cardiac arrest’ was ‘in the hotel carpark’.  Clearly, he believed he was well enough to go to a hotel – what was he doing there? Staying there whilst seeking medical care? Or having a night on the booze whilst playing poker machines?  In one sense it doesn’t matter, as noted a person can refuse treatment at any time and without reason. But if a first aider (or paramedic, or other health professional) is trying to understand the person’s wishes, given they have little time to make decisions, evidence of a medical condition that gives support to the idea that they may have refused CPR would be helpful. So, if the person was being wheeled out of the hotel with their oxygen bottle connected to their wheelchair, first aiders and others may feel more confident when told ‘he doesn’t want to be resuscitated’ than if the person is an apparently fit and healthy young person who has clearly been out partying.

A person’s spouse is the ‘person responsible’ for making medical decisions on their behalf if they are no longer able to make those decisions (I’m not sure which jurisdiction this question comes from, but see for example, Guardianship Act 1987 (NSW) s 33A).  There are however many steps to go through before a ‘person responsible’ is asked to consent to treatment or the withdrawal of treatment (see s 40). A first aider can’t determine, on the scene of a cardiac arrest, whether the person who says they’re the patient’s wife is indeed the ‘person responsible’ (or whether one of the other people listed in s 33 fills that role). Consent under the Guardianship Act is, again, intended to be relied on for decisions where there is time, rather than emergency decisions (see s 37).

Finally, there’s the obvious position that the decision to commence treatment can be withdrawn later, but the decision to withhold CPR is terminal. If the first aiders start CPR then they will get assistance from the paramedics who in turn will deliver the person to a hospital. Once at hospital (assuming that the CPR is effective and they aren’t pronounced dead in casualty) the medical staff, supported by hospital ethicists, can review all the person’s circumstances, follow up with the GP or treating specialist (if there is one), allow the wife time to find the DNR order etc and then, if appropriate, withdraw treatment (but as noted by a correspondent on the FaceBook version of this blog, it won’t be appropriate to withdraw treatment if the first aid is successful and the person survives even if they suffer from the very deficits they wanted to avoid (eg long term brain damage).  On the other hand, if the first aider chooses not to apply CPR then the person dies there.

Really, it’s a risk assessment. The chances of this becoming a legal issue is infinitesimally small.  If the person really has decided to refuse treatment, they may be aggrieved their wishes have been ignored (like Mrs Malette in Malette v Shulman) but they can’t do much about it unless they survive (which is not likely – CPR success: TV v Reality (September 3, 2015)).  Remember in Malette’s case she had signed a card so had taken steps to convey her wishes ‘in the only way possible’.  That was not suggested in the situation under discussion today.

In the situation described today there are two options. The first is to ignore the wife’s claims that there is a DNR order and ‘commenc[e] CPR and appl[y] an AED’.  I can’t see that there could be any legal consequence. A court would recognise that first aiders have limited ability or time to assess any such claim. Unlike other cases such as a tattoo, bracelet or card, the person has not gone to any steps to communicate so the claim that they do not want resuscitation is not supported by any evidence.  The best option has to be to complete CPR and let others, with more time and more ability to access information, determine what the patient has decided about their care (if anything). In Malette’s case it was said the patient’s wishes should be respected as she had done everything she could to communicate, and if the card (in that case) no longer reflected her wishes then she was still responsible for the consequences of doctor’s complying with her instructions. The flip side has to be that if a person has taken no steps to be able to communicate their wishes – by carrying the documentation or doing something, then they can’t hold others responsible for NOT acting on the (un)known wishes.  I can’t see that to perform CPR in those circumstances is to do anything other than act reasonably and in the patient’s best interests (and I note that is not even beginning to look at any statutory exceptions for actions done in good faith by volunteers, good Samaritans or paramedics).

The other option is to accept the wife’s claims. Perhaps it is clear the patient is terminally or chronically ill, and the wife can provide details of where and when the order was made, the person’s treating doctor and other information that gives credence to her claim. In those circumstances, it may be reasonable to accept what she says – see Withholding Resuscitation in Victoria (April 8, 2013). I can’t see that raising any legal consequences either.  To paraphrase Malette v Shulman:

The first aider 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 wife’s clear statement and respects the patient’s right to control his own body in accordance with the dictates of her conscience. The onus is clearly on the wife as a ‘person responsible’ for their partners care. When members of a person’s immediate and intimate family choose to insist that a person has refused the proposed they must accept the consequences of their decision. Neither they nor their dependants can later be heard to say that what they claimed where the person’s true wishes did not in fact reflect their true wishes. If harmful consequences ensue, the responsibility for those consequences is entirely theirs and not the first aider’s.

The second option (withhold treatment) may conflict with the first aiders personal, professional judgment and may lead to conflict with other family members. It may lead to difficult questions within the organisation for which they work, with police and although highly unlikely, the coroner.

In short the risk of any legal consequences with either option is probably very, very low but probably even lower with continuing first aid than withholding it (in the absence of a clear indication of the patient’s wishes).

The questions asked were

• Should first aid/cpr have stopped once the wife verbally indicated that the patient had a DRN in place? and
• if not, what is required in order for a first aider to withhold or stop CPR?

With no knowledge of the patient’s medical history and no independent, corroborating evidence (such as a card, tattoo, bracelet, signed DNR order etc) I would suggest that the best approach was to continue CPR. If that was contrary to the patient’s wishes, it is a decision that could be reversed later.  My view would be that first aid/CPR should NOT have been stopped.

What I would want to see before withholding or stopping CPR is some evidence that the person themselves has tried to communicate their wishes (the tattoo, bracelet, card or ideally a formal DNR document signed by their medical practitioner and complying with the prescribed form in those states and territories where there is such a form (eg Victoria, but not NSW)). I would also want to be reassured that they had some relevant medical history (eg the terminal stage of a terminal illness) to believe that they intended to refuse CPR in the circumstances that have arisen, remembering however that this is not essential. A person can refuse any treatment they want, at any time, for any reason.

The death of John Benedict Munkara came before the Northern Territory coroner as Mr Munkara died whilst in police custody. All deaths in custody must be investigated by the coroner (Inquest into the death of John Benedict Munkara [2017] NTLC 016, [39]).

Mr Munkara was 44 years old with a long history of alcohol abuse and consequent poor health. On the night of 15 September 2016, whilst heavily intoxicated, he was bashed.  The next morning, he reported to Rangers that he had a sore back and asked them to call an ambulance. At 7.41am, the Rangers contacted police to report both the presence of a group of people consuming alcohol in the park and the request for an ambulance.  The Ranger said “I figured we’d give you guys [police] a call as you’d probably be better equipped to assess it”.

Police were despatched to the scene but the police call taker did not call an ambulance nor was it recorded that an ambulance had been requested.  On arrival, at 7.50am, police asked the group to move on but did not look for or deal with Mr Munkara, remembering that at that time they had not been advised that a person was requesting an ambulance.

At 8.42am, rangers again called police. At 9.37am, police arrived and found Mr Munkara sitting next to the toilets and unresponsive.  They decided to take him into protective custody. They assisted him to his feet but ‘after a few steps he seemed to go limp and they carried him the remaining distance. They decided to take him straight to the Hospital’ ([20]).  They got him to the police car and on examination could not find a pulse. They removed him from the car, and at 9.50am contacted their coordination centre to request an ambulance.

The Coroner reported the final events in Mr Munkara’s life at [22]-[31]:

The log of that call [at 9.50am] states that they required an ambulance for an Aboriginal male of 40 years of age that was non-responsive, currently breathing and highly intoxicated. A minute later Constable Chisolm called again asking for urgent assistance as the breathing of the deceased had become very shallow.

One minute later at 9.52am Constable Chisholm reported that cardio pulmonary resuscitation (CPR) had commenced. He also asked for backup and a mouth to mouth face shield.

At 9.59am a Border Force vehicle with four Customs personnel arrived and supplied a face shield and one of them commenced mouth to mouth resuscitation while Constable Ascoli continued with cardiac compressions.

At 10.01am Police vehicles 556 and 400 arrived at the location. The face shield was changed for an Oxy-viva unit from car 556.

At 10.03am the Ambulance arrived. The paramedics took over the airway and gave the deceased adrenalin and intravenous fluids. Senior Constable Ascoli remained doing the compressions.

At 10.10am the deceased was given more adrenalin and an AutoPulse machine was used to undertake the compressions. At 10.15am and 10.20am he was given more adrenalin.

At 10.25am the deceased’s pulse returned. He was placed in the Ambulance and taken to Royal Darwin Hospital, arriving at 10.38am.

On assessment at the Hospital he was unconscious, a laryngeal mask airway was in place but he was found to have pulseless electrical activity.

CPR was once more commenced and he was given more adrenalin. His pulse returned after 7 minutes but his blood pressure was very low (50/30) and his PH was 7.8. He was given fluids, an adrenalin infusion and lactate. However his prognosis was very poor and when his blood pressure dropped to 30/20 despite fluids it was considered that further efforts were futile. The adrenaline infusion was stopped at 11.27am and he was pronounced life extinct at 11.33am [16 September 2016].

An autopsy was undertaken. In the opinion of the Forensic Pathologist, Dr Rutherford the deceased died of natural causes. He listed the cause of death as “coronary artery disease superimposed upon chronic obstructive pulmonary disease with alcohol toxicity as an aggravating factor”.

My first impression is that’s a significant response.  The first call for an ambulance was made at 9.50am. By 10.03am three police vehicles, a border force vehicle and an ambulance were all on scene with police, ambulance and border force officers all working together to try to save Mr Munkara’s life.  The Coroner said (at [39]-[43], emphasis added):

The deceased died very shortly after being taken into Police custody. Section 26(1)(a) of the Coroner’s Act requires that I must investigate and report on the care, supervision and treatment of the deceased while he was being held in custody. Because he died so soon after being taken into custody, there is a limited period to be examined.

The Police decision to take the deceased into protective custody was reasonable and appropriate. He was sitting in an area making it difficult to access the toilet facilities and close the door and when approached was barely responsive and smelt of alcohol. The Police assisted him to his feet and when he collapsed they were there to take his weight. At that point they decided to take him to the hospital. However when they got to the van they checked his pulse and soon thereafter commenced CPR and called for an ambulance. The conduct of the Police Officers who attended to the deceased was of a very high order. The only criticism is the failure to have available a face shield.

Mention should also be made of the conduct of the Border Force personnel who supplied the face mask and undertook the breaths. They were not called to give evidence during the inquest but their ready and willing assistance and expertise was also of a very high order.

By the time St John Ambulance arrived the deceased had died, however the evidence indicates that the paramedics carried out their duties efficiently and professionally and transported the deceased to Royal Darwin Hospital after re-establishing a heartbeat. I also thank St John Ambulance Service for their attendance and assistance at the inquest.

In my opinion the care, supervision and treatment of the deceased was appropriate.

With respect to the police that first attended and tried to assist Mr Munkara the Coroner later said (at [53]) ‘I was also impressed by the Police Officers who attended Vestey’s Beach in relation to this matter on both occasions. They were clearly very caring and compassionate officers and distinguished themselves in both their actions on the day and when giving evidence during this inquest.’

The coroner did make comments on some matters.  With respect to the fact that the first police on scene found that their first aid kit did not contain a face shield he said (at [58]) ‘police are trained in first aid and to be unable to provide the breaths in CPR due to failure to keep the First Aid kit in the Police vehicle appropriately equipped is not acceptable’.  He noted the response by NT Police and they now had regular checks of kits and vehicles were ‘taken off line’ until kits were replenished ([59]).

The coroner made the most significant comments (at least relevant to this blog) with respect to the police call taker who failed to record, or pass on, the request for an ambulance when the call was first made at 7.41am.   As the coroner said (at [44]) ‘If an ambulance had been called at 7.41am when the Council Ranger passed on the request to Police Communications, the deceased may have received attention and treatment two hours earlier than he did.’  The Corner listened to the recording of the call and said (at [48]-(50)):

… the best that can be said is that the call taker was casual in dealing with the information. The worst that might be said is that she was dismissive, an allegation she rejected.

However, whatever the reason, it was not her place to filter the information. She should have noted the request for an ambulance in the CAD entry, a fact she readily conceded.

By filtering out that vital information she prevented those checking her entries from being able to correct her mistake.

The NT police conceded that the performance by, and training of, the call taker had been ‘deficient’.  They gave evidence of the training they were now introducing to assist and equip ‘call takers, dispatchers, call centre supervisors and dispatch supervisors based on the Victorian training package’ ([51]).

Given the problems with the police response (information not passed on and first aid kit incomplete) the Coroner said that he ‘was impressed by the ability of the Police to view these matters objectively and work toward fixing the gaps in their systems. I wish to commend Police on their approach to this inquest and on their desire to improve their systems’ [52]).

The Coroner did make adverse comments on the way Mr Munkara had been treated by the Top End Health Service which had failed to properly deal with him under the Northern Territory’s Alcohol Mandatory Treatment scheme on previous occasions including his last presentation in May 2015 but these matters are beyond the scope of this blog on emergency law.

In my work people in the emergency sector report terrible fear of the coroner. The biggest threat is ‘well you can explain to the coroner why ….’  I can’t say what the experience of appearing before the coroner was for the police in this case was, but the coroner was clear in his praise of their conduct both in the emergency and in before the court.

The coroner did identify shortfalls in police procedures but was also willing to recognise the efforts the police had gone to fix their systems.  And if the inquest identified ‘gaps in their systems’ ([52]) then that’s good, and exactly what an inquest is meant to do. If with better training and processes information is recorded and passed on, and first aid kits are checked and police vehicles not used until they’re restocked, then lives may be saved.

The lesson learned – appearing before the coroner isn’t always a bad thing.

Today’s correspondent is a Queensland paramedic who has

… a question relating to the Emergency Examination Authority that Queensland paramedics and police officers can use. Please see link for ease of reference:

https://www.ambulance.qld.gov.au/docs/clinical/cpp/CPP_Emergency%20Examination%20Authority.pdf

My questions relate to two possible scenarios:

1. A person is involved in a car crash. They meet all requirements to be placed under an EEA due to a head injury making them violent, combative and unwilling to seek medical treatment.
2. A person was out drinking, they had their drink ‘spiked’ by person’s unknown and their behaviour became such that they were violent, combative and self destructive.

Both scenarios could see the person placed under an EEA. If they were, through absolutely no fault of their own, would there be any repercussions for that person in the future? Does an EEA affect a persons future ability to seek high level security clearance or work within federal services such as police, military or intelligence?

An Emergency Examination Authority is a document completed by an ambulance officer or police officer who has detained a person for treatment (Public Health Act 2005 (Qld) s 157D). The Authority justifies the persons continued detention in a public sector health facility for examination and treatment (s 157E). The grounds for detaining, transporting and then authorising the continued detention of the person are:

… an ambulance officer or police officer believes—

(a) a person’s behaviour, including, for example, the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and

(b) the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and

(c) the person appears to require urgent examination, or treatment and care, for the disturbance.

Will that sort of detention and treatment affect the future ability to seek a security clearance? I can’t answer that in detail as I’m not sure how much of that is based on law and I don’t claim expertise in security laws. However, consistent with open government many details of security clearances are available online.

The Attorney-General’s Personnel security guidelines Vetting Practices (Commonwealth of Australia 2013) says:

4.7.2 Mental health checks

177. Mental health assessments should only occur where the vetting agency identifies issues relating to the clearance subject’s ability to protect Australian Government resources. Having a mental health illness does not necessarily mean that a clearance subject would not be able to protect classified information or resources.

178. Additional mental health checks may be warranted where the vetting agency is concerned that the clearance subject’s emotional stability or psychological health may affect their ability to protect Australian Government resources.

179. If the clearance subject is, or has been, under treatment for an emotional or mental health condition, information may be requested from a mental health professional. The request for any medical information, including mental health concerns, should be undertaken in accordance with section 4.7.1 – medical checks.

Section 5.2.7 is headed Emotional/Mental health issues. It says:

The concerns

337. Certain emotional, mental, and personality conditions can impair judgment, reliability, or trustworthiness. A formal diagnosis of a disorder is not required for there to be a concern under this guideline.

338. A duly qualified mental health professional (e.g. clinical psychologist or psychiatrist) employed by, or acceptable to and approved by the agency, should be consulted when evaluating potentially disqualifying and mitigating information under this guideline.

339. No negative inference concerning the standards in this Guideline may be raised solely based on seeking mental health counselling.

Conditions that could raise a security concern and may be disqualifying

340. Behaviour that casts doubt on a clearance subject’s judgment, reliability, or trustworthiness that is not covered under any other guideline, including but not limited to emotionally unstable, irresponsible, dysfunctional, violent, paranoid, or bizarre behaviour.

341. An opinion by a duly qualified mental health professional that the clearance subject has a condition not covered under any other guideline that may impair judgment, reliability, or trustworthiness.

342. The clearance subject has failed to follow treatment advice related to a diagnosed emotional, mental, or personality condition, e.g. failure to take prescribed medication.

Conditions that could mitigate security 

343. Mitigating factors may impact one or more areas of concern:

• The identified condition is readily controllable with treatment, and the clearance subject has demonstrated ongoing and consistent compliance with the treatment plan.
• The clearance subject has voluntarily entered a counselling or treatment program for a condition that is amenable to treatment and the clearance subject is currently receiving counselling or treatment with a favourable prognosis by a duly qualified mental health professional.
• Recent opinion by a duly qualified mental health professional employed by, or acceptable to and approved by the agency seeking the clearance that a clearance subject’s previous condition is under control or in remission, and has a low probability of recurrence or exacerbation.
• The past emotional instability was a temporary condition (e.g. one caused by death, illness, or marital break-up), the situation has been resolved, and the clearance subject no longer shows indications of emotional instability.
• There is no indication of a current problem.

Conclusion
The mere fact that a person has been detained under the Public Health Act should not stop a security clearance. It may cause the Australian Government Security Vetting Agency to seek further information but if it appears that the purposes of the person’s detention was due to trauma or intoxication (in particular involuntary intoxication) then it would not, one assumes, suggest a security risk. Even if the cause of the behaviour that justified the detention was a mental illness, the Vetting Practices confirm that this does not, of itself, mean the person should not get a security clearance.

This post is further to my post New speed limit when passing emergency vehicles in Victoria (June 20, 2017). Today’s correspondent says:

This morning at 0530hrs (still darkish) I was driving on a 100KPH Victorian country highway. I saw two red flashing lights ahead of me. I started to slow down to 40KM with traffic behind me building up quickly. As I go closer It was found that the red flashing lights were push bike riders. That leads me to the questions:

1. Are bikes allowed to have red flashing lights?
2. What if these bikes were police bikes, which Vicroads state on their Web site that bikes are vehicles, do I need to slow to 40KPH?

The obligation to register a vehicle applies to vehicles that are required to comply with the Australian Design Rules (Motor Vehicle Standards Act 1989 (Cth); Road Safety (Vehicles) Regulations 2009 (Vic) cl 14 and Schedule 2).  Without chasing it down chapter and verse I think it is safe to assume that a bicycle is not required to comply with the Road Safety (Vehicles) Regulations 2009 (Vic) even though a bicycle is a vehicle, but not a motor vehicle (Road Safety Act 1986 (Vic) s 3).  It follows that the rules about lights, and in particular the rules that prohibit flashing lights set out in Schedule 2 of the Road Safety (Vehicles) Regulations 2009 (Vic) do not apply to bicycles.

When riding at night a bicycle rider must display, either on themselves or the bicycle (Road Safety Road Rules 2017 (Vic) r 259):

(a) a flashing or steady white light that is clearly visible for at least 200 metres from the front of the bicycle; and

(b) a flashing or steady red light that is clearly visible for at least 200 metres from the rear of the bicycle; and

(c) a red reflector that is clearly visible for at least 50 metres from the rear of the bicycle when light is projected onto it by a vehicle’s headlight on low-beam.

That allows me to answer the first question which was ‘1. Are bikes allowed to have red flashing lights?’  The answer to that question is ‘yes’.

That leads to the second question, ‘What if these bikes were police bikes… Do I need to slow to 40KPH?’  For the purposes of the Road Safety Road Rules 2017 (Vic) the term vehicle includes a bicycle (r 15). Rule 79A(1) of the Road Safety Road Rules says:

A driver approaching a stationary or slow-moving police vehicle, emergency vehicle, enforcement vehicle or escort vehicle that is displaying a flashing blue, red or magenta light (whether or not it is also displaying other lights) or sounding an alarm must drive at a speed at which the driver can, if necessary, stop safely before passing the vehicle.

The driver must also ‘give way to any police officer, emergency worker, enforcement vehicle worker or escort vehicle worker on foot in the immediate vicinity of the vehicle’ (r 79A(2)).

It follows that a police bicycle is a police vehicle so yes, if the bikes had been police bicycles there would be an obligation to slow down.  Victoria Ambulance has Bicycle Response Paramedics and the conclusion would be the same for them too. Giving way to police or paramedics on bicycles is also consistent with the rule requiring a driver to give way to police on foot.

It does however raise the anomaly that if police or ambulance bicycles have flashing red rear lights that they use to comply with r 259 then it does impose an obligation on drivers to slow down when passing them, even if there is no emergency.  One could argue that if they were patrolling at regular speed for a bicycle then they are not a ‘slow moving’ bicycle, even if they are moving slower than the motor traffic.  Putting that argument aside, slowing down would be safe for the bicyclist but it is an anomaly as drivers can zoom past other cyclists at the speed limit. Further, from a distance and at night, depending on the uniform, it may be impossible to tell if the bicycle ahead is being ridden by a police officer or paramedic, or someone else. The police and Ambulance Victoria could avoid that problem by only using a steady, not a flashing, red light if they ride their bicycles at night.

That still doesn’t help drivers who see a red flashing light and can’t tell whether it’s a bicycle or an emergency vehicle.  If it makes them slow down even though it turns out that it is a non-police cyclist that is safer for the cyclist, but can no doubt lead to room for confusion.

I was asked

1. Are bikes allowed to have red flashing lights? And
2. What if these bikes were police bikes… Do I need to slow to 40KPH?

My answer to question 1 is ‘yes’.  My answer to question 2 is probably, but if they are riding ‘normally’ (not slowly or stopped) then that is perhaps not what r 79A was meant to solve so arguably the answer is ‘no’.  The safer answer is however, ‘yes’ and if the police have got off their bikes so the bikes are stopped, and police are attending to their duties on the roadside the answer is clearly ‘yes’.