One of the advantages of professional registration under the Health Practitioner National Law is that there will be an open and accountable process for determining complaints against registered paramedics. Even without registration complaints procedures exist, for example in New South Wales complaints about unregistered health practitioners can be made to the Health Care Complaints Commission.

In Queensland, there is a Health Ombudsman (Health Ombudsman Act 2013 (Qld)).  The Health Ombudsman can receive health service complaints including complaints about practitioners who are not subject to national registration. Where the Health Ombudsman thinks that the complaint reveals that ‘because of the practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons’ he or she may issue an interim prohibition order that imposes restrictions on the person’s practice or prohibits them from providing health services (ss 67 and 68). Where an order is made the person the subject of the order may apply to the Queensland Civil and Administrative Tribunal (QCAT) for a review of that decision (s 74).

Lapthorn v Office of the Health Ombudsman (No 2) [2017] QCAT 353 (13 October 2017) was an application for review of a decision by the Health Ombudsman to impose an interim prohibition order on Mr Lapthorn, a Queensland paramedic.

First, a very important point to note

The story that I am about to relate, at least at first instance, implies sexual impropriety. It should be stressed that although that was an initial concern it was not the allegation before QCAT and QCAT’s Acting Deputy President O’Callaghan said (at [80]; emphasis added) that he was ‘satisfied that there were no improper or indecent motives for Mr Lapthorn’s actions’.  It is important to bear that in mind when reading the following details.

What happened

In June 2016, Mr Lapthorn and his partner had responded to a call of a 7 month old baby girl ‘identified as vomiting blood and not alert’. Mr Lapthorn completed a detailed examination of the baby including asking the baby’s mother to remove the infant’s nappy and conducting an examination of the baby’s genital area. The baby was transported to hospital.

Mr Lapthorn’s partner thought that his conduct in examining the baby’s labia was inappropriate and she made a complaint to senior officers. As a result, Mr Lapthorn was suspended from duty and the matter referred to the Health Ombudsman. The Ombudsman determined that there may have been a breach of the criminal law and a breach of the National Code of Conduct for Health Care Workers in that Mr Lapthorn’s conduct may have been unethical, unsafe or sexual in nature. The Ombudsman issued an interim prohibition order directing that Mr Lapthorn not treat any person under the age of 18.

Mr Lapthorn sought a review from QCAT. It is the nature of these reviews that they are a ‘hearing de novo’ (ie a new hearing). The role of QCAT is not to review the original decision to see if there has been any error, rather QCAT is to sit as the decision maker and consider the matter afresh. To be fair to Mr Lapthorn it is important to set out the basis of the complaint as it was presented to QCAT. Acting Deputy President O’Callaghan said (at [26]-[27]; emphasis added):

However, at the time of the hearing, the risk of harm identified by the HO [Health Ombudsman] was expressed, not in terms of risk of unethical, potentially illegal, or unsafe conduct. The HO expressly stated that they were not attempting to make out a case of sexual gratification and no reference was made to potential breaches of specific codes of conduct. Rather, the risk was identified in much broader terms.

The HO submitted that the examination of the infant was done without any reasonable clinical justification. It submitted that, when considered together with the other conduct uncovered in the investigation, the Tribunal could be satisfied on reasonable grounds that there was a risk that Mr Lapthorn would further engage in some form of clinical conduct, which was without reasonable clinical justification and which was potentially harmful.

Again, to be clear, it was not an allegation of sexual impropriety, but an allegation that Mr Lapthorn performed a procedure ‘without reasonable clinical justification’.

Because a hearing before QCAT is a new hearing it is not limited to the issues that were first considered. During the investigation, the Health Ombudsman found other irregularities in Mr Lapthorn’s practice extending back over time. In particular, the Ombudsman alleged that Mr Lapthorn had performed a dangerous and unauthorised procedure known as carotid sinus massage, he had stocked his drug kit with five rather than two ampules of fentanyl as permitted, he had left his station to return home during some shifts contrary to QAS policy and he demonstrated non-compliance with various administrative directions.

Although the Health Ombudsman had only considered the issue of the examination of the child when making the decision to issue an interim prohibition order, before QCAT the Ombudsman relied on all the identified conduct and argued that ‘the collective conduct is what gives rise to the risk and which requires an IPO to protect the public’ ([17]).

What did the QCAT find? Inspection of the girl’s genitals

An expert in paediatric emergency medicine called by the Ombudsman said that it was important to check whether a child who had been vomiting was well hydrated.  It was conceded that ‘that examination of the genital area would reflect a child’s hydration status’ but ‘if an inspection of the mouth had been done to assess hydration, a genital examination would provide no extra information’ ([41]). She was of the view that if the paramedics had already decided to transport the child there was no need to inspect the genitals but ‘if no decision had been made to transit, it may have been appropriate to do a visual inspection of the genitalia, but not to physically part the labia’ ([42]).

The QAS director of clinical quality and public safety gave evidence about the ambulance service clinical practice manual.  The manual recommended both the transport of all paediatric patients and said, ‘A detailed patient assessment is required on all paediatric patients irrespective of the nature of the case’ ([49]). His evidence was ‘It is not in accordance with QAS clinical practice to check the vagina for signs of dehydration’ and that ‘There are no circumstances where it would be acceptable or appropriate to touch and spread an infant’s labia’ ([50]).

Mr Lapthorn also relied on expert testimony. The paediatric emergency physician called in Mr Lapthorn’s case said (at [60]):

• There are theoretically possible causes of fever in a young child which may only be revealed by an examination of their genitals – but that would be rare.
• The membrane lining the area inside the vulvae and the vaginal canal could reflect a child’s hydration status.
• Mark Lapthorn followed a sound clinical principle conducting the examination, that is seeking clinical information.
• In hindsight, the examination was unnecessary and misguided but was not in itself harmful.

His other expert was an experienced paramedic and now a university lecturer in paramedicine.  She was of the view (see [66]) that:

• The presentation of symptoms of the infant warranted a thorough examination, noting the paediatric assessment guidelines,[31] which provide that “a detailed patient assessment is required of all paediatric patients irrespective of the nature of the case”.
• The examination was atypical but justification for variation of practice may include the paramedic’s belief that they are providing more optimal and tailored patient centric care.
• If thrush, nappy rash, meningococcal rash or any other rash (or other hidden problem) were considered possibilities, the removal of the nappy and inspection of the genital region may be appropriate.
• If the examination was for the purpose of identifying an infection then it may be justified.

She agreed ‘that if there had been an examination of the mucus membrane of the mouth then there was no need to examine the genitals for the purpose of assessing hydration’ ([67]).

Mr Lapthorn’s explanation ([71]) was that after examining the child he ‘applied genital pressure to the labia just to check in between the labia for rashes, infections and discharges, foreign bodies such as ticks or anything along that line’.

When asked whether he thought that was the correct treatment he said “[t]here was probably a bit of paternity in it in the fact that I was, with three girls you do check for things like chlamydia, candida infections, discharges, dehydration.  But I was just doing a full assessment or at least I believe that’s what the scope of the thing is.  Like it says do full head to toe surveys…if I was doing a stubbed toe I would not do a 12 lead ECG but given this was a gastrointestinal and possibly a genital urea issue, I felt it was appropriate at that stage.”

Later he said (at [78]):

“I feel I’ve got the experience there with three daughters.  Like I knew what I was looking for from a daughter point of view.  As a paramedic, probably not, all paramedics are going to do like, a lot of paramedics would never consider taking off nappies or perhaps to assess genitalia.  I would probably feel a bit remiss if I didn’t try and get all of the information for the receiving facility, I know, particularly with, and I’m using meningococcal again, as an example, but if you’ve got a rash underneath the nappy there could be meningococcal  and you’ve missed it….”

What, no doubt, counted very much in Lapthorn’s favour was his attitude to the process and the Tribunal.  The Acting Deputy President said (at [69]):

In giving his oral evidence and under cross-examination, Mr Lapthorn presented as honest and non-confrontational.  He accepted reasonable propositions put to him and made concessions even when, apparently, not in his interest.

I shall return to that in the final discussion below.

Ultimately the Tribunal found (at [80]-[83]):

… there were no improper or indecent motives for Mr Lapthorn’s actions for conducting the examination.

Mr Lapthorn’s conduct was motivated by a desire to ensure that he conducted a thorough examination of the infant prior to a determination being made to transport her to hospital and if taken to hospital, to provide as much information as he could to the treating doctors.

It was more likely than not that the infant would have been taken to hospital, however as Mr Lapthorn and Ms Maria pointed out, that is ultimately a decision for the parents.

The guidelines for paediatric assessment mandate a complete and thorough examination.  Mr Lapthorn was consistent in all of his answers, both to investigators and under cross-examination that he was carrying out a thorough examination from head to toe as he had been taught to ascertain hydration status and investigate the cause of fever.  I accept he genuinely had in mind looking for and eliminating ticks and other infections.  As his counsel pointed out in submissions, this examination was done against a background of him having three daughters, one of which was recently diagnosed with thrush.

The evidence and Mr Lapthorn’s concessions were that the examination was indeed not necessary. But, said the Acting Deputy President (at [88]-[90]):

It is relevant however to give consideration to Mr Lapthorn’s actions in the context of real time and not with the benefit of hindsight.

It is difficult to be critical of a paramedic in a prehospital setting with a sick infant conducting a thorough examination (which was not in itself harmful) to eliminate concerns.  In hindsight, the thoroughness of the examination in this case was, as observed by Dr Tija, “unnecessary and not warranted”.  In hindsight it should not have occurred.

When the purpose of the conduct, that is a thorough examination to obtain clinical information, is the focus of consideration it is difficult to conclude that Mr Lapthorn acted with a wilful disregard for clinical practice.  The conduct alone does not satisfy me on reasonable grounds that because of the conduct he posed a serious risk to persons.

Carotid sinus massage

The issue here was that Mr Lapthorn performed this procedure on a patient in March 2015. The procedure ‘can significantly and suddenly reduce a patient’s heart rate and blood pressure.  However, it carries with it a risk of embolism in the brain or the heart’ ([94]). The evidence from Mr Lapthorn was ‘the technique was “taught many years ago” but had “gone out of vogue with QAS some time ago”’ ([99]). It was no longer part of accepted paramedic practice. As a result of an internal investigation, Mr Lapthorn ‘was placed on and completed a clinical development plan’.

The Acting Deputy President said (at [103]):

I accept that the use of the CSM by Mr Lapthorn was outside his authorised scope of practice and was potentially a risk to the patient.  I also note that as a consequence he completed a clinical education program which the QAS, in my view, appropriately concluded was the correct response to Mr Lapthorn’s conduct.  The gap in his clinical knowledge has been addressed and that he now properly concedes he should not have used the procedure.

Stocking drug kit with additional fentanyl

Fentanyl is an analgesic used for pain relief if a patient is allergic to morphine. In December 2013 the QAS authorised paramedics to carry 2 ampoules of fentanyl in their drug box. Mr Lapthorn and other paramedics found that 2 ampoules were not sufficient for many shifts so were in the habit of signing out more than 2 ampoules.  When this was discovered ([106]-[107]):

… He was spoken to by [his station officer] in December 2013 and told to adhere to the code of practice.

He said he complied with that request until the policy changed to permit five ampoules to be taken.  No evidence was provided to the contrary.  I accept Mr Lapthorn complied with the direction after he was spoken to.

The procedures for QAS paramedics was subsequently changed to allow paramedics to carry 5 ampoules ([104]).

Leaving the station against QAS policy

Mr Lapthorn lived 10 minutes from his station. The allegations about what he was meant to have done were unclear and inconsistent ([108]).  Regardless of the details Mr Lapthorn gave evidence (at [116]) that he:

…  was aware this had to be authorised and that he would in fact obtain permission not from the officer in charge but from operations support supervisors.  He said that those requests would be logged and there would be voice records available.

The Acting Deputy President said (at [117]):

I find in relation to this issue that Mr Lapthorn did on occasions shop and go home during a shift.  I have no reason to reject his evidence that he got permission from operational support to do so.  I also note that there is no evidence of any adverse consequences from this conduct.

Failure to complete administrative tasks

The final complaint was that Mr Lapthorn failed to complete certain administrative tasks in particular he failed to complete clinical reviews of the work of other paramedics and failed to complete regular vehicle check forms (not that he didn’t do the checks, just that he didn’t fill in the form).

At [123]-[124] the Acting Deputy President said:

In oral evidence, Mr Lapthorn conceded that he was recalcitrant in completing the CART audits.  He explained that he did not agree that staff should be reviewing their peers at a station.

It is noted that the practice has since been phased out.

As for the vehicle check forms, Mr Lapthorn conceded that he did not fill the forms in. He said (at [126]) ‘most paramedics at the station did not complete the check forms adequately’.

Did, or does Mr Lapthorn pose a risk to patients?

The ruling of QCAT was no, he did, and does not.

With respect to the use of carotid sinus massage, the overstocking of fentanyl and travelling home during shift, the QAS had applied their internal quality control procedures, reminded Mr Lapthorn of the relevant policies and clinical issues and there had been no suggestion of any further transgression.

Further, with respect to fentanyl and the clinical audit scheme, the QAS protocols had been changed and now reflect what was Mr Lapthorn’s practice, that is paramedics are now allowed to stock five ampoules of fentanyl and the peer clinical audit has been abolished.

In making its case the Health Ombudsman relied on an

… expert report of psychologist Lars Marsdon to support the argument that Mr Lapthorn exhibited such a pattern of non-compliant behaviour that he presents a risk of engaging in harmful clinical practice in the future.

The Acting Deputy President was critical of that report as the psychologist never interviewed or met with Mr Lapthorn, relying instead on various statements that were given to him ([134]).   The Acting Deputy President said (at [132]) ‘I found Mr Marsdon’s report to be of no assistance in arriving at a conclusion about Mr Lapthorn’s conduct’.

At [155]-[156] the Acting Deputy President reached this conclusion:

The conduct referred to in these proceedings, being the clinical examination of the infant and the CMS in the context of his work performance history, in light of the insight displayed by Mr Lapthorn, does not support a finding of a real possibility that he will engage in some unidentified harmful clinical conduct in the future.

I am unable to be satisfied on reasonable grounds that he poses a serious risk and that an IPO [Interim Protection Order] is necessary to protect the public.

Take home lessons

As a precedent, this case stands for little. It is from a Tribunal low in the judicial hierarchy (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)).  The case depends entirely on its own facts to the finding that Mr Lapthorn posed no risk to the community is not relevant to the next case. There are however two lessons that I think can be learned from this case.

First that we live in a time if heightened awareness of the prevalence of, and dangers of, child sexual assault. Accordingly, people are attuned to observing anything they see as suspicious. You can also infer my own understanding of the seriousness of these issues by the deliberate efforts I’ve made at the start of this blog to make it clear that it was neither alleged, nor found, that Mr Lapthorn had engaged in sexual misconduct. I assume my blog reaches more people who might know or meet Mr Lapthorn than the published decision of QCAT. It is a fundamental principle of our legal system that justice must be seen to be done so courts and tribunals are public places and the outcomes published on the web for everyone to read, regardless of how many private details are released. The purpose is in part so people can read and learn from them so for me to republish and comment on the proceedings is part of the process, even though I know and am mindful of the fact that I am publishing personal details. In posts on this blog stories of things done by, and to, members of the emergency services are published and discussed.  In today’s world, I could discuss allegations of manslaughter, arson, criminal assault etc without putting such disclaimers, but a suggestion of sexual misconduct against children is in another category.  If the case were not called ‘Lapthorn v Office of the Health Ombudsman’ I might have tried to avoid using Mr Lapthorn’s name all together (see State of Queensland liable for paramedic negligence (December 22, 2016)).

But that heightened awareness is good. I suspect that there may be some who would comment that it was a shame, or an abuse of trust, that it was Mr Lapthorn’s clinical partner that reported the contact with the child’s genitals (see the comments, both on wordpress and FaceBook after the post MFB firefighter sacked for conduct before his employment (August 7, 2017)). But the attitude of ‘I trust my partner so my fears must be wrong’ or ‘we work on trust so I can’t report my genuine fears’ leads at best to continued sub-standard practice, at worst to corruption and the sort of scandals revealed by the Royal Commission into Institutional Responses to Child Sexual Abuse.

Mr Lapthorn’s partner said (at [10]) ‘“I couldn’t believe it. I didn’t know what to do or say” and “it was just something that was so random, it’s not something that we do.”  In her statement to her station officer ([53]) she said ‘“I wanted to say something but I opened my mouth and nothing came out”. The Acting Deputy President said (at [13]) ‘It was apparent the incident upset her and her oral evidence was consistent with her statement in that regard.’

Mr Lapthorn conceded that he should not have done the examination that he did and further he should have explained to the child’s mother and grandmother and his partner what he was doing and why (see [71]).  (It is worth noting that the child’s mother and grandmother were generally supportive of Mr Lapthorn, did not perceive that any conduct was suspicious or improper and were grateful for the care they received, see [37]-[38]).

In these circumstances, Mr Lapthorn’s partner was right to report her concerns.

Second, and the most important lesson is to remind us that just because allegations are made it does not mean they are true. It was, in my view, appropriate for Mr Lapthorn’s partner to raise her concerns and important for the Health Ombudsman to investigate and if he or she believed that an IPO was warranted, to issue one.

But again, the principle of Australian justice is that there checks to review those decisions by an independent arbiter, in this case QCAT. Remember that the Health Ombudsman is both the investigator and with respect to the IPO, the judge and one should not be ‘judge in one’s own cause’ (see also Conflict of interest and natural justice in an RFS Disciplinary hearing (October 25, 2017)).  QCAT sits as the arbiter to dispassionately review the evidence and the arguments.

And note also the comments about Mr Lapthorn’s conduct in this investigation ([69]):

In giving his oral evidence and under cross-examination, Mr Lapthorn presented as honest and non-confrontational.  He accepted reasonable propositions put to him and made concessions even when, apparently, not in his interest.

He gave statements to the Health Ombudsman. His answers to the investigators from the office of the Health Ombudsman and in cross examination were consistent ([79]). Whilst it is not always advisable to answer questions (at least not without legal advice first), a clear and consistent story goes a long way. (On the other hand, if a police officer says ‘I’m about to ask you some questions which you are not obliged to answer but anything you say or do will be taken down and may be used in evidence against you’ the best thing to do is to politely refuse to answer any further questions until you’ve seen a lawyer. And see Improper professional conduct when a doctor fails to render assistance at a motor vehicle accident (November 28, 2013) for a discussion on the consequences of telling inconsistent stories).

The take home lesson is just because you are asked hard questions, it does not mean you don’t have an answer. Just because you are asked to explain your conduct, it does not mean that there is no acceptable explanation. Mr Lapthorn knew what he’d done and why he’d done it. It would appear it was all for clinical reasons and even though it was not all according to the rule book, there was no danger to the patients.

I am reminded of a line (that I’ll probably misquote) of a colleague of mine who used to tell his probationary trainees words to the effect ‘there are three ways to do things, the ambulance service way, the right way, and my way’.  Identifying that Mr Lapthorn presented a ‘management challenge’ and sometimes deviated from the ‘book’ in order to provide better clinical management (eg by stocking five ampoules of fentanyl instead of two or conducting an examination that as an experienced father thought would give him better insight into the patient’s clinical condition and meet the requirement of a thorough head to toe examination) would not I suggest, make him alone in ambulance culture. But that did not make him a danger to others.

And operational paramedics may be reassured by the Acting Deputy President’s comment (at [89]) that:

It is difficult to be critical of a paramedic in a prehospital setting with a sick infant conducting a thorough examination (which was not in itself harmful) to eliminate concerns.

Conclusion

An investigation or an allegation does not prove that improper conduct occurred. A tribunal reviews the evidence to determine whether relevant legal tests have been met and natural justice allows the subject of the complaint to respond and test the evidence. Open and transparent justice means these allegations are tested and publicly reported to allow everyone to see what was alleged, what was found to be the facts and how conclusions were reached. This is traumatic but is better than letting agencies, whether it’s the police or the health ombudsman determine these matters in their own office.

Next time you read a report about a person being charged or alleged to have done something, don’t rush to believe it just because the media says it’s so (see the comments after Queensland woman acquitted of assault on paramedics (August 14, 2017)).

 

 

 

 

Just on one year ago I reported on the decision by Judge Taylor of the NSW District Court on a case involving an ambulance accident – see No liability for NSW Ambulance accident (October 19, 2016). The matter went to the NSW Court of Appeal. The court has now handed down a decision upholding the finding that there had been no negligence – Logar v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274 (25 October 2017).

If you look at the diagram in the original post you can see where the collision occurred. The gist of the issue is that crossing lanes 2, 3 and 4 the driver of the ambulance was passing in front of stationary traffic. Should she have stopped, before entering lane 1, to make sure that traffic had stopped in that lane too? Or as Justice Schmidt said (at [51]):

… whether it is reasonable for an ambulance on an emergency call of some significance, to stick its nose out into a lane of traffic, when what was in the lane could not be seen and there was a risk that a car may be coming down that lane, which does not have sufficient time to avoid a collision.

Justice Schmidt

Justice Schmidt said (at [92]) that the driver of the ambulance had a duty ‘… to take reasonable care in the circumstances. It was not to avoid any risk of collision with a vehicle in lane 1, at any cost.’  In making a decision to enter lane 1, Ms Riches, the driver of the ambulance, had to consider both the risk of collision and the risk to the patient that she was proceeding to.   Justice Schmidt said (at [167]-[169]):

Ms Riches evidence that she had proceeded, because of her duty to respond to the emergency she had been assigned, was not challenged. The emergency involved a person lying unconscious in the gutter, who had stopped breathing. There is no question that this person required her urgent assistance.

Ms Riches had to take that into account, when making her decision about how and when to traverse lane 1, together with the possibility of someone driving in that lane, oblivious not only to the ambulance’s lights and sirens, but also to the other traffic stopped in the intersection and thus not stopping in order to allow her to cross the lane safely. Ms Riches had to take into account the consequences of the delay involved in her waiting until she could be certain that there was no risk raised by nudging into lane 1 – not only the risk of other cars which had stopped, beginning to move again and the consequences of further delay which would be borne by the injured person who required her assistance.

When Ms Riches proceeded into lane 1 there was, undoubtedly, then a possibility that such a driver would be unable either to stop, or avoid the nose of the ambulance, if it was nudged into that lane, as she decided to do. In all of the circumstances, however, Ms Riches was not negligent when she concluded, that this possibility was sufficiently low for reasonable caution to permit her to proceed, given that the intersection was otherwise at a standstill, before she entered lane 1.

As for Mrs Logar, the driver of the car that collided with the ambulance, Justice Schmidt said (at [170]-[175]):

[Her] evidence was that she had sped up to some 55 kph, before she entered the intersection, not having observed any vehicles stopped at the intersection, or heard or seen the ambulance, its lights or sirens. On her own evidence [she] was entirely oblivious to what was happening at the intersection, before she struck the ambulance.

It was argued on appeal that it was demanding too high a level of vigilance of an ordinary road user to make assumptions that a stationary vehicle in a straight through lane with a green light, meant that there was something happening in the intersection, which was going to present a risk of harm to the road user.

This may not be accepted.

The obligation to keep a proper lookout… includes when driving on main roads in busy traffic, paying close attention not only to the behaviour of other vehicles, but also to the character and speed of the driver’s own driving, in relation to other vehicles, as appropriate to the traffic conditions.

Mrs Logar was thus obliged that day to respond to what was there to be seen and heard at the intersection. That included the cars which had stopped in response to the ambulance, which had its lights and sirens activated, as well as the ambulance itself, when it nudged into lane 1. It was also relevant for the primary judge to take into account that all the other drivers stopped at the intersection were able to meet their obligations, including what the Road Rules required, stopping to allow the ambulance to traverse the intersection.

As Mrs Logar herself properly accepted in cross-examination, had she kept a proper lookout she should have noticed not only the ambulance’s sirens and flashing lights, but also that there were other vehicles which had stopped in Castlereagh Road, despite the green lights.

Justice Schmidt was of the view that the trial judge had made no errors in his assessment of the law or the application of the law to the facts of the case. Mrs Logar had not proved that there was negligence by the driver of the ambulance and her case was lost.

Justice Emmett

Justice Emmett agreed with Justice Schmidt.  With respect to the question of whether it was negligent to enter lane 1 without first ensuring that traffic in that lane had stopped, he said at [29]:

… I consider that, having regard to the medical emergency to which Ms Riches was responding, her actions in proceeding slowly through the intersection against the red light, with her siren sounding and her lights flashing, having already stopped twice, justified her action in proceeding into the kerb side lane notwithstanding that she could not be completely certain that another vehicle might not be proceeding in that lane at a speed almost equal to the limit in circumstances where the vehicles in the other three lanes were stationary despite there being a green light in their favour.

Justice Macfarlan

Justice Macfarlan dissented (ie he came to a different view). He said (at [3]-[5]):

Ms Riches moved her ambulance across part of Lane 1 not knowing whether any vehicles were travelling in this lane beyond the 25 metres of it that she could see. The applicable speed limit was 60 kph and, the Court was informed, a car travelling at 50 kph travels 15 metres per second. As a result, that Ms Riches was able to see 25 metres along Lane 1 clearly did not entitle her to regard the risk of her ambulance colliding with a vehicle travelling in that lane as non-existent or low.

The fact that her ambulance’s lights and siren were on could reasonably have given Ms Riches some comfort in this respect. Nonetheless, such comfort could only have been limited in light of her evidence that, in the general experience of ambulance officers, ambulance lights and sirens are frequently ignored by members of the public. The caution with which, on her evidence, she entered and commenced to traverse the intersection (before reaching Lane 1) confirms a lack of confidence on her part that her lights and siren would give adequate notice of her ambulance’s presence to other drivers approaching the intersection.

Furthermore, I do not consider that the evidence indicated that the medical emergency to which Ms Riches was responding was of such a level as to warrant her proceeding across part of a lane of traffic whilst unable to determine whether a vehicle was travelling down it at speed. In this respect it is relevant that Ms Riches gave evidence that, notwithstanding the medical emergency, she stopped her ambulance both before the intersection and after she had entered it, in each case waiting 10 seconds before proceeding. Further, she stated that she would never put the medical interests of a patient above her own safety. This is understandable, not only from her point of view, but also from that of patients. A patient’s interest in being collected by an ambulance is hardly likely to be advanced by putting the ambulance at risk of a calamitous collision in an attempt to arrive at the collection point a few moments earlier.

Even though she appreciated that there was still a risk of collision, Ms Riches proceeded into lane 1 and (see [[7]) ‘When she did, she had no reasonable basis for concluding that no vehicle would travel down the lane and collide with her ambulance, as her line of vision was obstructed.’  On that basis, Justice Macfarlan took the view that her conduct failed the test of the ‘reasonable person’. He said (at [8]) that Ms Riches

… should have continued to wait until the risk of collision was removed, or at least substantially reduced. This would have occurred within a short period when the traffic lights changed to give Ms Riches a green light, and therefore cars in Lane 1 a red light. It may have occurred even earlier if a vehicle travelling down Lane 1 stopped at its head because its driver noticed the ambulance siren or lights, or saw a vehicle stopped in Lane 2.

As noted above, he did not think the nature of the medical emergency warranted the risk of a collision that would, and did, stop Ms Riches arriving to assist the patient.

As for Mrs Logar’s negligence, he said (at [10]-[11]):

The primary judge’s finding that Mrs Logar was contributorily negligent in not hearing the ambulance’s siren should be upheld. It is difficult to understand why Mrs Logar did not hear it. Undoubtedly it was on and Mrs Logar conceded, based on her experience of hearing other sirens, that she would (or at least, should) have heard the siren if it was on. That leads to a conclusion that Mrs Logar must have been in some way distracted, or was simply not paying attention.

Mrs Logar was also contributorily negligent because she should have noticed that the tall van in Lane 2 was stationary, notwithstanding that it had the benefit of a green light. Mrs Logar was familiar with the road and should have known that Lane 2 was for vehicles passing straight through the intersection. In any event, it would have been obvious to her that three out of the four lanes in the direction she was travelling would not have been right turn lanes, and that at least two would have been straight through lanes. She should therefore have been alert to the possibility of a problem in the intersection and should have slowed sufficiently on her approach to enable her to stop her vehicle level with, or before, the van in Lane 2, if that proved necessary.

Justice Macfarlan would have found the drivers at fault on a 50:50 basis (see [2]).

The outcome

It had been determined that had Mrs Logar been able to prove her case, damages of $867,735 would have been awarded.  In Justice Macfarlan’s opinion, Ms Riches had been negligent but so too had Mrs Logar.  If his opinion had been accepted, Mrs Logar would have received $867,735 reduced by 50% to reflect her contributory negligence, so she would have received $433,867.50.

Justices Schmidt and Emmett however were of the view that Ms Riches, the driver of the ambulance had not been negligent and had not shown that the trial judge had made any errors in the way the original trial was run. As these matters are determined by the majority, their views were reflected in the orders of the court and Mrs Logar therefore received nothing.

(For a media report on this case, see Georgina Mitchell ‘Driver hurt in collision with ambulance loses negligence appeal‘ Sydney Morning Herald (Online) October 25 2017)).

 

I have previously reported on the decision in Roane-Spray v State of Queensland [2016] QDC 348 – State of Queensland liable for paramedic negligence (December 22, 2016)).  In that case the plaintiff was successful in a claim against the state of Queensland based on negligence of a Queensland Ambulance paramedic.  The case has now progressed to the Queensland Court of Appeal – State of Queensland v Roane-Spray [2017] QCA 245 (20 October 2017).

The issue was the application of s 27(1) of the Civil Liability Act 2003 (Qld). That section says:

Civil liability does not attach to an entity, prescribed under a regulation, that provides services to enhance public safety in relation to an act done or omitted in the course of rendering first aid or other aid or assistance to a person in distress if—

(a) the first aid or other aid or assistance is given by the entity while performing duties to enhance public safety; and

(b) the first aid or other aid or assistance is given in circumstances of emergency; and

(c) the act is done or omitted in good faith and without reckless disregard for the safety of the person in distress or someone else.

The Civil Liability Regulation 2014 (Qld) cl 5 and Schedule 2 listed ‘Queensland Ambulance Service established under the Ambulance Service Act 1991’ as a prescribed entity for the purposes of s 27(1). On that basis, the State had sought to rely on s 27(1) to argue that it was not liable given the paramedics conduct was done ‘in good faith and without reckless disregard for the safety of the person in distress or someone else.’

The problem for the State is that the Ambulance Service Act 1991 (Qld) did (in 1991) create a separate legal entity, that is an entity that can sue and be sued, known as Queensland Ambulance Service, but amendments in 2001 removed that separate legal entity. Justice Bowskill (with whom Justices Fraser and Philippides agreed) said (at [12]):

Significantly, the Queensland Ambulance Service, in its present form (as it was at the time of Ms Roane-Spray’s injury) is not a body corporate, and does not represent the State. It is an unincorporated body, an entity within the meaning of that term in schedule 1 to the Acts Interpretation Act 1954 (Qld), which consists of the commissioner, ambulance officers, medical officers and other staff members employed under s 13, from time to time. It is in that respect similar to an unincorporated club or association, which is comprised of its members from time to time.

Further provisions provide that Queensland ambulance officers are employed by the State of Queensland, not by the (non-existent) Queensland Ambulance Service (see [14]).  Because the Queensland Ambulance Service does not exist as a legal entity, the State argued that references to the Queensland Ambulance Service in the Civil Liability Regulations had to mean the State of Queensland ‘because it is not possible for a plaintiff in the position of Ms Roane-Spray to sue the “Queensland Ambulance Service”…’ ([16]).

The Court did not agree.  Bowskill J said (at [20]-[21]):

There is no basis that I can discern for reading “Queensland Ambulance Service”, where it appears in schedule 2 to the Civil Liability Regulation, as “State of Queensland”.

As a matter of policy, it may be accepted as being in the public interest to protect an entity such as the Queensland Ambulance Service, comprising as that does the commissioner and ambulance and medical officers, from litigation and liability where it is performing services to enhance public safety. That is the plain effect of s 27, and the inclusion of the Queensland Ambulance Service in the list of prescribed entities. There would need to be very clear language used before s 27 could appropriately be construed as removing the vicarious liability of the State, as an employer, for the negligent acts of its employees.  The device of reading “Queensland Ambulance Service” in schedule 2 to the Civil Liability Regulation as a reference to the State of Queensland is not open on a proper construction of the provisions.

In essence even if it is possible to sue the unincorporated Queensland Ambulance Service and even if the Service in those circumstances could rely on s 27, it still does not mean that the employer of Queensland paramedics – the State of Queensland – could rely on that section when it is being sued on the basis that it is vicariously liable for the conduct of employed paramedics (see the discussion on vicarious liability in Vicarious liability for the actions of fire wardens (March 5, 2016)).  As Bowskill J said (at [22]):

The State’s argument that s 27 would lack utility otherwise is unfounded. There are plainly circumstances in which an unincorporated body such as the Queensland Ambulance Service may be sued, arising from the performance of its functions… Whether the protection of s 27 would be available, in any such hypothetical scenario, would be a question of law… It may be correct to say that, in the present case, there was no cause of action against the Queensland Ambulance Service itself, but that is explicable by the fact that the claim was brought against the negligent paramedic’s employer, the State, on the basis of vicarious liability. The Queensland Ambulance Service is not the employer, therefore has no vicarious liability.

Conclusion

1. The paramedic was negligent.
2. The state, not the Queensland Ambulance Service, was the paramedic’s employer and was therefore vicariously liable for that negligence.
3. The Queensland Ambulance Service is an entity prescribed for the purposes of s 27(1) of the Civil Liability Act 2003 (Qld) but the Queensland Ambulance Service does not exist as a legal entity and is not the employer or Queensland paramedics so that section provided no defence where the case was against the State of Queensland on the basis that it was vicariously liable for the negligence of an employed paramedic.
4. The State of Queensland is not an entity prescribed for the purposes of s 27(1) of the Civil Liability Act 2003 (Qld) so that section provided no defence. The State remained liable and the plaintiff was entitled to the verdict in her favour.

 

 

 

 

Today’s question relates to the application of natural justice and conflicts of interests in NSW RFS disciplinary matters. My correspondent asks:

Can an appointed investigator of alleged allegations against a RFS volunteer be then placed as the Chairperson of the Zone Discipline Panel to make decisions on the same allegations?

The critical issue here is ‘natural justice’. One of the key elements of natural justice is that the decision maker must not have a stake in the matter and must hear from both sides and decide the issue before them without prior judgment.

Rural Fire Service (RFS) Service Standard 1.1.2 is about Discipline. Standard Operating Procedure SS1.1.2-2 deals with ‘Investigation of Allegations’. It says that where an allegation is made a relevant senior officer may appoint an Investigator that is ‘a member or other person … to investigate an alleged breach of discipline’ (SS 1.1.2, [2] definitions; SOP SS1.1.2-2, [2.1])). The investigator is to look into the matter, make recommendations and provide to the appointing officer ‘copies of any statements, other relevant documents or other material that have been gathered or obtained by the investigator’ (SOP SS1.1.2-2, [2.6(c)]). The appointing officer then decides how to deal with the recommendation. One option is to refer the matter to ‘a disciplinary panel’ (SOP SS1.1.2-2, [2.9(a)(i)].

A District disciplinary consists ‘of three volunteer members appointed by the District Manager after consultation with the district Senior Management Team or the brigades in the district’ (SOP SS1.1.2-1 Establishment of Disciplinary Panels, [2.1]).  Members are appointed for 2 years. ‘One of the members of a District disciplinary panel must be a currently serving group officer who will ordinarily chair the panel’ ([2.3]). It follows that people are not appointed for each inquiry but are given a standing appointment. This is no doubt a reflection of their experience, perhaps as an investigator, and a belief in their ability to undertake the task fairly and impartially.

A disciplinary panel conducts disciplinary hearings and determines whether or not the member is guilty of the alleged breach of discipline. The disciplinary panel is required to apply the rules of natural justice (SOP SS1.1.2-3 Disciplinary Hearings [2.1]). A  member of the panel is required to disqualify him or herself if there is a conflict of interest ([SOP SS1.1.2-1 Establishment Of Disciplinary Panels, [2.17]).  A conflict of interest arises, inter alia, if the member ‘makes an allegation or causes an allegation to be made’ or ‘is a witness or potential witness in relation to an allegation’.  As noted, ‘The investigator or another member may attend the disciplinary hearing to present the case against the respondent’ (SOP SS1.1.2-3 Disciplinary Hearings [2.4]).

Discussion

Under SOP SS1.1.2-1 a member may be appointed to a disciplinary panel and if he or she is the relevant ‘serving group officer’ then he or she may be expected to chair that panel.

If they were, before their appointment,  appointed to investigate a complaint it stands to reason that they could not sit as the chair of the panel when it is hearing that matter. As the investigator, they may appear as the prosecutor and in any event may be expected to be a witness to give evidence of the investigation process.  If they have concluded that the member ‘has a case to answer in whole or in part’ they have already made a judgement on the matter so could not approach the matter without that preconceived conclusion.  If they were to sit that would be both a denial of natural justice and a failure to recuse themselves due to a conflict of interest. (‘Recuse’ means ‘excuse oneself from a case because of a potential conflict of interest or lack of impartiality’).

Just because they have been an investigating officer it does not mean that they cannot be appointed ‘as the Chairperson of the Zone Discipline Panel’. What it does mean is that they would have to decline to sit in that capacity when the panel was dealing with any complaint that they had investigated. The SS SOPs provide for that. SOP SS1.1.2-1 Establishment of Disciplinary Panels [2.4] says:

If a member of a District disciplinary panel is either unable, or considers it inappropriate, to participate in a disciplinary hearing, the District Manager must appoint another volunteer member from the local pool of volunteers for the purpose of that hearing. That substitute member will hold office only until the District disciplinary panel has completed its functions in relation to that hearing.

Conclusion

The question asked was

Can an appointed investigator of alleged allegations against a RFS volunteer be then placed as the Chairperson of the Zone Discipline Panel to make decisions on the same allegations?

My answer would split that question into two parts:

Can an appointed investigator of alleged allegations against a RFS volunteer be then placed as the Chairperson of the Zone Discipline Panel?

The answer to that question is yes.  A person may have been appointed to investigate a complaint but they may then appointed to the relevant Discipline Panel. One can see that the appointment to the panel is part of the personal, professional development of the member. That they have been an investigator does not stop them accepting this appointment.

… to make decisions on the same alleged allegations?

The answer to that second part is no. The investigator may take on the new role, but they should not sit (or they should recuse him or herself) when the Panel is dealing with any matter in which they have been involved. Failure to step aside would represent both a conflict of interest ([SOP SS1.1.2-1 Establishment of Disciplinary Panels, [2.17]) and a denial of natural justice (SOP SS1.1.2-3 Disciplinary Hearings [2.1]).

Today’s question comes in two parts:

I just seen two different incidents on the news.

1, A man appealed his conviction against “fail to stop after an accident” I presume it was in the District Court NSW, part of his defence was that no such requirement is stated in the “NSW Drivers manual”.

According to the news report the Judge made a statement that “it’s does not have to be, its basic common sense to stop and help” Questions, is this statement supported in Law?, and does the comment impose a “duty” to help/rescue? I presume the necessity upon a driver to stop after an accident is in fact contained in the Act. How far or how much can a driver who stopped do or better HAVE to do?? I presume you don’t have to dive into a burning car to rescue a trapped person. Each incident would be different and sometimes all you could do was call 000.

Which brings me to the second incident,

2, The Police were actively involved in a car chase, the offending driver drove down a boat ramp and into the water the car proceeded to sink some Police dived in and rescued the driver and one Officer was injured. Question I told my wife the Police did not have to do that, or does the fact a Police chase was involved do they have a greater “duty of care” My wife stated it’s their job to rescue that driver, I say no.

Any comments from you would be interesting.

Part 1

I’m not sure what is meant by the NSW Driver’s Manual – I assume he’s probably referring to the Roads and Maritime Services Road Users’ Handbook.  What it says (at p. 5) is:

If you are involved in a crash you must stop immediately and give as much help as possible to anyone else involved in the crash. If anyone is injured or killed, you should call the Police and Ambulance – dial 000.

It follows that we don’t know what the defendant was talking about, but let us assume there was some ‘Drivers’ Manual’ that didn’t say that. But so what; a handbook is not the law hence my advice to law students is ‘don’t take your law from what the government department says the law is’.  They interpret the law, but if you want to know, read the Act and its relevant rules and regulations.  The relevant rule is found in the Road Transport Act 2013 (NSW) s 146 which says:

A person is guilty of an offence if:

(a) a vehicle or horse being driven or ridden by the person on a road is involved in an impact occasioning the death of, or injury to, another person, and

(b) the person knows, or ought reasonably to know, that the vehicle or horse has been involved in an impact occasioning injury to another person, and

(c) the person fails to stop and give any assistance that may be necessary and that it is in the person’s power to give.

Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).

(A penalty unit is $110; Crimes (Sentencing Procedure) Act 1999 (NSW) s 17).

Where the accident causes death or grievous bodily harm, the obligation to stop and render assistance is found in the Crimes Act 1900 (NSW) s 52AB.  That section is in the same terms but the maximum penalty becomes 7 years imprisonment if the accident causes grievous bodily harm, or 10 years imprisonment if the accident causes death.

Let me turn to the specific questions:

Q. Is this statement [“…ts basic common sense to stop and help”] supported in Law?

A. There is no general duty to rescue so there is no duty to stop and render assistance just because you see or come across an accident but any driver that is involved in an accident must stop and render assistance – Road Transport Act 2013 (NSW) s 146 and Crimes Act 1900 (NSW) s 52AB.

Q. Does [it] impose a “duty” to help/rescue?

A. Yes, the driver must ‘stop and give any assistance that may be necessary and that it is in the person’s power to give’.

Q. I presume the necessity upon a driver to stop after an accident is in fact contained in the Act.

A. Yes, s Road Transport Act 2013 (NSW) s 146 and Crimes Act 1900 (NSW) s 52AB.

Q. How far or how much can a driver who stopped do or better HAVE to do?? I presume you don’t have to dive into a burning car to rescue a trapped person. Each incident would be different and sometimes all you could do was call 000.

A. As noted they must provide the assistance that is in their power to give. As my correspondent has noted that will be different in all the circumstances. In some cases it may mean no more than notify the emergency services (see the discussion in Further legal ruling affecting ‘Doctors as ‘good Samaritans’ – do I have to stop? (January 3, 2015)).

Part 2

An vehicle is involved in an accident if vehicle ‘A’ causes ‘… an impact between other vehicles or between another vehicle and any object or person or causing another vehicle to overturn or leave a road…’ Road Transport Act 2013 (NSW) s 146 and Crimes Act 1900 (NSW) s 52A(6).  If a vehicle is involved in a collision either with another vehicle or any thing whilst part of a police pursuit, it could be argued that the police vehicle was ‘involved’ in the collision.  That would impose a duty on police to stop and assist.

Equally the police would have an obligation to those involved in the accident to render assistance as part of the expectations of a police officer (see the discussion in NT police officer gaoled for failing to render assistance (October 31, 2016) but note that was an extreme case of dereliction of duty).

It is also of interest to note that a death that occurs ‘as a result of police operations’ must be investigated by the coroner (Coroners Act 2009 (NSW) s 23). Police would probably want to ensure that they can satisfy the coroner that they took whatever steps they could to provide assistance.

Like anyone however, the police officer’s obligations are to do what is reasonable.  They do not have to risk their lives.  That police are willing to go ‘above and beyond’ that demand is what earns them the respect and honours for their actions. So did they have to enter the water, smash the window and remove the person from the sinking car? It’s hard to say given that they did do it, but if they really did decide the risk was too great, they would not have been under an obligation to do so – for a discussion on the duty of police and firefighters in the US who refused to enter water to do a rescue see US city not liable for failure to rescue (February 13, 2013).

Conclusion

Yes, there is a duty on all road users who are involved in an accident to stop and render assistance.

As for police the fact that the accident occurred during a police pursuit will mean that police have a duty to render assistance to those involved. But that duty will only be a duty to do that which is reasonable. It is not a duty to risk one’s own life.

No doubt readers of this blog will have seen the video of a truck being driving in Victoria with emergency warning lights and sirens.  For that that haven’t a correspondent has sent this link

https://www.triplem.com.au/news/melbourne/7-news-just-dropped-one-of-the-all-time-great-reports-on-melbourne-teenagers-fake-emergency-vehicle

and asks

Other than the traffic laws, is there specific laws around impersonation?

(And for a link to just the dash cam video, see http://www.9news.com.au/national/2017/10/17/15/51/teen-arrested-after-truck-used-emergency-lights-in-traffic).

As noted the relevant laws here are the traffic laws, so the driver could be charged with each offence committed whether that’s speeding, failing to give way, proceeding through a red light etc as well as negligent or dangerous driving.  What offences can be charged will depend on what can be proved and there is probably limited evidence if all that there is the one dash cam recording.  The vehicle could be defected for having the lights and sirens fitted contrary to the Victorian vehicle standards.

As for impersonation, that would be more difficult.  The Victoria State Emergency Service Act 2005 (Vic) s 46 says:

A person must not—

(a) use any name, title or description to imply an association with the Service, without the authority of the Chief Executive Officer; or

(b) represent that the person is associated with the Service unless such an association exists; or

(c) impersonate an employee of the Service or a registered member; or

(d) use any insignia described or set out in the regulations in any manner contrary to the manner set out in the regulations without the written authority of the Chief Executive Officer.

Penalty: 20 penalty units.

The Metropolitan Fire Brigades Act 1958 (Vic) s 75, the Country Fire Authority Act 1958 (Vic) s 107A and the Ambulance Services Act 1986 (Vic) s 39 are in similar terms.

The Victoria Police Act 2013 (Vic) s 256 says:

(1)     A person who is not a police officer must not, in any way, hold himself or herself out to be a police officer.

Penalty:     120 penalty units or imprisonment for 1 year or both.

(2)     A person who is not a protective services officer must not, in any way, hold himself or herself out to be a protective services officer.

Penalty:     120 penalty units or imprisonment for 1 year or both.

(3)     A person who is not a police recruit must not, in any way, hold himself or herself out to be a police recruit.

Penalty:     120 penalty units or imprisonment for 1 year or both.

Without seeing what the driver was wearing, there was nothing on the vehicle to suggest it was a police vehicle, an SES vehicle, a CFA vehicle or an MFB vehicle There’s nothing in the video to suggest there was the use of any name, title, description, representation, or insignia to suggest that the vehicle belonged to any particular service that is entitled to operate with lights and sirens so it would be hard if not impossible to say that he was impersonating a member of a particular service.  There is no general offence of impersonating a member of the generic emergency services.

Compare that toState Emergency and Rescue Management Act 1989 (NSW) s 63B which says

(2) A person who:

(a) uses or displays emergency services organisation insignia, or

(b) impersonates an emergency services organisation officer,

with the intention to deceive is guilty of an offence.

Maximum penalty: 50 penalty units.

(2A) A person who:

(a) impersonates an emergency services organisation officer with the intention to deceive and purports to exercise a function of such an officer, or

(b) impersonates an emergency services organisation officer with the intention to deceive in order to facilitate the commission of an offence,

is guilty of an offence.

Maximum penalty: 100 penalty units.

Emergency services insignia includes (s 63B(4); emphasis added):

any items (being uniforms, insignia, emblems, logos, devices, accoutrements and other things) that are generally recognised as pertaining to an emergency services organisation (other than the NSW Police Force) or as being used by an emergency services organisation officer…

Emergency services organisation officer means (s 63B(4):

… an employee, member, volunteer or any other person who exercises functions on behalf of an emergency services organisation (other than the NSW Police Force).

One could argue that red/blue roof lights and siren are ‘devices’ ‘generally recognised as pertaining to an emergency services organisation’ and that by driving with lights and sirens the driver was intending to deceive other drivers (s 63B(2)).

Alternatively, the use of the insignia might be seen (by a judge or jury) as impersonating a ‘person who exercises functions on behalf of an emergency services organisation’ without specifying which organisation. The driver’s intent must have been that people would think the vehicle belonged to an emergency services organisation and that by proceeding as if to an emergency he was exercising ‘a function of such an officer’ (s 63B(3).

Under the NSW legislation there does not appear to be a need to specify which emergency service organisation the imposter was pretending to be a part of.

Conclusion

If this had happened in NSW I would think there would be a strong argument for a prosecution under the State Emergency and Rescue Management Act 1989 (NSW) s 63B. I can’t see any equivalent offence in Victoria and I can’t see that the evidence (limited to what can be seen on the dash cam video) would be sufficient to sustain a conviction for impersonating a member of Victoria Police, Victoria SES, the CFA, MFB or Ambulance Victoria.

 

 

Today’s correspondent comes from NSW and asks

I was wondering if you could define the meaning of an Emergency Service as opposed to an essential service.

And if you could research which the Neonatal & Paediatric Emergency Transport Service in NSW would fall under.

In New South Wales, there is the Essential Services Act 1988 (NSW). This Act is intended to give the government special powers to ensure the continued supply of essential services particularly during periods of industrial action.  Fort the purposes of that Act an essential service is (s 4) that consists of any of the following (emphasis added):

(a) the production, supply or distribution of any form of energy, power or fuel or of energy, power or fuel resources,

(b) the public transportation of persons or the transportation of freight (including the provision of rail infrastructure for those purposes),

(c) the provision of fire-fighting services,

(d) the provision of public health services (including hospital or medical services),

(e) the provision of ambulance services,

(f) the production, supply or distribution of pharmaceutical products,

(g) the provision of garbage, sanitary cleaning or sewerage services,

(h) the supply or distribution of water,

(i) the conduct of a welfare institution,

(j) the conduct of a prison,

(k) a service declared to be an essential service under subsection (2),

(l) a service comprising the supply of goods or services necessary for providing any service referred to in paragraphs (a)-(k).

According to the State Emergency and Rescue Management Act 1989 (NSW) s 3 an emergency services organisation is:

… the NSW Police Force, Fire and Rescue NSW, Rural Fire Brigades, Ambulance Service of NSW, State Emergency Service, Volunteer Rescue Association or any other agency which manages or controls an accredited rescue unit.

We know from the Road Rules 2014 that an emergency vehicle is a vehicle operated by an emergency worker.  An emergency worker is

(a) a member of the Ambulance Service or the ambulance service of another State or Territory, in the course of providing transport in an emergency associated with the provision of aid to sick or injured persons, or

(b) a member of a fire or rescue service operated by a NSW Government agency, a member of the State Emergency Service or a member of a fire brigade (however referred to) or rescue service of the Commonwealth or another State or territory, providing transport in the course of an emergency, or

(b1) a member of Airservices Australia providing transport in the course of a fire or rescue emergency, or

(c) a person (or a person belonging to a class of persons) approved by the Authority.

If the organisations that an emergency worker works for is an emergency service, then that definition also captures Fire and Rescue NSW, NSW Rural Fire Service, Ambulance Service of NSW and the State Emergency Service.

Finally, each piece of legislation is assigned to a minister. One might think that an emergency service is a service that reports to the Minister for Emergency Services.  The Administrative Arrangements (Administration of Acts—General) Order 2017 (NSW) says that the Minister for Emergency Services is responsible for the following legislation:

Community Welfare Act 1987 No 52, Part 5 and any other provisions of that Act so far as they relate to functions under Part 5 (remainder, jointly the Minister for Disability Services and the Minister for Family and Community Services)

Fire Brigades Act 1989 No 192

Fire Services Joint Standing Committee Act 1998 No 18

Rock Fishing Safety Act 2016 No 66

Rural Fires Act 1997 No 65

State Emergency and Rescue Management Act 1989 No 165

State Emergency Service Act 1989 No 164

That would imply that the emergency services are Fire and Rescue NSW, NSW Rural Fire Service, Ambulance Service of NSW, the State Emergency Service, operators of accredited rescue units, the Fire Services Joint Standing Committee and the Department of Family and Community Services to the extent that it is engaged in the provision of Disaster Welfare Assistance. It does not appear that the Rock Fishing Safety Act 2016 (NSW) creates a service that could be described as an emergency service.

If that is one’s definition of an emergency service then what is missing is the Ambulance Service of NSW.  That service is a health service created by the Health Services Act 1997 (NSW) and under the authority of the Minister for Health.

The reason for giving those various definitions is to point out that largely the answer depends on why you want to know, that is the context of the question. The question that my correspondent really wants answered is what is the status of the Neonatal & Paediatric Emergency Transport Service in NSW.

The Health Services Act 1997 (NSW) s 67E(1) says that it is an offence to

(a) directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, or

(b) conduct for fee or reward any operations similar to the operations carried on by the Health Secretary under this Chapter,

without the consent of the Health Secretary …

That rule does not apply to (s 67E(3); emphasis added):

(a) the St John Ambulance Australia (NSW) in respect of operations similar to the operations lawfully carried on by that body immediately before the day on which this section commences, or

(b) the Royal Flying Doctor Service of Australia (NSW Section), or

(c) the mines rescue company, within the meaning of the Coal Industry Act 2001 , (or a member, director or employee of that company) in the exercise of mines rescue functions under Division 3 of Part 3, or Part 4, of that Act, or

(d) a member of the New South Wales Mines Rescue Brigade established under the Coal Industry Act 2001 , or

(e) any person (or class of persons) prescribed by the regulations.

Clause 26 of the Health Services Regulation 2013 (NSW) says that NSW Newborn & Paediatric Emergency Transport Service (NETS) operated by the Sydney Children’s Hospitals Network (Randwick and Westmead) is a prescribed service for the purposes of s 67E(3).  (I note my correspondent refers to the Neonatal & Paediatric Emergency Transport Service in NSW and the regulation refers to the NSW Newborn & Paediatric Emergency Transport Service but I infer that they are the same service and that my correspondent made an understandable error referring to it as ‘Neonatal’ rather than ‘Newborn’).

Ambulance services are ‘services relating to the work of rendering first aid to, and the transport of, sick and injured persons’ (Health Services Act 1997 (NSW) Dictionary).  Given the NSW Newborn & Paediatric Emergency Transport Service is an emergency transport service I infer it is transporting ‘sick and injured’ babies and children which explains why it needed an exemption from s 67E(1) of the Health Services Act.  That is a very long way of concluding that theNSW Newborn & Paediatric Emergency Transport Service is an ambulance service.

That makes it an essential service (Essential Services Act 1988 (NSW) s 4(1)(e)).  It is not an emergency service as defined by the State Emergency and Rescue Management Act 1989 as that Act refers to the Ambulance Service of NSW and the NSW Newborn & Paediatric Emergency Transport Service is not part of the Ambulance Service of NSW (if it was, it wouldn’t need an exemption from s 67E(1)). The Road Rules 2014 say that an emergency worker is ‘a member of the Ambulance Service’ (emphasis added).  It does not say ‘an’ ambulance service so I infer that ‘the Ambulance Service’ means the Ambulance Service of NSW, again that is not the NSW Newborn & Paediatric Emergency Transport Service. The employees could be emergency workers for the purposes of the road rules if the Roads and Maritime Services have given approval for that purpose.

Finally, the NSW Newborn & Paediatric Emergency Transport Service does not report to the Minister for Emergency Services so on that definition, too, it is not an emergency service.

On the other hand, it is the NSW Newborn & Paediatric Emergency Transport Service (emphasis added) so it is providing an emergency service even if it is not ‘an’ emergency service for the purposes of those other Acts.

Conclusion

The answer to the question ‘is the NSW Newborn & Paediatric Emergency Transport Service legally an emergency service?’ really depends on why you want to know and what issue you are trying to address.

I confess that I suspect that the issue might be ‘are they allowed to have red/blue lights and enjoy an exemption from the road rules’. If that is the reason the question is being asked then the answer is ‘it depends on whether or not the RMS has given approval’.

 

 

 

 

I have previously reported on the case of Mr Wells – see

• Tragic outcome from RFS response (April 4, 2013);
• Rural Fire Service volunteer on trial for fatal collision (May 19, 2016);
• NSW RFS volunteer acquitted of dangerous driving occasioning death and grievous bodily harm (June 16, 2016);
• Further prosecution over fatal RFS accident (August 17, 2016);
• Further prosecution over fatal RFS accident (Part 2) (August 21, 2016);
• RFS Response to Volunteer’s Conviction for Fatal Traffic Accident (October 13, 2016);
• RFS Fatal Collision and s 128 of the Rural Fires Act (October 14, 2016); and
• RFS firefighter sentenced over fatal collision (December 5, 2016)

Mr Wells appealed against his convictions for negligent driving causing death a for failing to make a U-turn with safety; and against his sentence of 12 months imprisonment to be served by way of Intensive Correction Order (ie not actually in prison), a find of $1000 and 12 months disqualification from driving.

In a unanimous decision (Button J; Gleeson, Harrison and JJ concurring) the Court of Criminal Appeal dismissed all the appeals – Wells v R [2017] NSWCA 242 (13 October 2017).

The issue for the Court of Criminal Appeal is not ‘would they have reached the same conclusion?’ but ‘did the judge make an error?’  The judge’s decision will not be overturned unless ‘there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice’ (see [65] quoting Filippou v The Queen [2015] HCA 29, [12]).

Appeal against conviction

With respect to negligent driving Button J said (at [74]-[75]):

To be clear, it was not the Crown case that the appellant was driving negligently in the sense of driving too fast, swerving from side to side, failing to keep a proper lookout, or any other negative attribute of his mode of driving itself. Rather, it was the act of commencing and continuing the U-turn of the tanker, in all of the surrounding circumstances, that was said to be sufficiently negligent to found the necessary element of the criminal offence.

In my opinion, it was open to the trial judge to find, in all of the circumstances – the road in question being a freeway, on which the speed limit was 110 km/h, and on which motor vehicles travel at that speed, and often higher; the crucial events taking place at night; the freeway being unlit; the fact that the vehicle of Mr Mihailidis was approaching from the south; the fact that the tanker was performing a U-turn into lane three northbound, a lane reserved for overtaking vehicles travelling at speed; the fact that the appellant needed only to wait a matter of seconds until the Corolla had driven past, and the northbound lanes had cleared – that the decision of the appellant to commence the U-turn proceed into lane three northbound was negligent.

As for the argument that Mr Wells was entitled to assume that the driver of the Corolla that ultimately collided with the appliance would give way to him, both the trial judge and Button J disagreed.  The fact that the driver flashed his headlights was not necessarily an indication that the driver had seen the fire appliance and would give way.  As Button J said (at [77]) ‘It was and is quite possible that Mr Mihailidis, in flashing the lights of his vehicle, was doing so as a warning, and not as an indication that he was proposing to, or able to, give way’.  Even if one assumes that another driver is going to behave in a particular way, it can still be negligent to drive on the basis of that assumption.

At [80] Button J said ‘In short, I consider that it was open to his Honour as tribunal of fact to find that the appellant drove negligently by manoeuvring the tanker as he did’.  Given that it was ‘open’ to the judge to make those findings, there was no error for the appeal court to correct.

As for causation there is no doubt that the actions of Mr Mihailidis (the other driver) also contributed to the accident but the criminal law does not require a sole cause: ‘as a matter of law and common sense, there can be more than one substantial contribution to an outcome’ ([82]).   Button J concluded (at [83]):

In my opinion, it was open to his Honour to find that the negligent driving of the appellant … was a substantial contribution to the collision between the tanker and the Corolla, which led directly to the fatal collision between the Mazda and the Corolla.

Again given that those findings were ‘open’ to the trial judge there was no error and so no reason for the Court of Criminal Appeal to change the result.

There was further argument that the parties had set out agreed facts and these had been given to the trial judge as the facts upon which he should apply the law and reach his conclusions. The appellant argued that when giving his reasons, the trial judge had used facts that were not in, or were contrary to the agreed facts and this was a denial of natural justice. If the judge thought the facts were different, so the argument goes, he should have warned the parties and at least heard from them, if not witnesses, to determine the facts.

The Court of Appeal rejected this submission too.  Button J said that some issues which the judge found were established by the evidence were not contrary to the agreed facts – they dealt with issues that the judge had to resolve that were not in the agreed facts.  And accepting only for the sake of the argument that there were discrepancies between the agreed facts and the facts as relied upon by the judge those discrepancies were irrelevant to the basis of the finding of guilt (see [113]). In short Dutton J thought there were no inconsistencies and even if you accepted that there were, they did not affect the legal outcome.

Road Rules 78, 79 and 306

At the time of the accident the relevant rules were the Road Rules 2008 (NSW). These have been replaced by the Road Rules 2014 (NSW) but rr 78 and 79 remain substantially the same.  These are the rules that require a driver to give way to, and get out of the way of, an emergency vehicle.

The appellant argued that if Mr Mihailidis had a duty to give way to the appliance (rr 78 and 79) and that Mr Wells enjoyed an exemption from the road rules under r 306 of the 2008 rules (and now the 2014 rules) then that was relevant to the trial judge’s assessment of whether the action in commencing and continuing the u-turn was negligent.

As readers of this blog will know an emergency vehicle is a vehicle driven by an emergency worker ‘in the course of his or her duties as an emergency worker’. An emergency worker includes a member of the NSW Rural Fire Service ‘providing transport in the course of an emergency’ (Road Rules 2008 (NSW) (repealed) and Road Rules 2014 (NSW)).  Critical to all these definitins is the concept of an ‘emergency’.

Counsel for the appellant argued (at [126]) that … it was an error for his Honour to find that, as a matter of definition, an emergency must have some aspect of urgency to it’ and that even though Mr Wells was returning to a scene to collect the crew, it was still relevantly an emergency.  Button J disagreed, he said, at [132]:

… I do not accept that “an emergency” can be an event that does not have at least some aspect of urgency to it. I say that not only as a matter of ordinary English usage. I say that also because, with respect, I accept the submission of the Crown that the interpretation for which the appellant contends would lead to absurdities; for example, a tanker being driven to an event that was patently not urgent – such as a routine meeting of volunteer firefighters – could nevertheless be judged as travelling to an emergency, with consequent modification to the operation of the Road Rules. In short, I do not consider that his Honour committed an error in interpreting the various rules upon which the appellant relied in a way that did not assist the appellant, on the simple basis that his return to the weighbridge was not, in truth, an emergency as defined by statute.

Finally, r 306 was irrelevant.  If Mr Wells had not been driving negligently he would not be guilty of the offence of negligent driving causing death and r 306 would be irrelevant.  As he was, in the court’s opinion, negligent, then r 306 did not apply as it only applies if the driver is taking reasonable care.  Either way there was no role for r 306 to play in the determination of the case.

On the basis that the appellant could point to no error by the judge, the appeals against conviction were dismissed.

Appeal against sentence

Button J then went on to consider the appeal against sentence. Counsel for the appellant argued that the trial judge contradicted himself in setting out the grounds for determining the seriousness of the offence, moving from an acknowledgment that this was a mere error of judgment and superimposing ‘upon the findings at trial a degree of wilful or reckless behaviour rather than a simple, albeit negligent, misjudgement. That has resulted in a sentence that is more severe than warranted in all the circumstances.’

Button J disagreed, he reviewed the judge’s comments and said:

In my opinion, the various paragraphs of the remarks on sentence relied upon by the appellant are unexceptionable. They do not show that his Honour rejected the facts agreed between the parties… Nor are the extracted paragraphs contradictory, or internally inconsistent. They simply show that his Honour well appreciated that the gravamen of the primary offence was nothing more than the decision to pull out from the U-turn bay in all of the circumstances, rather than to wait approximately 11 seconds until the oncoming motor vehicle had passed. The paragraphs relied upon also show that his Honour maintained the assessment that, on the evidence, there was no urgency in returning to the weighbridge to the north. None of that, in my respectful opinion, demonstrates any error of fact or law.

It was also argued that the trial judge should have recognised Mr Wells’ remorse over the accident even though he had never accepted that he was in fact responsible for Mrs Mihailidis’ death.  As counsel for the appellant said (at [152]) ‘His Honour found no evidence of the appellant’s acceptance of responsibility, and, as a result, it was submitted, erroneously took no account of remorse in mitigation of sentence.’

The Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A says that a person’s remorse is a mitigating factor that may reduce their sentence but only if

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)…

Whilst it was true that there was evidence that the appellant was affected by the event and no doubt was truly sorry that it happened, but (at [159]):

… there was and is no remorse demonstrated by the appellant for the offence. That is inherent in the fact that, at the commencement of the trial by jury, the appellant pleaded not guilty to the greater offence of which he was found not guilty. At the commencement of the subsequent hearing before his Honour, the appellant entered two pleas of not guilty. And up until the conclusion of the hearing of the appeal, the appellant disputed that he committed the two summary offences of which he was convicted, and instructed a solicitor, junior counsel, and senior counsel to make detailed and varied submissions in support of that proposition to this Court. Nothing has changed since this Court reserved its judgment.

Whilst the judge ‘accepted that the appellant deeply regretted, in a general way, the fact that a person died in the early hours of 19 October 2012’ he was correct to conclude that the appellant did not demonstrate ‘remorse’ as required by the Act and therefore the judge did not make an error by failing to give ‘credit’ to the accused for whatever remorse he did and does have.

As for the claim that the sentence was manifestly (which means ‘In a way that is clear or obvious to the eye or mind’; Oxford English Dictionary (Online)) excessive, Button J said (at [167]-[168]):

… the negligent driving of the appellant substantially contributed to the death of a human being. That death was, in one sense, caused by the refusal of the appellant to wait a mere 11 seconds until another vehicle had driven past him. The maximum penalty for the offence was, in the circumstances, full-time imprisonment for 18 months. No remorse was demonstrated by the appellant, and of course there could be no utilitarian discount after the hearing before his Honour. Although free of criminal convictions, the appellant was not free of traffic matters, including a previous conviction for negligent driving, albeit many years previously. The sentence imposed consists of the appellant being subject to conditional liberty for 12 months, whereby he is subject to a reasonably intensive program of rehabilitation. As this Court has said on another occasion, although that is a sentence of “imprisonment”, it is also a sentence that unquestionably has a large degree of inherent leniency built into it: R v Pogson (2012) 82 NSWLR 60 at [106].

Nothing placed before this Court persuades me that the sentence actually imposed was unavailable to the discretion of his Honour. To the contrary, on one view it could perhaps be regarded as a rather lenient sentence.

Outcome

His Honour proposed that all the grounds of appeal against both conviction and sentence should be dismissed.  Gleeson and Harrison JJ agreed with the decision of Button J.

Precedent

The outcome of this case depends entirely on its facts. The fact that Mr Wells was negligent in this case does not govern the determination of the next case. Each case has to be judged on its own facts.

If one was looking for a rule of law that could be applied in future cases it would be that the concept of ‘emergency’ for the various road rules does require some degree of urgency.  Just because a person is driving an RFS (or SES, or NSWF&R or NSW Ambulance) vehicle it does not mean that they can activate the beacons and/or sirens and enjoy an immunity from the road rules. They have to be responding to an ‘emergency’. Exactly what that is remains undefined but it must be something that has a degree of urgency; mere convenience is not enough.

Another rule might be that even with the lights and sirens on, you are not entitled to proceed on the assumption that people will give way. You have to make sure they have first – hence the advice always stop at the red light or stop sign and make sure everyone has given way before you proceed.

The end of the legal road?

There is one more possibility of appeal. Mr Wells could seek to take the matter to the High Court of Australia.  An appeal to the High Court of Australia is not a right, one has to seek leave and in so doing, persuade the court that there is a legal issue that warrants its consideration.  Whether Mr Wells will seek that leave, and whether the Court would grant it, I cannot say.

 

 

These are issues that arose for consideration in the case of Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 (22 September 2017).

What happened — the plaintiff’s version

The plaintiff (Barrett) was an experienced scuba diver. He operated a dive business where he would organise training and diving expeditions for his clients. Neither the plaintiff nor his business owned a boat. The plaintiff had established relationships with various other suppliers to, such as Lets Go Adventures Pty Ltd to charter their boat.

On 15 January 2012 the plaintiff was taking a group of 6 people on a boat dive. The boat, and boat’s crew, were provided by Lets Go Adventures Pty Ltd. On the day of the dive, Mr Barrett’s clients entered the water. Mr Barrett was ‘dive buddy’ with one of his clients, Mr Moore. During the dive Mr Moore got into difficulties and ‘began a free (uncontrolled) ascent’.  Mr Barrett tried to control Mr Moore’s ascent but the end of the story is that both arrived at the surface too quickly.  Mr Moore was unconscious and had to be lifted onto the boat. He regained consciousness.  The boat’s captain, Mr Shorter, set up a ‘C’ sized oxygen cylinder to deliver oxygen therapy to Mr Moore via Hudson mask. It took some time to collect the other divers and equipment before the boat could return to shore and Mr Moore was transferred for medical care. Mr Barrett alleged that the oxygen supply in the ‘C’ cylinder ran out before the boat reached the shore.

Mr Barrett did not seek medical care.  He said that whilst on the boat he was breathing from a dive cylinder that contained 50% air and 50% nitrogen as, in his view, there was no other oxygen supply on the boat.

After the dive the plaintiff began to suffer symptoms consistent with decompression illness. These were first reported to his doctor on 4 May 2012. As a result of his symptoms he could no longer manage his dive business and “closed the doors” on 30 June 2012.

The plaintiff sued the defendant on a number of bases. First that the defendant had supplied a service to the plaintiff and under the Australian Consumer Law was required to render that service with due care and skill. It was alleged that the defendant failed to have an adequate oxygen supply on the boat, failed to provide first aid to the defendant in the form of oxygen therapy and, interestingly, was negligent in advice that Mr Shorter gave to Mr Moore.

The issue of advice to Mr Moore was disputed. The allegation was that Mr Moore struck his head on the boat when entering the water. It was alleged that he told Mr Shorter this and that he wanted to abort the dive. It was further alleged that Mr Shorter advised Mr Moore that he would have to locate Mr Barrett and advise him that he wanted to abort the dive. As a result Mr Moore proceeded underwater and got into difficulty and this required Mr Moore to rescue him — to act as a good Samaritan. This argument is not unique. I have noted elsewhere that where a person negligently creates a situation that requires rescue they not only owe a duty to the person who needs to be rescued, but also to their rescuer (“Cop sues offender’s family” (May 22, 2013). There I said: ‘The fact that those that cause an injury to one person owe a duty of care to the rescuers is not at all controversial – it was first decided in Chapman v Hearse in 1961 ((1961) 106 CLR 112, [1961] HCA 46)’). The issue was that Mr Shorter denied that that conversation took place. Even Mr Moore, in his evidence, did not say that he told Mr Shorter that he had struck his head.

The result at trial

The plaintiff was successful at trial. Because the claim had been framed in terms of the Australian Consumer Law various provisions of the Civil Liability Act 2002 (NSW) relating to signed waiversand duties to warn of obvious risk did not apply.

The trial judge found that Mr Shorter, the captain of the boat:

• Failed to provide first aid care to Mr Barrett;
• Failed to carry sufficient oxygen (she found that the C Cylinder ran out and that there was no D cylinder on board;
• Knew that Mr Moore had struck his head and yet Mr Shorter did advise him to proceed with the dive.

The Appeal

The defendant appealed to the Court Of Appeal (Justices Basten, Gleeson and Adamson).   The Court of Appeal analysed the case on the basis that there were three claims. They were:

1. The oxygen supply case;
2. The lifting case; and
3. The head injury case.

The essence of the oxygen supply case wat that Mr Shorter should have identified that Mr Barrett was or might have been suffering from decompression illness and that he required oxygen and that it was a relevant failure to both offer oxygen and to have sufficient oxygen on board to supply bot Mr Moore and Mr Barrett until the boat returned to shore.

The oxygen supply case Did Mr Shorter know the plaintiff needed oxygen?

Mr Shorter asked on more than occasion whether Mr Barrett was alright and he confirmed that he was. Mr Barrett at no time asked for oxygen but it was argued that this was ‘implied’ by his coughing and that he made use of a small bottle of nitrox that was 50% oxygen and 50% nitrogen. Counsel for Mr Barrett argued (at [104]):

… the defendant ought not to have accepted the plaintiff’s assurance that he was all right but, rather, Mr Shorter should have demanded the plaintiff’s dive computer, ascertained that the ascent had been too fast and required him to have pure oxygen therapy.

The Court of Appeal rejected this argument.  Adamson J said (at [105]):

I am satisfied that the trial judge’s finding that the defendant ought to have been aware that the plaintiff needed oxygen was erroneous, having regard to the evidence referred to above. The plaintiff was an experienced diver; he was an adult; he was running a dive business; and as far as the evidence revealed, no one on the boat had greater expertise in diving and decompression illness than he did. To require the defendant to countermand the plaintiff’s own assessment in circumstances where (as the plaintiff admitted in the incident report form) the dive did not require a decompression stop and no symptoms were apparent would, in my view, be to elevate the standard of care required to a higher level than reasonable care. If anyone had a responsibility to review the plaintiff’s dive computer, it was the plaintiff himself. He was aware that he had come up quickly and took precautions himself by breathing nitrox when on board.

Was there sufficient oxygen on the boat?

With respect to the oxygen supply the defendant said that there was both a C and D oxygen cylinder on the boat. The plaintiff case was that there was no D cylinder but his evidence was, at best, that he did not see the D cylinder.  Not seeing it does not mean it was not there. The defendant had evidence from its employees that the cylinder was there as well as documentary evidence to show that they owned and serviced both cylinders. The burden of proof was on the plaintiff and he could not prove that the cylinder wasn’t there.  It wasn’t brought out because Mr Moore was receiving oxygen from the C cylinder and further oxygen was not requested or used.

Mr Barrett had suggested that the C cylinder ran out of oxygen before the boat reached the shore but his own incident report said that he asked Mr Shorten if he could take the C cylinder whilst Mr Moore was transferred to medical care, and Mr Moore remained on oxygen until he reached the medical centre.  Adamson J said (at [111]):

In light of the plaintiff’s request of Mr Shorter that he borrow the “C” cylinder and his admission that oxygen was supplied to Mr Moore until he arrived at Nelson Bay hospital I do not regard the plaintiff as having discharged the onus of proving that the “C” cylinder did not have sufficient oxygen which could have been supplied to the plaintiff had he asked for it.

And would it have made a difference in any event?

Even if there was no D cylinder the court found it would have made no difference. First the C cylinder could have been connected to a second mask to supply Mr Barrett had he asked for it.  Further, Mr Moore was receiving oxygen through a Hudson mask that delivered concentrations of about 40% oxygen (the oxygen is mixed with the air to produce that result even though the gas coming out of the bottle is 100% oxygen).  At the same time Mr Barrett was using the nitrox bottle with a demand mask. That mask does not mix the gas from the bottle with air so he was breathing a mixture of 50% oxygen and 50% nitrogen. The result was that event without the D cylinder ‘Mr Barrett was probably inspiring a higher fraction of oxygen that Mr Moore’ (see [86]). It followed that Mr Barrett could not prove that a further supply of oxygen on the boat would have made any difference to the outcome.

Conclusion on the oxygen supply case.

In other words the plaintiff could not prove that there was insufficient oxygen on board. The C cylinder was sufficient and he could not prove that there was no D cylinder, only that he didn’t see it, but of course he did not ask for it or for any oxygen.  Finally the plaintiff could not show that a further supply of oxygen would have made any difference to the outcome.

The lifting case

This case was based on the claim that the defendant had negligently failed to assist with lifting Mr Moore onto the boat. The event happened in 2012. Mr Barrett first raised the issue of physical injury in 2015. Adamson J said (at [134]):

The finding that the physical problems suffered by the plaintiff were the result of his having to lift Mr Moore was, in light of the delay in, and circumstances of, their reporting, glaringly improbable. Moreover there was no express finding of negligence per se of failure to render services with due care and skill since there was no identification of what the defendant ought to have done to avert the risk of harm and whether, had the defendant done what it is alleged it ought to have done, the harm would not have been suffered. In these circumstances, if her Honour found the Lifting Case to be made out, she was in error.

The head injury case.

This was the claim that Mr Shorter advised Mr Moore that if he wanted to abort the dive he had to advise Mr Barrett (his dive buddy) and that required him to actually dive down and find Mr Barrett who had already proceeded underwater.  Further, it was alleged, that Mr Shorter gave that advice knowing Mr Moore had been struck by the boat and suffered a head injury.

Mr Moore’s statement was to the effect that he told Mr Shorter that he wanted to abort the dive, not that he had struck his head (at the time of the trial Mr Moore was suffering from a terminal illness and could not give evidence in court, so all they could rely on was a written statement. The statement did say that he had struck his head, but it did not say that this is what he told Mr Shorter). Mr Shorter denied that Mr Moore said he had struck his head.

Adamson J said (at [138]):

… there was no evidence that Mr Shorter knew of the head injury. It was not suggested that there was anything unreasonable in Mr Shorter telling Mr Moore to inform the plaintiff that he was aborting the dive, if Mr Shorter did not know that Mr Moore had hit his head.’

Further the evidence, including GoPro footage, was that Mr Moore swam around to where Mr Barrett was and both indicated that they were ready to proceed with the dive and then they both went underwater.  As Adamson J said (at [140]):

… the plaintiff’s evidence was that he and Mr Moore made their way around to the front of the boat on the surface before descending. Before they commenced their descent they made mutual signs to signify that they were both ready and willing to descend. Whatever reservations Mr Moore may have had about the dive earlier, they were no longer operative at this point as her Honour accepted at [76] when she found:

“As the above cross-examination shows, it is not in dispute that it was at about this time that Mr Moore turned on his GoPro camera. The fact that he did so is, I consider, indicative of Mr Moore’s intention to continue with the dive, notwithstanding any earlier statements to Mr Shorter to the contrary.”

In other words Mr Shorten denied that he had a conversation with Mr Moore when Mr Moore was in the water. He said that Mr Moore indicated, when he was on the boat, that he was not sure he wanted to continue with the dive, but even so he entered the water, found Mr Barrett and they both indicated that they were ready to proceed and did proceed under water, and this was confirmed by footage recorded on Mr Moore’s GoPro camera.

The good Samaritan argument

The law says that if you allege that you have been injured by someone else’s negligence or lack of care they are liable to make good the damage done.  But the injured person has a duty to take care of their own safety too so the court can apportion fault and the plaintiff will receive reduced damages due to their contributory negligence and/or failure to mitigate their own losses ie failure to take steps, like getting medical care, to reduce the damage.

The good Samaritan provisions in NSW (Civil Liability Act 2002 (NSW) s 57) say:

A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

The trial judge found ([94]) that these provisions meant the defences of contributory negligence and/or failure to mitigate risk did not apply to good Samaritans.

I have argued elsewhere that courts are very reluctant to find good Samaritans have contributed to their own injuries (see Death of a good Samaritan (June 17, 2012) and Rescuer did not contribute to his own injury (March 20, 2013)) this is not because of any reliance on the good Samaritan legislation.  The trial judge did not address the issue that Mr Barrett was getting paid for his services and as the dive leader had contractual and common law issues to Mr Moore that, in my view, would mean he was not a good Samaritan for the purposes of s 57.   This issue was not raised in the Court of Appeal so Adamson J did not address it.  Gleeson and Basten JJ delivered a separate judgement where they agreed with the analysis and conclusions of Adamson J but they chose to add some comment on this claim about the application of the good Samaritan provisions.  They said (at [8]):

There was also some confusion in the Court below as to the operation of the so-called “good samaritan” provisions in Pt 8 of the Civil Liability Act. Section 57 provides immunity from civil liability for one who “comes to the assistance of a person who is apparently injured or at risk of being injured.” The reference to “good samaritan” appeared in a somewhat inarticulate paragraph in the statement of claim alleging a particular of breach of duty in so far as the defendant advised Mr Moore to dive down to alert the plaintiff of his, Mr Moore’s, difficulties, thus placing him at risk of injury “for which events the plaintiff would be bound to act as a good Samaritan and/or otherwise come to his aid”. The trial judge noted submissions that the plaintiff “may have been a good Samaritan in getting [Mr] Moore out of the water and on board the vessel following the dive” but that “the plaintiff ceased to be a good Samaritan thereafter”. These submissions should have been dismissed as incoherent. Nobody had sued the plaintiff; it is a defendant who obtains immunity from liability for acting as a “good samaritan”. So far as the plaintiff was concerned, the provisions in Pt 8 of the Civil Liability Act were simply irrelevant.

So how did it go so wrong?

Adamson J was very critical of the way counsel for plaintiff ran the case, the way the witnesses were treated and for the judge’s conclusions both on fact and law.  I won’t go through those issues in detail as they are not of direct relevance to readers of this blog but I will quote [124]-[125] where Adamson J said:

Mr Cavanagh [Counsel for the defendant/appellant] postulated in his submissions that the trial judge:

“seemed to have a view this was some sort of heroic action of the plaintiff in rescuing Mr Moore, he was a good Samaritan and that in some way rendered him more believable than anyone else in the case.”

I am persuaded by Mr Cavanagh’s submissions that the trial judge in the present case misused her advantage and, in doing so, deprived both Ms Challen and Mr Shorter of a fair opportunity of giving their evidence. Whether her Honour did so for the reason postulated by Mr Cavanagh need not be determined. It is sufficient to say that tribunals of fact, whether judges or juries, are to decide cases on the evidence and act impartially and dispassionately. They must not let sympathy or emotion affect their judgment.

The result

The result was that the appeal was upheld and the Court of Appeal delivered a verdict in favour of the defendant.

Discussion

The point is not just to tell a story but to draw lessons for readers of this blog.

First I have said that there are no reported cases of people being sued for rendering first aid. This too is not a case where an allegation of negligent first aid was made, but an allegation of negligent failure to render first aid.  From a first aiders point of view the relevant finding was the comment by Adamson J that to require the first aider (in this case Mr Shorten) to insist that Mr Barrett hand over his dive computer and insist that he take oxygen therapy would be to raise the standard of care expected above reasonable care.  As Adamson J noted the plaintiff was an experienced diver and an adult.  Apart from the fact that Mr Shorten had no authority or power to demand either the dive computer or that Mr Barrett submit to treatment (issues that were not raised in the trial) demanding that a first aider ‘countermand the plaintiff’s own assessment’ of what was required was too ask too much – consider too that it was Mr Barrett who knew better than Mr Shorten the circumstances of the dive and the risks involved in the ascent.

That is not to say that first aiders could or shouldn’t be insistent when they know better eg when they can see that a patient has serious injuries which the patient wants to discount, but all the circumstances have to be taken into account.  One can imagine however, coming to help at a car accident and finding that one of the drivers is an experienced emergency physician with no obvious injuries who says ‘I’m alright, you treat that person over there whilst I look after this one’.  It would be hard to say to a volunteer first aider ‘your job was to insist that the doctor stop providing care and submit to your care’ (at least where the doctor is not showing any symptoms. It may be different if the doctor appeared traumatised and not capable of acting).

This is also the first case that I’m aware of where there have been allegations of negligence for failing to have the right equipment.  There was however no definitive legal ruling on that issue as the court found that it was not proved that they did not have the equipment. It was not produced because it wasn’t asked for and wasn’t required, but it doesn’t mean it wasn’t there.

The claim that the good Samaritan provisions meant that the defendant could not claim contributory negligence or failure to mitigate damages was described as incoherent and irrelevant.

Conclusion

This is the first case where issues of first aid and the good Samaritan provisions have been raised. The fact that all the claims were lost were because of lack of evidence and contradictory evidence.  The result is that the case sets little in the way of precedent.  For first aiders, if there is a message  it is:

• You are not required to countermand the assessment of an experienced adult (in this case the person with the most expertise about decompression illness on the boat) who says ‘I’m OK’ and who has no symptoms to suggest otherwise; and
• The good Samaritan provisions are a defence for a person who comes to someone’s aid and is sued. If it is the good Samaritan doing the suing, they are irrelevant.

A correspondent notes that:

In Victoria, police have a power of arrest for drunk persons under section 13 of the Summary Offences ACT.

But, I’m asked:

What can be done for drug affected persons?  There is no arrest power.  How does the medical duty of care apply and what powers can be exercised by police and ambulance personnel to take these persons off the street?

The Summary Offences Act 1966 (Vic) s 13 says ‘Any person found drunk in a public place shall be guilty of an offence’. There is a further offence of being ‘drunk and disorderly’ (s 14). These are minor offences so one would not, normally, expect a person to be arrested for an offence under the Summary Offences Act. Even though these are summary (minor) offences there is a power to arrest. Section 15(1) says ‘A person found drunk, or drunk and disorderly, in a public place may be arrested …’ and once arrested or brought into police custody, a police officer ‘must ensure the person is lodged in safe custody’ (s 15(3)).

The term ‘drunk’ is not defined. The Oxford English Dictionary (Online) defines drunk as, relevantly, ‘Affected by alcohol to the extent of losing control of one’s faculties or behaviour.’  The term ‘drunk’ certainly implies affected by alcohol. If the Act used the term ‘intoxicated’ it might be easier to infer that it is intended to apply to those affected by either alcohol or drugs, or both.

So what’s to be done with a drug, rather than an alcohol affected person? It depends upon what they are doing, there are a myriad of offences that may be committed and which may justify an arrest – for example behaving ‘in a riotous indecent offensive or insulting manner’ (Summary Offences Act 1966 (Vic) s 17); behaving ‘in a disorderly manner in a public place’ (s 17A) and no doubt other potential offences depending on the circumstances.

The Crimes Act 1958 (Vic) s 458 says:

Any person, whether a police officer or not, may at any time without warrant apprehend … any person—

(a)       he [sic] finds committing any offence (whether an indictable offence or an offence punishable on summary conviction) where he believes on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons, namely—

(i) …

(ii) to preserve public order;

(iii) …

(iv) for the safety or welfare of members of the public or of the offender;

If a person is arrested and is affected by drugs or alcohol, or injured, then the police will owe them a duty to take care of their safety which would include ensuring that their custody arrangements are safe, and if necessary arranging for appropriate medical care.

In short, if the person is drunk and disorderly they can be arrested by virtue of the Summary Offences Act s 15.  If the person is affected by drugs and disorderly they can be arrested by virtue of a combination of the Summary Offences Act s 17A and the Crimes Act 1958 s 458. If the person is simply affected by drugs, there is no power to arrest – that is although there is an offence of being drunk in a public place (Summary Offences Act s 13) there is no offence of simply being affected by drugs whilst in a public place.

If however a person is affected by drugs and in need of care, the doctrine of necessity will apply. Remember (see In Re F [1990] 2 AC 1 discussed in The doctrine of necessity – Explained (January 31, 2017)) that this doctrine says that:

… to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.

If the person, by virtue of their drug induced intoxication, is posing a risk to themselves and they are not competent to make decisions on their own account, they could be detained for protective purposes provided that conduct is that which ‘a reasonable person would in all the circumstance take, acting in the best interests of the assisted person’ and would not be liable for the payment of damages.

With respect to criminal offences (eg assault) necessity has been abolished in Victoria (Crimes Act 1958 (Vic) s 322S).  In it’s place is a defence for ‘sudden or extraordinary emergency’.  This defence (s 322R) applies:

applies if—

(a) the person reasonably believes that—

(i) circumstances of sudden or extraordinary emergency exist; and

(ii) the conduct is the only reasonable way to deal with the emergency; and

(b) the conduct is a reasonable response to the emergency.

If the drug affected person is posing an urgent threat to themselves or others that could constitute an emergency and in the right circumstances justify taking action to restrain the person.

Finally, if the person is posing a threat to others reasonable force may be used to protect those persons.  The Crimes Act 1958 (Vic) s 322K(2) says:

A person carries out conduct in self-defence if—

(a) the person believes that the conduct is necessary in self-defence; and

(b) the conduct is a reasonable response in the circumstances as the person perceives them

The circumstances for self-defence includes the defence of another person (s 322K, note 2).  Again, if a drug affected person is posing a threat to the health and safety of others, police or anyone can use reasonable force to restrain and detain them if that is the reasonable response to the threat.

Finally, in Victoria, a ‘mental illness is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’ (Mental Health Act 2014 (Vic) s 4).  An intoxicated person may demonstrate those symptoms but being intoxicated is not the same as being mentally ill and the mere fact that a person uses drugs or consumes alcohol is not evidence of mental illness (s 4(2)(l)).

Having said that it may be hard to determine whether a person is mentally ill or merely intoxicated and of course they may be both mentally ill and intoxicated (see health.vic ‘Assessment of intoxicated persons’ but note that this refers to the now repealed Mental Health Act 1986 (Vic)). Even though the fact ‘that the person uses drugs or consumes alcohol’ is not evidence of mental illness, that ‘does not prevent the serious temporary or permanent physiological, biochemical or psychological effects of using drugs or consuming alcohol from being regarded as an indication that a person has mental illness’ (s 4(3)). So a person who is intoxicated by drugs and who is demonstrating the symptoms of mental illness (ie significant disturbance of thought, mood, perception or memory) may be dealt with under the Mental Health Act 2014 (Vic).  As health.vic says:

The presence of alcohol and/or drug intoxication does not preclude early assessment, although it may indicate the need for further assessment when the person is no longer intoxicated. When a request for assessment is received, it is not appropriate to insist that the person be free from the effects of alcohol and/or drugs. This includes requests by police for assessment of persons held in police cells when there is a concern that mental illness or risk of suicide is present in a person who is also intoxicated…

So being affected by drugs is not to be mentally ill but it may suggest, or mask symptoms of mental illness and those empowered under that Act may take action if they believe that the criteria in the Act are established. They cannot use the Mental Health Act as a shortcut or ‘pretend’ there’s a mental illness to justify a detention because it would be convenient.

Conclusion

It is indeed the case that there is a general and clear power to arrest a person who is drunk or drunk and disorderly in a public place in Victoria.  There is no equally clear provision with respect to a person affected by drugs.  However, the various provisions in the Summary Offences Act 1966, the Crimes Act 1958 and the Mental Health Act 2014 would, I suggest give sufficient power to police, and others, to detain drug affected persons who are posing a threat to themselves or others or acting in a disorderly way.  There is however no power to detain a person who is affected by drugs simply because they are so affected.

A doula is defined by the Oxford English Dictionary (Online) as ‘a woman who gives support, help, and advice to another woman during pregnancy and during and after the birth.’  An agency that provides training for doula’s has noted that students have raised legal concerns about their role in emergencies.  My correspondent says:

The main 2 questions we had were:

Specifically discussing doulas who are working with women and babies and an obstetric or neonatal medical emergency arises.

1. What are the legal concerns for doulas in this area (of attending to women and babies in emergencies)?
2. What can doulas do to mitigate the risks?

Some of the sorts of questions/comments related to these 2 questions, that I have seen and heard include:

1. Can you define the possible civil and criminal concerns a doula may have when caring for a woman in an emergency?
2. Can a doula be charged for practising midwifery without a license?
3. If an emergency arises and the doula is the only one in attendance is she protected by the good Samaritan law? Is there anything she can do that will cause this to be void?
4. What about if a doula is with a woman and at some point, something goes wrong (or birth is imminent), and the woman refuses to leave to the hospital/ call an ambulance/ get help. is the doula liable?
5. Ad a doula gains experience (even though she is not medically trained) she may notice when things are “not quite right”, and women often call them with every ache and pain, does she have a legal obligation to encourage the woman to seek help with her care provider?

The following are a list of things suggested by various people to minimise the risk of a doula being sued or charged with a criminal offence if she is with a woman during an emergency/ a woman experiences a poor outcome. I wonder if any

• Calling for help (000)
• Have a contract defining their role
• Have the partner catch the ‘baby’ if there is birth before arrival
• decline/return payment
• verbally state to the women “I am no longer acting as your doula but as a concerned friend”
• Have the woman write a clear birth plan with their intention to birth in a hospital/ birth centre / with a registered midwife at home.

The first thing to note is that there aren’t hundreds of cases involving Doula’s which might suggest that the legal risks are few but they are clearly not non-existent.  Being involved with childbirth is an emotional issue so when things go wrong, the parents are often motivated to seek legal redress. The risk of being subject to a complaint is 50% higher for obstetrician-gynecologists compared to GPs (Bismark MM, Spittal MJ, Gurrin LC, et al, Identification of doctors at risk of recurrent complaints: a national study of healthcare complaints in Australia, BMJ Quality & Safety Published Online First: 10 April 2013. doi: 10.1136/bmjqs-2012-001691).

I infer from the questions and some research that doulas do indeed receive training and charge for their services in which case they are operating in trade and commerce for the purposes of the Australian Consumer Law.  That means that the services must ‘be provided with acceptable care and skill or technical knowledge and taking all necessary steps to avoid loss and damage’ (https://www.accc.gov.au/consumers/consumer-rights-guarantees/consumer-guarantees#consumer-guarantees-on-products-and-services).

A doula entering into a contract with a client must owe that client a common law duty to act with reasonable care and skill.  It follows that even if we can’t define what it is, there must be in every case a standard of care that can be defined as the care that a ‘reasonable’ doula would provide in all the circumstances. No doubt if the response of a doula was to be subject to legal inquiry, it would be midwives and doctors who would be called to comment on what was ‘reasonable’. Doula’s may, as paramedics have, find that it is not members of their own discipline that get to comment on what they should have done (see my commentary on Lithgow Council v Jackson [2011] HCA 36 (October 5, 2011); Ambulance Service v Neal (January 29, 2009) and ‘Ambulance Service of NSW v Worley; further legal lessons for the emergency services’ (2007) 5(2) Journal of Emergency Primary Health Care (continued as the Australian Journal of Paramedicine) Article 990235).

Let me then consider the questions:

1. What are the legal concerns for doulas in this area (of attending to women and babies in emergencies)?

The principle legal concern is that if the birth goes wrong and the child or mother suffers an injury someone will allege that the doula failed to act as a reasonable person with her training and knowledge should have.  And that this in turn caused the damage to the child or mother.  If successful that would see the doula liable in negligence for amounts that no person could pay from their own assets.  Without insurance, the doula may find her home and other assets at risk.

2. What can doulas do to mitigate the risks?

The obvious answer is do what every other health practitioner does and that is get insurance. That is easier said than done.  Since midwives have had the right to private practice they have had difficulties obtaining professional indemnity insurance (which should communicate what a high risk business it is) – see Nursing and Midwifery Board of Australia, Media Statement: PII exemption extended to 31 December 2016 for midwives in private practice (17 June 2015).  Further details of professional indemnity for midwives, what it covers and why it’s important, can be found in the Nursing and Midwifery Board of Australia Guidelines for professional indemnity insurance arrangements for midwives (June 2013 updated April 2016).   Doulas are not midwives but that doesn’t mean that they are at risk if they conduct their business without insurance.

Let me then turn to the subsidiary questions.

1. Can you define the possible civil and criminal concerns a doula may have when caring for a woman in an emergency?

The civil concerns are noted above. If a doula is negligent and uninsured (and assuming she is acting in her own practice and not as an employee of a medical or other practice) then all her assets are at risk.  In terms of criminal concerns, if a doulas conduct can be described as ‘gross negligence’ then there could be criminal liability if the baby or mother died.

In Victoria, a coroner recommended that a midwife be referred to the Director of Public Prosecutions for possible prosecution over the way she managed the emerging crisis during a home birth (Inquest into the Death of Caroline Emily Lovell (24 March 2016)).  A doula is unlikely to find herself in that position if she is working with a midwife but if she is working alone then a similar consequence, in the wrong circumstances, is indeed possible.

2. Can a doula be charged for practising midwifery without a license?

No, because there is no such offence.  The Health Practitioner National Law does not define the scope of practice of health professionals (with the exception of some procedures that only registered dentists, optometrists or chiropractors can do, see ss 120-123).  The prohibition is on using the protected titles, so a person cannot call themselves a midwife unless they are a registered midwife (s 113).

There is one exception to this rule.  The various health tribunals can make orders regarding a registered or formerly registered health practitioner. In particular if a midwife (or other health professional) is found to have engaged in professional misconduct and an order is made to cancel their registration, the tribunal can also order that they do not practice any other form of health care.  In Health Care Complaints Commission v Abad (No 2) [2009] NSWNMT 30 the Nurses and Midwives Tribunal confirmed that the legislation allowed them to make an order that a nurse could not practice as an assistant in nursing (a non-registered role) during his period of de-registration.  In the course of reaching their decision the Tribunal noted the Minster’s second reading speech when he was introducing legislation to amendment the Nurses and Midwives Act 1991 (now repealed) and the Health Care Complaints Act 1993 allowing for prohibition orders.  At that time the Minister said:

There are also concerns about practitioners who, due to serious misconduct or incompetence, have been deregistered from a health profession but who, nonetheless, continue to practise in unregistered fields. The most obvious examples of that are deregistered medical practitioners or psychologists who set themselves up to practise under titles such as psychotherapist or counsellor. Deregistered physiotherapists, chiropractors and osteopaths may set up under the title of remedial masseur, and deregistered midwives may set up under the title of doula or birth attendant.

Midwives have been prohibited from acting as doulas during their period of de-registration – see Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 and Health Care Complaints Commission v Sheldrick (No 2) [2017] NSWCATOD 24).  A doula who was subject to an order that was made when she or he was deregistered as a midwife would be committing an offence if they then practiced as a doula contrary to that order.

Further in NSW and South Australia there is a code of conduct that applies to unregistered health practitioners – see Public Health Regulation 2012 (NSW) Schedule 3 and the South Australian Code of Conduct for Unregistered Health Practitioners Made under the Health and Community Services Complaints Regulations 2005.  Without going through the provisions section by section the Health Care Complaints Commission in NSW, and the Community Services Complaints Commissioner in South Australia, can receive complaints and no doubt prohibition orders can be issued to stop practitioners from continuing their practice. Again it would be an offence to work contrary to any such order.

3. If an emergency arises and the doula is the only one in attendance is she protected by the good Samaritan law? Is there anything she can do that will cause this to be void?

No, the good Samaritan legislation in every state is predicated on the basis that the person who steps up to help is there without an expectation of getting paid (see Good Samaritan legislation – a comparison (February 22, 2017)).  If the doula is operating a practice she is not a good Samaritan for the purposes of the legislation.  To put that another way, ‘Is there anything she can do that will cause this [protection] to be void?’ Answer yes, she can expect to get paid for her services.

4. What about if a doula is with a woman and at some point, something goes wrong (or birth is imminent) and the woman refuses to leave to the hospital/ call an ambulance/ get help, is the doula liable?

She will be if her response is not ‘reasonable in all the circumstances’ and that failure causes the baby or mother to suffer injury, loss or damage.  In the absence of specific facts I can’t say what might or might not be ‘reasonable’.

5. As a doula gains experience (even though she is not medically trained) she may notice when things are “not quite right”, and women often call them with every ache and pain, does she have a legal obligation to encourage the woman to seek help with her care provider?

She does if that is the ‘reasonable’ response. I would suggest every doula would say ‘I’m not a doctor, if you are concerned you should seek to discuss this with your doctor’.

Would any of these actions help:

• Calling for help (000)

I’m a keen supporter of calling triple zero.  Even if the patient doesn’t want you to, calling the paramedics brings in a second opinion and if the doula and the paramedics are urging the mother to go to hospital that may persuade her that this is indeed the best option. If she wants to refuse their care as well, she can.

If there is no doubt that it is an emergency, call triple zero – see Paramedics and home birth midwives (April 1, 2016).

• Have a contract defining their role

That will go a long way to defining what could or could not be expected from the doula and the limit of her services and expertise.  It won’t however excuse the doula from providing reasonable care within the terms of that agreement and her own knowledge and experience.

• Have the partner catch the ‘baby’ if there is birth before arrival

No, that won’t make any difference.  It may be worse if the circumstances mean that the baby should be ‘caught’ by someone with experience.

• decline/return payment

No that would just add insult to injury if you thought that was somehow going to remove legal liability.  You may choose to decline payment as that is the decent thing to do if something has gone wrong and no doubt you don’t want to invoice a grieving family, but it would be legally irrelevant.

• verbally state to the women “I am no longer acting as your doula but as a concerned friend”

No that would also be irrelevant.  You have entered into an agreement to provide whatever services you provide.  It would also be irrelevant for a midwife (registered or not) to say ‘I’m no longer acting as your midwife’.  A midwife who has chosen not to renew their registration but is practicing as a doula still knows what she knows and has the experience she has. She may identify an issue that a doula might miss but she can’t ignore it and say ‘today I’m only a doula’.   And consider a situation where a doula perceives something is not right and thinks ‘perhaps we need a doctor’ whereas the trained midwife, practising as a doula recognises the urgency and thinks ‘we need Intensive care paramedics here right now’ then it would be negligent for the midwife/doula not to call triple zero (given what she knows) even if it might not be negligent for the other doula, in the same circumstances, to try and contact an on call GP and wait for their arrival.

• Have the woman write a clear birth plan with their intention to birth in a hospital/ birth centre / with a registered midwife at home.

I imagine that such a thing is considered good practice. Failure to adhere to good practice is axiomatically what negligence is.  But as I’m neither a doula nor a midwife I can’t comment further on that.

Conclusion

Context is everything.  What is ‘reasonable’ depends on all the circumstances.  Liability also depends on all the circumstances.  A doula who is employed in a practice that also employs midwives, who works in collaboration with the midwives and medical practitioners, who has a clearly defined scope of practice and the ability to call on others if and when the need requires probably faces minimial legal risk.  Even if there is negligence by the practice in the provision of maternity care it will be the employer that is vicariously liable for the negligence of its staff.  That would be a low risk practice.

A doula who believes that birthing is a perfectly natural process that has been over medicalised and practices on her own without the sort of protections listed above faces significant legal risks in the practice of her trade, not least because of the highly emotive nature of birthing particularly when things go wrong at the last minute.   It doesn’t mean a doula will be liable for every poor outcome or still birth – they are not all attributable to negligence, but this is a business where a poor outcome may lead to lengthy legal issues even if ultimately resolved in the doula’s favour.  The most significant protection would be insurance, if you can get it.

 

 

 

Today’s question comes from a member of one of NSW’s emergency services. My correspondent raises two, quite unrelated issues. By way of introduction my correspondent says:

I very much enjoyed your recent article regarding the coroner’s findings on Dungog … It is certainly relieving to find that the coroner affirmed the general consensus that we (rescue workers) have no positive duty to rescue.

My correspondent then goes onto ask the key question:

We are addressing section 5H of the CLA, which deals with obvious risks and the duty to warn. As I understand it, where a risk is obvious, there is no duty to warn (unless the exceptions apply). Imagine a situation where perhaps I park my rescue truck across a highway in order to fend off traffic and defend my emergency workers and crash victims.

I believe that my rescue truck would now constitute an obvious risk, especially in situations where there might be a blind corner or high speed limit involved. Occasionally, as the first agency on scene in rural areas, we would often not have enough vehicles to set up a forward warning station for oncoming traffic and concurrently attend the emergency. This normally means that oncoming traffic has reduced time to slow down.

My question is about how 5H applies to this situation. Assuming the risk is obvious and the other elements of negligence are irrelevant or proven, do we count as professionals for subsection 5H(3), would ambulance workers count as professionals or an emergency doctor working for ASNSW or Westpac? If we do, we are presumably required to warn of the risk in order to avoid a breach of duty as crashing into a rescue truck at 100km/h is clearly a risk to life. Would emergency beacons constitute a warning? If we were on a blind corner would we need to add sirens for it to count as a warning (ignoring the SES policy that requires sirens on a rescue site in preference for the reality that NSWPF normally require sirens off at rescues to enable clearer communication)? Would the physical mass of the rescue truck and the retroflective markings on emergency vehicle parked across the road be significant enough to constitute a warning?

The Coroner

The reference to the Coroner’s findings in relation to the Dungog flood was a reference to my post NSW Coroner’s findings into Dungog floods (October 2, 2017).  Whilst this was not what my correspondent was writing about, what was written is worth commenting on.

A coroner does not determine legal issues or rights. A coroner reviews an event (a death or fire) and can make recommendations to avoid a recurrence of that event (see

• What is the difference between an inquiry and a court? (June 24, 2015);
• The role of the coroner (May 22, 2013); and
• Why being called before the coroner is worse than being sued! (June 26, 2009).

The Deputy State Coroner who conducted the inquest into the three deaths that occurring during the 2015 Dungog floods in no way ‘affirmed the general consensus that we (rescue workers) have no positive duty to rescue’.  That was not an issue before the inquest and was not her finding.  She actually made no comment on the flood rescues other than to acknowledge the neighbours of those who died who did rescue a number of people.  The Coroner did not address whether or not the SES should have been there or had either generally, or specifically, a duty to rescue.

What the coroner noted was that flood struck between 5am and 7am. The Deputy Local/Unit controller was acting as IC until 5.30am when he was relieved by the Local/Unit Controller.  There was evidence that the SES did respond to the home of one of the deceased between 5 and 5.30am. They assisted with moving equipment to higher ground and offered to assist her to relocate but hat offer was declined.  Other people affected by the flood called triple zero for assistance at 6.30am, 6.31am, 6.34am 6.38am and 6.44am.  The Coroner did not address whether the SES or NSW Fire and Rescue or NSW Police were under any legal duty to attend in response to those calls, or whether their response was reasonable or not. These were simply not matters that were before the coroner.

What she determined was that before the flood there was nothing to indicate to the SES that evacuations were required. By the time the water reached the flood gauges it had already done its damage in Dungog.  In reaching that conclusion the coroner is not making any finding on issues of law, such as whether or not the SES owed anyone a duty of care and whether the response was or was not reasonable.  Further the coroner was not talking generally but specifically – about this flood event.

A coroner’s inquest is NOT a court of law. It follows that nothing the coroner said, nor anything I said in my post, should be taken as an affirmation of ‘the general consensus that we (rescue workers) have no positive duty to rescue’.

Warning of a road hazard

We can now turn to the question my correspondent intended to ask. Section 5H of the Civil Liability Act 2002 (NSW) says:

(1) A person (“the defendant”) does not owe a duty of care to another person (“the plaintiff”) to warn of an obvious risk to the plaintiff.

(2) This section does not apply if:

(a) the plaintiff has requested advice or information about the risk from the defendant, or

(b) the defendant is required by a written law to warn the plaintiff of the risk, or

(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

Section 5H(2) could not apply in the circumstances being described. It’s relevant to a doctor treating a patient or recommending surgery who has to make sure the patient is fully informed.  Even if rescue workers were professionals for the purposes of s 5H, when conducting a rescue they are not providing services to the other road users.  Section 5H(2) is irrelevant.

The driver of a rescue truck, like every driver, owes a duty of care to other road users. That is a duty to act reasonably in all the circumstances. Those circumstances include the need to stop to perform the rescue and to position the truck to protect both the rescuers and those already injured and to protect other road users from running into the accident.

If you have a rescue truck parked across the road, particularly in a high speed zone and with a blind corner it is not an obvious risk. The reference to ‘blind corner’ must mean that it is not ‘obvious’.  So there must be a duty to take reasonable steps to minimise the risk. Think about where you park the truck and activate the warning lights (beacons) – that is why they are there.  By having flashing red and blue lights other drivers may be made aware of the hazard and so can take action to avoid it. It’s also why emergency vehicles are (hopefully) fitted with hi-vis markings (see John Killeen’s Ambulance Visibility Blog).  If you have the resources you deploy people further back with slow/go bats and if necessary get council or police to close the road and divert traffic around the accident site.

Let me return to the questions:

… do we count as professionals for subsection 5H(3), would ambulance workers count as professionals or an emergency doctor working for ASNSW or Westpac?

It is my view that rescue workers would not count as professionals for the purposes of s 5H even if they are doctors.  That is not the issue that the section is intended to address and further the ‘professionals’ are not rendering services to the other road users.  Section 5H(2) and (3) are irrelevant.

If we do, we are presumably required to warn of the risk in order to avoid a breach of duty as crashing into a rescue truck at 100km/h is clearly a risk to life.

You are required to issue a warning because although the risk of crashing into a truck may be an obvious risk, the fact that a rescue truck is there may not be obvious particularly if it’s on a blind corner or it’s not clear that the vehicle is stationary.

Would emergency beacons constitute a warning?

Of course, that is why they are there. As a salutary warning remember the case of R v Wells [2016] NSWDC 169, the case involving the RFS driver convicted of negligent driving occasioning death (see also Further prosecution over fatal RFS accident (August 17, 2016)).  In describing what happened the judge said:

After the collision the accused drove the tanker into the break down lane. The Corolla was left stationary in lane 3. Its electrical system was damaged to the extent that none of its lights operated. It was completely unlit. Mrs Mihailidis, whilst perhaps injured in the collision, was alive. She opened the passenger door and released her seat belt. She was in the process of getting out of the car when she was struck by a third vehicle, this a Mazda driven by Ms Nicole Burton who was also travelling northbound. She was driving the Mazda in lane 3 and had been for some time. Her lights were on low-beam and as she approached the scene she looked towards the flashing lights of the RFS tanker to her left. She did not see the stationary Corolla until it was too late to avoid colliding with it. It was the collision between the Corolla and the Mazda which caused Mrs Mihailidis’ death.

Whilst it was not part of the Crown’s case that the failure to remain at the point of impact constituted the driver’s negligence, one can wonder whether the accident would have occurred if the fire appliance was stopped where the accident happened and not stopped in the left hand break down lane attracting Ms Burton’s attention and diverting her attention from the stopped car in lane 3.

If we were on a blind corner would we need to add sirens for it to count as a warning (ignoring the SES policy that requires sirens on a rescue site in preference for the reality that NSWPF normally require sirens off at rescues to enable clearer communication)?

Without checking, I’m willing to bet that SES policy does not require a stationary rescue truck to have its siren activated. Such a policy would make the rescue scene dysfunctional. It would serve no useful purpose to oncoming drivers who would have trouble locating where it is coming from.  I’m willing to bet the statement ‘SES policy that requires sirens on a rescue site’ is a misunderstanding or misreading of the policy.

If you’re parked on a blind corner you need to think about what can be done, with the resources, to better communicate with drivers.  Ask someone who can’t get past your truck to park their car further back and turn the hazard lights on?

Would the physical mass of the rescue truck and the retroflective markings on emergency vehicle parked across the road be significant enough to constitute a warning?

Again that’s clearly why the hi-vis markings are on the truck. If it’s parked across the road with its emergency warning lights on and hi-vis markings that’s got to be the minimum warning you can give.  If you can give a more effective warning would depend on the resources available.

This whole argument assumes that the rescue service is the only service on scene.  As other services – ambulance, fire, police, council, tow trucks etc arrive, there is more opportunity to warn oncoming drivers of the hazard on the road.  And to draw on my own experience in a rural volunteer rescue squad, we were never first on scene.

Conclusion

A road user has a duty to all other road users.  Parking a vehicle across the road is clearly creating a hazard so there’s a duty on most of us not to do it.  For those that are required to do it, there has to be a duty to warn other road users. That is why emergency vehicles are painted in hi-vis designs and fitted with warning beacons.  There has to be an obligation to use them.  Section 5H of the Civil Liability Act 2002 (NSW) would have no application in the circumstances described.

 

On 21 April 2015, the town of Dungog in rural NSW suffered experienced a sudden, apparently unprecedented flash flood that claimed three lives.  Between 28 and 31 August the NSW Deputy State Coroner heard evidence about the event, the ability of the Bureau of Meteorology (BoM) to forecast the event and the response by NSW SES. The coroner’s findings were released on 29 September 2017 (Inquest into the deaths of Robin MacDonald, Colin Webb and Brian Wilson (Dungog Floods)).

In NSW SES, a local controller is appointed by the SES Commissioner for a local government area.  He or she is ‘responsible for the control and co-ordination of the activities of SES units in the relevant local government area’ (State Emergency Service Act 1989 (NSW) s 17).  A unit controller is appointed for a particular unit (State Emergency Service Act 1989 (NSW) s 17A). The unit controller for Dungog unit was also the local controller for the Dungog local council area. During these coroner’s proceedings the local/unit controller was separately represented that is a barrister appeared during the inquest to represent the controller’s interests.  The SES was also represented. It is not known who funded the Controller’s legal representation but I would anticipate that it was the SES/NSW Government.

The event

On 17 April 2015 the BoM forecast the development of an East Coast Low and began the process of issuing severe weather alerts for the region.

On the evening of 20-21 April rain fell across the Myall Creek catchment. The BoMs definition of ‘heavy’ rainfall was rain of, or in excess of, 46.9mm/hour at Dungog Post Office or 43.7mm/hour at a gauge in the Upper Myall Creek.  In the 24 hours to 5am the rain had been consistent, but not ‘heavy’.  Between 5am and 7am on 21 April 116.7mm of rain fell at the Dungog Post Office.  It was during those two hours that flooding occurred in Dungog entering homes, including the homes where three people died.  The coroner said (at [128]):

What occurred between about 05:00hours and 07:00hours on 21 April 2015 was an entirely unpredicted, localised weather anomaly involving an extreme rain event centred over the southern part of the Myall Creek Catchment, including the township of Dungog.

The SES had flood action cards to guide incident controllers. The cards predicted inundation of the town at various river heights and when consideration should be given to evacuation.  Various low lying properties were flagged for evacuation if the Williams River was to reach 7m.  At 5am the river was at 5.57m; at 6am it was 6.93m (still below the evacuation trigger point) and at 7am it was at 8m but at that time the reports were that the flooding was receding (see [133]).  The Williams River didn’t peak until 10.30am when it peaked at 8.68m but this was after the flooding in the town had receded.  The flooding in the town was possibly greater than a predicted 1:1000-year flood event.

What impacted Dungog was a flash flood – that is ‘“flooding which is sudden and often unexpected because it is caused by sudden local or nearby heavy rainfall’ ([136]).  The flash flooding here was caused by the rain with a contribution from the sodden ground and the amount of water in the Williams River and Myall Creek. At the time ([139]) ‘The Myall Creek Catchment was not defined as a “flash flood catchment” for the purposes of the NSW State Flood Sub Plan 2009’ that is the threat to the town was understood to come from flood waters from the rivers and creeks.

The search for answers

Residents affected by the flood were critical of the response of the emergency services (see  Donna Page and Dan Proudman, ‘Questions emerge in wake of Dungog flood crisis‘ Newcastle Herald (Online) 22 May 2015).  That story reports:

… questions are mounting about the role of the SES and whether the organisation tasked with being the ‘‘lead combat agency’’ for flood disasters failed to prepare adequately.

Why were elderly residents in flood-prone areas left sleeping in their beds, unaware of the rising floodwaters until it was too late?

What was behind a group of angry residents having to drive to the Dungog SES unit about 6am on Tuesday to demand a boat be put in the water to rescue people?

And why weren’t other emergency services told of the imminent disaster before the town’s fire crews and police were sent 27kilometres away to Stroud as people drowned in town?

At the start of the inquest ‘The head of the New South Wales State Emergency Service … admitted failings in responding to a deadly Hunter Valley storm’ (Giselle Wakatama, ‘SES apologises for failings during deadly Dungog storm’, ABC News (Online) 28 August 2017) but it is not clear from that report what ‘failings’ he was referring to.  The Coroner noted (at [31]-[32]) that:

As at 20 April 2015 [the Unit/Local Controller] had not received:

i. a formal handover briefing;
ii. training in the role of Local Controller and/or the Unit Controller;
iii. training in relation to the Dungog Shire Local Flood Plan 2011;
iv. any specific training in the Dungog SES Unit Flood Acti-Cards regarding responses to flooding in the Paterson and Williams Rivers; or
v. any AIIMS training, including training to perform the AIIMS Incident Management Role of “Incident Controller”.

As at 20 April 2015 the SES did not offer:

i. a system for conducting a handover briefing for in-coming and outgoing Local Controllers and/or Unit Controllers; or
ii. routine provision of AIIMS training, in particular for the role of the AIIMS Incident Management Role of “Incident Controller”.

Further, the Deputy Local Controller (who was for part of the relevant time acting as the incident controller):

… had not been provided with training as the SES Dungog Deputy Local Controller and/or Deputy Unit Controller; or with AIIMS training, including training in relation to the performance of the AIIMS Incident Management Role of “Incident Controller” ([37]).

The Coroner did not address those issues beyond identifying them.  She did not suggest that any of those failings contributed to the deaths.

The article in the Newcastle Herald said:

But flooding in Dungog was in no way a novelty and authorities were aware of the risks from Myall Creek.

The SES has been responsible for floods and storms since being created following the 1955 Maitland floods.

The combat agency’s own Dungog Shire Local Flood Plan, obtained by the Herald, identifies nine houses, two businesses and four aged-care units as high risk of flooding that may require evacuation.

That was true, but on the Coroners finding the flooding was so fast that it had happened before the river gauges indicated that evacuation was warranted.

Other issues raised by the Newcastle Herald involving inter-agency communication, whether emergency services were sent to another town when they were required in Dungog and inter-agency cooperation were not addressed by the Coroner.

Rescues

In the Newcastle Herald, one person is quoted as saying ‘‘‘The residents had each other and that was it,’’ she said.  ‘‘We certainly didn’t get any help.’’’  Another

… said the SES was absent throughout most of the crisis and terribly slow off the mark when the situation exploded.

He said for hours residents had to fend for themselves because there was no help coming.

It is axiomatic that first responders are always local – and it was members of the community who stepped up to help their neighbours before any emergency services could be called or could attend.  The coroner reported on many of those rescues including one man who helped at least 4 people to safety and recovered the body of one of the deceased ([106]-[127]).  In her conclusions the Coroner paid tribute to the rescuers. She said (at [172]):

In closing, I would like to acknowledge the following:

i. the courageous efforts of the residents of Dungog. Were it not for the conduct of a number of people, it is likely that more lives would have been lost;

She also acknowledged:

ii. the involvement of emergency services officers involved in the flood response across the Hunter region, including from NSW Police, Fire and Rescue NSW and the SES;…

The BoM

With respect to the BoM the Coroner said that she was:

… satisfied on all of the evidence … that the extent of rain over the township of Dungog and the catchment of the Myall Creek, and the resultant flooding, was an unpredictable and unpredicted weather anomaly.

The SES

The Coroner said (at [158]-[159]):

… the significant flood effects which occurred on the morning of 21 April 2015, all occurred, effectively without warning, in the period between about 6:16am and about 7.00 am that morning.

In the circumstances, on all of the evidence, there is no basis to conclude that either [the local/unit controller or deputy local/unit controller] should have given an evacuation warning or issued an evacuation order any time before about 6.16am on 21 April 2015.

In other words, there was nothing the BoM or the SES could have, or should have done to avoid the deaths in this tragic event.

The future

With respect to avoiding future deaths the Coroner noted:

• The flooding risk for Dungog is now better understood. ‘This flood intelligence is able to inform flood planning for Dungog going forward’ ([140]-[146]);
• At the time of the event the BoM maintained automatic rain fall gauges that gave near real time information. River heights however were monitored by gauges maintained by the NSW Office of Water (NOW). Information on river heights was fed to the NOW every hour and then to the BoM with the result that the river height information received by the BoM, and used to guide flood watches and flood warnings, could be 1 to 1 ½ hours delayed.  The BoM and the National Flood Infrastructure Working Group were working on improving river height monitoring to give real time data ([161]).
• Dungog Council had purchased five low lying properties, including four where homes had been washed away, to take those properties out of the housing stock ([163])
• The Council has also revised its Flood Planning Area and supported the demolition of six aged care units that are now in the Flood Planning Area ([163]);
• The SES had improved hand-over and training for local and unit controllers and recruited new members for the Dungog unit ([164]).

The Coroner did identify that the evidence showed ‘the need for an automated flash flood/flood early warning system for Dungog’ ([165]).  The Coroner also noted that the SES had worked with a meteorologist during an East Coast Low in 2016 and that having a meteorologist on hand was ‘extremely beneficial’.  Because of these findings, the Coroner made two recommendations.  They were:

That the NSW State Emergency Service, the Bureau of Meteorology and the Dungog Shire Council work together to convene a technical advisory group involving representatives from each organisation, and liaise with any officer of the Office of Environment and Heritage, and any consulting engineer(s) and local flood expert(s) engaged from time to time, to look at solutions for warning and responding to flood and flash flood events in Dungog (including the Myall Creek catchment):

(i) On an interim basis while an automated flood warning system is developed; and

(ii) On a long term basis, to consider developing an automated flood warning system designed to use a combination of rainfall and riverine water levels relevant to flood in the Myall Creek and its tributaries.

And

That further consideration be given to providing the NSW State Emergency Service with access to an out-posted meteorologist from the Bureau of Meteorology for ongoing planning and consultation, on a part-time basis, as well as assistance during weather events.

Conclusion

This was a tragic event but the evidence before the Coroner was that the BoM and the NSW SES had conducted extensive post event studies to understand the processes that led to the flooding. Given the information that they had and the significant, localised nature of the rain event the Coroner was satisfied that there was nothing more either the BoM or the SES could or should have done to prevent the loss of life.

 

 

 

 

A consultant ‘to a number of organisations, including local governments, in emergency management’ asks for comment on the following question “Can a Victorian emergency agency (e.g. fire service or police) commandeer an asset/property to become a relief centre?” The relevant context is:

There was an overnight apartment block fire in which residents were displaced.  The notification to council, as the local organisation responsible for emergency relief, was reported to have been delayed (circumstances not provided). The council appointed officer attended the scene, which is the SOP for this council, well after the emergency commenced.  On arrival, it was discovered that the fire service had used their ‘master key’ to open a nearby council owned and operated childcare centre.  The ‘master key’ is supplied by the building owner to the local station to facilitate fire service entry after hours in response to a fire call at that premises.  When the council officer questioned the fire service’ authority to enter, the reply was along the lines of “We have a master key to the building, and we can enter to use it as an emergency relief centre”.

According to my correspondent this raises some supplementary questions:

1. If one of the evacuees was injured, or the property is damaged, under such circumstances, without the appropriate authorisation from council, who would be liable?
2. If there is precedent authority for ’emergency commandeering’ of facilities, is that limited to government facilities or might a privately owned facility with an automatic fire alarm, for which keys have been given to the local fire station, also be accessed, and if so what are the security/insurance cover implications?
3. Although perhaps a ‘long bow’ that would never be pursued, if there is no authority (or permission), has a criminal offence been committed by gaining access, and if so are all the evacuees vicarious offenders after the fact?

Whilst I could object to a consultant using this service to get advice for his or her client, I will assume that this is not a core part of this consultant’s work.  Further I agree with my correspondent that the answer ‘may also be of interest to many of [my] readers, from both the asset owner and an Incident Controller perspective’. I answer the question in the sure and certain knowledge that my correspondent won’t use this answer in any report written for a client without due acknowledgment and that he or she will not charge the client for providing the answer.

There is a power to commandeer private assets in the Emergency Management Act 1986 (Vic).  During a declared state of disaster, the Minister may ‘take possession and make use of any person’s property as the Minister considers necessary or desirable for responding to the disaster’ (s 24(2)(c)).  Clearly that section does not extend to an incident controller at an event that is not a declared state of disaster.

The senior member of the operational staff of the Metropolitan Fire Brigade may (Metropolitan Fire Brigades Act 1958 (Vic) s 32B(3)(c)):

… may, for the purposes of dealing with any alarm of fire, cause—

(i) any land building structure vessel or vehicle to be entered upon or into (if necessary by force), taken possession of, shored up, pulled down, otherwise destroyed or removed…

The Chief Officer of the Country Fire Authority (Country Fire Authority Act 1958 (Vic) s 30(1)(c) and (d)):

… for the purpose of preventing the occurrence of a fire, of extinguishing or restricting the spread of the fire or of protecting life or property shall have and may exercise the following powers and authorities:

He shall have authority either alone or with others under his command to enter upon any land house building or premises and if necessary to force open any outer or inner doors of any house or building which may be on fire or in the near neighbourhood of any fire for the purpose of taking any steps which he deems necessary for any of the purposes aforesaid, and he may take or give directions for taking any apparatus required to be used at a fire into through or upon any land house building or premises which he considers convenient for the purpose…

Further

He may take any measures which in the circumstances are reasonable and which appear to him to be necessary or expedient for any of the purposes aforesaid and in particular he may cause any house building or structure to be entered into and taken possession of or pulled down or otherwise destroyed or removed …

An authorised member of the Victoria State Emergency Service (Victoria State Emergency Service Act 2005 (Vic) s 32AB):

… may enter any land or premises—

(a)        with the written or oral consent of the occupier of the land or premises; or

(b)       without the consent of the occupier of the land or premises if a Service member reasonably believes that entry to the land or premises is urgently required to protect life or property in the course of—

(i)        responding to, or preparing for, a flood, earthquake or storm; or

(ii)       providing a rescue service.

Although it is arguable, it is my view that the intention of these sections is to allow the relevant officer to enter the premises to deal with the hazard (ie the fire or the flood). The power vested in the fire officers to shore up or pull down a building makes it express that the point of the power is not a general power.

One has to remember that there is no general duty to rescue (Stuart v Kirkland-Veenstra [2009] HCA 15).  If fire and other emergency services could simply commandeer private property it would be imposing a duty on the property owners that is not otherwise reflected in law.  Further it is a general rule of statutory interpretation that an Act should not be read as curtailing fundamental rights and freedoms without express language.  Finally it is a fundamental rule that one’s private property is sacrosanct – we’ve all heard that ‘a man’s home is his castle’ – that maxim is based on ancient law. In Seyman’s Case (1603) 77 Eng. Rep. 194 Sir Edward Coke said ‘That the house of everyone is to him as his castle and fortress’.  William Pitt the Elder, one time Prime Minister of England said in 1763:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!

To give the fire and emergency services the power to enter property for the purposes described here, would be a fundamental shift in that law and would require express words, such as those used in the Emergency Management Act 1986 (Vic).  The incident controller may have a duty of care to those people affected by the fire or other emergency but he or she may also have a duty to other property owners not to interfere with their rights (which includes the right not to assist) and to protect their property.

That is not to say the position is not arguable.  If one takes the CFA Act as the example, it allows the Chief Officer to enter premises for the purpose of ‘protecting life’.  Further damage done by the CFA in the performance of its functions is considered damage by fire (Country Fire Authority Act 1958 (Vic) s 93) and is therefore covered by fire insurance (if any).   If it can be said that the entry was necessary to save a life, not merely convenient (see Murray v McMurchy [1949] 2 DLR 442).  One can imagine circumstances for example where there is a bushfire and people are in the open area, the only shelter is a closed, locked private building.  I can’t imagine anyone would object or it would be found unlawful for the CFA to force entry to the building to allow people to shelter inside rather than in the open.  In those circumstances the damages to the building would be deemed to be damage by fire and the property owner would either claim on their fire insurance or bear the losses (if any) as they would if the building burned down. And if the CFA has put people in their in order to be able to protect them from fire then the property owner is likely to suffer less damage than if the CFA evacuated everyone, including its firefighters, and left the building to survive the fire.

Equally one can imagine the MFB or the SES forcing entry to a building if that was the only way to save a life.  But where it is intended to make the evacuees comfortable that would seem far removed from the purposes for which the relevant powers are given and from the doctrine of necessity.

This then leads to the question of who’s going to complain?  If, as in this case, it’s a council owned building and assume no damage is done, what’s the harm?  Even if it’s private property and no damage is done, there may technically be a trespass but in the absence of damage there is unlikely to be any remedy worth pursuing.  If there is damage done one would expect the state to make it good on the basis that the state commandeered the asset for its own purposes.  The Emergency Management Act 1986 (Vic) s 24(5) specifically provides that a property owner is entitled to compensation for losses caused if their property is commandeered under that Act.

If an evacuee was injured, one would not expect the landowner to be liable because he or she did not intend, and could not foresee, that the property would be used as an evacuation centre so there wold be not duty to ensure that it was reasonable safe for that purpose.  The fire authority (in reality the State of Victoria) having put them there and without a proper assessment of whether the facility is fit for purpose, would be the obvious defendant in any claim for personal injury damages. But mere proof of injury is not proof of negligence so issues of liability would depend on the particular facts.

It is indeed a ‘long bow’ to suggest that a criminal offence has been committed. Even if it hand there is no such thing as ‘vicarious offenders after the fact’.   The evacuees would only commit an offence if they chose to steal something or deliberately damage the property once put inside.

The real issue from this example is a lack of proper planning or a commitment to the plan.  No doubt there is a local emergency plan. As noted the council was responsible for providing the evacuation centre and the local plan should have indicated what facilities might be made available for that purpose.  The incident controller should have been acting to put that plan into effect and council should have, as part of that plan, an appropriate communication and response capacity.  If it’s left to the IC to do whatever seems like a good idea at the time, planning becomes irrelevant.

Where an IC does make use of a building the critical issue will be the thought process of the IC.  If the IC thinks ‘these people have been evacuated, we’re waiting for council, it’s not very comfortable for them and I’ve got they key for this building, I’ll let them in there’ that’s probably not ‘reasonable’ and certainly not the purpose for which the IC is given the key or powers under the relevant Act.  Further there is no risk assessment as to the facilities and the property owner is entitled to exclude everyone, including evacuees.  On the other hand if the thought process is ‘these people are in immediate harm’s way and I need to find them somewhere safer and I need to do it now’ then it may be reasonable to enter a building. And then if the choice is between a private home and a publicly owned facility or even a business premises then it may be reasonable to avoid the private home.  The childcare centre, or the office building, is likely to be safer (given OHS obligations that apply when they are being used for their purposes) and is less of an invasion of privacy than forcing entry to an apartment block. In that sense there may well have been a risk assessment – the risk of being outside is too high and this is probably the safest, and most ‘fit for purpose’ building I can chose here and now.

As is so often the case the question will be was the action reasonable in the circumstances and the circumstances would include how urgent was the need? Was the situation life threatening? And what alternatives were available?

Conclusion

It is my view that neither the Metropolitan Fire Brigades Act 1958 (Vic), the Country Fire Authority Act 1958 (Vic) nor the Victoria State Emergency Service Act 2005 (Vic) is intended to give incident controllers the power to commandeer private assets and in particular a building for use as a relief centre where that seems convenient rather than necessary as a matter of urgency to save a life.  The fact that the Emergency Management Act 1986 (Vic) has a specific power demonstrates that the legislature thought of the issue and if they wanted to give that power to the various emergency services they could have done so, but they have chosen not to.

 

 

Today’s question comes from a First Aid educator who has

… a team of 20 community first aid educators I support.

The big Q, I am in a desert, an emergency doctor, and decide that I should do an emergency tracheotomy or this person will die. Will I get in trouble? I have done it a million times before!

I confess I’m not sure why it’s a ‘big Q’.  If the person doing the tracheostomy is a registered medical practitioner, with expertise in emergency medicine and who had done the procedure ‘a million times’ what trouble could they get into?  If they perform the procedure in a sub-standard way (taking into account all the circumstances) they may be negligent. Assuming however they have just come upon the emergency rather than arriving as a deployed medical team, then they can rely on the relevant ‘good Samaritan’ provisions (see Good Samaritan legislation – a comparison (February 22, 2017)).

If the procedure is actually contra-indicated, so that the doctor’s conduct represents the delivery of health care that is ‘not reasonably required for the person’s well-being’ (Health Practitioner Regulation National Law Act 2009 (Qld), Schedule 1, definition of ‘unprofessional conduct’), or represents ‘conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; (definition of ‘unsatisfactory professional conduct’ and ‘professional misconduct’) then the doctor may be subject to issues of professional discipline.  But that sort of conduct is not anticipated by the question.

A doctor who has experience and knowledge that can be used to save a patient’s life in an emergency, and where that action is not contrary to the patient’s known wishes, should proceed to act in the best interests of the patient.

Today’s correspondent comes from a paramedic seeking to working, in effect, across the NSW and Victoria state border.  My correspondent’s questions appear to suggest a misunderstanding of some key legal provisions.  Those misunderstandings may be reasonable, and even common, but are still misunderstandings. Many of the issues raised will however be resolved by National Registration.

My correspondent

… graduated in 2007 with a Diploma of Paramedical Science (Ambulance) and went straight into the private sector in Victoria. I was employed (and continue to this day) with … [an organisation] registered in NSW as an ‘Ambulance Service’ under Chapter 5 and Chapter 5A (I believe) of the Health Services Act (NSW).  That company has, in accordance with the provisions of its licence, issued an Authority to Practice as an Advanced Life Support (ALS) Paramedic.

My question, I reside and work in Victoria, and currently operate a service providing Medium (and where I can) high acuity services under the Event Standby provisions of the Non-Emergency Patient Transport Act 2002 (Vic).

However this severely limits my scope of authority to practice.

I understand that [the organisation I work for has] … been authorised to provide services in Victoria under the Mutual Recognition Act (Cth) and I was going to follow the provisions of that act to seek authority to practice in Victoria.  However, there is no provision to register as a Paramedic in Victoria, and obviously, my main objective is to be permitted to provide care to my scope of practice (e.g. S4 pharmaceuticals (S8 morphine would be nice, but I can understand why they wouldn’t want me to utilise these).

My questions then are:

1. As I am authorised to practice individually as a paramedic in NSW, and this includes the possession, and use (under protocol) of Schedule 4 and Schedule 8 pharmaceuticals, can I rely on this section to practice in Victoria; and if so
2. Who would I need to make the relevant notifications to, being there are no registration authorities (save the Department of Health who licence NEPT Services, and their Drugs and Poisons Unit who provide health services permits)?

The Health Services Act 1997 (NSW)

Chapter 5 of the Health Services Act 1997 (NSW) deals with ‘Affiliated Health Organisations’. The company my correspondent works for (which was identified to me but which I chose not to name) does not appear in the list of Affiliated Health Organisations set out in Schedule 3 to the Act.

Chapter 5A deals with Ambulance Services.  Section 67E(1) says

A person must not:

(a) directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, or

(b) conduct for fee or reward any operations similar to the operations carried on by the Health Secretary under this Chapter,

without the consent of the Health Secretary and except in accordance with such conditions (if any) as the Health Secretary may from time to time impose.

That restriction does not apply (s 67E(3) and Health Services Regulation 2013 r 26) to:

(a) St John Ambulance Australia (NSW);

(b) the Royal Flying Doctor Service of Australia (NSW Section);

(c) the mines rescue company, within the meaning of the Coal Industry Act 2001;

(d) a member of the New South Wales Mines Rescue Brigade established under the Coal Industry Act 2001, or

(e) The NSW Newborn & Paediatric Emergency Transport Service (NETS).

It follows that when my correspondent says the organisation for which they work is ‘registered in NSW as an ‘Ambulance Service’ under … Chapter 5A (I believe) of the Health Services Act (NSW)’ it must mean that my correspondent believes that the employer has permission under from the Health Secretary under s 67E of the Health Services Act. I have to say that I doubt that is true as to the best of my knowledge and belief no such permission has been given, but for the sake of the argument I will assume it is true because of course things change and I can’t see all (or any) documents to confirm that permission has been given.

Poisons and Therapeutic Goods Regulation 2008 (NSW)

My correspondent then uses the phrase ‘in accordance with the provisions of its licence’ and later ‘[the organisation I work for has] … been authorised to provide services in Victoria under the Mutual Recognition Act (Cth) …’ This implies, to me, a belief in a much more organised system that actually exists. There is no provision for anyone or any company to be ‘registered’ or ‘licensed’ as an ambulance service.  What I think is more likely is that my correspondent’s employer has an authority issued under the Poisons and Therapeutic Goods Regulation 2008 (NSW) r 170 with respect to the storage and administration of scheduled drugs, in particular schedule 4 and 8 drugs that form part of a paramedic’s tools of trade.

Authorities under r 170 can be granted but are not publically available.  But some exemptions can be seen. With respect to ambulance services Appendix C to the Poisons and Therapeutic Goods Regulation 2008 (NSW) says (at cl 7):

A person:

(a) who is employed in the Ambulance Service of NSW as an ambulance officer or as an air ambulance flight nurse, and

(b) who is approved for the time being by the Director-General for the purposes of this clause,

is authorised to possess and use any Schedule 2, 3 or 4 substance that is approved by the Director-General for use by such persons in the carrying out of emergency medical treatment.

Regulation 101(1)(g), says:

a person:

(i) who is employed in the  Ambulance  Service of NSW as an  ambulance  officer or as an air  ambulance  flight nurse, and

(ii) who is approved for the time being by the Director-General for the purposes of this clause.

is authorised to have possession of, and to supply, drugs of addiction (ie Schedule 8 drugs) ‘for the purpose only of the lawful practice of the person’s profession or occupation’.

The exemption for NSW Ambulance paramedics is not an authority ‘to practice individually as a paramedic’ (no such authority being required) nor is it an individual authority to carry and supply drugs. The Director General is given the authority to approve which ambulance employees can use those drugs.

I doubt, very much, whether an employee of a private ambulance company would get any more generous authority. I would infer that any authority given under r 170 would say that an employee authorised by my correspondent’s company can carry and supply relevant schedule 4 and 8 drugs.  Whether that permission could or does extend to carrying and supplying drugs when not at work for that employer would depend on the terms of the authority, but I would doubt it.

The concept of an Authority to Practice is unclear (see What is a paramedic’s ‘authority to practice’? (August 19, 2014)).  I would infer that it is the authority given by the employer to allow my correspondent to use drugs in the course of his or her employment.

Mutual Recognition Act 1992 (Cth)

Next is the issue of the Mutual Recognition Act 1992 (Cth).  The principal purpose of the Act is to promote ‘freedom of movement of goods and service providers in a national market in Australia’ (s 3). With respect to the practice of occupations, the Act provides (s 17):

… a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:

(a)       to be registered in the second State for the equivalent occupation; and

(b)       pending such registration, to carry on the equivalent occupation in the second State.

This can’t apply to paramedics because there is no process to register as a paramedic in any Australian state.  When national registration comes in this Act also won’t apply because there will be national registration.  This is relevant to trades like electricians and plumbers who need a licence or authority to work in one state and can rely on this Act to also register in another state but they still need to maintain their licence or registration in both states.

This Act has no application to paramedics and no application to an ambulance service. A plumbing company that employs plumbers is not a plumber – and an ambulance service that employs paramedics is not a paramedic.  It follows that even if a person did have to register as a paramedic, it would not follow that an ambulance service had to ‘register’ as an ambulance service.  Whatever my correspondent has been told, the Mutual Recognition Act 1992 (Cth) is irrelevant.

Authorised to practice

Finally my correspondent says that he is authorised to practice as a paramedic in NSW.  There is no need for authority to practice as a paramedic because what ‘practice as a paramedic’ means is not defined.  Things that paramedics do, other than carry drugs, are not restricted.

In NSW the title of ‘paramedic’ is protected. To call oneself a paramedic a person has to hold the qualifications set out in r 19A of the Health Services Regulation 2013 (NSW) (see also Health Services Act 1997 (NSW) s 67ZDA).  The relevant qualifications are:

(a) a Bachelor of Paramedicine or a Graduate Diploma of Paramedicine conferred by a university,

(b) a nationally-recognised Diploma of Paramedicine issued by a registered training organisation.

For the purpose of that section:

“Paramedicine” includes Clinical Practice (Paramedic), Emergency Health (Paramedic), Health Science (majoring in Paramedicine), Paramedic Practice, Paramedic Science and Science (majoring in Paramedicine).

My correspondent has a Diploma of Paramedical Science (Ambulance).  Paramedic Science is listed, but not Paramedical Science.  I doubt whether anything would turn on that and we can accept that my correspondent has a prescribed qualification and can, therefore, use the title ‘paramedic’ in NSW.

Rewriting the question

All of that discussion means that I think my correspondent has asked the wrong question.  The question should be:

I graduated in 2007 with a Diploma of Paramedical Science (Ambulance) and went straight into the private sector in Victoria. I was employed (and continue to this day) with a private ambulance service that has the authority to endorse employees to use Schedule 4 and 8 drugs.  That company has, in accordance with the provisions of its authority, endorsed me to use drugs in the course of my employment.

My questions then are:

1. As I am a ‘paramedic’ in NSW and whilst acting in the course of my employment I am allowed to possess, and supply (under protocol) Schedule 4 and Schedule 8 pharmaceuticals, can I rely on this section to practice in Victoria; and if so
2. Who would I need to make the relevant notifications to, being there are no registration authorities (save the Department of Health who licence NEPT Services, and their Drugs and Poisons Unit who provide health services permits)?

Victorian law

To answer that question we need to look to Victorian law.  As noted in other posts, there are no visiting provisions with respect to drugs in Victoria.  To put that into context, a person with a drugs authority issued in NSW can carry and use those drugs in the ACT and vice versa (see Carrying Scheduled Drugs interstate v 2 (June 27, 2016)).   A person with a drugs authority issued by Victoria could also rely on that in NSW (Poisons and Therapeutic Goods Regulation 2008 (NSW) r 10(3)) but there is no equivalent provision in Victorian law to allow a person in Victoria to rely on a poisons authority issued in NSW.

In January 2015, the Victorian Government established the Ambulance Performance and Policy Consultative Committee.  That Committee released its final report –  Victoria’s Ambulance Action Plan: Improving Services, Saving Lives –  on 10 December 2015.   That report recommended a review of the Ambulance Services Act 1986 (Vic). A public consultation was conducted from 2 December 2016 to 3 January 2017.  As part of that process a consultation paper was released.  The Review of the Ambulance Services Act 1986 and supporting legislation: Consultation Paper (2016) noted at p. 15:

Currently any ambulance service or paramedic from outside Victoria, not employed by Ambulance Victoria, is not legally allowed to possess or administer any drugs, poisons or controlled substances as defined in the Act. This is of concern in border town settings, and in crisis situations such as bushfires, where interstate emergency services staff will travel to Victoria to assist in emergency management. This also impacts on Victorian paramedics providing care in other jurisdictions.

The Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 13 identifies ‘Persons authorized to have possession etc. of poisons or controlled substances’ and includes for example, medical and nursing practitioners.  They are registered under the national scheme so a medical practitioner based in NSW is also a medical practitioner in Victoria.  That will be relevant for paramedics in due course and provided that ‘paramedic’ is added to the list in s 13(1)(a) but that doesn’t help my correspondent today.   Section 13 does not say that a person with an authority issued in another Australian state can rely on that authority in Victoria.

It follows that if my correspondent’s employer has an authority issued by NSW that in turn allows the employer to endorse employees to carry and supply schedule 4 and 8 drugs in the course of their employment, that authority does not extend to allow that employee to carry drugs when not at work for that employer or when in Victoria.  If the employer has an authority issued by Victoria, then presumably it can endorse its employees to carry drugs when acting in the course of their employment in Victoria.  That would not extend to allowing an employee to carry and supply scheduled drugs when operating their own service or outside their employment.

Conclusion

The first question I was asked (after I rewrote it) was:

1. As I am a ‘paramedic’ in NSW and whilst acting in the course of my employment I am allowed to possess, and supply (under protocol) Schedule 4 and Schedule 8 pharmaceuticals, can I rely on this section to practice in Victoria;

The answer to that question is ‘No’.

Because the answer to question 1 is ‘no’, question 2 does not arise.

If my correspondent wants an authority to carry and supply scheduled drugs when conducting his or her ‘service providing Medium (and where I can) high acuity services under the Event Standby provisions of the Non-Emergency Patient Transport Act 2002 (Vic)’ he or she would have to apply to the Department administering the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and make an application for a relevant authority.

My correspondent’s authority to carry and supply schedule drugs when working for the company that has a drugs authority would depend on the conditions (if any) attached to that Authority and the terms of any endorsement issued by that company.

National Registration

With national registration a paramedic, once registered, will be a paramedic across Australia. Whether the right to carry and use scheduled drugs attaches to that registration so that a paramedic can carry and supply drugs as a doctor can, remains to be seen.

No doubt most subscribers to this blog have seen the video of a Salt Lake City, Utah, USA police officer arresting a nurse for refusing to take blood from an accident victim for, we infer, drug and alcohol testing. If you haven’t seen it, you can see it here along with details of the story – http://www.abc.net.au/news/2017-09-02/nurse-assaulted-refuses-blood-be-drawn-from-unconscious-patient/8865988 or if you prefer https://www.facebook.com/actdottv/videos/2059331077620429/.

I wasn’t inclined to comment as the issues are well canvassed in the press but it was sent to me along with a question of the relevant Australian law.

Using NSW as an example, testing for drugs and alcohol is mandatory for any person involved in a motor vehicle accident. It doesn’t matter whether you were the driver, a pedestrian a cyclist or whether the police think you were at fault or not (Road Transport Act 2013 (NSW) s 114 and Schedule 3).  Relevantly cl 11 of Schedule 3 says:

(1) Any medical practitioner by whom an accident hospital patient is attended at a hospital is under a duty to take a sample of the patient’s blood for analysis as soon as practicable.

(2) The medical practitioner is under a duty to take the sample whether or not the accident hospital patient consents to the taking of the sample.

(3) If there is no medical practitioner present to attend the accident hospital patient at the hospital, the blood sample is to be taken by a registered nurse who is attending the patient and who is accredited by a hospital as competent to perform the sampling procedures.

However, a sample need not be taken (cl 2):

(a) if the person has been admitted to hospital for medical treatment unless:

(i) the medical practitioner in immediate charge of the person’s treatment has been notified of the intention to make the requirement, and

(ii) the medical practitioner does not object on the grounds that compliance with it would be prejudicial to the proper care or treatment of that person…

It follows that at least in NSW and subject to cl 2, above, a doctor can not only take a blood sample, the doctor must take a blood sample.   (Without checking the legislation in each jurisdiction, we can infer similar rules apply in the other Australian jurisdictions).

In the US video the nurse is seen reading the agreed hospital and police protocols which say that they can only take blood if the patient consents, is under arrest or there is a warrant authorizing the sample to be taken.  Those requirements simply do not apply in Australia where the patient was a driver, rider or pedestrian involved in a vehicle accident.

In commentary I’ve seen about this video some people have referred to the concept of ‘implied consent’ as authorising taking blood.  Whether the justification for treatment of the unconscious is implied consent or necessity it could not justify taking blood for law enforcement purposes.  The principles of necessity, applicable in Australia, is that treatment may be given in the best interests of the person.  Taking blood for forensic purposes is not ‘treatment’. Further it may not be in the best interests of the person. It may be, of course, if the sample proves a zero-blood alcohol or drug content but not if it shows anything other than zero. (I recognise that for most drivers a blood alcohol content of less than 0.05 is not an offence, but it can make dealing with insurers more difficult; and it is an offence to drive ‘under the influence’ of alcohol or a drug regardless of the recorded level (Road Transport Act 2013 (NSW) s 112)).

The matter in the United States is further complicated by the presence of the 5th amendment to the US Constitution – one of the rights in the US Bill of Rights.  The 5th amendment says, relevantly ‘No person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law …’  I’m not an expert on the US Constitution but I would suggest that taking blood for the purposes of determining the level of drugs or alcohol in the person’s blood, with the expectation that if there is a detectable amount this may be used ‘in a criminal case’ is to compel the person to be a witness in their own cause and is further a deprivation of liberty without due process.  One can see therefore why the nurse in the video referred to the need for either consent, a warrant (or court order) or an arrest.  Where there is a warrant or police have arrested the person then they must already have reasonable grounds to suspect (or to use the US phrase, ‘probable cause’ to suspect) that the person has committed an offence.  Where they don’t have that ‘probable cause’ taking blood to find out if an offence has been committed is ‘fishing’ for evidence and clearly not allowed.  The 5th amendment, of course, has no application here in Australia.

Conclusion

The situation seen on this video is unlikely to arise in Australia as the hospital would have taken the victims blood for testing. And hopefully police in Australia (and one hopes the US too) actually know the law and know they can’t arrest people for not doing what they’re told particularly when they’re being told to do something unlawful.

It is interesting to note that at times on this blog people seem to think that the police can simply exempt people from the law, or if the law says ‘x’ it’s ok to ‘y’ if a police officer directs or authorises ‘y’.  That is not the case and is the antithesis of the rule of law as this officer has, according to news reports, discovered.

 

 

A NSW Ambulance paramedic was

Called to a query mental health call. Male patient, wearing only underpants, trespassing, covered in blood, mumbling incoherently. On arrival found to be as stated. Patient able to be physically directed, no obvious source of blood, mumbling, unable to answer questions. Transported to local hospital for investigation of decreased level of conscious – query mental illness, drug affected, head injury or other medical condition.

A police escort travelled in the ambulance.  The patient was compliant and presenting as catatonic. En-route we were notified that the patient’s partner had been found violently murdered.  On arrival, we were surrounded by multiple police officers who took the patient from our stretcher into custody and placed him into a police vehicle.

I quite vocally stated that the man needed medical assessment due to the potential risk to his life if he was drug affected or head injured.  I was told that preserving evidence was their priority, that he was now under arrest and no longer our concern.  I learned that he was taken to hospital several hours later.  He also died in custody a few weeks later – I don’t know the cause or if it was even related.

My question is as we were called to the scene by the Police to assess the patient and transport to him to hospital, can they then refuse to allow him timely medical attention as deemed necessary by paramedics.

This is a difficult situation.  Police have the power to arrest a person without warrant (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99).  Once arrested a person can be held for the ‘investigation period’ whilst police conduct further investigation (ss 109-131).  Whilst in custody police can arrange for identification particulars such as fingerprints and photographs to be taken and they can arrange for a medical examination for the purpose of obtaining evidence (ss 133-138C; Crimes (Forensic Procedures) Act 2000 (NSW)).

Police can enter premises, with force, if necessary to make an arrest (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 10 and 230). That means police can enter a hospital or ambulance to make an arrest.

A person under arrest or in custody has the right to, amongst other things, a right to medical attention (s 129).  That right, at least as expressed in the Act, is a right that the custody manager must honour. A person will only come into the care of the custody manager once he or she has been brought to the police station.  Whilst police making an arrest should arrange for medical care if it is warranted, s 129 won’t have much impact unless and until the person is taken to the police station and placed in the care of the custody manager.

Police have a common-law duty of care to their prisoners (Howard v Jarvis [1958] HCA 19).  If a person in police custody needs medical care it must be up to the police to arrange that, as the prisoner cannot do it themselves.

In Metropolitan Ambulance Service v State of Victoria [2002] VSC 222 the court had to apportion liability between the Metropolitan Ambulance Service and the State of Victoria who was liable for any negligence by members of Victoria police (see An earlier (2002) Victorian case on ambulance and police negligence (December 26, 2016) for a detailed discussion).  In that case the patient/prisoner had attempted to rob a taxi driver. The taxi driver fought back causing injuries.  The judgment explains what happened:

… the plaintiff was struck on the head with a piece of wood on a number of occasions and struck with a fist a number of times by …  who was acting in self-defence. … At all relevant times, the plaintiff … was suffering from a psychiatric illness. As a result of the incident, the plaintiff was allegedly rendered unconscious and suffered intercranial bleeding. Shortly after the incident, ambulance officers attended the scene and examined the plaintiff. Police officers took the plaintiff into custody, placed him in a divisional van and then in the cells at the Moorabbin Police Station. After being in custody for several hours, the plaintiff was taken by ambulance to hospital where he received emergency treatment. As a consequence of the custody and the alleged failure to receive timely treatment, the plaintiff’s initial injury was severely aggravated and the plaintiff suffered further injury, loss and damage, including brain damage, loss of cognitive function, impairment of motor function, speech, memory and concentration, epilepsy, psychological suffering, anxiety, depression, nervous shock, a total loss of earning capacity and medical expenses.

In that case, the alleged negligence by officers from Ambulance Victoria related to the history they obtained, their examination of the patient and their communication with police.  Mandie J said (at [38]-[39]) that the treating paramedic:

… told the police that it was okay to take the plaintiff into custody and that he did not require any further medical treatment and was fit to remain in custody. The ambulance then left.

All of the police officers that testified emphasised that they had relied upon the advice of the ambulance officer that the plaintiff did not need medical treatment and was fit to remain in police custody.

None of those issues apply in the situation described by my correspondent. In the situation we are discussing the paramedics have assessed the patient, determined the need for transport to hospital, they have transported the person to hospital and they have communicated to police their professional view that admission to the hospital is required.

To return to the decision in Metropolitan Ambulance Service v State of Victoria, once at the police station the prisoner was noted to be unsteady on his feet, had defecated in his trousers, was unable to follow simple instructions, he appeared to police to be intoxicated or drug affected, he had bleeding from the nose, was noted to be ‘asleep’ but unresponsive and breathing loudly.  Finally a doctor arrived and (at [47]):

…found him to be deeply unconscious (ie. unrousable) with slow breathing and pulse and a large area of swelling on one side of his face (in fact, it was the left side). His eyes were of real concern: one eye was fixed and dilated and the other one was a pinpoint, indicating to the doctor some disturbance in the head, such as a blood clot, exerting pressure – he was in a very serious condition. Dr O’Dell ordered an ambulance as soon as possible.

The reasonable response to any situation however requires consideration of competing demands (Wyong Shire v Shirt (1980) 146 CLR 40, 48) so police can rightly balance the need to collect evidence of a very serious crime against the need to obtain medical care for the prisoner/patient. Whether it’s ‘reasonable’ to defer the medical care would be a matter that would depend upon much more evidence as to the patient’s condition. In Metropolitan Ambulance Service v State of Victoria the police were found to have been negligent in that they failed to follow their own procedures on the care of prisoners in terms of checking and attempting to rouse a prisoner who may have been intoxicated or injured.  There was no competing need to examine the prisoner in order to collect evidence from him regarding the offence in question.

The question of whether or not the police conduct in the situation described by my correspondent was ‘reasonable’ would depend on an assessment of all the facts and would be a matter for a court to consider if the patient later sued police.  It is not a matter for the paramedics to judge at the time.

Discussion

The problem here is that once the patient had been arrested he’s no longer at liberty.  A prisoner (other than a prisoner under sentence) can refuse medical care (Crimes (Administration of Sentences) Act 1999 (NSW) s 73; see also Ambulance Service v Neal (January 29, 2009 and the pdf files attached to that post) but that doesn’t mean they can insist on care if arresting police don’t allow it.  The essential nature of arrest is a deprivation of liberty. An ambulance officer can’t treat a person who refuses consent and clearly can’t treat a prisoner if the arresting police refuse consent.

My correspondent’s question is:

… as we were called to the scene by the Police to assess the patient and transport to him to hospital, can they then refuse to allow him timely medical attention as deemed necessary by paramedics.

The fact that they were called to the scene by police is irrelevant as circumstances changed.  At the time police observe a person who appears to be in need of care so they call an ambulance. Later they determine that the patient is suspected of a very serious crime so police then arrest the person.  The situation would be no different whoever initially called for ambulance assistance. The question should be:

… as we had assessed the patient and transported to him to hospital, can the police refuse to allow him timely medical attention as deemed necessary by paramedics.

The answer to that question is ‘yes’.  One simply needs to think of a less dramatic example. Police can’t allow a prisoner to derail the investigation process by insisting on medical care – eg I’ve got a headache I want to go to hospital.  So there has to be a point where it’s reasonable for police to say ‘our investigation takes priority’.   In more dramatic cases, it would be clear that the health needs of a prisoner must take priority.  As with any spectrum, there has to be a borderline point.  I can’t say where the case described by my correspondent sits on the spectrum.  What can be said is that if the police have taken the person into custody then they can also take him or her from the hospital to conduct their investigation.

Whether that’s a good idea is another matter. In Metropolitan Ambulance Service v State of Victoria the police relied heavily on the statement from the paramedic that the patient was fit enough to be taken into custody.  In the case under discussion the advice from paramedics that the patient was indeed not fit enough to be taken into custody should ring alarm bells. It would make it very hard to defend any claims of negligence and perhaps unlawful imprisonment if the person’s condition was made worse by any delay in treatment, given the person can remain in police custody whilst in the hospital and no doubt forensic procedures could be conducted there if required.

What could the paramedics do? It’s simply a matter of common sense that the paramedics couldn’t force the police to deliver the person to hospital. If the police were acting inappropriately that would be a matter for others.  The paramedics should (as I infer they did) make their professional opinion known to the arresting police and record as many details of the incident as they can, including recording, as soon as possible after the event, details of conversations they had with each police officer.  Ideally these should be recorded in the first person ie ‘I said …’ Constable blogs said ‘…..’ I said ‘…’ Do not write a summary of the conversation but write the actual words used, as best they can be remembered.   Paramedics should also alert their coordination centre in an effort to get a supervising officer to attend and speak to police and hopefully liaise with a supervising police officer or the custody manager at the local police station to again communicate the paramedics’ concerns.  If possible getting a triage nurse or doctor to come out of the hospital and either examine the patient or explain to police why he needs to come into the emergency room would also help. It would help as it may persuade police to act and if it did not, it is further evidence that they were clearly made to understand that the medical professionals thought the person needed urgent medical assessment and/or care.

At the end of the day however, it is the police who are responsible for the decisions and actions of the police. If they have arrested a person and taken them into custody then they can ‘refuse to allow him timely medical attention as deemed necessary by paramedics’ but they will be responsible for the consequences (if any) of that decision.

Today’s question comes from a nurse educator in Queensland who has…

a question … about the good Samaritan law here in Qld. I understand that they would be protected from civil proceedings if providing emergency assistance at the scene in good faith and without gross negligence or expectations of payment. I note that NT, Tas and SA also add an exception if affected by drugs or alcohol. In Qld do we take being affected by drugs and alcohol as being grossly negligent or would the Samaritan be ok as long they don’t do something that is grossly negligent even if affected? I’m just not sure how to explain the difference to the students.

The various good Samaritan provisions are detailed in my earlier post Good Samaritan legislation – a comparison (February 22, 2017).  For nurses and medical practitioners the relevant protections are set out in the Law Reform Act 1995 (Qld) s 16:

Liability at law shall not attach to a medical practitioner, [or] nurse … in respect of an act done or omitted in the course of rendering medical care, aid or assistance to an injured person in circumstances of emergency—…

if—

(c) the act is done or omitted in good faith and without gross negligence; and

(d) the services are performed without fee or reward or expectation of fee or reward.

With respect to good Samaritan’s who are affected by alcohol, see Excluding good Samaritan protection for the intoxicated (March 17, 2016).  In that post, I was discussing the introduction of s 5(2)(b) into the Civil Law (Wrongs) Act 2002 (ACT). That section provides that a good Samaritan does not enjoy the ‘good faith’ protection if ‘the good samaritan’s capacity to exercise appropriate care and skill was, at the relevant time, significantly impaired by a recreational drug’.  Recreational drug means ‘a drug consumed voluntarily for non-medicinal purposes, and includes alcohol’ (Civil Law Wrongs Act 2002 (ACT) s 2).

There I said:

My opinion is that s 5(2)(b) is a complete rubbish section and should be removed.  Its presence defeats the purpose of the Act.  Remember that there are no reported cases of anyone being sued for rendering emergency first aid – that’s no one, ever – see The risk of liability for performing emergency CPR is overstated – even in the USA (October 7, 2015).

Legally, the good Samaritan provisions are not necessary… So if there was no legal problem to be solved why was the legislation introduced? Answer, to solve a perception problem – that is if people had ‘a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations’ and that made them unwilling to come forward, enacting good Samaritan legislation might remove that anxiety and therefore encourage people to act.  No doubt a good and sufficient motivation.

But why add s 5(2)(b) when that would be when the Act is really needed.  Imagine an off duty paramedic out with a few mates and someone collapses or is injured right near them.  That is where you have someone with expert skills who, if stone cold sober, would step up and perhaps save a life (or at least give the person their best shot).   They would be protected by the good Samaritan law even though no such protection was required.  But now they’ve had a drink or two  – a perfectly lawful thing to do.  When you’re out drinking that is when you are likely to come across accidents and injuries but now that paramedic loses the good Samaritan protection but surely that is when we want him or her to step up and do their best and that is when they need protection.  They’re honestly trying to help but may not be performing at their normal level, but if ‘“Any Attempt at Resuscitation is Better Than No Attempt” (Australian Resuscitation Council http://resus.org.au/) they should be encouraged to act – ‘don’t worry we know you may not be performing at your best but anything you do is better than nothing and you won’t be held to the same professional standard as you would be if you were at work’.   As it is anyone who can help is actively discouraged from helping.  And let’s face it, we’d all rather die than risk being treated by someone who’s consumed alcohol or drugs…

My opinion is that the good Samaritan legislation was introduced to resolve a perception problem not a legal problem.  Having enacted good Samaritan legislation however, every jurisdiction other than Victoria and Queensland have moved to make the legislation ineffective when it might actually be needed that is when a person who could actually help knows they’re not performing as they might at work.   It is then that people should be reassured that if they do their best to help they won’t be liable because doing something is better than doing nothing.

Conclusion

The difference is that the Queensland Government has not (yet) passed a stupid amendment to the law. In Queensland ‘the [nurse] Samaritan [is] ok as long they don’t do something that is grossly negligent even if affected’.

In my post More on the Queensland Road Rules (November 26, 2012) I said that the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) defined emergency worker as, inter alia ‘an officer of the Queensland Fire and Rescue Authority …’ I argued that a first officer of a rural brigade could fall within the definition of ‘an officer of the Queensland Fire and Rescue Authority’ for the purpose of that rule.

Today the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) has a different definition. Today an emergency worker is, relevantly, ‘a fire officer under the Fire and Emergency Services Act 1990 or a fire and rescue service of another State’. Under the Fire and Emergency Services Act 1990 ‘fire officer’ means ‘means a person employed in the service who has the functions of fire prevention and fire control, and includes a person employed under this Act who is undergoing training as a fire officer’.

Any argument that may have applied where the reference was to an ‘officer’ can’t apply now. A ‘fire officer under the Fire and Emergency Services Act 1990’ is an employee. Just because a first officer can exercise the powers of an authorised fire officer (s 83) that doesn’t mean he or she is a fire officer, that is it doesn’t convert a volunteer to an employee.

What follows is that in my view since that amendment (which appears to have been made in 2014) a volunteer fire fighter is not an emergency worker for the purposes of the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld).  That means volunteers can’t claim any exemption from the road rules.

My post – More on the Queensland Road Rules (November 26, 2012) – was inspired by a commentator who wrote:

You note in your reply, or at least assume, that rural volunteer firefighters can drive an emergency vehicle in Qld under lights and sirens. How I wish that were true! The very sad fact is that a rural fire volunteer, even a volunteer officer, is not a fire officer as defined under the QFRS provisions. Hence, none of the road rule exemptions apply and all rural fire vehicles have to be driven in accordance with all road rules…’

On November 26, 2012 I thought that statement was wrong. On September 2, 2017 I think that commentator is now correct.

It follows that members of the Rural Fire Service can only operate a fire appliance as an emergency vehicle if there has been written authority provided by the Commissioner of Police.