Does a brain injury equal a mental disturbance?

That is the question implied by a NSW Ambulance paramedic who writes:

Where a patient does not have a diagnoses/ known history of a mental health illness, but due to a current situation (drug/alcohol intoxication, head injury, organic cause eg: hypoxia), they are unable to demonstrate competency and capacity to make a decision ie; they cannot receive, believe, retain & explain, does that deem the patient to be “mentally disturbed”, and thus, able to fit within the scope of section 20 and other relevant sections to the Mental Health Act (NSW)?

The Mental Health Act 2007 (NSW) refers to a person who is mentally ill and a person who is mentally disordered.  Section 14(1) says:

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

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

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

Mental illness (s 4):

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

(a)       delusions,

(b)       hallucinations,

(c)        serious disorder of thought form,

(d)       a severe disturbance of mood,

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

A person is mentally disordered (s 15) if their:

… behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:

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

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

A person can be mentally disordered whether they are suffering a mental illness or not.

Section 20 says:

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

The term ‘mentally disturbed’ used in this section, and in s 22 (Detention after apprehension by police) is not defined, but it must mean something other than ‘mentally ill’ or ‘mentally disordered’.   Section 22(1) says:

A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that:

(a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and

(b) it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.

In State of NSW v Talovic [2014] NSWCA 333 the New South Wales Court of Appeal had to consider the scope of s 22.  In his judgment (at [9]) Basten JA said that the use of the undefined term, ‘mentally disturbed’ ‘appears to be deliberate’.  He accepted that the term was intended to indicate that police and ambulance officers were not expected to make a clinical diagnosis based on the definitions in the Act (see [10]). In a report (Report 135: People with Cognitive and Mental Health Impairments in the Criminal Justice System – Diversion (June 2012)) the NSW Law Reform Commission ‘considered that the concept of being “mentally disturbed” was broader than that of being mentally ill or mentally disordered’ ([11]). Basten JA agreed with that conclusion.

Emmett JA compared both s 20 (the power of ambulance officers to detain) and s 22 (the power of police officers).  Where a person is being detained because a determination by a medical practitioner, that medical practitioner must form the view that the person is mentally ill or mentally disturbed.  He said (at [126]-[127]):

On the other hand, ambulance officers and police officers, who, in the present context, are clearly treated as lay persons, may exercise a power if it appears that a person is mentally ill or mentally disturbed.

Thus, a distinction is drawn between a person appearing to be mentally ill or mentally disturbed, on the one hand, and the formation of an opinion by a medical practitioner or accredited person as to whether or not a person is a mentally ill person or a mentally disordered person, on the other hand.

As for the term ‘mentally disturbed’, as [129] His Honour said: ‘A possible rationale for not defining a term required to be applied by police officers in the execution of their duty … is that police officers are not properly equipped to undertake a psychiatric diagnosis of members of the public before deciding whether to apprehend them pursuant to s 22.’  His Honour (at [131]) accepted that the term ‘mentally disturbed’ was ‘intended to encompass a wider class of persons than the other two terms [ie ‘mentally ill person’ and ‘mentally discorded person’]…’  He endorsed the conclusion from the NSW Law Reform that the term ‘mentally disturbed’ ‘appears to “embrace a broader group of people than those who would fall within the statutory definition of ‘mentally ill’ or ‘mentally disordered’”.

Comparing police and ambulance officers

His Honour noted a significant difference between the power of police and the power of ambulance officers.  A police officer can detain a person who appears, to the police officer, to be mentally ill or mentally disturbed (s 22); an ambulance officer, on the other hand, has to believe ‘on reasonable grounds that the person appears to be mentally ill or mentally disturbed’.  The requirement to have ‘reasonable grounds’ for the belief applies to ambulance officers, not police.   His Honour thought that the reason for the difference between s 20 and s 22:

… is that an ambulance officer, who necessarily has some medical training, is more equipped to make reasoned decisions in relation to mental health issues than someone (such as a police officer) with no such training. Having regard also to the practical realities of the execution of police officers’ functions, it is likely that the legislature intended that police officers should not need to meet the same standard as ambulance officers when forming a view as to whether a person appears to be mentally ill or mentally disturbed.

It follows that to meet the first part of the requirements in s 20 a police officer need only form the view that in his or her mind the person appears to be mentally ill or disordered. That is what we lawyers call a ‘subjective test’ – the question is what did this officer think or believe. The alternative is an ‘objective test’ – what would a reasonable person in all the circumstances have thought.  Emmett JA said (at [137]) there was ‘no warrant for reading into s 22(1) an objective requirement’ as to the officer’s belief.   That does not then justify detention, the police officer does have to form a view on ‘reasonable grounds’ (ie an objective view) of the matters set out in s 22(1)(a) and (b), quoted above.

As His Honour said at [138-[139] (emphasis in original):

Arbitrary apprehension by a police officer, based simply on a subjective view formed by a police officer, is not permitted by s 22… A police officer will not be entitled to exercise the power conferred by s 22(1) in relation to a person unless it is established that the person did in fact appear to the apprehending police officer to be mentally ill or mentally disturbed. If the police officer does not in fact have such a subjective state of mind, the apprehension will not be authorised, even if the officer had the relevant belief [regarding criminality or suicide] on reasonable grounds.

What that means is that if, for example a person is attempting or has attempted to kill themselves, but does not appear to be mentally ill or mentally disordered, there is no power to apprehend under s 22 even if one thinks such detention would be in the person’s best interests (see Stuart v Kirkland-Veenstra [2009] HCA 15).  And if the person has committed or is in the process of committing an offence and does not appear to be mentally ill or mentally disturbed, police will proceed in accordance with the criminal law, rather than mental health law.

Discussion

Let me return to the question:

Where a patient does not have a diagnoses/ known history of a mental health illness, but due to a current situation (drug/alcohol intoxication, head injury, organic cause eg: hypoxia), they are unable to demonstrate competency and capacity to make a decision ie; they cannot receive, believe, retain & explain, does that deem the patient to be “mentally disturbed”, and thus, able to fit within the scope of section 20 and other relevant sections to the Mental Health Act (NSW)?

For a paramedic to rely on s 20 of the Mental Health Act 2007 he or she must:

1. Believe on reasonable grounds that the person appears to be mentally ill; or
2. Believe on reasonable grounds that the person appears to be mentally disturbed; and
3. Believe that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.

In the scenario described we’re not talking about point (1) ie a belief that the person is mentally ill. Mentally disturbed is something different to mentally ill or mentally disordered but it is still talking about a mental issue rather than say a physical injury. Exactly what that means is however open to interpretation but that is the point.  Ambulance officers (and police) are not being asked to make a clinical decision as to whether or not the person is mentally ill or mentally disordered (as defined in ss 14 and 15) but to make ‘a ‘street level’ judgment that clinical intervention is required’ (State of NSW v Talovic [2014] NSWCA 333, [11] (Basten JA)).

Next the ambulance officer must believe that it ‘would be beneficial to the person’s welfare to be dealt with in accordance with this Act’. The purpose of s 20 is to allow an ambulance officer to transport a person, perhaps contrary to their apparent wishes, ‘to a declared mental health facility’ (s 20).  If the patient is unable ‘to demonstrate competency and capacity to make a decision ie; they cannot receive, believe, retain & explain’ and that is due to ‘drug/alcohol intoxication, head injury, organic cause eg: hypoxia’ why would anyone want to transport them to a mental health facility?  Presumably they need to be taken to an emergency department at a general hospital.  If that is the case s 20 is irrelevant.

What appears to be the misconception (not just here but in the other discussions on s 20, see the list of posts at https://emergencylaw.wordpress.com/?s=mental+health) is that s 20 is some sort of licence to allow treatment, any treatment, without consent.  If a person wants to refuse treatment they must be mentally ill and we want some lawful authority to act in their best interests. In fact and in law we’ve moved from a paternalistic approach to recognising the primacy of individual autonomy.  As the High Court said in Rogers v Whitaker (1992) 175 CLR 479, [14] ‘… except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’.  This includes mental health treatment. The provisions of the Mental Health legislation in each state and territory sets up an exception to that rule and represents a departure from fundamental rights and freedoms.  As a result the legislation, including the NSW Act (see s 3), reinforces the right of the mentally ill to be involved in decision making, and to only be given treatment to which they consent, to the greatest extent possible.  When interpreting ‘a provision permitting a state authority to deprive a person of his or her liberty without consent, it is well-established that the statute should be construed in a manner protective of individual liberty’ (State of NSW v Talovic [2014] NSWCA 333, [3] (Basten JA)).

Section 20 isn’t some panacea where a person who is not competent for reasons such as ‘drug/alcohol intoxication, head injury, organic cause eg: hypoxia’ can be detained even if they appear to be resisting treatment because of some general concern that it is for their own good.  Where a person is incapable of consenting and where the treatment required is treatment in a hospital, s 20 has no role to play.  The justification for the treatment and transport of the patient is the doctrine of necessity (The doctrine of necessity – Explained (January 31, 2017)).

Conclusion

A paramedic may form the view that a person who is ‘unable to demonstrate competency and capacity to make a decision ie; they cannot receive, believe, retain & explain’ is mentally disordered if there is no explanation for their behaviour other than a condition that can be described as arising from their mental state.  Where there are other conditions that require treatment and correction, they are not mentally disordered, they are injured. Whether they are mentally discorded or not is irrelevant if the intention is to transport them to hospital rather than to a mental health facility for the purposes of assessment by a psychiatrist.

In other blog posts, I’ve written about the employment protection that is available for emergency service volunteers: see –

• Employment protection during a NSW s 44 fire – amended (February 20, 2017);
• Employment Protection for NSW Volunteers (June 9, 2016);
• Employment protection for emergency service volunteers in Western Australia (February 3, 2015); and
• Employment protection for NSW volunteers (March 8, 2012)),

but what about protection for university students?

Today’s correspondent, a university student and a volunteer with NSW SES, writes:

Recently, the Sydney metro area was hit but a severe wind storm and I was called out to duties with the SES. I failed to complete an online quiz that was due to my emergency callout with the SES. My subject coordinators response has been disappointing; basically, telling me I should have done it earlier. My question to you is twofold, one: is there any legislation that prevents me from being discriminated against on the basis on my SES volunteer duties in this case, similar to employment protections? Second, in your professional opinion, was the response of my subject coordinator reasonable. I sent multiple emails explaining the nature of the SES. I got the impression that they were misunderstanding its role as an emergency service.

Before I proceed let me acknowledge my conflict of interest – I work for a university and I’m being asked to comment on an unnamed and unknown professional colleague, but still a colleague. I’m going to be circumspect about doing that on the basis of the information I’ve been given.

The relevant employment legislation is Section 60B of the State Emergency and Rescue Management Act 1999 (NSW) which says:

An employer must not victimise an employee of the employer for being absent if the absence was due to the employee taking part in emergency operations as a member of an emergency services organisation and the absence occurred while this Part applied to the operations (pursuant to an order of the Premier under this Part).

Section s 772 of the Fair Work Act 2009 (Cth) says an employee’s employment must not be terminated due to ‘temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.’

None of those provisions are going to extend to a student and issues of assessment. I don’t know what University my correspondent attends (though clearly it’s in NSW), so I’m going to draw on two universities that I’ve worked at, the University of New England (UNE) based in NSW and the Australian National University (ANU) in the ACT.

The UNE has issued ‘Elite Athlete, Australian Defence Force (ADF) Reserve and Emergency Services Volunteer Students Procedures’.  The aim of those procedures is to support:

… Students who are formally recognised Elite Athletes, or who are members of the Australian Defence Force (ADF) Reserves and/or an Emergency Services Volunteer and provides strategies that ensure that they are not unduly disadvantaged academically or financially as a consequence of their participation in these activities.

With respect to emergency service volunteers the procedure says:

(16) An Emergency Service Volunteer who is called upon for continuous full-time service shall provide the Head of School with a statement signed by an authorised emergency service officer detailing the expected duration of full-time service.

(17) The Head of School will ensure that Unit Coordinators for units being undertaken by the Student are notified of the approved absence and that clause 20 is applied where possible. Students must submit applications for special consideration and/or special assessment in accordance with clause 21.

Clause 20 provides that one of the ways to accommodate an emergency service volunteer is to provide ‘special consideration in the form of extensions or variation of time normally required to complete an assessment task or unit …’

No accommodation is guaranteed.  It remains the case that a student must meet the academic standards of the unit and sometimes it’s not possible to grant the requested extension or other special consideration. One option is that a student may be allowed to withdraw from the unit without academic or financial penalty if their service means they have not, and cannot, complete the academic requirements (see cl 21-23).

The ANU provides for emergency services leave for employees (as does UNE) but it does not make any reference to emergency service commitments in the ANU assessment policy.

Discussion

The difference between ANU and UNE suggests the first thing to do (and this applies to  anyone, anytime) is ‘check the rules’. Look to see if there are provisions in the University’s rules and policies that make provision for emergency service by students and what the university expects from unit coordinators.

In the absence of any specific rule the student needs to rely on general rules for extension of time or alternative assessment. Every university will have a rule to provide for those where a student becomes ill or is otherwise unable to complete assessment due to circumstances beyond their control.

That raises the first issue. The weather that caused the event is beyond the student’s control, but the choice to volunteer is not.  Volunteering is just that – a choice, and it always has to be balanced against other commitments.  Many people can’t get away because of work or family commitments. A choice to prioritise volunteer service over university assessment is indeed a choice.

So is the course coordinator being reasonable?  That would depend on several factors.  First and foremost, is there a relevant university policy, what does it say and is it being complied with.  If the response comes down to the coordinator’s discretion one has to consider (and here my conflict, as I’m a university lecturer will become clear):

• How long did the student have to complete the task? If it’s been available for a long time but the student planned to complete it on the day it was due then there is an argument (and I’ve used it) to say that one should plan to do a task early so if there is a problem, you have time to make it good. If you leave it to the last minute and then chose to volunteer, or get sick, then that’s just bad planning.
• Did the student make any effort to let the coordinator know of the issue before the due date?
• How many marks is the task worth and/or is it compulsory? If it’s a high number of marks or if failure to complete means a failure in the unit then it would be more reasonable to accommodate the student.
• Has the correct answer or model answer (depending on the type of task) been circulated? If it has a student can’t complete it now and it may not be possible to write a new task for one student.
• How was it delivered? An online quiz can be automated so that it is released on a given date, and then removed at a given date. Restoring it for one student can also be problematic.

Because I don’t know any of the answer to any of those questions I can’t express an opinion on whether the response of the subject coordinator was reasonable or not.

Today’s correspondent has:

… a question about Work Cover for Qld SES volunteers. Are volunteers covered on the road to training or activation? And do they need to have signed-on to SES’s on-line member hub to be covered?

Volunteers are not employees so will not be covered by workers compensation legislation without some special rule. In New South Wales there is there is the Workers Compensation (Bush Fire, Emergency And Rescue Services) Act 1987 (NSW) to ensure that volunteers with the SES, RFS and others are entitled to the equivalent of workers compensation.  For volunteers with NSW Fire and Rescue and NSW Ambulance, they are deemed to be employees by virtue of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) Schedule 1, cl 13 and 16 respectively.

Workers Compensation insurance for Queensland SES Volunteers

In Queensland the SES Operations Doctrine – Busniess [Sic] Management Directives BMH 25.0 Workers’ Compensation (Valid from 03/03/2014) (available at https://www.qfes.qld.gov.au/about/training/ses-op-doc/Documents/BMH_25_0_Workers_Compensation_v2.pdf) says:

Under Section 142 of the Disaster Management Act 2003, the Chief Executive of Queensland Fire and Emergency Services must enter into a contract of insurance with a workers’ compensation provider that will cover SES members as they perform their approved functions, or participate in other activities related to their carrying out of their allocated functions or disaster operations. This might include, for example, training activities, community awareness sessions and operational duties.

This was correct (see below) but is now wrong.  Today, the Disaster Management Act 2003 (Qld) s 142 says:

 The chief executive must enter into a contract of insurance with WorkCover or another entity to insure persons required to give reasonable help under section 77(1)(q) or 112(3)(g).

Section 77(1)(q) refers to persons who are required to assist a district disaster coordinator or a declared disaster officer during a declared disaster situation. That is hardly relevant to SES members conducting training or providing a response during normal storm or other operations.   Section 112(3)(g) also refers to a person required to give reasonable help to a person exercising powers under s 112.  Again not relevant to SES members in the course of their normal duties.  Section 142 of the Disaster Management Act 2003 used to, but no longer has anything to do with insuring SES volunteers.

The relevant section is now section 154C of the Fire and Emergency Services Act 1990 (Qld). That section says:

(1) The commissioner must enter into a contract of insurance with WorkCover or another entity to insure the following persons –

(a) ESU members;

(b) SES coordinators;

(c) SES members.

(2) The contract of insurance must cover the persons mentioned in subsection (1) while they are –

(a) performing a function under this Act in their capacity as an ESU member, SES coordinator or SES member; or

(b) involved in another activity related to the carrying out of disaster or emergency operations, an ESU function or an SES function.

Example for paragraph (b) –

training for disaster or emergency operations

(3) In this section:

WorkCover means WorkCover Queensland established under the Workers’ Compensation and Rehabilitation Act 2003.

Note –

The content of this section was previously included in the Disaster Management Act 2003, section 142.

The section above says that the Commissioner must enter into an insurance contact with WorkCover.  The Workers Compensation and Rehabilitation Act 2003 (Qld) s 13 provides that WorkCover may enter into that contract with the Commissioner.  An SES member is only covered however if they are (s 13(3)):

… engaged in disaster operations or performing an emergency function, or participating in an activity arising out of, or in the course of, disaster operations or performing an emergency function, including training.

Disaster Operations means ‘means activities undertaken before, during or after an event happens to help reduce loss of human life, illness or injury to humans, property loss or damage, or damage to the environment, including, for example, activities to mitigate the adverse effects of the event’ (Disaster Management Act 2003 (Qld) s 15).   It does not say that those operations are limited to or that the definition only applies during a declared emergency, rather they are operations in preparation for or in response to an ‘event’.  For the purposes of the Act, ‘event’ means (s 16):

(a) a cyclone, earthquake, flood, storm, storm tide, tornado, tsunami, volcanic eruption or other natural happening;

(b) an explosion or fire, a chemical, fuel or oil spill, or a gas leak;

(c) an infestation, plague or epidemic;

(d) a failure of, or disruption to, an essential service or infrastructure;

(e) an attack against the State;

(f) another event similar to an  event  mentioned in paragraphs (a) to (e).

‘Emergency function’ is not defined.  One could infer that emergency functions include the functions of the State Emergency Service listed in the Fire and Emergency Services Act 1990 (Qld) s 130.

Journey claims

What follows, I suggest, is that Queensland SES volunteers are covered for workers compensation when attending to their regular SES duties including training.  The critical issue is therefore whether travelling to training or to the SES shed to respond to an emergency, is the member ‘involved in another activity related to the carrying out of disaster or emergency operations … or an SES function’ (Fire and Emergency Services Act 1990 (Qld) s 154C).

The intuitive answer is that they must be.  Travelling to training or to response is ‘related’ to the activity for which you are training or responding.

There is further support for that conclusion in the Workers Compensation and Rehabilitation Act 2003 (Qld).  Section 12 says that a volunteer is to be entitled to ‘weekly payments of compensation …’ and ‘for all other entitlements – the same entitlements to compensation as a worker’.

A worker is entitled to workers compensation if they are ‘on a journey between the worker’s home and place of employment’ (s 35).  One has to read ‘employment’ in context.  The volunteers ‘place of employment’ is wherever the SES requires them to go.  As a worker is entitled to compensation on a journey, a volunteer who is entitled to ‘the same entitlements to compensation as a worker’ must also be entitled to those same benefits.

Do members need to have signed-on to SES’s on-line member hub to be covered?

The answer is ‘no’.  I’m not sure how the ‘on-line’ hub works and whether members are expected to log on and record that they are attending before heading off to the shed, but it doesn’t matter.  They are entitled to compensation if they are injured on a journey ‘between the worker’s home and place of employment’ (s 35).  The question ‘were they on such a journey?’ is what we lawyers would call a ‘question of fact’ (not a question of law).  If they were travelling to training or in response to a call out they are covered.  The value of being logged in or having signed on is that it is evidence that this was a legitimate journey.  If you are not signed in, there could be an argument – is that what you were really doing?  If you are signed in then the insurer is much more likely to accept, without question, that this was part of covered journey.  But that’s all it is, evidence.  If the normal practice is to ‘log in’ at the shed, then people driving to the shed, either to train or respond, would never be covered as they can’t sign in until they get there.

If people sign in on a phone app or computer before leaving home, then a volunteer would need to explain why they hadn’t done so and persuade the insurer that is where they were going, not that they were driving past the shed on the way to the supermarket, had an accident and have decided to ‘try it on’.

Being ‘signed in’ will make any application easier, but does not conclusively answer the question – were you on a relevant, compensable journey.

In my earlier post, RFS volunteer exercising rights as a ‘worker’ (August 27, 2016) I reported on the decision in NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4 which dealt with a request from a volunteer for the election of Health and Safety Representatives. The matter was subject to a determination by an Inspector, an internal review of that decision and finally an external review by the Industrial Commission.

The issue before the Commission was not the merits of the health and safety consultation arrangements that the RFS had introduced, but whether or not the volunteer had a right to be heard and make submissions to the Commission. The Commission ruled that the volunteer should be allowed to appear as an ‘intervener’ with the right to ‘call evidence, cross-examine witnesses and make submissions ([79]).

Fast forward 15 months and I can’t see that there has been further decisions of the Commission, but the NSW RFS has now issued service standard 7.1.8 Work Health and Safety Consultation and Issue Resolution (effective date 16 August 2017).  That service standard does not appear to have made it to the RFS web page (https://www.rfs.nsw.gov.au/resources/publications/corporate-governance-and-planning/service-standards) but I have been sent a copy with these questions:

With particular reading of the document, the processes for determining workgroups has been missed in that they did not consult with the workers and nor did they consult with workers in determining workgroups. For 73000 members I don’t believe that 49 HSRs are sufficient nor does this represent the different work groups.

Could you look at the document and comment on its processes, lack of urgency in resolving issues and compliance with the law.

To date, no consultation has taken place except for the time within Myrfs which volunteers do not use.

I can’t comment on whether or not 49 Health and Safety Representatives is sufficient, whether they represent the different work groups or whether any, or sufficient, consultation has taken place.

The establishment of workgroups

The Work Health and Safety Act 2011 (NSW) s 51 says that upon a request being made, the business or person conducting an undertaking (the PCBU, in this case the RFS) must determine work groups for the purposes of facilitation the representation of workers (including volunteers) by one or more health and safety representatives.

The Service Standard says (SOP 7.1.8-1, [2.2]-[2.6]):

2.2 The NSW RFS will use existing NSW RFS structure to define a total of 49 workgroups.

2.3 The existing NSW RFS districts and the geographical boundaries of each of these districts will form the basis for 47 of the workgroups.

2.4 Due to the nature of work undertaken, two further workgroups will also be established, one for NSW RFS Headquarters and one for Glendenning.

2.5 The Glendenning workgroup will incorporate Operational and Mitigation Services, and Planning and Environment Services sections’ state-wide operations.

2.6 Each of the 49 workgroups across the NSW RFS will have the option of electing one Health and Safety Representative (HSR).

Clearly the RFS has determined the work groups within the RFS as required by s 51.   But did they consult with their workers for that purpose?  The Act says (s 52):

(1) A work group is to be determined by negotiation and agreement between:

(a) the person conducting the business or undertaking, and

(b) the workers who will form the work group or their representatives.

(2) The person conducting the business or undertaking must take all reasonable steps to commence negotiations with the workers within 14 days after a request is made under section 50.

(3) The purpose of the negotiations is to determine:

(a) the number and composition of work groups to be represented by health and safety representatives, and

(b) the number of health and safety representatives and deputy health and safety representatives (if any) to be elected, and

(c) the workplace or workplaces to which the work groups will apply, and

(d) the businesses or undertakings to which the work groups will apply.

We know that a request for the establishment of work groups was made on 4 April 2013 (NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4, [6]).  Presumably negotiations did not have to commence within 14 days of that date as the matter was subject to the proceedings described earlier.  No doubt there has been further proceedings and negotiations since the issue of standing was resolved on 5 May 2016 so I can’t say whether or not s 52(2) has been complied with.

What should have occurred, and again I can’t say whether it did or did not, is that the members of the proposed 49 work groups should have had the chance to negotiate with the RFS as to whether the proposed work groups represented an appropriate ‘grouping’ and how many health and safety representatives would be elected from each group.   One can see how using each ‘district’ makes sense but equally a work group could be a brigade, or group of brigades, or perhaps fire fighters of different specialities – so it could have been the case that say Remote Area Firefighters formed their own workgroup.

The critical point of s 52 it that determining the number, and membership, of workgroups is not a matter for the PCBU to determine, it is a matter that is to be the subject of negotiation between the PCBU and affected workers.  I note here that the SOP starts by saying that it ‘outlines the NSW RFS model for workgroups with reference ot [sic] the requirements of the WHS Act and Regulation, within the NSW RFS’.  The SOP (ie the Standard Operating Procedure) does not in fact provide ‘operating procedures’ for the establishment of the groups, rather it says what the groups will be.  It makes no reference to the requirement to negotiate on the establishment of workgroups or what the ‘procedure’ will be if members of a workgroup seek to re-open negotiations on the structure of the group or arrangements for consultation on work health and safety issues, as they are allowed to do (s 52(4)).

The fact that my correspondent doesn’t ‘believe that 49 HSRs are sufficient nor does this represent the different work groups’ is, however, beside the point.  If the RFS proposed that structure, and negotiated with affected workers as required by the Act and by the Work Health and Safety Regulation 2011 (NSW) rr 16 and 17, then that establishment complies with the legislative requirements.

Health and Safety Representatives (HSRs)

With respect to HSR’s the SOP 7.1.8-2 provides details for the election of HSRs. It says (at [2.12])

NSW RFS will conduct nomination and elections for HSRs in accordance with legislation, and in a manner to ensure all members access, as provided in the NSW RFS Health and Safety Representative Guidelines.

The Act, however, says that it is ‘The workers in a work group’ who ‘determine how an election of a health and safety representative for the work group is to be conducted’ (s 61) subject to any requirements in the regulation.  It is not the PCBU (in this case that RFS) that conducts the elections; it is the workers.  The only involvement of the RFS should be that the workers advise the RFS of the date of the election (regulation 18(2)(a)).

The Service standard does set out the powers of an HSR.  These have to be read in conjunction with the Work Health and Safety Act 2011 (NSW) ss 68 (Powers and functions of health and safety representatives), 69 (Powers and functions generally limited to the particular work group) and 70 (General obligations of person conducting business or undertaking).  Without comparing the Service Standard and associated SOPs with those sections point by point they do appear to be broadly consistent but in the event of any inconsistency, it will be the Act that will prevail.   Whilst listing the powers in one document means people don’t have to look elsewhere but it can lead to confusion over time if there are amendments to the Act.  As a matter of drafting it is debatable whether it is better to simply refer to the Act and ‘call up’ it’s provisions rather than relist them and try to edit them to suit the context.   Certainly anyone elected as an HSR would want to ensure that he or she was familiar with the terms of the Act and its Regulation as their source of authority, rather than simply rely on the RFS Service Standard.

Health and Safety Consultation

SOP 7.1.8-3 provides for health and safety consultation. It begins by saying ‘This SOP outlines the process to be followed in consulting with NSW RFS members or other workers on matters that impact their health and safety’.  The obligation to consult is found in s 47 of the Act. It says:

(1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety…

(2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.

That begs the question of whether it can be said the procedures set out in 7.1.8-3 have been ‘agreed’ or simply directed.  Determining the consultation arrangement should itself be a matter of consultation (s 49(e)(i)).  Hopefully therefore the procedures set out here have been the subject of consultation and agreement (noting that to consult or even ‘agree’ does not require unanimous support; see Firefighters and the need to consult with landowners in WA (September 1, 2015)).

Health and Safety Issue resolution

I’m not sure what my correspondent has in mind when referring to a ‘lack of urgency in resolving issues’.  The Act (s 81(2)) says that when there is a health and safety issue:

The parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed in the regulations.

This is reflected in SOP 7.1.8-4, [2.4].  What is reasonable and timely will depend on all the circumstances including the nature of the risk posed by the issue.   Where the issue cannot be resolved, an inspector may be appointed ‘to assist in resolving the issue’ (s 82).  In extreme and urgent circumstances (s 84):

A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard.

I’m not sure what else my correspondent thinks should be provided for in the Service Standard or its SOPs.

Conclusion

1. I can’t say whether there has been any, or adequate consultation on the establishment of workgroups.
2. The fact that my correspondent does not ‘believe that 49 HSRs are sufficient nor does this represent the different work groups’ is irrelevant. The question is ‘has the establishment of the workgroups been arrived at in consultation, and by agreement, with the workers?’
3. The process for the RFS to conduct elections of HSRs appears to me to be inconsistent with the Act. It is up to each workgroup to determine how HSRs will be elected.
4. Without a detailed examination, the Service Standard looks broadly consistent with the Act and Regulation (with the exception of the election of HSR representatives discussed at (3), above) noting that if there is an inconsistency, the Act and/or Regulation will prevail.
5. I don’t see any issue with respect to a perceived ‘lack of urgency’ in the resolution of health and safety issues.

Of course if there has not been proper consultation on the establishment of workgroups and the health and safety consultation arrangements then that is another matter.   The model of the Act anticipates that resolution of health and safety issues, including the processes for consultation and resolution, will be subject to cooperative negotiation between the PCBU and its workers.  If that has not occurred the PCBU’s policy, no matter how comprehensive and otherwise in line with Act, fails at the first hurdle.  As noted I cannot say whether or not there has been adequate consultation on the preparation of this service standard.

POST SCRIPT

Since writing this I have been asked to give further explanation on my conclusion regarding the election of HSRs.  My reasoning is based on the words ‘NSW RFS will conduct nomination and elections for HSRs…’ (emphasis added).

As noted the Act says it’s up to the workgroup to determine the manner of the election. It may be impossible for a workgroup to conduct its own election so they may welcome the help of the RFS.  It would remove my objection if it said ‘NSW RFS may conduct …’

I note that it goes onto say the elections will be ‘in accordance with legislation’ and the RFS might well step out of the process if a workgroup wanted to run an election using an external consultant, or surveymonkey or some other method.  It is therefore the use of the word ‘will’ that is my objection. It does not mean an election run by the RFS would be contrary to the Act if the RFS offered, and the workgroup accepted the offer, for the RFS to run the election.

 

This question came as a comment on the post State of Queensland liable for paramedic negligence (December 22, 2016) but I thought it warranted its own post rather than a reply as a comment.

I advise a church group who run public assemblies and as part of the function have a ‘first aid’ area where people can go and get items that are in commercial first aid kits. They also sometimes have members who are paramedics on hand in an off-duty volunteer capacity. What liability would there be for the church or the volunteer paramedic if the volunteer paramedic administered morphine or adrenalin in an emergency situation and the situation go worse? The question was asked for application in QLD. Would your answer be different if it were NSW for example? I was considering suggesting to the church that it would be up to the volunteer paramedic to choose if he wanted to have his own supply of morphine on hand. In my mind I think it would be best if he did not and simply provided whatever help he could until on-call ambulance/paramedics arrived on the scene.

The reason the State of Queensland was liable for paramedic negligence is because the paramedic was employed by Queensland Ambulance providing care in the course of his duties as an employed paramedic.  Vicarious liability applies to ensure employers are liable for the negligence of their employees and agents.

If paramedics are attending church service as volunteers and part of their volunteering duties is to provide first aid, then they are not liable for any damages arising from their volunteering (Civil Liability Act 2003 (Qld) s 39).  The Act, unlike the NSW Act, does not say whether or not the organisation for which the person is volunteering also benefits from that defence (see  the church for which the volunteer will be liable for any negligence (Vicarious liability for NSW Ambulance paramedics (August 19, 2017)).

The fact that question is asked in the negative – ‘what is our liability if we do x and it goes wrong?’ is reflected in the questions I get asked regularly about restricting scope of practice – see Scope of practice revisited (August 14, 2017)).  The better question to ask is what is our liability if we don’t do x – in context of this question “What liability would there be for the church or the volunteer paramedic if the volunteer paramedic did not administer morphine or adrenalin in an emergency situation and the situation go worse?”

The answer, in this context has to be there would be no liability.  Morphine and adrenaline are scheduled drugs under the Health (Drugs and Poisons) Regulation 1996 (Qld).  That regulation applies the Poisons Standard that is made under the Therapeutic Goods Act 1989 (Cth) into Queensland law.

For the purposes of the Queensland regulation, a schedule 8 drug is referred to as a ‘controlled drug’; a schedule 4 drug is a ‘restricted drug’.   Morphine in its various forms appears in Schedules 2, 4 and 8.   Adrenaline appears in Schedules 3 and 4 (and for a discussion on adrenaline delivered via EpiPen see Using someone else’s EpiPen (June 9, 2016)).  Without going into all the details of the Schedules, you can infer that scheduled 2 and 3 drugs should be supplied by a pharmacist and Schedule 4 and Schedule 8 drugs must be supplied on prescription or by an authorised person.

It is an offence to possess or supply controlled (r 51) or restricted drugs (r 146) without the appropriate lawful authority and without ensuring that the drugs are stored and recorded in accordance with the regulations.  Queensland ambulance officers are given permission ‘To the extent necessary for performing ambulance duties for the Queensland Ambulance Service…’ to ‘obtain, possess or administer’ listed controlled (r 66) and restricted (r 174) drugs.

What follows is that if there was controlled or restricted drugs in the church first aid kit that people could just help themselves to, the church would be committing a criminal offence. If an off duty paramedic was carrying his or her ‘own supply of morphine on hand’ they too would be committing an offence, as their authority only extends to carry the drugs for the purpose of ‘performing ambulance duties for the Queensland Ambulance Service’ and if they are attending church, off duty, that is not what they are doing.

So what would be the liability for not administering the drugs that were warranted by the patient’s condition? In this context the answer is clearly ‘there would be no liability’.  What the reasonable person does in response to an emergency depends on all the circumstances. The circumstances under consideration here are where the person does not have access to those drugs because it is illegal to have them in one’s possession without appropriate authority.  A paramedic can’t be judged negligent for not doing what he or she can’t do.  And you can’t administer drugs you don’t have and aren’t legally allowed to have.   Of course if someone else in the crowd has an EpiPen and volunteers it, it may be problematic if the church leader said to the paramedic – ‘don’t use that, it’s not our drug and we’re afraid we’ll get sued if you use it and things get worse, which might happen; we’d rather you didn’t use it and watch things get worse, which will happen’.

Conclusion

The question “What liability would there be for the church or the volunteer paramedic if the volunteer paramedic administered morphine or adrenalin in an emergency situation and the situation go worse?” is the wrong question.

The starting question should have been ‘can we have morphine and/or adrenaline in our first aid kit?’ and the answer to that is ‘no’.  That pretty much ends the debate.   Neither the church nor an off duty paramedic can possesses restricted or controlled drugs; and there can be no liability for not doing that which the law prohibits.

If for some reason the drugs are available, eg a person has an EpiPen which they are willing to give to a person suffering from an anaphylactic reaction, the church should not be concerned with questions of liability if it is used; but with questions of liability if they attempt to stop it being used.  The paramedic, or a first aider, or anyone who knows what they are doing, should always do all that they can to save a life.

Today’s question comes from a NSW paramedic educator who asks me to clarify the relationship between the Health Services Act 1997 (NSW) s 67I, the Law Reform (Vicarious Liability) Act 1983 (NSW) s 10 and the Civil Liability Act 2002 (NSW).  My correspondent is:

… in a bit of quandary as my students continue to quote protocols and the Health Services Act as their source of “protection” (vicarious liability).

I’ve read your discussion in the text (p232-3) around Law Reform (Vicarious Liability) Act 1983 and the Civil Liability Act 2002 and I am wondering if I need to introduce them in tandem, and enter into the discussion?

The reference to ‘the text’ is, I infer, a reference to my book Emergency Law (4th ed, 2013, Federation Press).

Health Services Act 1997 (NSW) s 67I

Let me start with the first two sections.  The Health Services Act 1997 (NSW) s 67I says:

A member of staff of the Ambulance Service of NSW or an honorary ambulance officer is not liable for any injury or damage caused by the member of staff or officer in the carrying out, in good faith, of any of the member’s or officer’s duties relating to:

(a) the provision of ambulance services, or

(b) the protection of persons from injury or death, whether or not those persons are or were sick or injured.

Any student of negligence law will know that the law expects anyone to provide ‘reasonable care’ that is care that might be expected from a reasonable (not the best) practitioner of the same profession.   Failure to provide ‘reasonable care’ in all the circumstances, if it causes loss or damage, amounts to negligence.

The effect of s 67I is to reduce the standard of care for NSW Ambulance employees and honorary officers.  They don’t need to provide ‘reasonable care’ they need only act in good faith. To act in good faith more than honest ineptitude is required – there must be ‘real attempt’ (Mid Density Developments Pty Limited v Rockdale Municipal Council [1993] FCA 408) to provide care in the best interests of the patient but an error of judgment or a mistake that might amount to negligence will not lead to personal liability if it was made ‘in good faith’.

A person who wants to sue a NSW Ambulance paramedic or honorary officer then has a higher burden than a person who wants to sue someone who is not protected by s 67I or some equivalent.  But who would want to sue the paramedic? They are unlikely to have the money or resources to meet any judgement.  Any sensible plaintiff wants to sue the Ambulance Service of NSW that is, in turn, insured by the NSW Self Insurance Corporation (NSW Self Insurance Corporation Act 2004 (NSW)).  The ambulance service is vicariously liable for its employees and honorary officers.

Apart from being vicariously liable for the default of its staff, the ambulance service also owes its own obligation to ensure that patients receive reasonable care.  The ambulance service is negligent if its staff are negligent or if it fails to train, supervise or equip them as a ‘reasonable’ ambulance service would. The situation for an injured patient is shown in the diagram below.

1. If the plaintiff can prove the paramedic was negligent, the ambulance service will be vicariously liable. The ambulance service is insured and the insurance corporation will pay the damages.

And/or

2. If the plaintiff can prove the ambulance service was negligent, the ambulance service is insured and the insurance corporation will pay the damages.

But, if I’m correct and s 67I says that an ambulance officer will not be liable for actions taken in good faith, even if they are negligent, then the argument in (1) is lost.  That is if the paramedic’s actions were ‘in good faith’ he or she is not liable and so, the argument would go, there could be no vicarious liability.

Law Reform (Vicarious Liability) Act 1983 (NSW) s 10(2)

Now we have to consider the Law Reform (Vicarious Liability) Act 1983 (NSW) s 10(2).  That section says:

For the purposes of determining whether or not a person is vicariously liable in respect of a tort committed by another person, any statutory exemption conferred on that other person is to be disregarded.

In other words when deciding whether the ambulance service is vicariously liable for its paramedic or honorary officer, the Health Services Act 1997 (NSW) s 67I is to be ignored.  The result is that if the plaintiff decides to sue the paramedic and tries to make the paramedic personally liable, they must prove a lack of good faith.  But if they are suing the ambulance service on the basis that they ambulance service is vicariously liable; the plaintiff only need to prove ordinary negligence – that is a failure to provide reasonable care even if that care was provided ‘in good faith’.

As noted above though, no-one wants to sue the paramedic personally, they couldn’t afford to pay the damages.  Further, if a plaintiff could prove a lack of ‘good faith’ then the service may not be vicariously liable as one is not vicariously liable for deliberate misconduct.  It’s in the plaintiff’s best interest to accept that the paramedic acted in good faith and sheet liability home to the State.

Whether s 67I was there or not, the employer would be vicariously liable for its paramedics, and people wouldn’t seek damages from the paramedic, they would seek damages from the state. Section 67I therefore has little practical implication but it does, one assumes, reassure paramedics that they are not personally liable for their good faith, but negligent, decisions.  Their employer and ultimately the state is to wear any liability.

Civil Liability Act 2002 (NSW) ss 3C and 61

The Civil Liability Act 2002 (NSW) says that a volunteer is not personally liable for their good faith conduct whilst volunteering (Civil Liability Act 2002 (NSW) s 61). This would appear to apply to honorary officers.  The NSW Act has a unique provision.  Section 3C says: ‘Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort.’  That means if the patient is injured by an honorary officer not only is the officer not liable for their good faith, but negligent actions, neither is the ambulance service.  This is the opposite of the position for paid staff.  But again, it is not likely to make much of a difference as the injured patient/plaintiff would simply sue the ambulance service for failing to provide the level of care expected from a reasonable ambulance service.

As noted s 3C is unique to NSW.  The Civil Liability Act in most other jurisdictions says that where the volunteer is protected, the organisation for which they volunteer remains liable.  That is in every state and territory, other than NSW, the volunteer protection legislation ensures that a person injured by a volunteer can recover, just not from the volunteer.  That is in every jurisdiction other than NSW a volunteer ambulance officer would be in the same position as a paid one.

For employed paramedics, the Civil Liability Act 2002 (NSW) has little direct application so without reference to a specific provision I’m not sure how that Act is relevant to questions posed to my correspondent.

 

 

 

 

This question again raises the right of a person to refuse treatment, even when there life is at risk.  Today a paramedic writes to discuss:

… an unusual case … which I believe warrants an objective legal opinion.

The case involved an elderly male patient who had suffered a CVA and presented with a significant left sided deficit and slurred speech.

Despite the patient’s acute condition, he maintained a GCS [Glasgow Coma Scale] of 15 (i.e. he was fully conscious, orientated, and aware of his condition).

He was compliant with the paramedics, and consented to all of their assessments.

However, when the paramedics suggested that he should be transported to the hospital for further assessment and treatment, he flat out refused.

The patient stated that he was also suffering from a terminal cancer, and did not wish to go to hospital to die.

The paramedics accepted the patient’s refusal after applying the [prescribed] criteria.

However, they were concerned that the patient shouldn’t be left at home alone without the physical  capacity to care for himself, or a responsible carer.

Therefore, they contacted the [Ambulance Service’s] medical consult line and spoke with Dr …, and explained the situation.

They intended to explore options to ensure the patient’s well-being, such as possibly arranging for a doctor, nurse or other carer to visit the patient in his home.

During this call they handed the phone to the patient so he and Dr … could have a conversation.

Soon after, Dr … told the paramedics that they needed to take a pragmatic approach, and he then instructed them to transport the patient to the hospital against his will.

Being unable to physically resist (due to his acute condition) the patient was loaded into the ambulance and transported to a nearby hospital.

I would appreciate if you would consider this information, and provide an opinion on the lawfulness (or otherwise) of Dr …’s directive and the transport of the patient against his will.

In Rogers v Whitaker (1992) 175 CLR 479, at [14] Chief Justice Mason along with Justices Brennan, Dawson, Toohey and McHugh said ‘… except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’.  This is not controversial.  Consent converts what would otherwise be a battery into a lawful touching.

With respect to the exception for ‘ emergency or necessity’ I have argued elsewhere that in my view the court was using those terms as synonyms, not to suggest that there is an exception for emergencies and another for necessity (see Eburn, M., Emergency Law (4th ed, 2013, Federation Press).  There is only one exception and it is captured by the concept of necessity – see The doctrine of necessity – Explained (January 31, 2017).  The doctrine of necessity allows treatment, without consent, when the patient cannot (not does not) consent and the treatment is offered in the best interests of the patient.    But (In Re F [1990] 2 AC 1):

… officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when … it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

To refuse treatment a person must be informed; competent and the refusal must extend to the situation that has arisen ([1992] EWCA Civ 18).  A person has decision-making capacity if they are able to understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision (In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 169).

On those principles if the patient was competent, was capable of understanding the advice given by both the paramedics and the doctor and understood the implications of his decision he was entitled to refuse consent and to have that refusal honoured.

The question I don’t know the answer to was ‘what was the basis of the doctor’s direction to ‘take a pragmatic approach’ and transport the patient?’  Did the doctor, in good faith, form an assessment of the person, based on the discussion and the patient’s answers to the question asked, that there was some real question of the person’s competency?  If so the advice ‘take a pragmatic approach’ might have meant ‘I can’t assess his competence and I have some reason to suspect that he is not in fact competent, so the pragmatic response is to transport so his mental state can be appropriately assessed’.  If there was, in the doctor’s mind, a genuine concern for the patient’s capacity that may be a reasonable thought.  However the doctor was on scene and the paramedics – trained health professionals – were.  The doctor should have discussed the concerns with the paramedics as they would have been able to give their ‘on the ground observations’ and between them they should have considered the patient’s competence.

If, on the other hand, ‘pragmatic approach’ meant – “transport him because he can’t actually stop you and if we don’t and he dies we’ll be in trouble and, rather than try to ‘ensure the patient’s well-being [by] … arranging for a doctor, nurse or other carer to visit the patient in his home’ it will be easier and release the paramedics sooner if we just transport him” then that was both unethical and unlawful.  It’s unethical as it is not showing respect for personal autonomy and because it is choosing to act in the interests of the service and the individual paramedics rather than in the patient’s best interests (Tom L. Beauchamp, and James F. Childress Principles of Biomedical Ethics (7th ed, Oxford University Press, 2013)). It’s unlawful given the basic principle that touching a person without their consent is a battery.

The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery… “the least touching of another is anger is a battery.” The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3, p. 120:

“the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.”

The effect is that everybody is protected not only against physical injury but against any form of physical molestation. (Collins v Wilcock [1984] 1 WLR 1172 at 1177 (Goff LJ)).

But the doctor didn’t touch the patient, the paramedics did.  The doctor’s orders won’t be a defence. Just because a doctor tells someone to break the law and commit an assault it does not make that action lawful.  If the paramedics were of the opinion that the patient was competent, understood the implications of his decision and affirmed, after the conversation with the doctor that he did not want to go to hospital that should have been respected.

Just because a patient refuses transport it does not mean that is the end of the paramedic’s duty of care.  It is not ‘take it or leave it’.   It was right of the paramedics to consider ‘that the patient shouldn’t be left at home alone without the physical capacity to care for himself, or a responsible carer’ and to therefore ‘ explore options to ensure the patient’s well-being, such as possibly arranging for a doctor, nurse or other carer to visit the patient in his home.’ Back in 2009, when writing on the decision in Neal v Ambulance Service of NSW [2007] NSWDC 123 (see Ambulance Service v Neal (January 29, 2009)) I said:

Neal’s case also serves as a reminder that health care is not an ‘all or nothing’ exercise, a patient has a right to refuse all treatment or some treatment but that does not absolve the health provider (doctor, nurse or ambulance officer) of all responsibility. It is not the case of ‘you take the treatment I’m offering or it’s nothing to do with me’. The obligation on a health professional is to act reasonably in the circumstances which can include circumstances where a patient refuses some or all treatment. Just because a patient refuses a blood transfusion it does not mean that health teams do not continue to treat and try to save their life; a patient may allow an ambulance officer to examine them and provide first aid but refuse transport, but the care that is provided must be reasonable and in appropriate circumstances.

In the circumstances described here the paramedics had, I suggest, a duty to ‘explore options to ensure the patient’s well-being, such as possibly arranging for a doctor, nurse or other carer to visit the patient in his home’ rather than say ‘if you don’t want our transport, that’s it we’re out of here’.

But there is, no doubt, a dilemma; that is ‘a situation in which a difficult choice has to be made between two or more alternatives, especially ones that are equally undesirable’ – fail to respect the patients wishes and act illegally v leave the patient in circumstances where there are clear and legitimate concerns for his well being.

For the paramedics no doubt, that dilemma existed with respect to patient care; and there was probably a personal dilemma too.  Had the paramedics refused to transport after being directed to by the service’s medical consultant they may well have faced issues with respect to failing to obey the directions of their employer that, no doubt, requires paramedics, as a general rule, to follow the advice of the medical consultant.  The law only requires a person to obey the ‘reasonable’ directions of an employer, and a direction to commit a crime is not a ‘reasonable’ direction, but one can foresee that this could be a matter of significant and drawn out debate in the Fair Work Commission or the like.  On the other hand, by transporting they may have assaulted the patient, but they did so under direction from a ‘superior’ or in accordance with the services requirements (and I do assume that if an ambulance service provides for a medical consultant that paramedics can contact for advice, the expectation is that they will then follow that advice). Everyone was employed by, or an agent of, the Ambulance Service so the Ambulance Service, if anyone, will be liable.  The Ambulance Service, in turn, will only be liable if someone bothers to sue and that is unlikely.

But if the patient is left and dies, there risk of legal action is probably higher. The family who find their father dead, who do not know what he said and learn that paramedics didn’t treat after a CV may sue or take maters up with a health care complaints authority.  Even if it’s found that the paramedics did the right thing, the process will be long and unpleasant.  Further, if the paramedics, rightly spend time trying to contact and arrange care they will be delayed.

So one can see that the pragmatic, albeit unlawful and unethical reaction, would be to transport the patient.

Impact of paramedic registration

It can be anticipated that the dilemma described here will become more acute and personal once paramedics are registered health professionals.  Then their duty to their patient will be stricter. They will no longer be mere servants of their employer ambulance service but can anticipate that they will be expected to advance their patient’s interests even if that means challenging the doctor’s pragmatic direction if they think it is wrong.  As employees they will still be protected from liability to pay damages by the concept of vicarious liability, but they may have to justify their professional decision to ignore a patient’s competent refusal before the yet to be established Paramedic Tribunal.

 

Today’s question again raises the issue of scope of practice so will revisit issues discussed in earlier posts – see Scope of practice – previous posts explained (January 21, 2017) and the posts referred to there.

In this case my correspondent is a medical student with St John Ambulance (but he asks me not to mention the state).  My correspondent says

… healthcare professional students are told to work strictly by the first responder code of practice. This extends to the point that students cannot conduct a clinical history or examination, or use essential examination equipment, such as a stethoscope or a BP monitor.

Example:

Leon is a final-year paramedicine student and first responder. During a SJA event, he meets a patient, John who presents with a headache, neck stiffness, and sensitivity to bright lights. John is treated by a senior first responder and is given paracetamol for the headache.

As a paramedicine student, Leon is aware that these are possible signs of meningitis, and would like to escalate this by calling the ambulance. However, the first responder feels that Leon should not be diagnosing conditions in SJA, and reminds Leon that he should follow his scope of practice within SJA.

Leon is concerned that the patient has been inappropriately discharged back to the event.

This has caused a lot of issues. Students often find themselves in situations where they want to conduct a clinical assessment to rule out or rule in severe clinical conditions, yet are forbidden to do so by the organisation. Students are thus concerned that they are not providing a reasonable level of care, and by following current guidelines, are negligent in their practice. The ethical dilemma occurs as well, where students feel very uncomfortable at duties knowing that they haven’t ruled out severe clinical conditions (“Red Flags”).

Personally, I feel that students should be allowed to practice in a wider scope as long as they are competent to do so. I have argued that competency can be assessed by selecting penultimate and final year medical students who have a good level of clinical experience. Furthermore, unlike providing medications/treatment, the risk that the patient may suffer a bad outcome is low.

I would love to hear your thoughts about whether students should be permitted to conduct clinical assessments.

This shouldn’t be an ethical issue.  The only concern should be ‘what is in the patient’s best interests?’  If we consider the example of Leon – what happens if Leon calls an ambulance and the patient doesn’t have meningitis?  Well that’s expensive and perhaps embarrassing but no great harm done.  The patient is committed to going to hospital and another opinion, for the paramedics is obtained.  If the patient does go to hospital it’s because the paramedics also think that’s a reasonable response to the symptoms – all good.  What if Leon can’t act and it is meningitis?

For the senior first aider in this scenario to ignore the suggestion of a health care professional student is unethical; as it would be unethical to ignore the comment from another first aider.  If the first aid post is operating only on rank – I’m senior to you so I get to say what happens and I don’t have to listen to you – it’s unprofessional and not focussing on the patient’s best interests.  So if another first aider says ‘hang on ….’ Everyone should stop and listen.  And if that person is a health care student they should also be listened to, as the focus should be on patient care.

As for doing a patient assessment and using a stethoscope or a BP monitor one doesn’t need a licence or authority to use them, you just need to know what you are doing.   But you need to think why you’re doing it.  As a paramedic or doctor (or student of either profession) you may want to know a person’s BP because you are providing on-going care (so a GP wants to keep track of the persons BP) or you’re trying to make a definitive diagnosis, or if the BP is low there is something you can actually do about it.  As a first aider where there will be no on-going care and nothing to suggest BP is an issue or even if it is, it’s not going to change what you do, then taking the BP (or getting out a stethoscope) is just pretentious.  But if it’s important and is going to lead to better patient outcomes, and you know what you’re doing, why shouldn’t you do it? What harm can you do?

As for students of the registered health professions they are subject to professional regulation. The Health Practitioner Regulation National Law 2009 (Qld) (which has been adopted in all Australian states and territories to give rise to national registration of medical practitioners, nurses and 12 other health professions with paramedics to be added shortly) provides for the registration and supervision of students.

Students who claim expertise and try to perform skills they don’t have, may be subject to professional censure. But so will students who genuinely believe that there is an issue that is being overlooked but say nothing as they are more concerned about the reputation of the agency and less about the patient’s wellbeing.

In the example given, Leon needs to step up and talk to the patient and his colleague. And if he really believes it’s necessary, call an ambulance.

 

Paramedics are exposed to a high risk of physical violence but as a recent case from Queensland shows, just because a person has been hit, it does not mean that the person who struck them is guilty of assault:

• Kate McKenna, ‘Woman found not guilty of assaulting ambulance officers due to head injury’ The Courier-Mail (online) August 11, 2017.
• ‘Woman cleared for punching Qld paramedic’, brisbanetimes.com.au, August 12 2017.

Queensland has a Criminal Code with the idea (at least in theory) that one can look to the Code to find all one needs to know of the relevant law.  Relevantly, an assault occurs when a person ‘…  strikes, touches, or moves, or otherwise applies force of any kind to, the person of another … without the other person’s consent…’ (Criminal Code 1899 (Qld) s 245).   Prima facie that is what happened here, Ms Hart ‘did strike and scratch paramedic Julz Raven and hit a male critical care paramedic in the face, dislodging his glasses’.  But there’s more to it than that.

Under the Queensland code ‘…  a person is not criminally responsible for— (a) an act or omission that occurs independently of the exercise of the person’s will …’  (s 23).  Further, ‘A person who does … an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist’ (s 24).  To put s 24 in plain English, if you have an honest and reasonable belief in facts, your criminality is to be judged as if those facts were true.  We’ll come back to that.

Similar rules apply in states that rely on the common law rather than a ‘code’.  Under common law assault is the intended use of unlawful force (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439) but it must be a voluntary act.  And there is a defence of mistake – an honest and reasonable belief in facts which if true would make the act innocent – Hayes and Eburn’s Criminal Law and Procedure in NSW (5th Ed, Lexis/Nexis, 2016) pp 59-70.

The problem for paramedics is that they are dealing with people on the worst day of their lives.  They may be affected by their injuries (self-induced or otherwise) or by mental illness.  They may strike out, but that doesn’t make them guilty of assault.

In this case it’s reported that the defendant

… recalls going to the bathroom, and then waking up to a group of people trying to put her in a van,” Ms Daley said.

“She was scared and reacted by striking someone, flailing about, and screaming, but didn’t realise the people were paramedics.”

One might think that this was a willed act.  An unwilled act may a situation where a person is striking out but is in effect unconscious eg a person fitting. For example following a motor cycle accident in 2007, I’m told I was quite aggressive to paramedics and hospital staff but that was not an act of will but the product, I’m told, of head injury and hypoxia. And after regaining consciousness I certainly didn’t know where I was, or who the nurses were for some time – it all felt real at the time and still does even though I now know my memories are fallible – they didn’t really leave me in the tea room, and my room wasn’t on fire, but I sure thought those things were true at the time.

The aim of the criminal law is not to affirm the virtue of the victim, but to determine the blameworthiness of the accused.  A person who is being forced into a van is entitled to defend themselves.  If it turns out that they were wrong about what was going on, but honestly believed that this is what is happening, then they are entitled be judged as if those facts were true.  One might think it’s unlikely that she would have that belief but if you recall that she was roused after 40 minutes and that she may have had a head injury then it more plausible that she didn’t understand what was going on.

The image of justice is a woman holding scales and wearing a blindfold.  She hears the evidence for both views (in this case she intentionally struck the paramedics knowing they were paramedics v the evidence that it wasn’t intentional and mistaken) and makes a call on the evidence without regard to who is in the scales.  That is the fact that the paramedic was a victim, and that as a community we value paramedics or that paramedics think the law should ‘protect’ them is irrelevant.  Paramedics’ needs to be protected from assault, but people need to be protected from the state seeking to punish them as an example, or in order to be seen to support paramedics, rather than because they are guilty of an offence.   To ensure that only the guilty – not just the unpopular – are punished, the law requires that the Crown prove its case ‘beyond reasonable doubt’.

In this case the Magistrate found ‘that the prosecution has not ruled out that the defendant’s conduct in committing the assault was an unwilled act …” and so she was entitled to an acquittal.

The problem with announcing a change in the law or tougher sentences after unpopular verdicts is that the MPs and those that call for change fail to acknowledge that they are not going to achieve anything.  Tougher sentences aren’t going to influence the mentally ill, the brain injured or the intoxicated who don’t know they are ‘flailing about’ or who honestly think they are being abducted. And saying ‘we’ll create a new law to particularly target people who assault paramedics because this person got acquitted’ won’t help if the person didn’t actually assault the paramedic. Telling paramedics or others that ‘we’ll protect you by changing the law’ is to offer false hope.

The criminal law is a very poor tool to reduce crime.  By definition it only comes into play after the crime has been committed.

For related posts see:

• Responding to calls for mandatory sentencing (April 3, 2016); and
• Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police – Part 4 (October 14, 2015) and see there the links to parts 1, 2 and 3.

Today’s correspondent is a first aid trainer in a Victorian prison.

In my recent class, there were several questions from the guys about possible legal consequences when offering first aid.  They were particularly concerned that having a prison record would mean that they might be harshly penalised if something went wrong.  For example, one man said that he had performed CPR, called an ambulance and accompanied a friend to hospital following a drug overdose.  He was then accused of causing the injury by the casualty’s family and told they would pursue damages.  He asserted he hadn’t been involved in the casualty taking drugs but found him in an unconscious state and responded.

My message to the learners is that they are protected by Good Samaritan legislation and the Common Law as long as they don’t act recklessly take all precautions to avoid causing harm or further injury to the casualty and bystanders, only perform first aid to the level they hold a current certificate in and obtain permission to treat a conscious casualty or minor.

1. Should they still perform first aid on a minor when no parent or guardian is present to grant permission?
2. Would they be charged with breaking and entering if they know there is an AED (defibrillator) in say a nearby bowls or footy club and a member of the public is having a cardiac arrest but no-one had a key?

First, the person’s criminal record shouldn’t matter.  Certainly if the matter ever ended up in court, the person’s prior criminal record would be irrelevant and not put before the court (Evidence Act 2008 (Vic) ss 55 and 91). That doesn’t mean, of course, that police or others may not think the issue is relevant and it may well influence their decisions in a particular case.

The fact that one of the students ‘was then accused of causing the injury by the casualty’s family and told they would pursue damages’ does not reflect anything about the law, but human nature. No law can change that.

As for good Samaritan legislation, the relevant provisions are in the Wrongs Act 1958 (Vic).  This provides protection from civil liability for actions taken in ‘good faith’.  The Act does not require the first aider ‘only perform first aid to the level they hold a current certificate in’ – see:

• Good Samaritan legislation and scope of practice (March 27, 2015);
• American Good Samaritan protected by Ohio Statute (May 20, 2015); and
• Good Samaritan legislation – a comparison (February 22, 2017).

People should also remember that in New South Wales and the Australian Capital Territory, good Samaritan protection is lost if the first aider is intoxicated – see Excluding good Samaritan protection for the intoxicated (March 17, 2016).

With respect to the specific questions:

1. Should they still perform first aid on a minor when no parent or guardian is present to grant permission?

There is no duty to provide first aid, so the question is ‘do they want to help and what is the risk?’ As a matter of law there is nothing to stop them particularly if there is a risk of death or serious injury.  See

• The doctrine of necessity – Explained (January 31, 2017);
• Consent, first aid and minors in Queensland (October 13, 2016); and
• The need for parental consent in Emergency situations (NT) (July 16, 2016).

The fact that the person has been a prisoner shouldn’t stop them but I don’t deny that in today’s judgmental culture there may be issues with other people’s perception. As with everyone who has to consider doing first aid they have to consider for themselves what the risks are.

2. Would they be charged with breaking and entering if they know there is an AED (defribrillator) in say a nearby bowls or footy club and a member of the public is having a cardiac arrest but no-one had a key?

Of course I can’t answer that. That would depend on the investigating police.  Would I recommend that action? Answer ‘no’.  There is no duty to rescue so there is no duty on the club to provide access to the AED. By breaking in one would, no doubt, cost the club and someone has to pay for that damage – one is then compelling the club to meet a cost that they are not obliged to meet.  But that answer is somewhat simplistic, as always one has to consider the risks to the patient.

First people collapse in sudden cardiac arrest in many places. There is no guarantee or expectation that there will always be a defibrillator or that it will work.  The fact that there isn’t one to hand doesn’t impose an obligation or expectation to go and find one. Further the time that it would take to run to the nearby club, break in and then get to the patient is likely to be too long particularly if no-one else is doing CPR – see CPR success: TV v Reality (September 3, 2015).  If there isn’t a EAD readily available, the first aider is better off doing CPR than running to the nearby club to try and break in.

The answer to this might be different if, say, the person collapsed IN the club and the EAD was in a locked cupboard with staff saying ‘only the manager has the key and we can’t find him/her’.  In that case one might argue that the club had a duty to its own patron, there is no point keeping an AED in a locked cupboard and the cost is relatively low.

With respect to ‘break and enter’ that does not appear to be an offence in Victoria (cf example Crimes Act 1900 (NSW) s 109-113).   In Victoria, the relevant offence would appear to be burglary – Crimes Act 1958 (Vic) s 76(1). That section says:

A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent—

(a)       to steal anything in the building or part in question; or

(b)       to commit an offence—

(i)        involving an assault to a person in the building or part in question; or

(ii)       involving any damage to the building or to property in the building or part in question—

which is punishable with imprisonment for a term of five years or more.

A person breaking in to access an AED is not intending to steal or commit an offence involving an assault or damage to the building (noting that the damage referred to in s 76(1)(b)(ii) has to be part of the offence that the person intends to commit when they break in, not simply the damage done during the break in).  That does not mean that they might not be accused of some other offence such as destroying or damaging property (s 197).  One would hope that this would not happen if the intention was to try and save a life. Further the honest intention to save a life may well be a defence, but that doesn’t mean that the person, regardless of whether or not they are a former prisoner, won’t be charged.  As noted that depends on the attitude of investigating police.

In short, I would not recommend anyone break into premises to secure an AED, regardless of whether or not they are a former prisoner.  There are probably more useful things to do such as commencing CPR, calling an ambulance and directing them to the patient.  But, having said that, never say never, in the right circumstances such an action could be justified – The doctrine of necessity – Explained (January 31, 2017).

A paramedic and firefighter from South Australia writes about access to SA prisons. My correspondent writes:

The local prison has recently done an upgrade of their security system, and are now requiring all staff (and I believe visitors) to have biometric information scanned to obtain access to the facility.

We have issues regarding who from the service actually gets entered – staff turnover, neighbouring stations that may end up responding, or relieving/casual staff working in the region.

I am wondering where we would sit in refusing to have this done, for various personal reasons.

My immediate thought was that there would be some sort of exemption as there is for paramedics and firefighters to access airports.  We all know that anyone who wants to go ‘airside’ at an airport has to pass through security checks or have security clearance.  This does not, however, apply to ambulance, fire and other emergency personnel (Aviation Transport Security Regulations 2005 (Cth) rr 3.18 ‘Access by emergency personnel’ (Airside); 3.26 ‘Access by emergency personnel’ (Landside); 4.10 ‘Persons who may pass through screening point without being screened’; 4.11 ‘Persons who may enter certain cleared areas other than through screening point’ and 4.62 ‘Persons authorised to have prohibited items that are tools of trade in possession in sterile areas’).

Although I expected to find similar exemptions, I did not.  The Chief Executive of the Department of Correctional Services, or an employee of the Department with the Chief Executives delegation, may (Correctional Services Act 1982 (SA) ss 7 and 85B):

(1) …

(a) cause any person who enters a correctional institution to submit, subject to the person’s consent, to a “limited contact search”, and to having his or her possessions searched, for the presence of prohibited items; or

(b) if there are reasonable grounds for suspecting that a person entering or in the institution is in possession of a prohibited item, cause the person and his or her possessions to be detained and searched; or

(c) if there are reasonable grounds for suspecting that a vehicle entering or in the institution is carrying a prohibited item, cause the vehicle to be detained and searched.

(2) If a person does not consent to a limited contact search, the CE may cause the person to be refused entry to or removed from the institution, using only such force as is reasonably necessary for the purpose.

There is a list of prohibited items in the Correctional Services Regulations 2016 (SA) r 8 but these relate to items sent to prisoners by mail (s 33), goods held by prisoners (s 33A) and items brought in by non-prisoners for delivery to prisoners or without the permission of the Chief Executive (s 51).  The list of prohibited items includes prescription and controlled drugs, a syringe or needle and any item that is designed for or capable of causing inflicting bodily harm, such as a knife.  Paramedics and fire fighters would carry many of these items as their regular tools of trade.  Sections 33 and 33A won’t apply to them.  Section 51 relates to non-prisoners.  I assume the paramedics and firefighters aren’t intending to give these items to prisoners.  Even if they use a needle and syringe to administer a prescribed drug to the prisoner as part of treatment they are not giving the prisoner the needle or syringe nor give possession of the drug to the prisoner.  It follows that all that they need to lawfully bring those items into the prison is the permission of the Chief Executive and, in practice, the prison officers.

The first step is, therefore that if the prison rings triple zero and the guards, either on their own initiative or in accordance with any prison emergency response plan, allow the paramedics or fire fighters to enter the prison with their tools of trade, then the paramedics and fire fighters are not committing an offence under the Correctional Services Act or Regulations.

But the prison can set the terms for giving permission to enter.   As noted South Australian Correctional Services has introduced a Biometric Enrolment System. The publication Information for Professionals Visiting Prisoners in South Australian Prisons (Department for Correctional Services, Adelaide, v 3 2015) says, at p. 5:

The Biometric Enrolment System (BES) is in use at the Adelaide Remand Centre and Yatala Labour Prison.

At sites that have BES installed, all visitors will be biometrically enrolled and biometrically scanned into and out of the institution.

The BES is used to identify individuals entering and exiting these institutions. The BES provides support to existing infrastructure and dynamic security practices. All persons over the age of 18 years requesting entry into DCS institutions where BES is available must be registered on the BES database.

An iris scan is the primary means of identification for enrolment in the BES with finger scanning utilised as the secondary measure only where an iris scan is not suitable. In addition to the BES scanning process a professional visitor must produce an official photographic identification card or 100 points of identification.

Does that apply to paramedics and firefighters? The document I’ve cited relates to professional visits.  It says (at p. 2)

Professional visitors are people who visit a prisoner in a non-domestic capacity, such as legal practitioners, psychologists, chaplaincy, SAPOL, volunteers, support groups and includes DCS staff visiting for the purpose of undertaking assessments or to develop reports (such as Bail or Parole reports).

Fire fighters responding to a fire are not ‘visiting’ prisoners. They are probably quite happy to avoid any contact with prisoners.  Paramedics are coming to provide a professional service to an injured or ill prisoner but they are not really ‘visiting’ a prisoner.  One of the examples of a ‘professional visitor’ is a person from SAPOL (ie South Australia Police).  One can understand that a police officer coming to interview a prisoner about ongoing investigations is ‘visiting’ the prisoner, but a police officer coming to arrest the prisoner or, in an emergency context, the police riot squad coming to assist correctional services staff to put down a prison riot, is not visiting a prisoner even though those police officers will indeed come into contact with prisoners.

Even if the document on professional visits is not relevant to fire fighters or emergency ambulance responders (and it’s certainly not relevant if the person requiring ambulance assistance is a non-prisoner), it does not mean that those people don’t have to be involved in the Biometric Enrolment System. Fire fighters and paramedics are not the only people concerned – see Sean Fewster, ‘Police, lawyers fear prison check puts their safety and privacy at risk’, The Advertiser (Online, May 12, 2013).  That article says:

Correctional Services chief executive David Brown said no one was exempt from security screening.

“This is about ensuring that the person who enters the prison is the same person who exits,” he said.

One can see the problem. If David Brown (quoted in 2013) is taken literally, it would follow that paramedics and fire fighters would be delayed whilst they go through the process and whilst that is happening the fire will spread or a prisoner, prison officer or other person in the prison might die. In the right circumstances, a decision to require emergency services personnel to go through the biometric process will beg the question of whether requiring paramedics and fire fighters to go through the process was a ‘reasonable’ response to the competing risks – on the one hand the risk that they will either intentionally or accidentally introduce prohibited goods into the prison and/or facilitate a prisoner’s escape and the risk to the health and safety of those in the prison if the fire fighters or paramedics can’t get in to do their job.  If it is not it may be negligent, or perhaps a breach of the Work Health and Safety Act 2012 (SA) to impose those requirements.  It follows that it is, in my view, impossible to believe that ‘no one’ is exempt but there is nothing in the Department’s publications or legislation to provide that exemption.

The matter is further complicated by the powers vested in the fire brigades.  An officer of the South Australian Metropolitan Fire Service may (Fire and Emergency Services Act 2005 (SA) s 42):

… take, or cause to be taken, any action that appears necessary or desirable for the purpose of protecting the life, health or safety of any person or animal, or protecting property, relevant services or the environment, or for any other purpose associated with dealing with a fire or other emergency or the threat of a fire or other emergency (despite the fact that the action may result in damage to, or destruction of, property or any aspect of the environment or cause pecuniary loss to any person).

Specifically, they may:

(a) enter and, if necessary, break into any land, building, structure or vehicle (using such force as is necessary); [and]

(b) take possession of, protect or assume control over any land, body of water, building, structure, vehicle or other thing…

A member of staff of the South Australian Ambulance Service may (Health Care Act 2008 (SA) s 61):

… use reasonable force to break into any place if the person believes that it is necessary to do so—

(a) to determine whether any person is in need of medical assistance; or

(b) to provide any person with medical assistance.

A fire fighter or ambulance paramedic can use their authority to enter your private property without your consent so it must be inferred that they can also exercise those powers at a South Australian prison.

If I was to argue the point on principle, I would argue that the Fire and Emergency Services Act 2005 (SA) s 42 trumps the Correctional Services Act 1982 (SA). Where there is a fire in a prison the SAFS can ‘take possession of … or assume control over any land … building, structure … or other thing…’ so they could take control of the prison and direct the prison staff what they are required to do to say, evacuate the prison so they can deal with the fire.  If that was not the case the prison authorities would have rights that no-one else has (ie a right to direct the fire service) and there is nothing in the Correctional Services legislation to imply that this extra-ordinary authority is intended.

Paramedics may be entitled to use ‘reasonable force’ to try to enter the prison but are unlikely to succeed in that given that prisons are intended to keep people both in, and out.

None of this discussion is relevant if there is no emergency.  Paramedics taking a person for routine transfer to hospital for treatment or providing some onsite clinic can be required to undertake the biometric entrance requirements.

What’s to be done?

This would appear to be a situation where the Department of Correctional Services, South Australian Ambulance and the South Australian Fire and Emergency Services Commission need to get together and develop an appropriate policy. (I might add, I can understand why the Department may not want to publish those policies and prison rules on the world wide web, so the fact that I can’t access them doesn’t mean they don’t exist).

Modern emergency management is based on risk management. The likelihood that there will be an event in a South Australian prison that requires a response by fire and/or ambulance service is inevitable and it could have life threatening implications.  It is therefore a risk that should be managed.  To manage a risk requires a plan that deals with all aspects including response. The prison authorities need to have a plan, that is negotiated with the fire and ambulance services and the relevant unions, so that everyone knows how access will be arranged in an emergency.

The alternative is that prison officers may stand on their right to control access to a prison whilst firefighters and paramedics seek to exercise their power to force entry to the premises and whilst they are doing that the prison burns, or the patient dies.

A correspondent refers to:

… an article from ABC News on in-flight care by health professionals on airlines.

As pointed out by a number of posters, non doctors professionals ie paramedics/ nurses cannot access on board medical equipment/ medications.

Whilst I would suspect that Good Samaritan legislation would be sufficient coverage for those offering their assistance, and there would be drugs and poisons governance as well, is there actual acts or regulations that prevent non-doctor professionals from accessing on board medical equipment?

Secondly, would an airline, domestic or international be negligent preventing access?

I find it surprising that this may be the case and look forward to your thoughts.

The article that stimulated this question was ‘Is there a doctor on board? What happens during a mid-air medical emergency’ (ABC, Monday 31 July; http://www.abc.net.au/news/health/2017-07-31/is-there-a-doctor-on-the-plane/8650044); but for a string of similar articles, see the list at the end of this post.

Before attempting to answer this question, I sent this question to Damien Toohey, an old school colleague who is both a qualified lawyer and B747 pilot with a major international airline.   His comments are:

Cabin Crew are trained to provide first aid assistance in all cases involving incidents on board aircraft. Each aircraft carry a number of first aid kits and one physicians kit which is accessible by the Customer Services Manager. Any such access must be reported to the Captain and logged. If there is a concern about the passenger’s health the CSM and or the Captain will be notified and contact will be made with ‘MedLink’.

MedLink is a service provided to subscribing airlines by MedAire, a USA based company providing satellite communications between aircrew and an Emergency Room Physician at the Good Samaritan Regional Medical Centre, a Level One Trauma facility in Phoenix, Arizona. MedLink will obtain a history of the patient, ascertain the treatment provided and by whom and generally authorise further treatment/steps and thereafter coordinate additional follow-up support through a database of health professionals in over 45 medical specialties. If a diversion is necessary or an ambulance required and further treatment after landing, MedLink will authorise or arrange such steps to be taken.

It may appear that treatment approval is coming from the crew on board but it is generally being determined by an Emergency Room Doctor who has now taken control of treatment.

An on-board doctor is permitted to be taken to the Captain during flight by the Customer Services Manager to consult with MedLink and to consider the further options.

The Physicians Kit

The kit is sealed and can only be unlocked or have its seal broken by the Customer Services Manager. The CSM or Customer Service Supervisor may access certain equipment without permission from a medical practitioner; including the Stethoscope, Sphygmomanometer, Thermometer, Nebulizer Mask, Spacer and contents list. They may access only Ventolin and Anginine without approval.

Medications which require approval from a medical practitioner include Claratyne, Anapen for Anaphylaxis, Glucose gel, various first aid items and contents contained within various pouches comprising respiratory kit, urinary retention kit, anaphylaxis kit, oral medications kit, IV kit, drugs for injections and a miscellaneous kit. It should be noted that cabin crew cannot dispense even a Panadol but can provide Panadol to passengers whereby they may take the tablet on their own volition.

The important point to understand is that the medical decisions being made are by an Emergency Room doctor and the provision of medications or access to life saving materials carried on board is at their sole discretion or that of a suitably qualified medical practitioner on board the flight. It is, to all intents and purposes, no different than a first aider walking into a hospital and attempting to provide patient care. It would not be possible.

The liability or neglect of the airline is mitigated by their reliance on MedLink for airborne support and decision making. It’s not decided on a whim and adheres to very strict protocols.

The implication of a physician’s kit is indeed that it is only to be opened by a physician or registered medical practitioner rather than a nurse or a paramedic.  If we consider Australian law, medical practitioners are generally authorised to carry and use scheduled drugs. Paramedics do not carry that right by virtue of their profession and training.  Paramedics are authorised to carry drugs supplied by their employer n the course of their employment. As passengers on a commercial aircraft they don’t carry that authority with them and that would also be true for nurses.  Where a ground based doctor has taken a history and considered the patient’s condition he or she might prescribe the use of the scheduled drugs in which case the paramedics or nurses could administer those drugs.   As Damien says, in that case ‘the medical decisions being made are by an Emergency Room doctor and the provision of medications or access to life saving materials carried on board is at their sole discretion’.

One can see the difficulties for international crews.  The concept of a doctor is probably reasonably universal but who is a paramedic or a nurse and what they are allowed to do may be quite different across countries and in an emergency, cabin crew have little opportunity to make an assessment as to whether or not the person who says ‘I’m a paramedic’, or ‘I’m a nurse’ or even ‘I’m a doctor’ really is what they say they are and what their level of competence is. The question is further complicated by trying to decide what law applies.  It may be the law of the country that the aircraft has departed from, the law of the country where they arrive or the law of the country where the aircraft is registered.  (People often say ‘it’s the law of the country that the aircraft is registered in’ but try committing an offence on an aircraft and you’ll get arrested by police at the airport where you arrive and tried under their laws for various offences).

There are also rules. In Australia, civil aviation is regulated by the Civil Aviation Safety Authority (CASA).  Under the Civil Aviation Safety Regulations 1988 (Cth) there is no standard for medical or first aid kits.  According to the CASA website it is proposed to introduce a new part 121 to the Regulations. One of the key proposals is ‘re-introduction of the requirement for first aid kits and a new requirement for emergency medical kits and universal precaution kits on specified flights’ (https://www.casa.gov.au/standard-page/casr-part-121-commercial-air-transport-operations-aeroplanes (accessed 8 August 2017)).

International air standards are set by the International Civil Aviation Safety Organisation (ICAO).   ICAO recommends that aircraft carry ‘accessible and adequate medical supplies’. There is no standard of what that means but they do recommend ‘one or more first-aid kits for the use of cabin crew in managing incidents of ill health’ and ‘for aeroplanes authorized to carry more than 100 passengers, on a sector length of more than two hours, a medical kit, for the use of medical doctors or other qualified persons in treating in-flight medical emergencies’ (see https://www.icao.int/MID/Documents/2013/capsca-mid3/ICAOHealthRelatedSARPsandguidelines.pdf ).    The recommended medical kit contains:

Equipment

List of Contents — Stethoscope — Sphygmomanometer (electronic preferred) — Airways, oropharyngeal (three sizes) — Syringes (appropriate range of sizes ) — Needles (appropriate range of sizes) — Intravenous catheters (appropriate range of sizes) — Antiseptic wipes — Gloves (disposable) — Needle disposal box — Urinary catheter — System for delivering intravenous fluids — Venous tourniquet — Sponge gauze — Tape – adhesive — Surgical mask — Emergency tracheal catheter (or large gauge intravenous cannula) — Umbilical cord clamp — Thermometers (non-mercury) — Basic life support cards — Bag-valve mask — Flashlight and batteries

Medication

Epinephrine 1:1 000 — Antihistamine – injectable — Dextrose 50% (or equivalent) – injectable: 50 ml — Nitroglycerin tablets, or spray — Major analgesic — Sedative anticonvulsant – injectable — Antiemetic – injectable — Bronchial dilator – inhaler — Atropine – injectable — Adrenocortical steroid – injectable — Diuretic – injectable — Medication for postpartum bleeding — Sodium chloride 0.9% (minimum 250 ml) — Acetyl salicylic acid (aspirin) for oral use — Oral beta blocker -5- If a cardiac monitor is available (with or without an AED) add to the above list: — Epinephrine 1:10 000 (can be a dilution of epinephrine 1:1 000)

The International Air Transport Association, a trade association of the world’s airlines, says this about first aid and medical kits (https://www.iata.org/whatwedo/safety/health/Documents/medical-manual-2013.pdf )

This need for first aid and medical response kits was well recognised shortly after the inauguration of regular scheduled flights by the airline industry, and is now regulated by the licensing authorities.

Airline first aid and medical kits vary in scope and complexity. Several factors must be taken into consideration in deciding what items and the number of each item should be included in an aircraft medical first response kit. The need should be based on audit of the inflight incidents. Although injuries, abrasions, contusions, burns, syncope, asthma, neurologic seizures, and cardiac events are high prevalence medical events based on several studies, the first step in any airline‘s medical kit design is to first survey and determine what medical events are occurring on board in that unique air carrier. Also, the airline medical expert should determine the frequency that medical providers travel on the airline, to determine whether or not the kit should be first aid based, more based on advanced medical expertise, or some combination of both. Also, the air carrier must consider whether groundbased physician expertise is available to provide direction to cabin attendants, or on-board travelling medical personnel…

It is the opinion of many airlines that narcotics should not be included, however some airlines believe they should. Likewise, the inclusion of surgical instruments is also controversial.

Many airlines also have first aid kits for ground personnel, tropical first aid kits, and travel first aid kits.

The air carrier should conduct a careful study of state, country and international laws governing first aid kits, and/or the practice of medicine within certain locations, before designing an airline Emergency Response medical program. As an example, the kit recommended by the Aerospace Medical Association is shown in Appendix „B‟.

See also Aerospace Medical Association Air Transport Medicine Committee, Medical Emergencies: Managing In-flight Medical Events (Guidance material for health professionals) (https://www.asma.org/asma/media/AsMA/Travel-Publications/Medical%20Guidelines/In-flight-medical-events-guidance-document-revised-July-2016.pdf ).

Damien mentioned MedAire.  They sell first aid and medical kits designed for use on an aircraft including an emergency medical kit (http://www.medaire.com/business-general-aviation/services-solutions/medical-kits-equipment ).    They say:

… Designed with long-haul flights in mind, it [the Emergency Medical Kit Rx] includes items to begin treatment of common in-flight ailments, stabilize potentially serious medical events, and aid in a survival situation.

Contents Include:

• Prescription medications that address chest pain, nausea and vomiting, bacterial infections, trouble breathing, and allergic reactions.
• Survival supplies including an LED flashlight, emergency blanket, moleskin, insect repellent etc.
• Non-prescriptions medications that address aches and pains, dehydration, motion sickness, coughs, and diarrhea.
• First-aid supplies to including wound and burn dressings, antibiotic ointment, antiseptic scrubs, bandages, splint, etc.

Due to the prescriptive contents, the Emergency Medical Kit Rx can only be used at the express instruction of a physician at MedAire’s MedLink Global Response Center.

Conclusion

It would appear that like many things the issue is risk management.  It is up to airlines to assess the risk of a medical emergency which must take into account the nature of their operations.  They will then carry appropriate medical and first aid supplies.  As with everything the high reliability organisations do, their procedures will be documented and thought out.   Actions are ‘not decided on a whim and adheres to very strict protocols’.

If an airline has determined that it’s going to carry a kit particularly one with scheduled drugs they may also have determined that they won’t allow anyone to access it without approval from a medical practitioner.  But as Damien said, it may be the airlines ground based practitioner, rather than the doctor or other health professional on the plane, that is actually authorising the use of the kit.  No doubt those advisers may approve that if they are satisfied that the person who has come forward to help is actually competent to use the equipment in the kit.

So one can infer that both airline practices and of course the law with respect to access to scheduled drugs would prevent non-doctor professionals from accessing on board medical equipment but the large airlines have procedures in plans to grant approval to access the kit on the direction of the doctor who must make decisions both about the patient’s condition and the competence of the person planning to administer any treatment.

There is no chance an airline would be negligent for not allowing a person who claimed to be a paramedic or a nurse or even a doctor from accessing the kit given all the risks and the complexity of resolving the issues in flight.  The pilot in command has the option to land to seek medical aid and for the larger airlines there are procedures in place that will be based on a risk assessment, the essential issue for a ‘reasonable’ response.

Other airborne medical emergency articles Is there a doctor on board? What really happens during a medical …

http://www.telegraph.co.uk › Travel › Travel Truths

What happens when there’s a medical emergency on a flight?

www.news.com.au/…goes-on…medical-emergency…flight/…/1ae85065d213a9f038b45…

What happens when there’s a medical emergency on a flight?

http://www.traveller.com.au › Travel Planning › Tips & Advice

Doctors Share What Really Happens When There’s an Emergency …

http://www.cntraveler.com/…/doctors-share-what-really-happens-when-theres-an-emergenc…

What Happens If you Have a Medical Emergency on an Airplane …

http://www.menshealth.com/health/medical-emergency-on-airplane

What really happens during a medical emergency on planes | OverSixty

http://www.oversixty.com.au › Travel Tips

Medical emergencies in the sky: What happens if you get ill on a plane …

http://www.today.com/…/what-happens-if-you-get-ill-plane-medical-emergencies-sky-t246…

 

This story has received news coverage (see Groping osteopath loses bid to keep firefighting job The Age, 3 August 2017) but the news story does not do justice to the complex legal issues that arose in the various legal hearings.

Before explaining the legal proceedings, I’ll start with a timeline:

• 2005, Mr Duggan is registered as an osteopath.
• 2009 and 2010, complaints are made that Mr Duggan engaged in ‘clinically unwarranted touching of the pelvic and pubic regions of all three patients, and vaginal penetration of two of them, in association with extremely poor, or non-existent, history taking, consent and treatment documentation practices’ (Health Care Complaints Commission v Duggan (No. 2) [2016] NSWCATOD 30, [2]).
• 2010, criminal charges laid.
• 2012, Mr Duggan acquitted of all offences in the NSW District Court. Sometime after that, Mr Duggan moves to Victoria.
• 2013, Mr Duggan applies for employment with the MFB. During the recruitment process ‘“Mr Duggan was also asked whether he had been arrested since he turned 18, and whether he had been charged by the police with committing a crime, and responded that both were “true”. The MFB does not have any record of any further inquiries being made at that time with Mr Duggan in relation to any criminal charges which had been made against him” (Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [2016] FWC 5028, [17]). That is he honestly answered the question that he had indeed been charged, but ‘at no time prior to 29 April 2016’ (see [23]) did the MFB make any inquiries as to what he was charged with or what happened to those charges.
• 9 June 2015, the Health Care Complaints Commission lodges complaints of unprofessional conduct and professional misconduct with the Osteopath Tribunal. There is no explanation as to why the complaints are lodged 3 years after the criminal proceedings.
• 16 September 2015, Victoria Police issue a National Police Certificate, which advises that “[a]t the date of issue there are no disclosable court outcomes recorded”.
• 23 December 2015, MFB offer Mr Duggan employment as a recruit firefighter including 3 months’ probation.
• 9 February 2016, Mr Duggan commences his employment and recruit training.
• 18 and 19 February 2016, the professional disciplinary proceedings were heard largely in the absence of Mr Duggan who was not represented.
• 17 March 2016, Adverse ruling from NSW Civil and Administrative Tribunal (Health Care Complaints Commission v Duggan (No. 2) [2016] NSWCATOD 30) handed down. Duggan is struck off the roll of Osteopaths for at least 6 years. He is prohibited ‘from providing any “health services”’ until he is restored to the roll.  This decision is brought to the attention of the MFB by other recruits, not by Mr Duggan. The MFB advise Mr Duggan that it is not appropriate for him to continue beyond the probationary period and he is stood down on full pay.
• 30 April 2016, the United Fire Fighters Union (UFU) notified the MFB that it was in dispute regarding Mr Duggan “including but not limited to the failure [by the MFB] to undertake the proper process in the enterprise agreement, consultation, change, policy and termination.” The UFU requested Mr Duggan’s employment be continued in accordance with the dispute settlement clause of the relevant Enterprise Agreement.
• 5 May 2016, Mr Duggan is informed that the MFB’s preliminary view is that his employment will not continue beyond the end of his probationary period (ie 9 May 2016). The reasons for his termination do not relate to his conduct as an employee, rather that the findings of the Tribunal meant that:
  • ‘That Mr Duggan did not meet the standard of personal integrity that is an inherent requirement of being a firefighter;
  • That the MFB could not “conscionably hold” Mr Duggan out to the community or other staff members as being a person who could hold the degree of trust expected of a firefighter;
  • That the NCAT decision meant that he would be unable to safely perform the inherent requirement of providing emergency medical assistance to members of the community; and
  • That, given the conclusion of NCAT, his continued employment with the MFB posed a risk to health and safety not only of other MFB employees but also members of the public and potentially to himself’ (Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [2016] FWC 5028, [25]).
• 6 May 2016, Mr Duggan applies to have the NSW decision set aside.
• 8 May 2016, Mr Duggan responds to the MFB letter.
• 8 May 2016, there is a directions hearing regarding Mr Duggan’s application to have the NSW Decision set aside. The matter is set down for hearing in September 2016.
• 9 May 2016, the MFB requests further information.
• 24 May 2016, MFB writes confirming the decision to terminate Mr Duggan’s employment. Considering ongoing correspondence between the MFB and the UFU, the MFB acknowledges that there is a ‘dispute’ and that in accordance with the terms of the Enterprise Agreement the decision to terminate his employment will not be acted upon until the dispute resolution processes are resolved. The MFB refers to the matter to the Fair Work Commission in accordance with the dispute resolution terms of the Enterprise Agreement. The issues that are the subject of the dispute are (Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [2016] FWC 5028, [43]):

1. Whether or not there was a failure by the MFB to follow any process mandated by the Agreement with respect to the termination of Mr Duggan’s employment, in particular whether ‘the MFB has complied with the mandated processes in respect of a desired change to the Police Check Policy and whether it has followed its obligations in relation to Mr Duggan, being on “probation” and a “probationary employee”’ ([50]);

2. Whether the dispute the subject of this proceeding is resolved; and

3. Whether the decision to terminate the employee’s employment can therefore now be implemented by the MFB.

• 11 July 2016, the matter is heard by the Fair Work Commission.
• 3 August 2016, the Commission delivers its decision in Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [2016] FWC 5028. The Commission determines that the MFB has complied with the policy on police checks but not on probationary employment. The Commission orders that Mr Duggan remain a probationary employee for 12 months and to be given a warning to the effect any future misconduct will result in his dismissal.
• 23 August 2016, the MFB appeal the decision to the full bench of the Fair Work Commission.
• 15 September 2016, Mr Duggan and the UFU also lodge an appeal.
• 19 October 2016, the appeal is heard.
• 11 November 2016, the Full Bench hands down the decision in Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [2016] FWCFB 8120. The full bench upholds the MFB’s appeal and finds that there was no failure by the MFB to follow the process set out in the Enterprise Agreement. Mr Duggan appeals to the Full Federal Court.
• 3 April 2017, the Federal Court hears the appeal.
• 3 August 2017, the Federal Court dismisses Mr Duggan’s appeal (Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112) so his dismissal as a firefighter is confirmed.

The issue at the first hearing – Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [2016] FWC 5028

The issue here was whether the MFB had complied with policies regarding police checks and probationary employment.

The difficulty in this case was indeed that Mr Duggan did nothing wrong whilst an employee of the MFB. The fact that he didn’t tell the MFB of the decision by the NSW was unsatisfactory and something that disciplinary sanctions could be applied but it did not warrant dismissal.

The argument from the UFU was that the MFB had a policy to require police checks and there were some offences that would mean a person could not be employed as a firefighter.  Mr Duggan of course had a clear police check as he had been acquitted of the offences charged.  The UFU argued that by implication the MFB were implementing a new policy and that they had done so without consultation.   The Commission rejected that argument. It did find that had the MFB asked Mr Duggan what he had been charged with the MFB would have been entitled not to employ him, but they did employ him but the decision to terminate his employment was not evidence that the MFB

… sought to unilaterally amend its Police Check Policy by introducing a new and additional criterion that adverse findings by an occupational tribunal can render a person unsuitable for employment as a firefighter. Instead, the evidence leads to findings that Mr Duggan was asked to supply information consistent with the Policy, which he did; that the MFB considered the information he provided and, notwithstanding what it received, made no election to exercise its discretion not to employ Mr Duggan’ ([61]).

Rather, said the Commission, because the decision to terminate his employment was based on information obtained after the employment commenced, but relating to conduct before Mr Duggan was employed by the MFB, the MFB was changing its policy with respect to probationary employment.   As Commissioner Wilson said at [67]:

The evidence leaves little doubt that the MFB proposes Mr Duggan be dismissed as a probationary employee because the MFB believes it is entitled to do so. There is also little doubt that, despite the MFB’s hesitation on the matter, that it wishes to do so because it considers Mr Duggan’s professional misconduct as an osteopath to be an unacceptable background for a firefighter.

Commissioner Wilson took the view that a period of probationary employment was to allow the employer to determine if the employee was suited to the work in question. He said (at [77]):

 It is apparent from this analysis that “probation” or engagement as a “probationary employee” is an examination of how the employee presents themselves once employment has commenced, being “a time of testing or trial”, “a process of putting to proof …investigation and examination”. After training an assessment can be made of aptitude or capacity. If a person has not been satisfactory in their position, “the employment relationship can be easily terminated or the probationary period can be extended”. Nowhere, does it seem, do the well accepted meanings turn to the consequences of uncovering after employment some fact from things prior to the commencement of employment. Instead, those matters are likely to be protected through the ability to dismiss for serious misconduct.

It followed that dismissing Mr Duggan on the basis that he had not satisfactorily completed his probation, on the basis of conduct that occurred before his employment (and conduct that they could have discovered if they had only asked and then decided not to employ him) was a change in the employment terms.  To effect that change the MFB had to consult with the UFU and they had not done so.

Accordingly, Commissioner Wilson found that the MFB could not dismiss Mr Duggan. Because of his failure to tell the MFB of the NSW decision however, he did say it was reasonable to impose sanctions hence the order that his probation be extended and that he be subject to a warning that any further misconduct would amount to dismissal.

The appeal – Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [2016] FWCFB 8120.

The appeal was very technical and related to the jurisdiction of the Commission rather than the merits of the case.  The relevant Enterprise Agreement said that in the event of a dispute between the parties, the dispute could be referred to the Fair Work Commission that could resolve it.  In effect, the FWC although a government, statutory authority, was being asked to act as a private dispute mediator.  It had jurisdiction only to the extent that the parties asked it to resolve a dispute and only to deal with the matters in dispute.

The Full Bench found that the claim that the MFB had changed its policies with respect to police checks was the subject matter of the dispute.  Commissioner Wilson had found that there was no evidence that this had occurred, that is the MFB had not breached or changed its policy with respect to police checks.   The issue of the probation policy was never before the Commission.  The Full Bench said (at [49]):

The dispute over changes in policy related specifically to the Police Check Policy. The UFU made no allegation about breach of any probation policy and the matter was not subject to evidence or submissions by the parties. The UFU did raise general merit issues relating to the basis for the decision to terminate. These concerned the appropriateness of relying on the NCAT decision. However, we are unable to discern any basis in the material before the Commissioner to suggest that the dispute between the parties included a dispute about the extent of consultation over a change to a policy regarding probation and probationary employee. In purporting to determine such a dispute the Commissioner ventured beyond the dispute between the parties, made findings on matters that the parties were not given an opportunity to address and exceeded the power of private arbitration conferred by the agreement.

Although the Commission can determine the merits of a dismissal (ie ‘unfair dismissal’) a person on probation cannot seek a remedy for unfair dismissal. Further raising a ‘dispute’ (in this case about the police check) and using it as a ‘back door’ to raise the merits of the dismissal would be a process to avoid the provisions in the Fair Work Act 2009 (Cth) that are intended to limit the unfair dismissal remedy.

The Commission, resolving that the MFB had not unilaterally amended the police check policy, had resolved the issue in dispute and that was all it could do. Having done that, it was the end of the matter.

The appeal to the Federal Court – Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112

The Federal Court agreed that if the dispute resolution provisions contained in the Enterprise Agreement were used to either delay an employee’s termination beyond 6 months or to raise the merits of a termination decision then it would, in effect, give a probationary employee a right to a merits review that was specifically prohibited by the Fair Work Act.  As the Court said at [89] ‘It is strongly arguable that Clauses 27.1.2 and 27.1.3 of the Agreement, when read together, act as an impediment on the MFB’s capacity to terminate an employee within the first six months of that employee’s engagement’. Any provision in an award that did act as that impediment was of no effect (Fair Work Act 2009 (Cth) s 194(c)).

Accordingly, the Federal Court upheld the decision of the full bench of the Fair Work Commission.

The result

The result was that no-one really dealt with the issue at the heart of the matter – whether the outcome of the NSW Decision was really grounds to sack Mr Duggan.  One issue for the MFB was that providing emergency health care is now a fundamental part of the MFB role.  It was agreed that the prohibition on Mr Duggan, imposed by the NSW Tribunal, applied Australia wide so Mr Duggan could not take part in the MFB’s emergency medical response. But equally it turned out that firefighters were entitled to refuse to participate in that program so Mr Duggan could be employed as a fire fighter without being part of the emergency medical response (Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [2016] FWC 5028, [104]-[106]).

Whether then it was ‘fair enough’ to sack Mr Duggan was not resolved because, as the Full Bench and the Federal Court said, there was no provision of a merits review. It may have been that Commissioner Wilson was correct, that the MFB didn’t properly apply its probation policy, but that issue was not properly before him so it was not a matter that he could rule on.

The only issue before him was the issue of the police check policy.  The MFB did not act contrary to that policy.  With that finding the Commissioner resolved the dispute that was referred to him so there was nothing left for him to determine.  With the resolution of the dispute the MFB were free to dismiss Mr Duggan within the probationary period.

That is a rather unsatisfactory result because the question of whether pre-employment conduct can be a reason for dismissal in the probationary period was never properly tested. Commissioner Wilson said that it could not, the Full Bench and the Federal Court did not say whether he was right or not, only that the question was not properly before him.

 

This question comes from an anonymous correspondent   I’m asked:

What can you tell us about Declaring a False Emergency. I have been advised that Police actually declare a “false” emergency when they pull you over using their lights and sirens.

I’ll assume this question comes from Victoria given the recent discussions on the new speed limits in that state.  The answer is that whoever has advised my correspondent has no idea what they’re talking about – but I can see the issue.  If you think that the new r 79A, that imposes a 40km/h limit, is about ‘emergency’ workers then you might think it doesn’t apply to police who say have pulled someone up for speeding as there is no emergency. For the rule to apply, so one might think, it must be a ‘false’ emergency. But that’s not correct.

First r 79A applies whenever a driver is approaching ‘a stationary or slow-moving police vehicle, emergency vehicle, enforcement vehicle or escort vehicle …’  There is no reference to their being an emergency just a vehicle of those descriptions.  Under Victorian law ‘police vehicle’ means ‘means any vehicle driven by a person who is— (a) a police officer; and (b) driving the vehicle in the course of their duties as a police officer…’ again no reference to an emergency.

With respect to exemptions from the road rules, police rely on r 305, not r 306. Rule 306 applies to ‘emergency vehicles’ so even in those states where an emergency vehicle is only an emergency vehicle when it is being used in response to an emergency, that doesn’t apply to police.  Police have an exemption from the road rules when it is reasonable in the circumstances and they are taking reasonable care. In some circumstances they don’t even need red/blue lights or a siren (Road Safety Road Rules 2017 (Vic) r 305).

Police have a number of powers to require a driver to pull over.  A police officer may give a driver a ‘direction to stop’ by the ‘use of red and blue flashing lights on; or sounding of an alarm, siren or other warning device from— a motor vehicle that is being driven by a police officer in the course of his or her duties as a police officer’ (Road Safety Act 1986 (Vic) s 64A(5)).  There is no pretence that there is an ‘emergency’.

Conclusion

Police are entitled to use their red/blue lights and sirens in order to communicate to a driver that they are required to stop.   Rule 79A applies so that other drivers are required to slow down to 40km/h when passing a stationary police car with red/blue lights activated regardless of whether the police have pulled over to issue a speeding ticket or to take part in a response to a multi-vehicle accident. There is nothing to say that the use of red/blue lights or r 79A is somehow limited to an ‘emergency’. So the premise that ‘Police actually declare a “false” emergency when they pull you over using their lights and sirens’ is wrong.

This post is about a medical negligence case from Pennsylvania (which came to my attention via Bill Madden’s ‘Medical + health law blog‘) .  The decision in this case touches on an issue that is often discussed here.  The issue is about a patient refusing consent to life saving treatment with the assertion that those called upon to assist will be sued if they don’t honour the patient’s wishes but if they do, and the patient dies, they will be sued by the family.  The inference I draw from those concerns is that doctors, and paramedics, think or fear that not only will they be sued, but that they will be successfully sued, either way.

The fact that Seels v Hahnemann University Hospital and Others 2017 PA Super 227 ever made it to the Superior Court of Pennsylvania (and before that, a trial court) may confirm the first of those fears, ie that the attending doctors or paramedics might be sued either way.  But the result however, may help ease the fear that they will be successfully sued.

The facts

Mrs Seels-Davila was a member of the Jehovah’s Witnesses faith and in accordance with her understanding of the doctrines of that faith she declined to receive human blood products.  In September 2010 Mrs Seels-Davila was pregnant and chose to deliver her baby at the defendant hospital as they operated a ‘Bloodless medicine’ program. The critical issue for this program was making sure that patients were informed of the potential consequences of their choices and the various options available to them.   The program was not a medical program in that there were no special procedures or techniques for those in the program – only that they were given the chance to express their wishes in an informed way.

Mrs Seels-Davilla was taken through the issues and confirmed her ‘request that no blood (whole blood, red cells, white cells, platelets and plasma) be administered to me during this hospitalization.’   The delivery was problematic and Mrs Seels-Davila became critically ill.  Whilst still able to, she confirmed ‘I refuse all blood components and human source products.’  Her condition continued to deteriorate and doctors and nurses urged her to reconsider her position but she remained adamant.  When she was no longer able to express her wishes both her father and her husband (who were both members of the faith) also refused to give permission for a transfusion even when it was apparent that without that treatment, she would die. The expert witness called for the family confirmed that a blood transfusion would probably have saved her life.  But no transfusion was given, and she died.

Mrs Seels-Davila’s husband, Raymond Seels, sued the hospital. His claim was not that they should have ignored her, or his, wishes but that they were negligent in the way they treated his wife in terms of how the various procedures were carried out.  In essence that there was negligence in the way a cesarean section was performed and post-operative bleeding was managed.    The trial court found that there had been no negligence and found in favour of the defendant hospital.   Mr Seels appealed to the Superior Court of Pennsylvania.

The relevance of her refusal

There were a number of issues raised on the appeal, but only one is relevant to readers of this blog.  The issue was the relevance of her refusal of treatment.  The appellant, Mr Seels, argued that all the consent documents should not have been put before the jury (and here, note, that a case like this would not be heard by a jury in Australia).  The gist of the argument was that the case against the hospital was that they had been negligent, not that they had assaulted Mrs Seels-Davila or that her consent had not been properly informed.   Mrs Seels-Davila did not consent to negligent surgical treatment so the issue of the terms of the consent was irrelevant.

The court noted that as a general rule ‘where a plaintiff “only asserts negligence, and not lack of informed consent, evidence that a patient agreed to go forward with the operation in spite of the risks of which she was informed is irrelevant and should be excluded.”’ But that is just a general rule; evidence of the terms of consent may be very relevant if it is alleged that the negligence was a failure to give proper information (as in the Australian case of Rogers v Whitaker (1992) 175 CLR 479) or in cases where the plaintiff has consented to experimental treatment or has expressly consented ‘to any particular risks associated with the unconventional or experimental treatment’.   The Pennsylvania trial court:

…  determined that the unique circumstances of this matter rendered Seels-Davila’s consent and release forms absolutely relevant and essential to the truth seeking function of a jury trial. It would have been manifestly unjust and improper to not allow them into evidence. Indeed, rather than allowing for misconceptions to arise about Seels-Davila “consenting” to substandard medical care at Hahnemann, the consents and releases made clear that Seels-Davila, of her own free will, consistently refused to accept safe, effective, routine, and lifesaving medical treatment when she barred her doctors from administering blood transfusions, and even refused to collect and store her own blood in the event an emergency arose. There was not a shred of doubt that Seels-Davila fully understood the lifethreatening ramifications of her decision to be a “bloodless” patient, and that she specifically agreed to hold the doctors harmless for any negative outcomes of her decision.

The Superior Court agreed with the trial judge’s reasoning.

The argument is compelling.  Mrs Seels-Davila could have been easily saved.  Witnesses for both the hospital and the family agreed that with a blood transfusion she would probably have survived. In the absence of the consent forms, a jury asked to consider what would a ‘reasonable’ doctor do when faced with a patient whose condition was deteriorating rapidly and where a transfusion would save her life would no doubt conclude that failure to administer the blood transfusion was a breach of the standard of care expected from a reasonable doctor or health facility.  But the question of negligence has to be answered ‘in all the circumstances’ and in this case the circumstances included her informed and repeated refusal to accept a blood transfusion, confirmed by her family even when death was imminent.

Implications

On the one hand, this case confirms some worst fears.  If the doctors had administered blood they may have saved her life but they would have failed to respect her autonomy and may well have been sued for battery (see for example Malette v Shulman [1990] 67 D.L.R. (4th) 321).  Here they did honour her wishes and they were sued by the family, led by her husband who had, when asked ‘also declined to assent to the transfusion, saying that he did not want to go against his wife’s wishes or submit her to medical treatment that violated her religious beliefs.’

However, in Malette v Shulman the Canadian hospital lost when it gave blood that they knew the patient refused even though it saved her life.  In this case, the Hahnemann University Hospital won – both at trial and on appeal. That result is another example that shows the courts are willing to recognise and give priority to a patient’s informed choices (in an Australian context see Hunter and New England Area Health Service v A [2009] NSWSC 761 and Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 both discussed in my earlier post, CFA Emergency Medical Response Guidelines (March 8, 2017)).

Where a person has refused treatment, ultimately they and their family have to accept the consequences of that decision. Here, the jury found that there was no negligence in the way the surgery was performed or in the post-operative treatment. And further, the health practitioners did nothing wrong by watching Mrs Seels-Davila die when they knew they could save her but to do so would be to ignore or set aside her known, informed wishes and her genuine faith.  Her refusal to accept blood transfusions was ‘relevant and essential’ to answering the question of whether or not she received reasonable care in all the circumstances.

That’s a question I ask in an opinion piece published by Risk Frontiers.  See Should governments allow fire affected communities to rebuild?‘ (2017) 16(4) Risk Frontiers Newsletter pp 2-4.

Two other recent presentations are:

• Balancing nature conservation and risk management. Presentation to the National Parks Association (ACT) Bushfire Management – Balancing the Risks Symposium, 21 July 2017 [Extract from Symposium proceedings] [Audio].
• Eburn, M and Collins, A, ‘Recognising Limits of International Law in Disaster Risk Reduction (DRR) as Problem and Solution’.  Presentation and the International Law and Disaster Risk Reduction Symposium, University of Reading (UK), 29 June 2017. [Website][Powerpoint] [Audio].

This question follows on from my post St John Ambulance, NEPT providers and the Victorian Road Rules (July 17, 2017). To reiterate that post started on the question of whether a vehicle operated by either St John Ambulance Australia (Victoria) or a licensed Non-Emergency Patient Transport (NEPT) provider was an ‘emergency vehicle’ for the Road Safety Road Rules 2017 (Vic) and, in particular, r 79A which imposes a 40km/h speed limit for drivers as they pass a stationary or slow moving emergency vehicle that has its emergency warning lights or siren on.  My conclusion was that these vehicles are not ‘emergency vehicles’.

This led to many comments both about the merit of that rule and on whether such vehicles can be fitted with flashing warning lights at all.  As I noted in that post, a vehicle other than an exempt vehicle, can only be fitted with flashing warning lights if there is approval from VicRoads.  An exempt vehicle includes an emergency vehicle (Road Safety (Vehicles) Regulations 2009 (Vic) Schedule 2, cl 118).  An emergency vehicle includes (Road Safety (Vehicles) Regulations 2009 (Vic) Schedule 2, cl 3):

a vehicle operated by or on behalf of and under the control of—

(i) an ambulance service created under section 23 of the Ambulance Services Act 1986 or listed in Schedule 1 to that Act …

Schedule 1 to that Act lists 17 separate ambulance services that are, collectively, known as Ambulance Service – Victoria (‘AV’) (Ambulance Services Act 1986 (Vic) ss 3 and 23).  An ambulance service is a body corporate that can enter contracts and sue, and be sued (s 23(2)).  An Ambulance Service can be part of a company, association or joint venture where that is ‘incidental or conducive to the exercise of the powers of the ambulance service’ (s 16).

In the context of my original post there were comments to the effect that NEPT providers are acting under contract to AV.  That may be true but I understood, in context, the inference to be that the contract with AV was the basis of their authority to act and it also implied that they were therefore acting ‘on behalf of’ AV.  In that context, I said:

NEPT providers are not contractors to Ambulance Victoria that is to say they do not operate because of some contract with AV. They may contract with AV in that AV may outsource patient transport services by engaging the services of licensed NEPT providers but that is the same way that they may outsource the maintenance of their ambulances. The contract with AV to the extent there is one, is a business opportunity for the NEPT providers not the source of their authority to operate.

If AV is a customer of an NEPT provider it does not mean that their vehicle is being operated ‘by or on behalf of and under the control of’ AV. If I hire a taxi the driver takes me where I want to go but he or she is operating the vehicle and it’s under their control. If a person contacts AV for non-emergency patient transport and they contract with a private NEPT provider to provide that service, then AV and the patient are the NEPT provider’s customers but the vehicle is being operated by and on behalf of the NEPT provider who is operating its business.

Note that in the Non-Emergency Patient Transport Regulations 2016: Regulatory Impact Statement, the Department of Health & Human Services said (at p. 6):

More than half of the NEPT services in Victoria are provided by twenty licenced private businesses. The remainder is provided by AV. Six of the licenced private businesses also currently provide NEPT services under contract to AV.

So 6/20 NEPT providers act ‘under contract’ to AV. Further ‘The Minister of Health has also stated publically that NEPT transports currently undertaken by AV are to be transferred to the NEPT sector.’

In writing that I had a particular business model in mind but my comments have led to confusion.    As one correspondent has written:

I know you said that NEPT cars contracted to do AV work are not emergency vehicles but granted they maintain AV issued radios and MDTs as well as being Dispatched to emergency (code 2 and 3 via Triple Zero) and non-emergency cases (code 4) both via ESTA and basically directed and controlled by the AV DM and clinician, can that not be argued that they are being contracted to and operated on behalf of Ambulance Victoria.

I mean essentially, the contract is the NEPT company provides the vehicle and the staff, and AV has full control over it without the NEPT company’s interference and it is treated as an AV resource.

Like in the taxi scenario, if13 Cabs is providing the driver and the taxi but if it is taking jobs from Silver Top Cabs due to a contract, is the 13 Cabs operating on behalf of Silver Top Cabs despite it being a 13 Cabs car?

Also, in some rural areas, the CPAV is contracted out to NEPT companies to respond to Emergency calls at the request of AV paramedics and sometimes these are requested code 1. Would these then be considered as emergency vehicles operated on behalf of Ambulance Victoria?

This was not the point of my original post so I will now try to clarify my thinking.  Note however there is not going to be a definite answer here.  What there will be are arguments.  Resolving the issue in any case would require a judge to make a decision but this is unlikely to ever be a matter that will occupy a judicial officer other than, perhaps, a magistrate.

The issue is what does ‘operated by or on behalf of and under the control of’ an ambulance service mean?

‘Operated by’ is probably pretty clear.  As noted an ambulance service is a legal entity so it can own assets.  Where an ambulance service owns its own fleet, that fleet is operated ‘by’ that ambulance service.  Those vehicles are an emergency vehicle so can be fitted with flashing lights.  This I would suggest also applies to vehicles that the ambulance service may not own.  The ambulance service may establish a subsidiary company to operate its fleet or may use some fleet management or leasing company to provide the ambulances.  But if the vehicle is incorporated into their service, operated by their staff etc one would, I suggest, conclude that the vehicle is operated ‘by’ the ambulance service.

‘Under the control of’ may also be reasonably clear.  Where the vehicle is still incorporated into the work of the service and it is the service that determines how and when the vehicle is used.  Like an employee/employer relationship, the more authority that the service has to decide what jobs the vehicles are dispatched to, when the staff are stood down, where the vehicle is positioned etc then one might reach a conclusion that the vehicle is being operated ‘under the control’ of the ambulance service.

‘On behalf of’ is more controversial.  I suggest that a private NEPT provider is acting on its own behalf.  If it’s a for profit exercise it is making services available that may be available to AV but they may also have other customers – private hospitals, nursing homes etc.  They are acting on their own behalf.

Let me draw an analogy with the airline industry (the details that follow are no doubt incomplete but I think they make the point). I am a regular flyer with Qantas.  If I fly from Canberra to any capital city, other than Sydney, I’ll get on jet aircraft that is clearly marked ‘Qantas’.  I don’t know if Qantas own the aircraft, or lease it, but I would suggest that aircraft is operated ‘by’ Qantas.

If I fly to Sydney I may get a Qantas aircraft, but often it will be a Boeing 717 or Bombardier Q400 and these aircraft are marked ‘QantasLink’.  My ticket will say that this flight is operated by Eastern Australian Airlines on behalf of QantasLink.  I don’t know who Eastern Australian Airlines are but I can’t book a flight with them except by booking with QantasLink.  They don’t operate their own services, they operate only as QantasLink.  The crew all wear QantasLink uniforms and I suggest that QantasLink (no doubt guided by its parent company, Qantas) set out details on how the flight is to be run, standards for crew behaviour and presentation, script the emergency briefing etc.  I would suggest that this is a flight operated ‘under the control’ of QantasLink.

During the mid-1980’s there was a pilot’s strike.  At that time Qantas, chartered aircraft from Air Canada.  I can’t remember where I was going but I remember getting on an Air Canada aircraft.  The plane was clearly an Air Canada plane, the crew wore Air Canada uniforms and I would suggest the policies and procedures used during that flight were those of Air Canada. But I the days of the two airlines policy Air Canada couldn’t fly domestic routes in Australia.  I couldn’t log onto the Air Canada website (if there had been such a thing in those days) to book an Air Canada flight between Sydney and Melbourne.  No doubt Qantas determined the routes and the timetable but Qantas were not operating the aircraft.  I would suggest those aircraft were being operated ‘on behalf’ of Qantas; but not ‘under the control’ of Qantas (even if Qantas did set the destination and timetable).

Today if I fly to Europe, Qantas flights go through Dubai. My booking may say I’m on a Qantas flight but when I get to the airport I’m clearly getting on an aircraft owned and operated by Emirates.  I could log onto the Emirates website and book a seat on the same plane with an EK flight number.  So Emirates have an agreement with Qantas to operate the flight on a ‘code share’ basis and to offer various services to me as a Qantas passenger, but they are not operating the flight on behalf of or under the control of Qantas. It is an Emirates flight and the agreement they have with Qantas they have because they think that it is in the best interests of Emirates and its shareholders.

What’s the relevance to ambulance services?  Assume I’m an inpatient in a hospital and I need to be transported somewhere.  The hospital books NEPT with AV.  A vehicle turns up marked ‘Ambulance Victoria’.  The crew are wearing AV uniforms.  It is an AV dispatcher that has determined which car is to be allocated to transport me.  AV determines the salary, and uniform of the staff and supplies all the equipment in the car.  I don’t know who owns it and I don’t care.  I would suggest that is a vehicle being operated ‘by’ AV.

Assume that AV have entered into arrangements with some private hospitals and private health insurers and have created ‘Ambulance Victoria NEPT Service’ as a separate legal entity.  Assume that service only accepts tasks from AV.  The AV despatcher decides which vehicle is assigned to a job and AV sets standards that the subsidiary company is required to meet.  I would suggest that might be an example of a service (and therefore a vehicle) that is being operated ‘on behalf of and under the control’ of Ambulance Victoria.

Assume now that I’ve set up an NEPT service – Michael Eburn’s Victoria NEPT Service.  I employ my own staff, meet the requirements of the NEPT regulations but to the extent there’s flexibility I determine the manner in which the company operates.  AV is one of my customers but so are local hospitals and others.  My company is not being run ‘on behalf of and under the control’ of Ambulance Victoria.  If I’m transporting a patient where the client rang AV and AV were unable to provide the service and therefore asked me to do it, then one might say that I’m acting ‘on behalf of’ AV but my service is not being run ‘on behalf of and under the control’ of Ambulance Victoria – and the ‘and’ means both must be true.

My correspondent has set out other scenario and asked whether it could be argued that these services are being operated ‘on behalf of and under the control’ of Ambulance Victoria.  The answer is yes, it could be argued that.  The more control that AV has, that is the more ‘AV has full control over it without the NEPT company’s interference and it is treated as an AV resource’ the more likely it is that one might conclude the vehicle is being ‘operated on behalf of and under the control’ of Ambulance Victoria.

The issue is more theoretical than real

But the reality is the issue is largely irrelevant. The conversation began with s 79A and would these vehicles be ‘emergency vehicles’.  They might be, but r 79A is largely unenforceable. If it is enforceable one has to imagine the police are there with a radar/lidar operation. All it takes is there to be one other emergency vehicle, or for the police vehicle to have its red/blue lights on and the lower speed limit applies.  If the NEPT vehicle is the only vehicle there, a person who doesn’t slow down isn’t going to get prosecuted anyway.

And if someone does get a ticket for driving past an NEPT vehicle (and no other emergency or police vehicle with its red/blues on) and if that driver choses to take the matter to court and if that driver thinks to argue – ‘but that wasn’t an emergency vehicle’ then I suggest a Magistrate is likely to take a pragmatic view – You saw there was an accident; you saw there was an NEPT vehicle with red/blue flashing lights; you saw the crew was working there, but still you didn’t slow down?’  A magistrate may well decide to hold that the vehicle was an emergency vehicle noting that this does not create a ‘precedent’ that other judges have to follow.  A decision to that effect may not be correct according to the strict reading of the law but Magistrates have to move through their list.  An appeal to the Supreme Court may be get down to the sort of discussion here but not many people are willing to take a traffic ticket to the Supreme court.  Alternatively, if you don’t slow down in those circumstances and there’s an issue of whether the vehicle was an emergency vehicle, the police could allege negligent driving or driving at a speed dangerous in the circumstances so there are still offences that could be charged even if not a breach of s 79A.

What of the exemption under r 306?  An NEPT vehicle is transporting a patient who goes from ‘non-urgent’ to ‘urgent’ so the driver activates the red/blue lights and proceeds through a red light whilst taking the person to hospital.  If the vehicle is not an ‘emergency vehicle’ r 306 doesn’t apply.  But again, a pragmatic police officer may decide not to issue the fine after reviewing the red light camera and hearing the story.  And he or she might, on the report, say that they relied on s 306 and even if that’s not correct, who’s going to challenge that?   And if the police officer does issue a ticket, and the driver choses to take the matter to court, a magistrate may again take a pragmatic view and agree that in the circumstances it was an emergency vehicle even if that’s not the letter of the law – remembering that the Magistrate’s decision is not binding on anyone else. If the magistrate does that and everyone’s happy that’s the end of it.  If the Magistrate accepts that the vehicle was not an emergency vehicle, the magistrate may apply the rule of necessity and say that even in the circumstances there was a defence and find the driver ‘not guilty’.  Or he or she may find the offence proved but take no action imposing no conviction and no penalty.

If the action was dangerous, it does not matter whether the vehicle is an ‘emergency vehicle’ or not as r 306 only applies if the driver was taking ‘reasonable care’.

What about fitting warning lights? That’s relevant.  If the vehicle is operated ‘on behalf of and under the control’ of Ambulance Victoria then the permission of VicRoads is not required to fit flashing warning lights.  A prudent NEPT provider, even a subsidiary company owned by AV (Ambulance Victoria NEPT Service in my example above) should seek permission from VicRoads to ensure that there is no dispute as to what they are allowed to have fitted to their vehicle.  And if you can argue that an NEPT vehicle when transporting a patient under contract to AV is acting ‘on behalf of and under the control’ of AV then they can have lights fitted then, but not when they are transporting a patient for another client, in which case they’d have to remove the fitted lights – or get permission from VicRoads.

Who will see this as important?

The issue will only be a real issue for an NEPT provider who wants to fit red/blue lights but either doesn’t want to get permission from VicRoads, or VicRoads has refused permission. If the operator can argue that their vehicle is operated ‘on behalf of and under the control’ of Ambulance Victoria’ then they can fit the lights regardless of VicRoads’ attitude.   But the argument that ‘we might have to stop at an accident’ or ‘we might be tasked by AV’ or even ‘we may be tasked by AV to an emergency’ may be good reasons for VicRoads to give permission but they will not convert the non-emergency patient transport vehicle (emphasis added) into an emergency vehicle as defined by the road rules.  And, as noted above, even if it is the case that when providing the service under contract with AV the vehicle is operating ‘on behalf of AND under the control’ of AV then they could have flashing lights fitted but would have to remove them when they were providing other patient services.   Accordingly the argument, if it could succeed would only be helpful if the NEPT provider’s one and only client was AV.  The alternative is to get permission from VicRoads.

Conclusion

To be an emergency vehicle (in the context of an ambulance) it has to be a vehicle that is ‘operated by or on behalf of and under the control’ of Ambulance Victoria.  What that means is arguable. The more control that AV has, that is the more ‘AV has full control over it without the NEPT company’s interference and it is treated as an AV resource’ the more likely it is that one might conclude the vehicle is being ‘operated on behalf of and under the control’ of Ambulance Victoria.

 

 

 

 

 

 

 

 

Today’s question comes from:

… a member of 2 NSW Emergency Services, I know the legislation for each agency, and they both are quite defined and powerful. I also know of a recent incident where there was an overlap and there was a significant grey area as to responsibility and who was in control of the incident. I know the ideal world would have no issues, however during emergencies and disasters, publicity and ego’s get in the way and lines get even more blurred.

The Incident: Gas Cylinders floating in flood water that was beyond the confines of the normal path of the river that was in flood…  FRNSW could be defined as the Combat Agency as it was a HAZMAT incident, however it occurred in flood water that has NSWSES as the Combat Agency.

So, my question is: Who’s responsible for this incident overall, i.e. which agency reports to the other as the Incident Controller.

The Fire Brigades Act 1989 (NSW) says (at s 6(2)):

It is the duty of the Commissioner to take all practicable measures:

(a) for protecting and saving life and property endangered by hazardous material incidents, and

(b) for confining or ending such an incident, and

(c) for rendering the site of such an incident safe.

The State Emergency Service Act 1989 (NSW) says (s 8(1)):

The State Emergency Service has the following functions:

(aa) to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis,

(a) to act as the combat agency for dealing with floods (including the establishment of flood warning systems) and to co-ordinate the evacuation and welfare of affected communities…

It is also a function of the SES to ‘to assist, at their request, members of … Fire and Rescue NSW … in dealing with any incident or emergency’ (s 8(1)(g)).

One can see the argument.  If the gas bottles are posing a threat to ‘life and property’ then presumably they’re a hazardous material and it’s the job of Fire and Rescue NSW to make it safe.  Equally flood waters are full of all sorts of hazards.  As NSW SES says ‘Floodwater can contain things like rubbish, dead animals, sewage and other contaminants such as poisons. It is safer to stay clear of floodwater. It is not a place to play.’  If the SES have the function to ‘protect persons from dangers … arising from floods’ then this is just another danger.

So who’s in charge? The state emergency plan is required to ‘identify, in relation to each different form of emergency, the combat agency primarily responsible for controlling the response to the emergency’ (State Emergency and Rescue Management Act 1989 (NSW) s 12(3)(a)). The doctrine set out in the Australian Inter-agency Incident Management System (AIIMS) is that the combat agency has an incident controller who is responsible for the response. But that doesn’t help define whether this incident is best classified as a flood incident where the SES require the assistance of NSW Fire and Rescue; or a hazardous materials incident where Fire and Rescue require the assistance of the SES.

If both agencies are on scene, one would hope that it would not come down to who is the incident controller, as the agencies would work together.  They would assess the risk – what’s the water doing? What are the gas bottles going to do?  How dangerous is it? Do the SES members really want to handle the hazardous material? Do the fire crews really want to enter the flood water and do they have a boat?   If it’s a flood and the SES provide the IC, he or she can call on Fire and Rescue to deal with the hazardous materials and no doubt the SES floodwater technicians will help if required.  If it’s a hazmat material and fire and rescue provide the IC then they could call on the specialist flood water technicians and flood boat operators to help if required.

But there is some law. For each local area, there is a police officer appointed as the Local Emergency Operations Controller (or LEOCON) (State Emergency and Rescue Management Act 1989 (NSW) s 30).  The LEOCON is ‘responsible for controlling … the response to an emergency that affects only that area’ but not if ‘there is a single combat agency primarily responsible under the State Emergency Management Plan for controlling the response to the emergency…’ (s 31).  But if there really is a disagreement about whether, in this example, it’s a flood or a hazmat incident there is no ‘single combat agency’ so the LEOCON could take control and give directions to both Fire and Rescue and the SES to play together.

Ultimately the ‘State Emergency Operations Controller may assume responsibility for controlling the response to an emergency from the combat agency primarily so responsible under the State Emergency Management Plan if:… in the case of any disagreement on the matter, the Minister has directed the Controller to do so’ (State Emergency and Rescue Management Act 1989 (NSW) s 19).

If the commanders on scene can’t work together so that the matter gets elevated to the LEOCON or worse, to the State Emergency Operations Controller (which would also involve both agencies headquarters staff) one would have to consider it a failure of leadership by everyone involved.

The simple answer should be the agency that takes the lead should be the agency best placed to take the lead in all the circumstances.  The issue of who is the ‘incident controller’ is irrelevant.

 

 

 

 

A Victorian correspondent tells me that:

There’s a discussion unfolding in my confined space group regarding first responders not wearing adequate PPE for the identified hazards in an industrial setting.

As an example, if an Ambulance crew or Fire crew respond to a refinery, and the refinery has specific PPE requirements such as long sleeves, long pants, hard hats and goggles (all quite common in a refinery), but they deem it unnecessary (the Vic OHS Legislation affords exemptions to certain requirements for responders) where does the liability and the legal ramifications (if any) stop and start if they’re injured?

Likewise, in the same vain, if a crew is stopped at a gate and told they must comply with the requirements and the response is delayed which impacts on patient care, is there issues there too?

This is about the Occupational Health and Safety Act 2004 (Vic). (If only Victoria has adopted the Work Health and Safety Act 2011 it would make answering these questions so much easier; but they haven’t). Under the 2004 Act (s 21):

An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.

Further, under s 23:

An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.

Putting aside the question of volunteers that means the employer of the ambulance or fire crew has to take steps to ensure their health and safety. In a perfect world there’s been a risk assessment and consultation with the workers and PPE suitable for the sort of work those crews are likely to face are provided.  For fire crews we see that the turn out gear includes boots, trousers and jackets, helmets, gloves, eye protection, breathing apparatus etc. No doubt ambulance crews also have gloves, hard hats, eye protection etc.  When selecting PPE the services have to consider the broad range of situations that their crews will face including entering into workplaces that themselves pose a risk.

By the same token, the operate of a factory has to ensure that its staff have PPE and that others are not exposed to risk so for example, visitors are not allowed on the site without the PPE commensurate with the risk on site.  There are exemptions from some requirements for emergency service employees (see Occupational Health and Safety Act 2004 (Vic) ss 42 and 50) but we need not concern ourselves with these in this answer.

What follows is that there are two duty holders. The emergency service organisation owes a duty to ensure the safety of its staff and the owner of the business where the emergency has occurred also has a duty to ensure that those coming onto the site, the emergency staff, are not put at risk by that workplace.  The question really is, what is the risk?

The factory/refinery/plant may have PPE requirements that apply because of the various hazards in the work of the industry. But if there’s an emergency such that police or ambulance have been called perhaps the work place has been shut down so those risks are not present.  In any event it’s hard to imagine that in most workplaces the PPE worn by responders, at least fire fighters, isn’t going to be better than that worn by the factory workers.  So a security guard who says, for example, ‘the factory policy is that you can’t come here without a high-viz vest and a hard hat’ to an ambulance paramedic who is coming to treat a patient who’s collapsed in the car park is probably being over-officious. No doubt other emergency services, like the fire service, would rely on their statutory authority to force entry.

On the other hand, the security guard who says ‘this is a highly secure chemical laboratory and we’re not going to let you in because if you go in there, there is material that will kill you or you will release some microbe and cause Armageddon’ is meeting his or her duty. And the paramedics or fire fighters would be wrong to insist on being allowed in (see also Laboratory safety (April 7, 2016).

Ideally the responders need to listen to the PCBU that operates the business to understand what hazards there are and the PCBU that operates the business needs to warn the responders if there are particular hazards.  The factory or plant should have its own emergency plan and if there are extraordinary hazards that should be communicated to the local fire and other emergency services, in other words the emergency services should be involved in the planning so everyone knows what is required in the response.  If, on the other hand, the insistence on some PPE is simply inflexible doctrine without regard to the actual risk, given what’s actually happened, then the PCBU is not being reasonable trying to prevent the emergency services from effecting the rescue.

So ‘where does the liability and the legal ramifications (if any) stop and start?’ In simple terms it depends on who is being ‘reasonable’ or not.  Everyone has their obligations – the 2011 Act says ‘If more than 1 person has a duty … each person: (a) retains responsibility for the person’s duty in relation to the matter…’ so depending on what happens the question will be did both the emergency service and the factory or plant PCBU do all they could to ensure ‘so far as is reasonably practicable’ everyone’s safety.

 

This was a very long question regarding the new speed limit in Victoria and its application to St John Ambulance and Non-Emergency Patient Transport (NEPT) vehicles should they stop and provide assistance at an emergency.   I have edited the original question but hopefully convey the meaning.  My correspondent wrote to VicRoads asking them to list NEPT Vehicles and St John Ambulance vehicles as emergency vehicles.  They say:

I received this response from Vicroads;

‘For the rule to apply, the vehicle must be classified as an emergency vehicle and displaying flashing lights. St John Ambulance Victoria vehicles are not currently emergency vehicles for the purposes of the Victorian road rules (e.g. they do not have carte blanche exemption to the road rules as other emergency vehicles do). The definition of an emergency vehicle can be found in the dictionary of the road rules.’

This means that technically the rule would not apply to St John Ambulance Victoria vehicles…  Given the majority of drivers do the right thing by slowing down when passing any flashing lights by the roadside, it is very likely they will also slow down in the unlikely event drivers pass a stationary St John Ambulance Victoria vehicle with flashing red lights.

My correspondent goes on:

Which would correlate with a previous post from you, in that St John Ambulance doesn’t provide ambulance services. However, St John does have an obligation to stop and render assistance at Car accidents and other emergencies if flagged down, likewise NEPT providers hold the same obligations. St John also provides emergency assistance under the State Health Emergency Response Plan (SHERP) which is also documented in the Emergency Management Manual Victoria (EMMV).

By looking up the Victorian road rules legislation dictionary it can be seen that an emergency vehicle is defined as:

(a) a vehicle operated by or on behalf of and under the control of

(i) an ambulance service created under section 23 of the Ambulance Services Act 1986 or listed in Schedule 1 to that Act; or

(ii) an ambulance service created under a law in force in another State or in a Territory of the Commonwealth;

(b) a vehicle operated as an ambulance by the Australian Defence Force …

… St John other than by reference to being allowed to use the word ‘Ambulance’ is clearly not defined as an ambulance service. However in that Act I couldn’t find any reference to NEPT vehicles as they would be defined under the Non-Emergency Patient Transport Act 2003. Based on this information NEPT vehicles would also not be covered as an emergency vehicle. Which means that the new 40Km/h regulation wouldn’t apply to those vehicles either if they were using their warning devices while stopped at an accident or other incident on the roadside.

However under the road rules definitions there is also the definition of an emergency worker;

(a) the driver of, or passenger in, an emergency vehicle being operated or used in connection with the performance by that person of emergency services in the course of duty (paid or voluntary), whether in relation to a fire or a medical or other emergency; or

(b) a pedestrian performing emergency services in the course of duty (paid or voluntary), whether in relation to a fire or a medical or other emergency;

Looking at this information, could it be determined that a St John volunteer (or employee) or a NEPT employee that is stopped at the scene of an accident or other incident on the roadside and is providing assistance, is then considered an emergency worker as they are performing emergency services in the course of duty in relation to a medical or other emergency? Would this then mean in the references to emergency workers under rule 79A(2) & 79A(4) that even though the vehicle a St John Volunteer or NEPT employee is driving isn’t an emergency vehicle, the person is an emergency worker and the 40Km/h rule would apply in the vicinity of that worker so long as another service such as Vic Pol or other service arrives on scene?

If NEPT/St John staff are emergency workers under certain situations, could a NEPT or St John vehicle become an ambulance or other emergency vehicle if working under contract or under the direction of Ambulance Victoria or another emergency service such as Victoria Police, SES or Emergency Management Victoria?

Examples of instances where working under contract to another agency would come to effect would be on days of disaster such as the Thunderstorm Asthma event when NEPT services where responding to Code 1 calls, or if St John or NEPT stops at a car accident they are in effect rendering emergency ambulance assistance as per agreements with Ambulance Victoria and the Department of Health. Other instances where this would occur is during a SHERP activation where NEPT or St John could be sent to various emergencies.

Granted most members of the public wouldn’t differentiate between a NEPT/St John vehicle or an emergency ambulance, especially at a distance when driving along a road, so it would be more than expected that another motorist would slow down to 40Km/h regardless of the vehicle as it would be displaying red or blue flashing lights. However if the outcome of my previous question results in proving a vehicle isn’t able to receive temporary emergency vehicle status under another service, what would be the benefit to fitting red and/or blue lights with or without a siren to vehicles if they are not granted any exemptions or protections in Victoria?

Could it be argued that the definition of an emergency vehicle in Victoria needs to change in order to provide exemptions/protections to such services if they are being granted permissions to have red/blue beacons fitted with or without sirens?

That’s all a bit complex so I’ll work through it step by step.  First there is the new rule – see New speed limit when passing emergency vehicles in Victoria (June 20, 2017).  The rule applies to a driver approaching a stationary or slow moving ‘emergency vehicle’ that is displaying a flashing red, blue or magenta light or sounding an ‘alarm’ (Road Safety Road Rules 2017 (Vic) r 79A).  My correspondent has given the relevant definition of an ‘emergency vehicle’ and it does not include a vehicle operated by St John Ambulance Australia (Victoria) nor a vehicle operated by an NEPT operator licenced under the Non-Emergency Patient Transport Act 2003 (Vic).   So my correspondent is correct, the rules that relate to a new speed limit when approaching an emergency vehicle do not apply where the vehicle is operated by St John Ambulance Australia (Victoria) or a licensed NEPT provider.

There is also an obligation to give way to emergency workers on foot. Rule 79A(2) says:

A driver approaching a stationary or slow-moving police vehicle, emergency vehicle, enforcement vehicle or escort vehicle that is displaying a flashing blue, red or magenta light (whether or not it is also displaying other lights) or sounding an alarm must give way to any police officer, emergency worker, enforcement vehicle worker or escort vehicle worker on foot in the immediate vicinity of the vehicle.

As my correspondent has noted, an emergency worker is

(a)             the driver of, or passenger in, an emergency vehicle being operated or used in connection with the performance by that person of emergency services in the course of duty (paid or voluntary), whether in relation to a fire or a medical or other emergency; or

(b)            a pedestrian performing emergency services in the course of duty (paid or voluntary), whether in relation to a fire or a medical or other emergency;

To the extent that the St John member or NEPT provider is in a vehicle operated by their service, they are not ‘the driver of, or passenger in, an emergency vehicle’ (emphasis added) so paragraph (a) doesn’t apply to them.

To the extent that they are out of their vehicle and providing assistance then paragraph (b) may apply.  The question might be whether they are acting ‘in the course of duty’ but let us assume for the sake of the argument that they are.  If that is the case then rule 79A(2) would require other drivers to give way to the St John member/NEPT employee at the scene of the accident and in the vicinity of an emergency or police vehicle with its lights activated. In short, if there’s an accident and ambulance, police, fire or other emergency service are in attendance with their red/blue lights on, a driver has to slow down and give way to, ie not run over, those helping at the accident even if those people are not members of the fire, ambulance, police or emergency services.  Nothing surprising there.

My correspondent put it this way:

Would this then mean in the references to emergency workers under rule 79A(2) & 79A(4) that even though the vehicle a St John Volunteer or NEPT employee is driving isn’t an emergency vehicle, the person is an emergency worker and the 40Km/h rule would apply in the vicinity of that worker so long as another service such as Vic Pol or other service arrives on scene?

I think that’s right.  The 40km/h rule applies when the police, Victoria Ambulance, Fire or SES have their warning lights activated.  Rules 79A(2) and 79A(4) don’t refer to the 40km/h rule but say that the driver must give way to those working at the accident and must not speed up unless it is safe to do so.

My correspondent then asks:

If NEPT/St John staff are emergency workers under certain situations, could a NEPT or St John vehicle become an ambulance or other emergency vehicle if working under contract or under the direction of Ambulance Victoria or another emergency service such as Victoria Police, SES or Emergency Management Victoria?

I do not think  the use of the words ‘a vehicle operated by or on behalf of and under the control of’ the various services in the Victorian road rules does not require that the vehicle is ‘owned’ by the service, eg the CFA or SES may want to charter a bus as part of their emergency response.  That bus may be operated ‘on behalf of and under the control of’ that service.  It’s arguable that could apply in the right circumstances.  To the extent that St John or an NEPT provider have an agreement to provide supplementary services to the state health department or ambulance service, then to the extent that they are fulfilling that agreement the vehicle is still being operated by St John or the NEPT provider and is under their control.  If however the providers simply delivered their vehicles to Ambulance Victoria and allowed them to use them to supplement the fleet, whether that included retaining St John or NEPT members as part of their crew, then the vehicle may then be operated ‘by or on behalf of and under the control of’ Ambulance Victoria.  It really would depend on the particular circumstances.

I would add that I can’t see that where a ‘St John or NEPT stops at a car accident they are in effect rendering emergency ambulance assistance as per agreements with Ambulance Victoria and the Department of Health.’  I would want to see what sort of agreement says that will happen and that they are not stopping just because it’s the right thing to do.  As for ‘the Thunderstorm Asthma event when NEPT services where responding to Code 1 calls’ even then the vehicle is still being operated by the NEPT provider and is under their control, even if they are responding to tasks allocated to them by Ambulance Victoria.

As for the benefit of fitting red/blue lights and/or siren but given no exemption under the road rules (eg r 306) that’s a good question and one I don’t have an answer to.

Could it be argued that the definition of an emergency vehicle in Victoria needs to change in order to provide exemptions/protections to such services if they are being granted permissions to have red/blue beacons fitted with or without sirens?

It not only ‘could be argued’ but it is clearly true.  If St John Ambulance or NEPT providers are to gain an exemption under r 306 or to be included in rule 79A then yes the definition of ‘emergency vehicle’ would need to be changed.  Whether it should be changed is quite another question.

Conclusion

My correspondent moved from the new speed limit rule to the question of exemptions.  What I would conclude from the long question and answer is:

1. St John Ambulance and NEPT providers in Victoria do not operate an ‘emergency vehicle’ and so the 40km/h rule does not apply to vehicles passing them. I would add that I think that is probably irrelevant. Assuming they do have red or red/blue warning lights (an issue I haven’t addressed here) no other driver is going to know whether or not a St John Ambulance or NEPT vehicle is or is not an emergency vehicle so it won’t make any difference to their behaviour. They’ll either slow down or they want.
2. If there is an emergency vehicle also on site, then drivers are required to slow down and give way to emergency workers on foot and that could include St John and NEPT providers. Equally it’s probably irrelevant.  Most drivers are going to give way and if they’re not it’s not going to be because of some finer point on whether or not the people are emergency workers.
3. Providing an emergency medical service in cooperation with or even at the request of ambulance Victoria would not mean a St John or NEPT vehicle was being operated ‘operated by or on behalf of and under the control of’ Ambulance Victoria (or the other emergency services). More would be required.
4. I don’t know what the value of fitting red/blue warning lights and/or sirens to vehicles that are not emergency vehicles for the purposes of the road rules is.
5. To include St John or NEPT vehicles in the definition of an ‘emergency vehicle’ would require an amendment to the regulations. Whether that amendment should be made is a question I make no comment on.