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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD, Australian Lawyer. Email: meburn@australianemergencylaw.com
Updated: 16 hours 10 min ago

What professional standards for an Australian registered nurse, working for an Australian agency, outside Australia?

23 March, 2017 - 01:08

Today’s correspondent is

… a Paramedic and RN currently employed by a small business, contracted in Afghanistan. I’ve been advised that “[the company] is subject to the laws of all countries associated with the contract but ultimately it is our decision how we adapt to our environment”. This came about as Australian and New Zealand paramedic staff raised concerns about drug management practices and the lack of “Australian” standards being applied to our practice here. In other employment both in hospitals and in the ambulance service, we keep a drug register of all drugs, and whenever a drug is administered we record the details of administration in the book along with ePCRs or other clinical documentation. The company has decided that the drug register is no longer needed and that a simple “handover” sign off sheet is sufficient.

Given that I am an Australian registered nurse (and paramedic), employed for my Australian registration, and work for an Australian organisation, should Australian law and standards be applied here – given that the standard here is non-existent? Additionally given that I feel this practice is not in line with Australian standards – can my registration be at risk should something untoward occur due to poor accountability and drug management practices?

In answering this question I’ll focus on my correspondent’s status as a nurse as paramedics are not yet registered in Australia.

As an Australian registered nurse it must be the case that conduct when overseas would be relevant to professional registration.  An Australian registered nurse, working for an Australian organisation who demonstrated sub-standard skills or engaged in conduct that demonstrated that they were not a fit and proper person to be a nurse (eg offending against patients in their care) could and should expect that this would impact upon their registration.

Health Practitioner Regulation National Law

However the provisions of the drugs or poisons legislation in each state is not part of the nursing standard.  If we look at the Health Practitioner Regulation National Law (which is Schedule 1 to the Health Practitioner Regulation National Law Act 2009 (Qld) but which has been adopted in all Australian states and territories) it refers to ‘unprofessional conduct’ and ‘unsatisfactory professional performance’.  Unprofessional conduct means:

… professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes—

… (c) the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession;…

Unsatisfactory professional performance means ‘the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.’

Handing out scheduled drugs, in Afghanistan, without completing the paperwork that would be required in one’s home state would not be contrary to the Australian law.  The relevant law would be the Afghan law (if there is one).   Assuming the conduct is not in breach of any Afghan law then paragraph (c) of the definition of ‘unprofessional conduct’ won’t be relevant.

The critical issue is what can be expected from a ‘health practitioner of an equivalent level of training or experience’ operating in those circumstances.  And the experience of being in Afghanistan is part of the relevant experience.   For example is completing a drug register and patient record helpful if the drugs aren’t recorded ‘in’ and ‘out’ and if no-one is ever going to read the patient record documents?

The Code of Professional Conduct for Nurses in Australia

There are professional standards.  The Code of Professional Conduct for Nurses in Australia (Nursing and Midwifery Board, effective date 7 May 2013) Conduct Statement 2[2]) says that:

Nurses practise in accordance with wider standards relating to safety and quality in health care and accountability for a safe health system, such as those relating to health documentation and information management, incident reporting and participation in adverse event analysis and formal open disclosure procedures.

And (Conduct Statement 2[3]) “Nurses’ primary responsibility is to provide safe and competent nursing care.”  But what is ‘safe’ and ‘competent’ has to take into account all the circumstances including, in my correspondent’s case, that they are working in Afghanistan and not Australia.  That would mean that as a nurse they still need to take responsibility for their own conduct in providing ‘safe and competent nursing care’ (Conduct Statement 1[1])) which in turn would require them to put the patient’s interests first and ‘practise nursing reflectively and ethically’ (Conduct Statement 10).   My correspondent is clearly practising ‘reflectively and ethically’ by actually reflecting on the practice in Afghanistan and considering whether or not it meets the relevant standard expected of a nurse.

Documents like the Code of Professional Conduct for Nurses in Australia are not meant to be prescriptive.  They do not say that a nurse must complete this or that record, rather they set out general principles that a reflective and ethical nurse has to consider and apply in the infinite number of circumstances in which nursing occurs.

Discussion

Conduct Statement 3[1] says

Nurses are familiar with relevant laws and ensure they do not engage in clinical or other practices prohibited by such laws or delegate to others activities prohibited by those laws.

For my correspondent the relevant laws are the laws of Afghanistan.  If convicted of administering drugs contrary to those laws that could well impact upon Australian registration, but the implication of the question is that there are no relevant laws or perhaps no meaningful way in which to comply with them.  Let us assume that is not an issue.

In that case my correspondent still has to practice ethically and reflectively and try to maintain safe and competent nursing care.    If my correspondent is actually in a war zone and under fire, keeping records may be irrelevant.  If however they are somewhere where the facilities are sub-standard and nursing staff are coping as best they can, some minimal record keeping may be required but it won’t be the case that the nurse is expected to practice nursing as they would if they were in one of the tertiary teaching hospitals in any of the Australian capital cities.  The fact that nurse can’t provide the level of care or meet the standards that the Australian community would expect if they were in an Australian hospital cannot, of itself, represent unprofessional conduct in nursing.

Just as the standards for other areas of care cannot be imported into Afghanistan, there is no reason to think that the standards for patient and drug records can be imported.  Without having been to Afghanistan, it surely has to be the case that Australian law and standards cannot be applied there.

So the nurse has to consider what can be done to provide, to the best of their ability, ‘safe and competent nursing care’.   Merely transferring the drug register from an Australian state to Afghanistan won’t do that – that’s form over substance.

I would think the answer lies in the Code of Professional Conduct for Nurses in Australia, Conduct Statement 2[3] which says, in full:

Nurses’ primary responsibility is to provide safe and competent nursing care. Any circumstance that may compromise professional standards, or any observation of questionable, unethical or unlawful practice, should be made known to an appropriate person or authority. If the concern is not resolved and continues to compromise safe and competent care, nurses must intervene to safeguard the individual and, after exhausting internal processes, may notify an appropriate authority external to their employer organisation.

If the ‘company has decided that the drug register is no longer needed and that a simple “handover” sign off sheet is sufficient’ that is not the end of the matter if, thinking about all the circumstances, the nurses involved think that is not safe and competent. Here it would be for a nurse, practising ‘reflectively and ethically’ to consider what are the risks and is there a better way to deal with it.  If they think that there is a better way then they need to raise that with their employer.  A mere assertion ‘but we wouldn’t do it that way at home’ is, I expect unhelpful.  But a statement ‘this is unsafe because of ….  What is required is [some modified process, perhaps modelled on the practice in Australia but taking into account the reality on the ground]’ might well help.  If the nurse feels that the practice the employer is asking them to adopt is unsafe and unreasonable in all the circumstances then the nurse has to ‘after exhausting internal processes … notify an appropriate authority external to their employer organisation’ or reconsider their position as an employee of that agency.

 Conclusion

The fact that my correspondent is practising nursing in Afghanistan does not mean that the Australian nursing standards do not apply.  As an Australian registered nurse, working for an Australian organisation, providing care in Afghanistan because of the Australian registration, the Australia Health Practitioner Regulation National Law and the Code of Professional Conduct for Nurses in Australia will continue to be relevant. Conduct that demonstrates lack of ethical practice or that the person is not a fit and proper person to remain registered as a nurse will be relevant whether that conduct occurs in Australia or in Afghanistan.

But that does not mean that the nurse in Afghanistan has to practice nursing as if they were in Australia.  What is appropriate conduct has to take into account all the circumstances and local laws.  To focus on the actual practice in Australia and try to apply Australian practice in Afghanistan is to miss the point of the code of conduct and what is meant by ethical practice.  It is impossible to apply Australian standards in Afghanistan – the hospitals are not the same, the nature of the practice is not the same, the access to drugs, technology, referral services etc cannot be the same. The overriding obligation is to practice safely, ethically and reflectively – so identify where the suggested practice is unsafe and how it can be improved.  The relevant question has to be not ‘Are we practising as we would in Australia?’ but ‘Are we practising in a way that is as safe and beneficial as we can make it?’


Categories: Researchers

Resuscitation of a premature newborn

22 March, 2017 - 01:11

This question comes from an ALS paramedic with Ambulance Victoria

… regarding the legalities surrounding the resuscitation of a premature baby around the 20-24 week mark please.

I was hoping to gather some information pertaining to our legal relationship with the resuscitation of the baby when the mother is refusing the baby being resuscitated? Are we legally required to attempt resuscitation even though the mother is refusing or are we legally allowed to follow the mother’s wishes?

The mother also does not have an NFR in place for the baby.

As I understand it, a baby born at 20-24 weeks is unlikely to be able to survive.  A quick google search (I know not really academic) found this article – Traci L. Powell, Leslie Parker, Cynthia F. Dedrick, et. al., ‘Decisions and Dilemmas Related to Resuscitation of Infants Born on the Verge of Viability’ (2012) 12(1) Newborn & Infant Nursing Reviews 27-32 (available at http://www.medscape.com/viewarticle/760750_6).  The authors say:

The NRP [Neonatal Resuscitation Program] endorses the American Medical Association’s code of ethics and offers recommendations for decision making when faced with resuscitation of a newly born infant. Specifically, the NRP states that resuscitation should be withheld when the gestational age is less than 23 weeks, birth weight is less than 400 grams, anencephaly is present, or with a confirmed diagnosis of trisomy 13 or 18. The Nuffield Council on Bioethics recommends that resuscitation and intensive care should not be provided to infants at a gestational age of less than or equal to 22 weeks unless the “informed” parent requests it and clinicians agree it is likely in the best interest of the infant. For infants at 23 weeks, they recommend allowing the parents to choose whether to resuscitate, but the medical team is not required to resuscitate or provide intensive care if they feel it does not benefit the infant. At 24 weeks, resuscitation and intensive care should be provided but may be withheld based on the infant’s condition and if both the parents and medical team agree it is not in the infant’s best interest. At 25 weeks or more, it is recommended that intensive care be provided.

The first point to make is that a baby is born alive when it has an existence independent of its mother.  So if the baby is born and takes a breath, or has a heartbeat or other evidence of independent existence, even if it remains connected to its mother via the umbilical cord, it is has been born alive and is entitled to be treated with respect and with all the rights, including the right to life, that apply to all people (R v Hutty (1953) VR 338).

As it has been born alive, the baby deserves to be treated but treatment should be in the best interests of the child.  There is no obligation, and even a duty not to provide treatment that is futile or not in the child’s best interests (Airedale NHS Trust v Bland [1993] AC 789).   On that basis, and assuming that the dates discussed in Powell et. al. above still reflect current medical ability (ie that the date of viability hasn’t been brought forward with advances in medical practice) then it would be prudent to withhold resuscitation on a baby under 22 or 23 weeks even if the parents wanted the baby resuscitated.      That is of course too simplistic, because paramedics are unlikely to know the gestational age of the baby and if the parents are demanding that paramedics act it would be hard to refuse to do so, but as a matter of principle what I’ve said must be the legal position.

As for the mother’s refusal that is different again.  If the premature birth were expected I would again anticipate that she would be in hospital and paramedics wouldn’t be involved.  If the birth was unexpected and happened at home with paramedics, the normal rule is that a decision to refuse treatment must be honoured.   In the circumstances I have in mind, ‘do not resuscitate’ documentation is unlikely to be in place given the baby’s just been born so that is not an issue.

A refusal of treatment, including lifesaving treatment, is only binding if it is informed, made by a person with capacity and covers the situation that applies (In Re T [1992] EWCA Civ 18).  In this case the mother may be competent and want to make a decision that applies now, ie in refusing resuscitation she knows that this applies now, when the baby needs resuscitation, but is she informed? At this stage neither she nor the paramedics know what the baby’s prognosis will be.   A parent can make medical decisions for their children but they must be motivated by the child’s best interests, not their own (Secretary of Department of Health and Community Services v B (“Marion’s case”) (1992) 175 CLR 218).

There is no doubt this would be a hard case.  If the mother appeared competent and was able to confirm that she understood the implications both of a premature birth and the consequences of refusing resuscitation, that if there had been an identified risk of premature birth this has been discussed with relevant health practitioners etc and the gestational age was known with certainty then paramedics should feel comfortable withholding resuscitation and providing comfort to mother and baby whilst transporting them to hospital. Exposing the baby to vigorous resuscitation against the mother’s wishes with little or no prospect of success is ethically and legally dubious.

On the other hand, the baby is a human being and parents can’t refuse treatment because they’d prefer it if the baby died for their own sake.  If there was any doubt as to the gestational age of the baby, the understanding of the parents or what was in the child’s best interests that doubt would have to be resolved in favour of resuscitating the baby until it could be handed over to medical staff who could make decisions based on a better understanding of the circumstances and the prognosis.

I explored some of these issues in a paper I wrote in 1997 – ‘The Legal Status of a Living Abortus’ (1997) 4 Journal of Law and Medicine 373-378.  I attach a copy here as it might be of use, but remember it is old so there will have been case law developments and some of the legislation references may be out of date, but the principles remain.

 


Categories: Researchers

National Road Rules on giving way to emergency vehicles

21 March, 2017 - 08:33

This question comes from a volunteer who has asked that I don’t identify the jurisdiction or service. My correspondent has:

…  been asked to participate on a working group to look at policy around Urgent Duty Driving by our volunteers.  My question to you is around the Australian Road Rules in relation to emergency vehicles responding to incidents.

From my understanding under those rules, road users must give way to an emergency vehicle with lights and/or siren when safe to do so, can’t pull in front of them etc etc.  Looking at European rules, has there ever been such rules making it an actual offence not to give way to an emergency vehicle, that also provides immunity to those drivers who say, move through a red light to get out of the way of an emergency vehicle and trigger a red-light camera?

If there hasn’t what would your view be on national legislation compelling road users to stay clear of emergency vehicles, including provisions exempting those users from infringements should they break the road rules themselves so as not to impede an emergency vehicle?

Also, should there be a push to implement such amendments, would this be an opportune time to include national legislation around speed limits at locations where emergency service workers are undertaking activities on or near a roadway?

The Australian Road Rules refers to the model rules prepared by the National Transport Commission.   The Commission can’t make law, it merely drafts the rules, but it is up to the States and Territories to incorporate those rules into their law with any relevant additions or variations to deal with local conditions.  They have been adopted through the following Acts, rules or regulations:

It’s not clear that Western Australia has adopted the national rules.  The West Australian road rules are set out in the Road Traffic Code 2000 (WA).  That code doesn’t make specific reference to the National Road Rules but deals with the same subject matter.

Each state can make variations to the rules so section numbering isn’t always consistent.  For the sake of this post I will refer to the Road Rules published by the National Transport Commission (February 2012 version updated to include amendments to November 2015).   You will need to refer to the legislation in any particular jurisdiction to see if there are any variations.

The answer to my correspondent’s first question – ‘has there ever been such rules making it an actual offence not to give way to an emergency vehicle, that also provides immunity to those drivers who say, move through a red light to get out of the way of an emergency vehicle and trigger a red-light camera?’ – is ‘yes’.

Under the Australian Road Rules it is an offence to ‘move into the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm’ (rule 78(1)).  It is also an offence to fail to ‘move out of the path of the vehicle as soon as the driver can do so safely’ (rule 78(2)) and to fail to ‘give way to a police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm’ (rule 79(1)).

Rule 78 ‘applies to the driver despite any other rule of the Australian Road Rules’ so that the obligation to get out of the way of the emergency vehicle overrides the other road rules, thereby given an excuse to do things such as pull over and stop in a no stopping zone or even moving through a red traffic light.  For more details, including a discussion on the difference in the law between Western Australia and every other state and territory, see Making Way for Emergency Vehicles (May 18, 2015).

My correspondent next asked – what would be my view ‘on national legislation compelling road users to stay clear of emergency vehicles, including provisions exempting those users from infringements should they break the road rules themselves so as not to impede an emergency vehicle?’  My view is that those provisions already exist.

Finally, ‘should there be a push to implement such amendments, would this be an opportune time to include national legislation around speed limits at locations where emergency service workers are undertaking activities on or near a roadway?’  As explained above, the premise here is wrong as there is no need for ‘a push to implement such amendments’ as the amendments my correspondent wants to see are already the law.  As for speed limits around emergency workers, this has been implemented in South Australia (see No Special Speed Zones When Passing Emergency Service Vehicles Except in South Australia (January 4, 2017)).   No doubt other states will be influenced by the SA experience if they consider similar measures.

The Australian Road Rules are written by the ‘the Transport and Infrastructure Council. The Council consists of the ministers responsible for road traffic matters in each state and territory, and of the Commonwealth Minister responsible for transport matters’.  It is a cooperative exercise but the Ministers are advised by the relevant departments.  If the emergency services could persuade the relevant road transport authorities that the SA model should be adopted nationally that could be done.   Whether there is any desire to do it is a matter that I can’t comment on.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Categories: Researchers

Parking to assist at an emergency

17 March, 2017 - 08:17

A correspondent sent me a link to an article in the Geelong Advertiser and reproduced in the Herald Sun online: ‘Parking fine anger: Snapped for two-minute’ (Alex Sinnott, March 15, 2017)  http://www.heraldsun.com.au/news/victoria/parking-fine-anger-snapped-for-twominute-stop/news-story/44da7158d3c50b66f8577b8c93a70c34?utm_content=SocialFlow&utm_campaign=EditorialSF&utm_source=HaraldSun&utm_medium=Facebook.  The article is a premium plus article so you may not be able to read it.  The gist of the story is that a fellow was driving when he saw a person ‘struggling to dispense of a window pane into a nearby rubbish skip’.  He stopped to help `and was snapped by council inspectors in the process. [He] later received a fine of $90 by mail.’  A spokesperson for the council is quoted as saying ‘The use of mounted cameras in vehicles has been in use for approximately five years and assist greatly in confined and/or unsafe situations’.

My correspondent says ‘Not EM related as such but where does a good Samaritan stand legally if helping at an incident for example?’

Under the Australian Road Rules, which are incorporated into Victorian law by the Road Safety Road Rules 2009 (Vic) the various parking restrictions do not apply to an ‘emergency vehicle’ (r 307) but that won’t help a private citizen who stops their private car and gets out to help.  For them, the relevant road rule is r 165 which says, amongst other things, that it is a defence if a:

… driver stops at a particular place, or in a particular way, to deal with a medical or other emergency, or to assist a disabled vehicle, and the driver stops for no longer than is necessary in the circumstances.

It is also a defence if:

… the driver stops at a particular place, or in a particular way, because the condition of the driver, a passenger, or the driver’s vehicle makes it necessary for the driver to stop in the interests of safety, and the driver stops for no longer than is necessary in the circumstances’.

A good Samaritan who stops to assist at an emergency therefore has a defence to an allegation of parking contrary to the relevant signs and parking restrictions. But note that it is a defence, it doesn’t mean that a ticket won’t be issued.    One would expect too much to believe that the parking inspectors will, or can, identify in each case what the driver of an illegal parked car is doing and when that driver is assisting at an emergency. No doubt in some cases it will be obvious, but in some it will not.  It will certainly be the case that they won’t identify what the driver was doing if the car is identified by ‘mounted cameras in vehicles’.  That is akin to red light and speed cameras, they will be triggered when the breach is observed, the camera can’t tell what the driver is doing or, in the case of red light and speed cameras, whether it’s an ambulance or other emergency vehicle that is responding to an emergency.

If a ticket is issued it does not mean the driver is guilty of the offence.  Whether you get a parking ticket or arrested for murder, it is just an allegation.  In either case the police must prove their case beyond reasonable doubt, should the defendant chose to deny the allegation.

The first thing a good Samaritan who has received a parking infringement notice should do is follow the instructions on the back of the ticket and write a letter to the police or enforcement agency explaining the situation and providing whatever details and evidence they can to identify the emergency and that they were assisting.   Information such as the identity of the police who were in attendance and a copy of any statement given to police that explains what they saw and their involvement in the event would help.  If other people involved in the event can provide a supporting statement that would also help.

If the police or council don’t withdraw the penalty the driver can elect to take the matter to court.   As the defendant, they have an evidentiary burden which means they have to give some evidence that they were stopped to assist at an emergency, but that could be nothing more than their own statement.  Once the matter is raised, the police or council must prove, beyond reasonable doubt, that they were not assisting at the emergency or that they stopped for longer than was necessary in the circumstances.

That is no doubt inconvenient but as noted, you can’t expect that in every circumstance the parking enforcement officers will correctly identify what is going on. They will see a car parked contrary to the relevant signs and rules.  If there is also a massive accident and lots of people helping they might infer that is what is going on but there are so many possibilities that it may well happen that even though the driver is assisting at an emergency, the parking officers, or the mounted camera, won’t identify that.  It is for this reason that we have the rule of law, and courts.  Police and council inspectors make allegations, ultimately it is courts, that have the chance to review all the evidence that everyone wants to bring, that determine guilt or innocence.

 

 

 


Categories: Researchers

Breaching a NSW levee bank to relive downstream flood pressure

11 March, 2017 - 01:09

 

A question from the NSW SES in the Murray/Murrumbidgee regions.

In this part of the world there are a great many raised irrigation channels criss-crossing the countryside and they make very effective levee banks which can and do impede the flow of flood water.  In the flood event last spring, as in previous events, it was suggested that an irrigation channel should be breached in order to allow flood water to escape, thus avoiding inundation of properties at threat.  Often the consequence, apart from the damage to the irrigation channel, will be inundation of properties downstream of the breach, but such inundation would cause less damage than if the channel were not breached.

In such circumstances Local Emergency Management Committees usually look to the SES Incident Controller to make the decision to breach an irrigation channel.  The questions I have on this are:

(1)    Does the SES Incident Controller have the legal authority to order such a breach?  If not, who does?

(2)    If the breach causes consequential damage downstream that would not otherwise have occurred, is the person who ordered the breach then liable to be sued for damages?

(3)    Who is responsible for repairing the breach after the flood has passed?

(1)    Does the SES Incident Controller have the legal authority to order such a breach?  If not, who does?

The critical issue here is that there is no power to order such a breach under the State Emergency Service Act 1989 (NSW).  Under that Act the Commissioner, acting through his or her delegate can exercise powers ‘to evacuate or to take other steps concerning persons’ (s 22) and ‘take other safety measures’ (s 22A).   The ‘other safety measures’ are:

(a) the shutting off or disconnecting of the supply of any water, gas, liquid, solid, grain, powder or other substance in or from any main, pipeline, container or storage facility in an emergency area or any part of an emergency area,

(b) the shutting off or disconnecting of the supply of gas or electricity to any premises in an emergency area or any part of an emergency area,

(c) the taking possession of, and removal or destruction of any material or thing in an emergency area or any part of an emergency area that may be dangerous to life or property or that may interfere with the response of emergency services to the emergency.

None of those powers would include a power to damage an irrigation channel.   Breaching a levee is not ‘shutting off’ the supply of water.  Further the levee is part of the land, that is ‘real property’ and it is my opinion that it would be not be covered by the term ‘any material or thing’.

Remember too that the Commissioner can only exercise those powers when dealing with an emergency caused by a flood (ss 8(1)(a) and 19).   Flood is not defined.  If we take the definition of flood that was adopted for insurance purposes after the Queensland 2011 floods (Insurance Contracts Act (Cth) 1984 s 37B and Insurance Contracts Regulations 1985 (Cth) r 29D), flood means:

… the covering of normally dry land by water that has escaped or been released from the normal confines of any of the following:

(a) a lake (whether or not it has been altered or modified);

(b)  a river (whether or not it has been altered or modified);

(c) a creek (whether or not it has been altered or modified);

(d) another natural watercourse (whether or not it has been altered or modified);

(e) a reservoir;

(f) a canal;

(g) a dam.

Water in an irrigation channel is not a flood though it may become a flood at some later point.  If the flood is occurring down river then the action of breaching the levee bank could be a response to the flood emergency but that doesn’t change the fact that there is no specific power in the Act to take that action.

Who does have such power?  The answer is the Minister in the event of a declared state of Emergency.  When an emergency has been declared (State Emergency and Rescue Management Act 1989 (NSW) s 33) then the Minister, through his or her delegate, can exercise various powers.  The Ministers powers (s 38) include the power to ‘take possession and make use of any person’s property’.  If the Minister took possession of the land (the ‘real property’) that included the levee he or she could use that property and the surrounding land as an ‘escape valve’ to release the water.

(2)    If the breach causes consequential damage downstream that would not otherwise have occurred, is the person who ordered the breach then liable to be sued for damages?

No, the person who, in good faith, ordered the breach will not be liable for damages.  The person appointed as the incident controller or otherwise exercising powers under either the State Emergency and Rescue Management Act 1989 (NSW) or the State Emergency Service Act 1989 (NSW) is not acting in his or her own affairs but, ultimately, as the delegate of the state of New South Wales.  Where they are an employee their employer will be vicariously liable and I have argued elsewhere that will also be true for volunteers.   That would be true even if they acted without lawful authority because the whole point of vicarious liability is to apply when there has been a default.   There is NO chance that it would be the individual that would be the source of damages, it would be the State of New South Wales.

Would the landowner be entitled to compensation? State Emergency and Rescue Management Act 1989 (NSW) says (s 33):

(2) If the property of a person is taken or used under this section that person is to receive such compensation as may be determined by the Minister, but is not entitled to receive compensation.

(3) Any such person may apply to the Premier for a review of any determination as to compensation made by the Minister under this section.

So if the Minister takes possession of a person’s land and uses that as a place to release waters to reduce the impact of the flood downstream, the Minister is to determine the amount of compensation paid but it is an ‘ex gratia’ payment, that is there is no ‘right’ to the payment.  An appeal from the Minister’s determination lies to the Premier.

But just because that is what the Act says there is no entitlement to compensation under the Act, it doesn’t mean that there are not other legal remedies the landowner could apply.  What’s happening is that the landowner is being asked to fund the mitigation of properties downstream.    In Whalley v The Lancashire and Yorkshire Railway Company (1884) 13 QB D 131 following unprecedented rainfall, water built up against and was threatening to destroy an embankment.  To protect their embankment, the defendant railway company cut trenches to allow the water to escape onto the plaintiff’s land doing more damage than would have been done if the water had been allowed to accumulate where it was.  It was held that the defendants had no right to protect their property by transferring the potential damage from their own land to that of the plaintiff, and they were liable.

The situation mentioned here is not quite the same as it’s not the downstream property owners that are seeking to damage someone’s land to protect their own, but the SES but the principle is similar.  If the land along the irrigation is not going to flood, being protected by the irrigation channels that are there, deliberately damaging the levee to release the water and thereby causing the land that was otherwise not going to flood to suffer damage, is to ‘transferring the potential damage from [the downstream] … land to that of the plaintiff’.

The presence of s 33 may give rise to an argument that a common law remedy was removed but if the SES purported to act, given no express statutory power, then the State of NSW would be liable to make good the damage.   There are arguments of necessity in the sense of acting for the greater good, but I don’t think they’d work.  Necessity may be a defence to say touching someone to act in that person’s best interests, or for breaking the law (see The Doctrine Of Necessity – Explained (January 31, 2017)) but it’s not going to justify harming A for the benefit of B where A is in no way responsible for the harm occurring to B.   One simply can’t justify prioritising one person’s interests over another to that extent.

(3)    Who is responsible for repairing the breach after the flood has passed?

Fundamentally whoever owns it but in light of the discussion above, they could expect the State to meet those costs, if not actually arrange the repairs.

Conclusion

I was asked three question.  My answers are:

  • Does the SES Incident Controller have the legal authority to order such a breach?  If not, who does?

No, an SES Incident Controller relying on the State Emergency Service Act does not have that power.  The only person with that power would be the Minister during a declared state of disaster (but that would be delegated to the relevant Incident Controller).

  • If the breach causes consequential damage downstream that would not otherwise have occurred, is the person who ordered the breach then liable to be sued for damages?

No the person who ordered the breach would not be liable. The State of NSW would be liable, subject to any limitation on the common law that may be implied by the State Emergency and Rescue Management Act 1989 (NSW) says (s 33).

  • Who is responsible for repairing the breach after the flood has passed?

The owner but he or she could look to the State of NSW to contribute to if not meet the costs.

Important disclaimer

I thought hard about whether I should answer this question.  My correspondent said these questions came up at a meeting and ‘we all thought we knew the answer.  However, I’m not absolutely confident that we have it right’.  I was not told what they thought the answer was, so I don’t know if what I’ve written will confirm their view of the answer, or confirm that they were right not to be confident.

I would not have answered it if I thought the SES Incident Controller did have the power to order a breach.  On the page ‘about’ I say ‘This is not a place for providing specific legal advice, so I won’t be able to answer questions that are based on actual events’ nor would I want to give advice that I thought may be acted upon to cause significant damage.  If I said there was authority and someone acted on what is meant to be no more than a coffee shop chat, that would be risky for them and for me.  Where the advice is ‘you don’t have the power’ I feel more confident as no-one’s going to go and cause thousands of dollars of damage on my say so.

Even so, it should be noted that the issues raised by these question have been glossed over here and in particular I don’t have time to explore the relevant common law principles in sufficient detail.

My answer is that there isn’t relevant authority (at least not with the SES), but if the region thinks that this should be an option then the matter needs to be referred for professional legal advice, not a blog discussion.  NSW SES these days have an in-house lawyer who would be the first person to raise this with to explore in more detail whether or not the common law would be relevant, whether the SES Act should be amended or whether a relevant power could be incorporated via the Local Emergency Management Plan.

No one should rely on this blog as the final answer or the basis for future action.

 


Categories: Researchers

CFA EMERGENCY MEDICAL RESPONSE GUIDELINES Part 2

9 March, 2017 - 01:54

After writing my post MFB First Responders and Withholding Resuscitation (March 7, 2017) I was sent copies of two relevant CFA guidelines – EMR A 180 00 Do Not Resuscitate Orders (Issue 3, November 2004) and EMR A 185 00 Withholding of Treatment (Issue 1, November 2004).  These formed the basis of my post CFA Emergency Medical Response Guidelines (March 8, 2017).   Because of that post I have now been sent the complete set of CFA Emergency Medical Response (EMR) Operational Guidelines.  In that document, there are two more guidelines that causes me concern.  They are:

  • EMR A 140 00: Medical practitioner at the scene (Issue 2, November 2004) and
  • EMR A 140 01: Medical practitioner at the scene (Issue 2, November 2004).

EMR A 140 00 says

1. Firefighters may only hand their responsibility for patient care over to an on-duty AV crew, or a qualified medical doctor.

1.1 Doctors who elect to provide care on scene are accepting legal responsibility for the care of the patient.

EMR A 140 01 says:

1. When a medical doctor offers to provide assistance at the scene of an incident, CFA personnel should adhere to the following:

1.1. Determine if the person is a medical doctor and whether they are licensed to practice medicine in Australia;

1.2. Are they willing to take responsibility for the patient?

2. If yes:

2.1. Document the doctor’s name, address and telephone number on PCR form;

2.2. Hand responsibility over

2.3. Familiarise the doctor with CFA procedures and equipment as required;

2.4. Request doctor to sign PCR form prior to leaving scene; and

2.5. Assist, under the direction of the doctor.

3. If no:

3.1. Respectfully decline offer of assistance

3.2. Continue patient care according to EMR procedures

3.3. Handover patient care to AV crew when they arrive

The problem, and error, with both guidelines is the claim that ‘Doctors who elect to provide care on scene are accepting legal responsibility for the care of the patient’.  There’s no basis to believe that.  First it assumes that someone has legal responsibility but responsibility can be shared.  A doctor who is assisting firefighters is doing just that, assisting.  Doctor’s are not magicians nor do they have some fantastic rank or authority over everyone else.  They are trained medical practitioners.  If firefighters and a medical practitioner are working together in the best interests of the patient they are responsible for their own decisions and actions.  Each, too, would have some responsibility to supervise the other, so if the firefighters thought the doctor wasn’t helping it would be incumbent upon them to ask the doctor to leave, and if the doctor thought the firefighters weren’t doing something right it would be incumbent upon them to mention their concern.

That’s how it should work with paramedics and nurses too.  In hospitals nurses are responsible for nursing and doctors for medical care but they also have to flag with each other concerns for the patient or their care.  Days of subservient respect for doctors and the belief, and fiction, that everyone is working at the direction of the whim of the doctor are long gone.

That is a team work approach to acting in the best interests of the patient.  So a Doctor who elects to provide care on scene must accept legal responsibility for his or her actions and decision making, and the firefighters remain responsible for theirs.

The only circumstance where it might be correct to say the doctor is ‘accepting legal responsibility for the care of the patient’ is where the doctor is the patient’s treating doctor.  Perhaps someone has found their ‘90 year old, cold, lifeless great grandmother’ and has called both triple zero and the family doctor.  In that case the doctor may appear, identify him or herself and satisfy the firefighters that they are the patient’s doctor, and ask the firefighters to cease resuscitation.  In that case one could rightly say that the doctor was responsible for the decision to withhold resuscitation.  That is however quite different from a doctor observing that firefighters are doing CPR and coming over and offering to help.

EMR A 140 01 builds on that misconception.  The first thing to note is that when considering a doctor’s offer of assistance, firefighters are not directed to consider whether or not they actually need any help.   Can you imagine being a doctor, seeing firefighters performing CPR, offering to help and being asked ‘are you willing to take responsibility for the patient?’  The shock of realising that the firefighters first thought was a legal issue and not the best interests of the patient would be shocking.

You don’t need to be a doctor to do CPR.  Imagine a scene with more than one casualty where firefighters are stretched and a person identifies themselves as an emergency physician on holiday from the UK.  There is no reason not to accept that doctor’s offer of assistance and perhaps get him or her to continue cardiac compressions to free up a firefighter to help with other patients or facilitate access by Ambulance Victoria.  The questions of whether or not the doctor is registered in Australia or willing to take on responsibility for the patient are simply irrelevant to the question of whether or not the firefighters and patients would benefit from his or her assistance.

The questions should be the same whether an offer of assistance comes from a police officer, an off duty paramedic (from Australia or elsewhere), a nurse (from Australia or elsewhere) or a doctor.  Those questions should be:

  • Do we need help? and
  • Do we think this person provide the help we need?’

If there is a single patient requiring CPR, there is a full fire crew that are experienced, used to working together, who have the situation in hand and with Ambulance Victoria only minutes away it’s quite reasonable to say ‘no thank you, we’ve got it under control’.  Trying to incorporate a new member into the team, when you don’t know who they are and what they can do, will just decrease the efficiency of the team and hamper the rescue effort.  It would not be in the best interests of the patient.

On the other hand, if there are multiple casualties and access to the site is compromised so firefighters are stretched to the limit, a person who produces their London Ambulance ID and offers to help could be welcomed with open arms.   Equally the New Zealand nurse and the South African doctor the local St John volunteer or just a bystander.  There is no law that says you have to be licenced or registered to do the sort of things that these people might do in this emergency – cardiac compressions, airway management, bleeding control etc.

There is no guideline about accepting assistance at an emergency from people other than a doctor, and the guidelines on doctors EMR A 140 01 falsely assumes that there has to be a hierarchy not a team approach.  An offer to assist is just that, not an offer to take over and there is no reason to think that ‘Doctors who elect to provide care on scene are accepting legal responsibility for the care of the patient.’

Conclusion

The statement ‘Doctors who elect to provide care on scene are accepting legal responsibility for the care of the patient’ in EMR A 140 00 is simply wrong.

EMR A 140 01 repeats and compounds that error.  It is unethical as the driving concern is some misplaced fear of legal implications rather than identifying procedures that are in the best interest of those in need of assistance.   It is foolish as it means a firefighter might be willing to accept assistance from a paramedic, a nurse, a good Samaritan, but not a doctor unless the doctor is willing to commit him or herself to ‘take responsibility for the patient’.  No one is ‘responsible’ for the patient, everyone is responsible for their own actions and decisions.  Doctors and firefighters should be able to work together, when required, to advance the patient’s best interests.

 


Categories: Researchers

CFA Emergency Medical Response Guidelines

8 March, 2017 - 11:53

In response to the post MFB First Responders and Withholding Resuscitation (March 7, 2017) I have been provided with a copy of two guidelines issued by the Country Fire Authority (CFA).  I am not sure if these are the same as those issued by the MFB but I imagine that they are at least similar.  The documents provided are:

  • EMR A 180 00 Do Not Resuscitate Orders (Issue 3, November 2004) and
  • EMR A 185 00 Withholding of Treatment (Issue 1, November 2004).

I assume that they are still the current documentation.

I am sure that the CFA and Ambulance Victoria have lawyers, and I would hope that lawyers looked over these documents before they were issued, but whether they did or did not these documents are very disappointing and do not reflect either law or the principles of bioethics that support and justify medical treatment including resuscitation.

EMR A 180 00 Do Not Resuscitate Orders says:

Pre-hospital personnel may be presented with a document or identification tag that is claimed to be a “Do Not Resuscitate Order.” Such documents may be signed by a medical officer or the patient and may be either handwritten or typed.  Verbal requests may be made by guardians, family members or friends and it may be claimed that these statements represent the wishes of the patient.

CFA personnel are not in a position to make a legal judgement regarding the validity of documents which are presented at the scene of an emergency.  Likewise, CFA personnel are not in a position to make judgements about the validity of verbal statements.  If an emergency call has been placed, it should be assumed that someone present is either unaware of the DNRO, or disputes it’s validity or applicability to the situation.

Procedures

  1. Documents or statements that are claimed to be “Do Not Resuscitate Orders” are not acceptable grounds for CFA personnel to withhold any form of treatment including resuscitation when in the act of emergency response.
  2. CFA personnel presented with documents or statements that are claimed to be “Do Not Resuscitate Orders” should proceed to give resuscitation and/or supportive measures as the patient and incident require, unless there are other acceptable grounds for withholding treatment.
  3. Acceptable grounds for withholding resuscitation or other treatment are detailed in Operational Guideline “Withholding of Treatment” – A 185 00.

EMR A 185 00 Withholding of Treatment says:

In the case of extreme age, debility or terminal disease, death may be expected and even desired. In such cases, a patient and their medical carers may have agreed that, in the event of death, no active resuscitation should occur. Emergency Services response should not normally be requested in such situations. Firefighters may, however, be dispatched to such situations as a result of initial panic or misunderstanding on the part of the caller or because of limitations to the information available to dispatchers.

Upon arrival at the scene, CFA personnel will not initially be in a position to judge that the call for Emergency Services assistance was invalid. As detailed in Guideline A180 00, written or verbal “Do Not Resuscitate Orders” are not in themselves valid grounds for withholding treatment.

Acceptable grounds for CFA personnel to withhold treatment are listed below.

Procedures

  1. Treatment should only be withheld if:

1.1. Attempting to provide treatment would involve excessive danger for responding crew members or others present.

1.2. The patient fits the “obviously dead” criteria (see A-175-00 “Obvious signs of death”)

1.3. A conscious and oriented patient refuses treatment (see A-100-00 “Refusal of treatment”). Formally confirm the situation by having patient sign the “refusal of treatment” section of the PCR.

1.3.1. If a patient loses consciousness, treatment should be instituted)

1.4. Someone else takes responsibility for treatment not proceeding. This may be

1.4.1. AV (if prior to ambulance arrival this may be obtained vial clinical advisor).

1.4.2. Medical practitioner at the scene (see A-140-00 “Medical Practitioner at scene”). Formally confirm the situation by having Medical practitioner sign the ‘handover to doctor’ section of the PCR.

1.4.3. Person who initiated call (see A-090-01 “Denied patient access”). Formally confirm the situation as a “denied patient access” situation by having the person sign the ‘refusal of treatment’ section of the PCR.

1.4.4. Another person who physically or verbally actually denies access to the patient, or who agrees to technically deny access by signing the “refusal of treatment” section of the PCR (see A 090 00 “Denied Patient Access”)

1.5. If none of the above can be established, then CFA personnel should proceed to provide treatment as the patient and incident requires until handover to AV.

1.6. Ensure the situation has been fully documented on the PCR, signed and witnessed.

(I note that the material above has been typed by me from the document, it is not a photo or scanned copy.  The various errors and inconsistencies, eg in EMR A 180 00 “it’s” instead of “its” and in in EMR A 185 00 the close parenthesis at the end of [1.3.1] with no opening parenthesis, the inconsistent use of hyphens when referring to other guidelines and the inconsistent use of capital letters all appear in the original).

Do Not Resuscitate documentation

With respect to the claim that CFA personnel are in no position to judge the validity of a Do Not Resuscitate order or equally an advance directive refusing consent, this argument was raised by Dr Shulman when he gave a blood transfusion to a member of the Jehovah’s Witness who was carrying a card saying that she did not want blood under any circumstances (Malette v Shulman [1990] 67 D.L.R. (4th) 321). Notwithstanding that he treated her, with a blood transfusion, and saved her life but was still liable for assault.  He argued that he could not determine whether or not there was a valid refusal as he could not communicate with the patient.  The court said that she had done all that she could do to convey her wishes by signing and carrying the relevant card.  In the circumstances her wishes should have been honoured.  The Ontario (Canada) Court of Appeal held that ‘While in an emergency the doctrine of necessity may protect the physician who acts without consent, the doctor is not free to disregard a patient’s advance instructions. The plaintiff had conveyed her wishes in the only way possible’, further ‘Any doubts about the validity of the card were not rationally founded on the evidence’.   Robbins JA, on behalf of the court said

Unless the doctor had reason to believe that the instructions in the Jehovah’s Witness card were not valid instructions in the sense that they did not truly represent the patient’s wishes, in my opinion he was obliged to honour them. He has no authorization under the emergency doctrine to override the patient’s wishes. In my opinion, she was entitled to reject in advance of an emergency a medical procedure inimical to her religious values.

A DNR or other advance directive refusing CPR may not be based on religious grounds but that is not to the point.   As the court said:

The right of self-determination which underlies the doctrine of informed consent also obviously encompasses the right to refuse medical treatment. A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. Regardless of the doctor’s opinion, it is the patient who has the final say on whether to undergo the treatment. The patient is free to decide, for instance, not to be operated on or not to undergo therapy or, by the same token, not to have a blood transfusion. If a doctor were to proceed in the face of a decision to reject the treatment, he would be civilly liable for his unauthorized conduct notwithstanding his justifiable belief that what he did was necessary to preserve the patient’s life or health. The doctrine of informed consent is plainly intended to ensure the freedom of individuals to make choices concerning their medical care. For this freedom to be meaningful, people must have the right to make choices that accord with their own values regardless of how unwise or foolish those choices may appear to others…

In Hunter and New England Area Health Service v A [2009] NSWSC 761, McDougall J said:

A person may make an “advance care directive”: a statement that the person does not wish to receive medical treatment, or medical treatment of specified kinds. If an advance care directive is made by a capable adult, and is clear and unambiguous, and extends to the situation at hand, it must be respected. It would be a battery to administer medical treatment to the person of a kind prohibited by the advance care directive.

In Brightwater Care Group (Inc) v Rossiter [2009] WASC 229, Martin CJ set out

… a number of well-established principles.

23 The first is that a person of full age is assumed to be capable of having the mental capacity to consent to, or refuse, medical treatment: Re MB (Medical Treatment) [1997] EWCA Civ 1361; (1997) 2 FCR (UK) 541 (per Lady Justice Butler-Sloss); Ms B v An NHS Hospital Trust [2002] EWHC 429 (Fam); (2002) 2 FCR (UK) 1 [10] (per Dame Butler-Sloss); and Hunter and New England Area Health Service v A [2009] NSWSC 761 [23] (per McDougall J)…

24 Another principle well established at common law is the principle which has been described in the cases as the right of autonomy or self-determination. Lord Hoffmann has described this right as being related to respect for the individual human being and in particular for his or her right to choose how he or she should live his or her life: Airedale National Health Service Trust v Bland [1992] UKHL 5; [1993] AC 789, 826. Included within the right of autonomy or self-determination is the right, described as long ago as 1914 in the United States by Justice Cardozo, as the right of ‘every human being of adult years and sound mind … to determine what shall be done with his own body: Schloendorff v Society of New York Hospital 211 NY 125 (1914) , 129.

25 That right has been recognised in Australia and referred to with approval by the High Court: F v R (1983) 33 SASR 189, 192 – 193 (per King CJ); Rogers v Whitaker[1992] HCA 58; (1992) 175 CLR 479, 487. That right also underpins the established legal requirement that the informed consent of the patient is required before any medical treatment can be undertaken lawfully. That principle has been affirmed by the High Court on a number of occasions: Secretary of Department of Health and Community Services v B [1992] HCA 15; (1992) 175 CLR 218 (Marion’s case), 233 and Rogers v Whitaker, 489. Also see the English case of Airedale NHS v Bland, 857.

26 The corollary of that requirement is that an individual of full capacity is not obliged to give consent to medical treatment, nor is a medical practitioner or other service provider under any obligation to provide such treatment without consent, even if the failure to treat will result in the loss of the patient’s life [emphasis added]. That principle has been established by decisions in each of the major common law jurisdictions, including the United States (Bouvia v Superior Court of Los Angeles County 179 Cal App 3d 1127(1986), 1137 and 1139 – 1141); Canada (Nancy B v Hotel-Dieu Quebec (1992) 86 DLR (4th) 385; Malette v Shulman (1990) 67 DLR (4th) 321, 328); the United Kingdom (Airedale NHS Trust v Bland, 857 (Lord Keith) and 864 (Lord Goff); Ms B v An NHS Hospital Trust [16] – [21]); New Zealand (Auckland Area Health Board v Attorney General [1993] 1 NZLR 235, 245) and Australia (Hunter and New England Area Health Service v A, [9] – [15]).

27 The principle is applied without regard to the reasons for the patient’s choice, and irrespective of whether the reasons are rational, irrational, unknown or even non-existent: Re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18; (1993) Fam 95, 113 (cited with approval in Ms B v An NHS Hospital Trust [18] and Hunter and New England Health Service v A [15]).

So a person has a right to refuse CPR and that has to be respected.  If they communicate that to potential rescuers, perhaps through formal DNR documentation then they have ‘chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes’ of what those wishes are.   In the absence of some reason, some evidence, to doubt the validity of the document it must be honoured (see also Ignoring a medic-alert bracelet (July 19, 2015) and Medical tattoos offer important health information’ (March 3, 2012)).

Where a DNR order is made on the basis that the treatment is futile, that is given the patient’s underlying conditions it will not advance their interests, that too must be honoured.  Necessity only justifies treatment that is in the best interests of the patient and if the treating medical staff in consultation with the patient (to the extent that they can take part) and the family have decided that treatment is futile then it may be a battery to continue with that treatment; Airedale National Health Service Trust v Bland [1993] AC 789.

Requiring some reason to doubt the validity of a document is not the same as being unable to confirm its validity.  In guideline EMR A 180 00 Do Not Resuscitate Orders the CFA says “If an emergency call has been placed, it should be assumed that someone present is either unaware of the DNRO, or disputes it’s validity or applicability to the situation.”  The implication is that the very fact that emergency services have been called is itself reason to doubt the validity of the document. But in EMR A 185 00 Withholding of Treatment it says “Firefighters may, however, be despatched to such situations as a result of initial panic or misunderstanding on the part of the caller or because of limitations in the information available to dispatchers.”  These positions are clearly inconsistent.  There may be a valid DNR document that everyone agrees with but still emergency services are called ‘as a result of initial panic or misunderstanding on the part of the caller’.  The mere fact that a call has been made is not evidence to doubt the validity of the document.

The fact that the CFA is based in Victoria is even more problematic as the Parliament of Victoria has specifically made attempts to recognise and give effect to a person’s wishes.  Where a refusal of treatment certificate has been completed in accordance with the Medical Practice Act 1988 (Vic) the patient and their doctor have attempted to communicate their wishes in a way provided for by law.  A doctor would have to accept and honour such a certificate and so should the CFA.

As a matter of law, Do Not Resuscitate Orders” are valid grounds for withholding treatment in accordance with the terms of those documents.  That’s the very point of them. Failure to do so is to dishonour a patient’s right to self-determination and/or to impose futile treatment that is not in the patient’s best interest.  It is not justified by the common law of necessity or any other doctrine.

Denied patient access

The paragraphs on ‘denied patient access’ are also concerning because they are encouraging CFA firefighters to make decisions on fictitious grounds.   If a person says ‘the patient has a DNR order’ firefighters are meant to treat the patient unless the patient who made the call or any other person at the scene (but not necessarily their care giver, or attorney) ‘denies patient access’.  But the person may not deny access, they may say, ‘Come in, thanks for coming, we weren’t really expecting the CFA, we rang the ambulance because we thought we had to. Here’s mum’s DNR paperwork’.   To say ‘we’re going to resuscitate this person unless you pretend you’ve denied us access’ is just silly.  It gets worse at [1.4.4] where it refers to a person “who agrees to technically deny access by signing the “refusal of treatment”’.  Either access to the patient is denied or it isn’t.  If it is I would expect the CFA to be calling for police assistance because if someone has rung triple zero and someone else is denying the responders access to the patient, something is going on that needs urgent investigation.  No doubt the CFA could even use force to access the patient.

For someone to sign a refusal of treatment certificate they are not actually or technically denying access.  This is akin to the situation where paramedics advise people they don’t need to go to hospital and then say they ‘refused treatment’ (see Transport everyone or act as a professional? A question for paramedics (May 6, 2013)).  Trying to fit a story into a situation that relieves the responders of responsibility – I couldn’t treat as I was refused access (when you weren’t) or I couldn’t treat as I offered but the patient refused (when in fact the patient was advised treatment was not required) – is a terrible example of trying to shift responsibility and risk.  It is unprofessional.  People should be willing to stand by their decisions and record on patient records what actually happened or the records are meaningless.

If the person’s appointed guardian or other substitute decision maker has refused treatment it should be record as that, not as ‘denied patient access’.  And if the CFA is going to accept that the person who initiated the call or any other person at the scene can refuse treatment, they should record that and not pretend that they have been ‘physically or verbally’ or ‘technically’ (whatever that means) denied access.  And if they accept that the person who initiated the call, or any other person can refuse treatment they should also accept that the patient can refuse treatment by communicating that decision through their DNR paperwork.

Accepting that a person can refuse treatment if they sign off on the PCR is to say ‘we will accept the DNR order if you sign this form’ as if that absolves the CFA from all responsibility. It doesn’t.  The CFA is responsible for what the CFA does and a decision to accept the refusal of treatment by anyone who is prepared to pretend that they have denied patient access (see [1.4.4]) is worse than acknowledging that the CFA is giving effect to the DNR order.  It is one thing to say ‘we withheld resuscitation as we were presented with a DNR order, apparently signed by the patient, and their doctor and supported by the people there where we had no reason to doubt its authenticity’; quite another to say ‘a person, any person, at the scene agreed to ‘technically deny patient access’ by signing the form so we stopped treatment’.

Pretending that the person has ‘denied patient access’ is just that, a pretence, and a pretence doesn’t change the legal situation or the fact that the decision to withhold resuscitation is a choice of the CFA.  Such attempts at fiction brings the conduct of the CFA and the value of its PCR as evidence into disrepute.

Conclusion

Failure to honour an advance directive or DNR order is a failure to respect the person’s right to make decisions about their medical care and is contrary to law.    There is nothing in the CFA Act or the common law to justify the blanket refusal to consider DNR documentation set out in the CFA guidelines.

The CFA, in conjunction with Ambulance Victoria should be rewriting these to make the two guidelines consistent with each other, and with the current state of Victorian law.  Failure to do so is a failure to provide an appropriate and professional service to the Victorian community and is also a failure to properly prepare CFA members for the situation they may face.  It may also leave them vulnerable to cross examination and criticism in rare but foreseeable circumstances where their actions and decision making are reviewed by a coroner, a court or police and they claim they were ‘denied access’ when that is not what really happened.


Categories: Researchers

MFB first responders and withholding resuscitation

7 March, 2017 - 21:13

This question comes from a fire fighter with Victoria’s Metropolitan Fire Brigade (the MFB).  The MFB provide an emergency medical first response to provide immediate care pending arrival of Ambulance Victoria paramedics (see Metropolitan Fire Brigade, Emergency Medical Response (2009)).   The question relates to Do Not Resuscitate (DNR) documentation.   My correspondent says:

I work as a firefighter with the MFB in Melbourne. As such, we are dispatched along with the ambulance service to 000 calls for emergency medical where CPR may be required.

When we arrive before the Ambulance Service, we are trained to assess if the patient is “Obviously Dead” and, if not, to commence treatment. “Obviously Dead” is much more definitive than “no signs of life”.

In a formal setting, perhaps a nursing home, if the staff have a DNR that they recognise and there are no signs of life, we might not commence treatment.

In a less formal setting: a home with the family around, a squat with drug users, a public place with random “friends”; someone might say that the patient has a DNR. They might even produce a document.

While it is relatively easy to carry on and commence CPR and ignore a “perhaps DNR” is some cases; starting CPR on a 90 year old, cold, lifeless great grandmother, dragging her out of bed, exposing her chest and cracking her ribs with her grandchildren in the next room while her daughter says “but, this is her DNR!” is a stressful moral decision to say the least.

These are emergency responses and the facts are not often clear.

The person holding the DNR may be the only other person present. They may be the beneficiary of the estate. They may have just smothered the patient. They may have legal power of attorney, or, they may be seriously psychologically damaged by the knowledge that their loved one’s peaceful death was unnecessarily marred by a gross physical intrusion.

We are not lawyers, or notaries or judges. And we are only there because seconds count; we have no time to play detective.

In the best of all possible worlds, we would not be called to such cases, but we are.

So, how do we recognise a “valid” DNR? And what legal authority do they carry?

I have addressed some of these issues with respect to Victorian ambulance officers in an earlier post – Withholding Resuscitation in Victoria (April 8, 2013) but there are some further issues here.

Victoria has led the way in giving effect to these principles with the Medical Treatment Act 1988 (Vic).  That Act provides for a prescribed form for a Refusal of Treatment Certificate (see s 5 and Schedules 1 and 3).  Where there is a certificate, s 9 says that a medical practitioner:

 … or a person acting under the direction of a registered medical practitioner who, in good faith and in reliance on a refusal of treatment certificate, refuses to perform or continue medical treatment which he or she believes on reasonable grounds has been refused in accordance with this Act is not—

(a) guilty of misconduct or infamous misconduct in a professional respect; or

(b) guilty of an offence; or

(c) liable in any civil proceedings—

because of the failure to perform or continue that treatment.

Let me assume that a member of the MFB is not also a registered medical practitioner, nor are they acting under the ‘direction’ of a medical practitioner so this section doesn’t apply to them, but that doesn’t matter because the Act says (at s 4) ‘This Act does not affect any right of a person under any other law to refuse medical treatment.’

As noted in earlier posts ‘except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’ (see, most recently, Institutionalised Patient Refusing Paramedic Transport for Booked Treatment (March 6, 2017)).  In an emergency, the doctrine of necessity justifies treatment that is reasonable and in the patient’s best interests, but it does not justify treatment that is contrary to the known wishes of the patient (see The Doctrine of Necessity – Explained (January 31, 2017)).  Where DNR documentation has been completed that is evidence both that the treatment is contrary to their wishes and is not in their best interests (see “A straight forward answer to a DNR” (March 6, 2017)).   It follows that a clearly expressed wish that a person does not want DNR is legally binding (see ‘Medical Tattoos Offer Important Health Information’ (March 3, 2012)) and is binding without reference to the Medical Treatment Act.

It is certainly the case that it would be better not to be called to such cases and one does wonder why a family member in possession of a DNR order would call triple zero upon discovering their ‘90 year old, cold, lifeless great grandmother’ but it maybe that they simply didn’t know who else to call or what else to do (though ideally that should have been discussed when the DNR documentation was being completed).

The reality is that it is indeed difficult and that these are ‘emergency responses and the facts are not often clear’ so the answer is the fire fighters and then the paramedics have to make the best judgment that they can.  If there is a signed certificate that appears to have been executed under the Medical Treatment Act 1988 (Vic) then that should be honoured.  If the circumstances are consistent with a prior refusal, so the person is at home or in an institution with evidence perhaps to confirm that they were at the end stage of their life then it would be easier to accept their written DNR.  On the other hand, you would not accept the words of a bystander if there is a young person collapsed after a hard night partying and the unidentified bystander says ‘they always said they didn’t want to be resuscitated’.

As a fire fighter, the member can be sure that if there is an allegation of battery (for providing CPR that had been refused) or for negligence (for withholding CPR that had not been refused) any liability will belong to the MFB (see Metropolitan Fire Brigades Act 1958 (Vic) ss 54A and 55D) but I appreciate liability is not really the issue, it’s what to do in the patient’s best interests.

To answer that question is, as my correspondent says, difficult.  The short answer is that if the patient has refused CPR, or if they are not competent to do so, their lawfully appointed agent or guardian has refused treatment, that refusal decision should be honoured.   The best way to identify a valid DNR order is to see a certificate that meets the requirements set out in the Medical Treatment Act 1988 (Vic) but a valid refusal does not have to comply with that form.    Ultimately what to do is a judgement call, to be made on a case by case basis, with due regard to the fact that seconds count so not a lot of time can be spent addressing the issue.


Categories: Researchers

Level of first aid care expected from a non-emergency patient transport officer

7 March, 2017 - 00:05

This is another concerning question; concerning because the agency for which my correspondent works should have answered this and the fact that they have to ask me makes me question the professionalism of the agency.  Today’s correspondent works

… for a hospital as a Patient Transport Officer.  I have a position description which is silent on what interventions with patients is required of me.

The vehicle is fitted with a defibrillator and a first aid kit.  If a patient requires CPR, am I required to ventilate the patient? If so, by what method as a minimum would this entail (‘Laedal’ type mask with filter, Bag Valve mask)?

I also transport 2 day old infants to another facility with the mother. If the infant was to respiratory arrest, what actions would be required of me apart from requesting an emergency ambulance?

I presume that a patient transport officer has, at least, a current first aid certificate and ideally a Certificate III in Non-Emergency Patient Transport which would include advanced first aid training (see https://www.myskills.gov.au/courses/details?Code=HLT31115).  Failure to have that sort of training makes the person a ‘driver’ but not a ‘Patient transport officer’.

As the driver of people with a medical condition and as part of the hospital the driver, and the hospital, have a duty of care to their patient.  That duty must be a duty to provide ‘reasonable care’.  If the driver doesn’t know what that means, you have to ask what sort of training and quality assurance does the employer hospital have?

Whether CPR requires ventilation is a matter of what is reasonable.   The Australian Resuscitation Council Guideline 8 on Cardio-Pulmonary Resuscitation says ‘All rescuers should perform chest compressions for all those who are unresponsive and not breathing normally … those who are trained and willing to give breaths do so for all persons in cardiac arrest’.  It is noted that this is a ‘weak recommendation [with] very low quality of evidence’ ([3.1]).

But what is concerning is that my correspondent doesn’t feel trained or confident trained to give breaths nor trained and equipped with appropriate PPE whether that is a face mask, a soft bag or an oxygen resuscitator.

So the answer to the question ‘am I required to ventilate the patient?’ depend on the training received and equipment supplied.  At the end of the day it’s not going to make much of  a difference,  If the patient has a cardiac arrest and dies it’s going to be impossible to say that the absence of ventilations made a difference; but it’s a bad look if patient transport officers aren’t willing to provide the best care for their patients which prima facie includes ventilation.  Patient transport officers should be trained and drilled to ensure that they are both competent and proficient in such basic skills and they should also be equipped to ensure that they can provide optimal care.

With respect transporting a 2 day old infant who has a respiratory arrest, what would be required is the application of appropriate first aid in accordance with the officer’s training, which should include first aid and resuscitation.   Standing by and watching the child die, whilst saying ‘I’ve run triple zero, that’s all I have to do’ is not going to pass the tabloid test of acceptable care, even if it wouldn’t have made a difference.

To return to my starting point, what really concerns me is that this correspondent had to ask the question.  If he or she doesn’t have appropriate training then he or she is a taxi driver not a ‘Patient Transport Officer’ (and even taxi drivers probably have a first aid certificate).       Their employer should not only require them to have the training they should be given opportunities to practice their skills (refresher drills) and equipped to ensure that they are confident to perform CPR and other first aid should it be required.     Patients wouldn’t expect the transport officer to just look on whilst patient’s die and that would not be ‘reasonable care’ from a hospital which includes the hospital operated patient transport service.

If my correspondent isn’t trained, confident, equipped and given a position description or procedures that does explain what is required of him or her, of have someone other than me they can turn to for answers, it makes me question the professionalism of the institution he or she works for.

 


Categories: Researchers

Identifying hospital patients to issue ‘on the spot’ fines

6 March, 2017 - 23:37

This question comes from

… a security officer (authorised officer) at a hospital in South Australia. We periodically issue expiation notices under the Health Care Act 2008 (SA) for breach of by-laws.

We have the power to require a person to provide their name and address when they have committed an offense under the by-laws.

However, if a person refuses to provide their name and address, are we allowed to obtain their name and address from nursing staff?

 

The Health Care Act 2008 (SA) s 42 says that ‘An incorporated hospital may make … by-laws for’ a number of purposes such as regulating traffic and parking and to regulate access to and behaviour on hospital premises.  The maximum penalty that can be provided for in a by-law is a fine of $1000 or an ‘expiation fee’ of $200.

The concept of an ‘expiation fee’ and ‘expiation notice’ seems unique to South Australia.   According to the Oxford dictionary (online) expiation means ‘The act of making amends or reparation for guilt or wrongdoing; atonement.’  If you receive a notice it says you can ‘expiate’ (or make amends) for your ‘guilt’ by paying the fee rather than go to court.  It is, in effect, an ‘on the spot fine’ with a fancy name.   The management of expiation notices is governed by the Expiation Of Offences Act 1996 (SA).

The power to ‘require the person to provide the person’s name and address’ is found in the Health Care Act 2008 (SA) s 42(2)(a).    A person who ‘without reasonable excuse, fails to answer, to the best of the person’s knowledge, information and belief, a question put by an authorised officer’ is guilty of an offence that carries a maximum fine of $10000.  An authorised officer may also ‘restrain a person to the extent necessary to exercise a power under subsection (2)’; in effect an authorised officer may arrest a person who fails to provide their name and address when required to do so.   Given the failure to comply with s 42(2) is itself an offence, it is a matter that can be dealt with by police.

We now get to the question ‘if a person refuses to provide their name and address, are we allowed to obtain their name and address from nursing staff?’   The first thought I have is how would you identify the person to the nurse to make sure they were giving the correct details.  If the nurse saw whatever it was they might know who the person was, or I suppose a security guard could follow the person back into the ward and ask the nurse – who is that person?  But that would hardly be sufficient information on which to issue an expiation notice.

But putting that aside let’s assume the nurse knows, or can look up the medical record to find, the patient’s name and address.  Let us also assume the only reason the nurse knows the person’s name is because they have been treating them.  A person’s name is not the same as confidential medical information but the principal is still that the person gave their name to the staff for medical care, not law enforcement.  I think it would put the nursing staff in a difficult position to ask them to identify a patient so they could receive a fine.

The hospital’s records, on the other hand, are maintained for reasons beyond patient care including invoicing for health care.   It may be more appropriate to seek the information from admissions staff rather than nursing staff.  If I was a nurse I would certainly be uncomfortable about giving you that sort of information as it is inconsistent with the purpose for which the information is given.

A person’s name and address is not confidential information in the same way that details of their condition and treatment is; but it would be ethically dubious to ask nursing staff to release that information to security so that they can issue an expiation notice.  Given we have to be talking about a patient (the staff aren’t’ going to have the details of a visitor) the appropriate course would be remind the person that they must provide details of their name and address and if they don’t, call the police.   Whether the security officer or admissions staff can access the patient’s record is really a question that should be directed to the hospital as they write the by-laws, employ the staff and own the records.


Categories: Researchers

Institutionalised patient refusing paramedic transport for booked treatment.

6 March, 2017 - 22:20

These two questions are related.   Both are from paramedics, one from NSW, I’m not sure of the jurisdiction of the other.

We are regularly called to rural/regional hospitals to transfer  patients to the referral hospital of our area. Occasionally as we are packaging our patient for transfer they will say to you, ‘I don’t want to go’. Sometimes their refusal is based on a particular hospital they don’t like or it’s simply that they don’t want to leave their town.

This often happens in front of the doctor who has authorised the transfer and sometimes it becomes clear that the patient has been making their feelings known for some time and have been overridden. The appearance of a new face spurs them to keep trying to make their feelings clear. Bearing in mind that the patient can often be extremely unwell and is therefore physically unable to get up and leave (but may still meet competency and capacity criteria).

My question regarding this circumstance is what are our legal and ethical responsibilities in these instances?   At the moment we hear a patient make a statement like that are we obliged to cease the patient handover and transfer on to our stretcher until the patient’s consent has been either fully obtained or refused?

The other question, building on the discussion that followed my post ‘A Straight Forward Answer To A DNR (March 6, 2017) is

…what paperwork is involved when patients are in ‘locked facilities’ but not dementia or lacking competency. What paperwork should we be looking for to confirm that they are in fact non competent and in ‘locked care’ legally?

These questions are related as they are about consent and a paramedic’s professional responsibilities.  Let me set out some guiding principles:

  1. First, as the High Court said in Rogers v Whitaker (1992) 175 CLR 479, [14] (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ) ‘except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’. (It is my view that the terms ‘emergency’ and ‘necessity’ are being used as synonyms not to suggest that there are two different doctrines; see Eburn, M., Emergency Law (4th ed, 2013, Federation Press for a more detailed defence of that proposition).
  2. Second necessity does not justify treatment that is contrary to the known wishes of the patient (In Re F [1990] 2 AC 1).
  3. However, to be a binding, a refusal of treatment must be informed, cover the situation that has arisen and the person must be competent (In Re T [1992] EWCA Civ 18).
  4. 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).
  5. A paramedic, like a nurse or a doctor, has a duty to act in the patient’s best interests. Health care is provided to benefit the person in need of care, not for the convenience of the health care providers or an institution.
  6. Finally, one can only be responsible for the things that one is actually responsible for.

With those (somewhat cryptic) comments, let’s consider the given hypothetical.

In the situation described the patient appears to be competent; so what’s the paramedic to do?  As a (soon to be registered) professional a paramedic has to consider the patient’s wishes and consent.  The fact that a doctor has authorised the transfer does not deny the patient’s right to consent, or refuse consent and does not empower the paramedic to provide treatment that has not been consented to.   But has treatment been refused?    We’re told that that patient says ‘‘I don’t want to go’ – is that a refusal of treatment or a mere statement that they wish the world were other than it is.  Lots of people might say ‘I don’t want to go’ to work, or to the doctors, or away from home.  That does not mean that they don’t realise the need to go.  Perhaps there is an inconsistent position – the patient may say that they understand that they have a condition that requires treatment, that they want the treatment, they just don’t want to have to travel for that treatment.  That is not a refusal of consent that’s just a wish that they didn’t have to travel.   Further, if they say that they understand that they have a condition that requires treatment, that they want the treatment but they refuse to travel for that treatment (not just wish it wasn’t required) even though the desired treatment can only be provided elsewhere, then that may be evidence that they are not in fact competent as they are not able to understand that if they want the treatment, they have to travel.

The first thing I would suggest a paramedic has to do, if a patient says ‘I don’t want to go’ is stop and talk to the person about what they mean and clarify whether, if they don’t want to, they are in fact willing to go.  That may resolve the matter.  If, however, the paramedic comes to the conclusion that the patient is clear – that they want to refuse transport and they are competent – then that decision has to be honoured.  Before making that decision however, one would expect a paramedic to recognise that they are part of the health team and to raise those concerns with their colleagues.  If you think the patient is refusing treatment and transport, but the doctors have booked an ambulance, it would be prudent to raise concerns with the nursing staff that have the long term care of the person, and the medical staff to resolve the issue.    It may become clear that the patient is refusing treatment in which case you’ve advanced their interests, or it may become clear that despite appearances or even a short lucid moment, they are not in fact competent.

At the end of the day howver, if the paramedic is convinced the patient is competent and refuses transport, the doctor’s authorisation is irrelevant.   Refusing to transport the patient is, no doubt, likely to be difficult and perhaps personally costly to the paramedic but that’s where professional standards and behaviour come in.  A professional is expected to put the patient’s/client’s interests ahead of his or her own interests.  So if satisfied the patient is refusing treatment/transport it’s incumbent on the paramedic to document the issue, raise it with the health care team and at the end of the day, honour the patient’s wishes.

How is that related to the second question?  The second question was ‘…what paperwork is involved when patients are in ‘locked facilities’ but not dementia or lacking competency. What paperwork should we be looking for to confirm that they are in fact non competent and in ‘locked care’ legally?’  The paramedic is responsible for the task he or she is there to do, escort the person to further care.  They are not responsible for all aspects of their care and it would seem to me it would be going further than required to insist on determining whether or not the person is being lawfully detained in a locked unit.  That is where they are and the paramedic won’t have access to all the information as to how and why that decision was made.  If there is a concern it would be appropriate to record it on the patient record and mention it to the receiving hospital.

That last point is also true if the paramedic has transported someone who said they don’t want to go or have treatment.   If the receiving health care team are going to provide holistic care they need to know the whole story so if the patient, during transport, suggests that they don’t’ actually want the treatment they are being sent to receive, that should be communicated so that the doctors, nurses, social workers and others at the receiving intuition can be alerted to the concerns and take the time to ensure that the patient’s position is understood and appropriate care is given.

Let me acknowledge that as a legal academic sitting at a desk writing about general principles, it’s very easy to say this.  I don’t for a moment deny that acting on some of this would be very difficult.  A paramedic who has been called to a nursing home where the patient has been ‘packaged’ for transport and the medical and nursing staff expect them to go, expect them to get treatment that they think is in the patient’s best interest and believe either that the person has consented, or is not competent to either consent or refuse consent, are not going to take kindly to a paramedic forming a different view.  And a paramedic is likely to feel on ‘insecure’ ground either asserting the patient’s rights as he or she perceives them or refusing to take the person and thereby throwing both the institution and ambulance service into chaos as resources are tied up.    That it’s difficult doesn’t make it wrong.     A person is entitled to refuse treatment and paramedics can only provide care that is consented to or where consent can’t be obtained, is justified by necessity or some other legal rule.  If the person really is competent and really does refuse treatment, that has to be honoured by everyone in the health care team.


Categories: Researchers

‘A straight forward answer to a DNR”

6 March, 2017 - 03:40

This question comes from ‘… a community support worker I am caring for a patient who has a “Do Not Resuscitate” order’.  They ask

If this client becomes unconscious what should I do?

Start CPR because I am not a medical professional and can’t make those decisions or just make client comfortably until ambulance arrives and handover the DNR document for them to decide?

Just wondering if there is a straight forward answer to a DNR.

There is a ‘straight forward answer’ and what is worrying is that a person who is working as a ‘community support worker’ hasn’t been trained by their agency on how to deal with this matter.

First let me say that I am assuming that the DNR documentation has been seen and it should be copied into the client file.   I’m also assuming that the DNR documentation has been signed off with at least the knowledge of the client’s family.

Where a person needs CPR, the legal justification is necessity – see The Doctrine Of Necessity – Explained (January 31, 2017). The relevant quote, taken from the case law, is the quote from Lord Goff in In Re F [1990] 2 AC 1:

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

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it 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.

Where there is DNR documentation completed with the client’s consent, CPR can’t be justified.   We usually think CPR is in the patient’s best interests and someone who has suffered a sudden cardiac arrest would rather live than die.  A person who is approaching the end of their life has to face that reality and may have decided that given the underlying conditions – whether it’s a terminal illness or just the manifestation of old age – that CPR is not in their best interests.  If that is the case and they have recorded that in consultation with their doctor and family, we know that CPR is NOT in the patient’s best interests.  In that case commencing CPR on a person who has gone to the effort of recording their wishes on a DNR document is NOT ‘action … a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.’

Secondly, regardless of best wishes, if the person has indicated that they do not want CPR, then the treatment cannot be justified as it is ‘contrary to the known wishes of the assisted person’ (emphasis added).

DNR documentation can also be completed without the consent of the patient if the treatment will, given the person’s conditions, futile.   There is no obligation to provide treatment that will not advance the patient’s best interests or achieve a therapeutic outcome (Airedale NHS Trust v Bland [1993] A.C. 789].

If the patient is unable to give consent to the DNR order then it must be made by the medical team and family acting in the best interests of the person in need of care.  Again, if that has been done and recorded, a care worker should not commence CPR as that is NOT ‘action … a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.’

As a community care worker who honours DNR documentation you are not making decisions, you are giving effect to decisions that have already been made.

If you are not willing to honour a DNR decision, one has to ask ‘what is the purpose of consent in medical care?’  People are allowed to make decisions about their care even if it will lead to their death. If we are not willing to honour that, if we are going to assist that people receive treatment whether they want it or not, we are going back to paternalistic health care, or worse.  What’s worse is that people provide care, like CPR, not because it is in the patient’s best interests but because it makes the carer feel better or more comfortable.  Health care is not (or should not) be provided in the best interests of the care provider but in the best interests of the person in need of that care.   Where DNR documentation has been completed the inference is that the interests of the person have been considered and it’s been determined that withholding CPR is in the patient’s best interests.

In some states, there is statutory protection to ensure people that honour DNR type documentation are legally protected (see for example Advance Personal Planning Act 2013 (NT) and Medical Treatment Act 1988 (Vic)).  Even where that is not the case the common law still applies to say that people are entitled to refuse consent and that futile treatment may be withheld.

One has to concede that is unlikely a community support worker will be sued or prosecuted for battery for doing CPR but if one is planning to provide care in the client’s best interests and in accordance with the client’s wishes, providing treatment contrary to the terms of a DNR decision is unethical and will expose the client and their family to unnecessary and undesired trauma.

As noted earlier, what is worrying is that a person who is working as a ‘community support worker’ hasn’t been trained by their agency on how to deal with this matter.  If support is being provided to a person who is terminally ill or otherwise likely to require CPR, such that decisions have been made to withhold that treatment, the the agency should have procedures to ensure that DNR decisions are recorded and communicated to carers. If necessary discussion should be had with the client, their family and their medical practitioner to ensure that the terms and consequences of the documentation are clear and clearly understood.  And staff who are providing care have to be confident to honour their client’s wishes.  If that isn’t occurring I would worry about the conduct of the agency that is providing ‘community support’.


Categories: Researchers

Is an escort motorcycle a “Special Use” vehicle in Queensland

4 March, 2017 - 22:04

A correspondent, along with

… numerous other motorcycle riders provide motorbike escorts during cycling road races. These events are under special permits and we ride under the supervision of QLD Police.

During these events the motorbike riders use numerous warning lights as a safety measure as we are frequently in hazardous situations. The lights we use are similar to Police only amber. We have been instructed by the Police not to use our hazard lights as we are then not able to use them to indicate turns. – All good so far.

These events are frequent and most of the riders have the lights permanent fixed to the bikes but only use them when appropriate. Much the same as a large number of trucks on the road today.

Police have advised me today that none of us can have these permanently fitted to our bikes without our vehicles being deemed “Special Purpose”. The alternative of removing and reinstall them multiple times a year is just not viable.

The Police have suggested that we obtain a “Special Purpose” status however for the life of me I have been unable to find out how. I have even spoken to QLD Transport and they stated that they have never struck this type of request, especially for a motorbike and are unsure where to direct me.

A second email added:

I have since been able to obtain advice from the Vehicle Standards area of QLD Transport and they advised me (over the phone) that our vehicles are deemed “Special Purpose” (a determination was made some time ago after a similar call) and the use of the lights is legal and providing we are using them in accordance with the regulation. They declined to put this in writing which I am still perusing as the Police have stated without written documentation they want us/me to go to court. I have pointed them to the relevant section of the regulation, however they have further stated it is up us to prove the lights are legal.

The relevant provisions are the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld).  These rules require vehicles to comply with the Vehicle Standards set out in Schedule 1.   Rule 99(1)(b) says ‘a special use vehicle may be fitted with 1 or more flashing yellow lights’   A ‘special use’ vehicle (r 99(6)) is

(a) a vehicle built or fitted for use in hazardous situations on a road;

(b) an oversize light vehicle authorised to be driven on a road under a guideline or permit issued under part 3;

(c) a vehicle built or fitted to accompany—

(i) a vehicle mentioned in paragraph (b); or

(ii) a heavy vehicle that—

(A) is an oversize vehicle within the meaning of the Heavy Vehicle National Law (Queensland); and

(B) is being used on a road under a mass or dimension exemption within the meaning of that Law;

(d) a vehicle, whether or not a school bus, fitted with warning lights and warning signs under the Transport Operations (Passenger Transport) Standard 2010, schedule 1, part 4, section 19 or 25(1).

The relevant definition in this context is ‘a vehicle … fitted for use in hazardous situations on a road’.

The problem then becomes what is a ‘special permit’.  The Transport Operations (Road Use Management—Accreditation And Other Provisions) Regulation 2005 (Qld) provides for special event and special circumstances permits.     I would infer that bicycle races are probably subject to a special event, rather than special circumstances, permit.    A special event permit is issued to allow event organisers to use the road in circumstances where ‘conduct of the event involves, or may reasonably be expected to involve, some inconsistency with the requirements of any of the following— the Vehicle Standards and Safety Regulation; the Queensland Road Rules’ (r 102).    One of the inconsistencies may be that escort motorcycles will be fitted with flashing yellow lights. To actually determine the position, it would be necessary to see the terms and conditions of any permit that has been issued and whether it says anything about escort vehicles.  A special event permit may include conditions regarding ‘the display of warning signs and warning lights’ (r 103(5)).

If the permit refers to the need for escort vehicles and allows or requires the fitting of yellow flashing lights it may be inferred that it is understood that this is permission contrary to the the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld) (r 104) in which case it would equally be inferred that the intention is not to allow the yellow lights to remain on the bikes after the special event.

Where does that leave my correspondent?  The advice ‘that none of us can have these permanently fitted to our bikes without our vehicles being deemed “Special Purpose”’ is correct but the question is who is to decide that?  The definition is set out in the regulation, the DoT may issue a permit or registration to that effect but clearly they are not prepared to do so.  It then becomes the unhelpful conclusion that if the bikes are ‘fitted for use in hazardous situations on a road’ they are a special purpose vehicle, if they are not so ‘fitted’ then they are not.  The ultimate judge is … a judge.  If the police and/or the DoT don’t think the bikes fit that definition they could issue a fine and it would be necessary to go before a court and ask a judge or magistrate to rule on the matter.

A critical piece of evidence would be the special circumstances permit. If both the obligation, and permission to, install the yellow lights is set out in the permit, then prima facie the person issuing that permit thinks that fitting the lights would, otherwise, be contrary to the Vehicle Standards and that is why they are now giving permission.  That again would not determine the matter but would certainly be evidence.

It is of course wrong for the police to say that ‘is up us to prove the lights are legal’.

 Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner … the prosecution has not made out the case and the prisoner is entitled to an acquittal.  (Woolmington v DPP [1935] AC 462).

Unless there is a specific statutory provision shifting the burden of proof (and there may be hidden in some traffic legislation somewhere) then the burden of proof will be on the prosecution. If the matter went to court they would have to prove, beyond reasonable doubt, that the fitting of the lights contravenes the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld), not the other way ‘round.

 

 

 


Categories: Researchers

What is a ‘legal document’?

23 February, 2017 - 22:05

My correspondent, a first year nursing student asks if I

… could please explain the difference between a legal document and evidence taken at the time.  For example, when you have an operation you sign a document first and it is countersigned by a witness. I would assume this is an example of a legal document.

But as a nurse, I will be required to fill out a lot of information, for example, generic hospital forms etc which are either not signed or are only signed by a single person.

Are these considered to be a legal document or are they considered as written evidence taken at the time and would be produced just as that in a court.

The truth is I can’t explain the difference as I don’t know what people mean when they say ‘a legal document’ – usually when I’m being contrary I say something like ‘you mean that, at law, it is a document’.

The Oxford dictionary (online) defines document as ‘A piece of written, printed, or electronic matter that provides information or evidence or that serves as an official record’.   I think that goes too far, a notation in your private notebook is also a document even if it isn’t an official record.

So what then is a legal document?  I can think of several possible meanings.

First a document that has legal repercussions, usually penalties, if you knowingly lie on it.  Your passport application (Australian Passports Act 2005 (Cth) s 29) or a statutory declaration (Statutory Declarations Act 1959 (Cth) s 11) would be examples.

Second, a document where the form of the document is set out in legislation – so you have to use the ‘prescribed form’.  For example if you want to extend the time to hold the annual general meeting of a company you need to complete the ‘prescribed form’ (Corporations Regulations 2001 (Cth) Schedule 2).  Just writing a note won’t do.

Third would be a document that is intended to effect legal relations and to be relied upon.  For example a contract or a medical consent form where you know the person relying on the document (the surgeon, hospital etc) are going to act on the basis that the consent evidenced by the form is effective, but not that the form is just evidence of consent, it is not itself ‘consent’.

Finally a business record that can be used in evidence (see for example, Evidence Act 1995 (Cth) s 48(1)(e)).  This provision is the ‘business records rule’.  The logic is that businesses (including hospitals; Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 and ambulance services; Lithgow City Council v Jackson [2011] HCA 36) record things on documents because they are true.  So a hospital record can be presumed to accurately record the observations noted, treatment given etc because the record would be pointless if it wasn’t assumed to be accurate – whether that accuracy is for patient care, making sure the bills are correctly issued, keeping track of the scheduled drugs etc.   Where a document is produced in the normal case of business it can be tendered in evidence to prove that what is recorded actually happened.   But it is just evidence, if there is other evidence that the entry on the document was wrong, things didn’t happen that way, the court is not required to accept the version recorded in the document.

To return to the question, a consent form signed by a patient is evidence that the patient did in fact consent to the treatment proposed and the things that the document says were done, were in fact done.  So the document could be tendered to prove that the person did in fact consent if later they say that they did not or that the risks were not explained.  It would put a burden on them to explain why they signed it, but there could be lots of reasons – despite what it says it wasn’t explained to me; I wasn’t given the chance to read it; I couldn’t read it; I was in no fit state to understand it etc.   The point of the countersignature is again simply evidence so that if the person says ‘I didn’t sign it’ you can find the witness to say ‘yes they did, I saw them do it’.    The process (eg one signature or two) doesn’t change the ‘legal’ nature of the document; which is the hospital, surgeon etc are going to rely on it as giving them authority to operate so it is intended to impact upon the legal nature of the relationship between the parties and it is evidence that what it records actually happened.

‘Generic hospital forms etc which are either not signed or are only signed by a single person’ are also legal documents in the way described above, that is if they are produced in the normal course of the hospital’s operations so the hospital can record what is happening, then they can be admitted as evidence that what is recorded is true.  They are in that sense a ‘legal document’.  And there would also be legal repercussions for knowingly entering the wrong data.  Those repercussions could range from action by the employer to professional discipline in the case of registered health care professionals.

I think what is meant by ‘written evidence taken at the time’ would be the notes a person makes in their personal notebook, not a hospital or employers or anyone else’s form.   A ‘contemporaneous note’ (ie one written at the time something happened) may be used by a witness to refresh their memory if they are called upon to give evidence about an event that they no longer recall.   For more details see The Value of File Notes (June 10, 2016).

For other discussions on the use of notes see

Refusing Treatment Documentation (June 9, 2016); and

Completing Paramedic Case Records (September 3, 2015).


Categories: Researchers

Good Samaritan legislation – a comparison

22 February, 2017 - 01:51

A correspondent wrote:

I am a first aid trainer in Victoria. While I know the Good Samaritan law in Victoria (Wrongs Act of Victoria 1958), what are the various acts around Australia, and how are they different from each other? What are the similarities?

I have written extensively on the good Samaritan laws but that’s OK.  I know what’s been written on this forum over 8 years but people who are new to it do not and finding relevant earlier posts isn’t easy.  The answer below is, however, largely a cut and paste from earlier posts.

Every State has good Samaritan type legislation:

These provisions were introduced following the Ipp Review into the Law of Negligence even though the Review did not recommend that any such legislation was necessary. The Review’s final report said:

The Panel understands that health-care professionals have long expressed a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations. However, the Panel is not aware, from its researches or from submissions received by it, of any Australian case in which a good Samaritan (a person who gives assistance in an emergency) has been sued by a person claiming that the actions of the good Samaritan were negligent. Nor are we aware of any insurance-related difficulties in this area.

Under current law, the fact that a person (including a health- professional) was acting in an emergency situation is relevant to deciding whether the person acted negligently. It may be reasonable in an emergency situation to take a risk that it would not be reasonable to take if there was no emergency, provided that precautions appropriate to the circumstances are taken to prevent the risk materialising.

Also relevant to the issue of negligence is the skill that the good Samaritan professed to have. Suppose a passenger on an aircraft has a heart attack, and in response to a call for assistance by the cabin staff, a 60 year old specialist dermatologist goes to the passenger’s aid. The standard of care expected of the doctor would be set not only taking account of the emergency nature of the situation, but also of the fact that a doctor who has practised as a dermatologist for many years could not be expected to be as well-qualified and able to provide emergency treatment for a heart-attack victim as a cardiac surgeon or even, perhaps, an active general practitioner.

The Panel’s view is that because the emergency nature of the circumstances, and the skills of the good Samaritan, are currently taken into account in determining the issue of negligence, it is unnecessary and, indeed, undesirable to go further and to exempt good Samaritans entirely from the possibility of being sued for negligence. A complete exemption from liability for rendering assistance in an emergency would tip the scales of personal responsibility too heavily in favour of interveners and against the interests of those requiring assistance. In our view, there are no compelling arguments for such an exemption. (Ipp Review of the Law of Negligence, Final Report (Commonwealth of Australia, 2002), [7.21]-[7.24]).

Even though the Ipp Review saw no need for this type of legislation the states and territories all moved to solve the problem of community fear of legal liability.  Today a good Samaritan enjoys legal immunity for actions that are alleged to have been negligent, provided the good Samaritan was acting ‘in good faith.

In the Australian Capital Territory, New South Wales, Tasmania and Victoria, a Good Samaritan provides assistance to a person who is, amongst other things, ‘at risk of being injured’ (ACT and NSW) or ‘apparently at risk of death or injury’ (Tas and Vic).   In the Northern Territory and South Australia, ‘emergency assistance’ means ‘emergency medical assistance’ or ‘any other form of assistance to a person whose life or safety is endangered in a situation of emergency’.   The Western Australia legislation provides protection for a person ‘at the scene of an emergency’ who assists ‘a person in apparent need of emergency assistance’.

The exception is Queensland. The Law Reform Act 1995 provides that a medical practitioner, a nurse or a member of an organisation listed in the regulations is not liable for acts done in good faith and without gross negligence. There are no regulations (and so no prescribed organisations) under the Law Reform Act 1995.  The Civil Liability Act 2003 (Qld) also provides legal protection for people who provide first aid as part of their duties as a member of an organisation listed in the regulation (s 26).  The organisation also benefits from legal protection (s 27).   The list of protected organisations is set out in the Civil Liability Regulation 2014 (Qld) schedules 1 and 2.  That does mean that in Queensland there is no statutory immunity for a person who just steps up out of the crowd, maybe having completed a first aid certificate, but who is not a registered health professional or a member of one of the listed organisations.

For posts on the law and good Samaritans see


Categories: Researchers

Employment protection during a NSW s 44 fire – amended

20 February, 2017 - 09:20

The ‘s 44’ in the title of this post is a reference to the Rural Fires Act 1997 (NSW) s 44.  That section says, amongst other things:

(1) The Commissioner [of the Rural Fire Service] is to take charge of bush fire fighting operations and bush fire prevention measures and to take such measures as the Commissioner considers necessary to control or suppress any bush fire in any part of the State if, in the opinion of the Commissioner:

(a) a bush fire has assumed or is likely to assume such proportions as to be incapable of control or suppression by the fire fighting authority or authorities in whose area or locality it is burning, or

(b) the prevailing conditions are conducive to the outbreak of a bush fire likely to assume such proportions, or

(c) a bush fire is not being effectively controlled or suppressed by the fire fighting authority or authorities in whose area or locality it is burning, or

(d) a bush fire is burning in a place that is not the responsibility of any fire fighting authority.

Today’s correspondent is a member of the Rural Fire Service and asks about employment protection during a fire where the Commissioner has taken overall responsibility for the fire fighting effort under this section.  My correspondent writes:

I am currently employed in NSW by a private multi-national company who have previously been fantastic in allowing myself and others some flexibility to attend operational tasks as a volunteer fire fighter with the NSWRFS.  In fact, my employer has encouraged staff participation in such volunteer work.  Although there has never been any wording within my employment contract to accommodate this, they have always been happy for me to use whatever leave entitlements that may apply under standard employment statutes in NSW (i.e.: I’m not under any particular award).  Two weeks ago, our company was acquired by another company and the new general manager that I report to is of the opinion that this type of emergency services leave will not be supported.  This has coincided with recent section 44 declarations for large fires in NSW…I spoke to my new manager … and [he] informed me that “if you ever get on a fire truck in work time, you will be out of a job”.  Could you please advise if employees who are volunteer members of the RFS are afforded any protection from this type of threat to their employment, particularly under the coverage of a section 44 or otherwise.  Also, do employers have any legal obligation to release staff who are RFS members when it is in relation to the direct response to a section 44 event.

There is some protection for volunteers in NSW but not related to s 44.  Section 60B of the State Emergency and Rescue Management Act 1999 (NSW) 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).

Victimise means much more than just dismiss.  According to s 60C:

An employer victimises an employee if the employer:

(a) dismisses the employee from employment with the employer or terminates the engagement of the employee by the employer, or

(b) alters the employee’s position in his or her employment with the employer, or alters the circumstances of the employee’s engagement by the employer, to the employee’s prejudice, or

(c) otherwise injures the employee in his or her employment with, or engagement by, the employer.

The ‘part’ to which the section is referring to is Part 3A ‘Employment Protection for Volunteer Emergency Workers’ but it only applies to an emergency where the premier has made a declaration that the part applies.   The emergency does not have to be a declared state of emergency under other parts of the Act.  So, the employment protection can apply during a s 44 fire, but only if the Premier makes the declaration.  The declaration by the Rural Fire Service Commissioner does not, on its own, bring those provisions into operation.

The other relevant provisions are Fair Work Act 2009 (Cth) s 772. That section 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.’  Voluntary emergency management activity means, amongst other things, responding as a member of ‘an emergency management body’ in circumstances where the member has been asked to respond or if no formal request has been made, it is reasonable to assume that the request would have been made if circumstances permitted.    An emergency management body would include all the traditional emergency services such as the volunteer fire brigades and State Emergency Services (see s 109).  That’s a long way of saying you can’t be sacked for responding as a member of an emergency service in circumstances where that is reasonable.  The Fair Work Act is a Commonwealth Act and so will apply across Australia.   Employment law is not my field, but from what I can see the remedy, if you are sacked, would be to bring proceedings with Fair Work Australia (see s 773 to 783) which could take time and may or may not lead to you getting your job back.

Community service leave

(And thanks to Steve Cliffe for bringing these provisions to my attention).

The Fair Work Act does set out National Employment Standards. These ‘are minimum standards applying to employment of employees’ (s 61).   The minimum standards relate to, amongst other things, community service leave (s 61(2)(f)).  ‘An employee who engages in an eligible community service activity is entitled to be absent from his or her employment’ during the period of that community service activity, and for a reasonable amount of time for travelling to and from that activity and resting after that activity (s 108).

An eligible community service activity includes a ‘a voluntary emergency management activity’ that in turn would include responding as a member of the Rural Fire Service.  For more details read the Community Service Leave webpage from the Fair Work Ombudsman.

Conclusion

Employees who are volunteer members of the RFS are afforded any protection from threatened termination of their employment if the Premier has declared that the fire emergency is an emergency to which part 3A of the State Emergency and Rescue Management Act 1999 (NSW) applies.  That could be, but is not automatically, a s 44 fire.    Employees do have some protection against dismissal based on the Fair Work Act 2009 (Cth) s 772 but often remedied under that Act are less than effective.

Employers do have a legal obligation to allow members of the RFS to take community service leave to take part in an emergency response.


Categories: Researchers

Requiring a bystander to assist a Queensland paramedic

18 February, 2017 - 07:07

A correspondent has:

… been speaking with some paramedics who work for the Queensland Ambulance Service and they explained that they have the power under the QLD Ambulance Act to instruct a member of the public to do whatever they deem necessary in order to provide assistance to them during an emergency.  Examples that have been cited range from the benign, such as asking a citizen to help carry equipment, to using a citizens cell phone, or even ordering a member of the public to drive the ambulance to the hospital in an emergency.  I’ve scanned through the Act, but don’t see anything that specifically says this.  I’ve asked a few of the paramedics for the section that states this, and one has said that it’s implied under the Doctrine of Necessity.  However, that isn’t my understanding of that principle. I’m curious if you see any language pertaining to this and what your impression of this is.

Specifically, I have three questions arising from these discussions. To what extent are paramedics legally authorised to ‘order’ members of the general public to assist them in an emergency?  What rights do members of the public have to refuse such an offer?  And, what legal repercussions might a member of the public expose themselves to if they did refuse such an order?

The power to request assistance

There relevant provision is the Ambulance Service Act 1991 (Qld) s 38.  That section sets out the powers of ‘authorised officers’.  An ‘authorised officer’ is an officer authorised by the Commissioner.  A person may be personally authorised or the authority may be given to all ambulance officers of a particular ‘class’ (eg officers with particular qualifications or employment level).  An authorised officer:

(1) … may take any reasonable measures—

(a) to protect persons from any danger or potential danger associated with an emergency situation; and

(b) to protect persons trapped in a vehicle, receptacle, vessel or otherwise endangered; and

(c) to protect themselves or other officers or persons from danger, potential danger or assault from other persons.

(2) Without limiting the measures that may be taken for a purpose specified in subsection (1)(a) or (b), an authorised officer may, for that purpose—

(a) enter any premises, vehicle or vessel; and

(b) open any receptacle, using such force as is reasonably necessary; and

(c) bring any apparatus or equipment onto premises; and

(d) remove from or otherwise deal with, any article or material in the area; and

(e) destroy (wholly or partially) or damage any premises, vehicle, vessel or receptacle; and

(f) cause the gas or electricity supply or motor or any other source of energy to any premises, vehicle, vessel or receptacle to be shut off or disconnected; and

(g) request any person to take all reasonable measures to assist the authorised officer; and

(h) administer such basic life support and advanced life support procedures as are consistent with the training and qualifications of the authorised officer.

(3) Without limiting the measures that may be taken for a purpose specified in subsection (1)(c), an authorised officer may, for that purpose, require any person not to enter into or remain within a specified area around the site of the danger to a patient.

Readers will see that the relevant provision for this discussion is s 38(2)(g).  The section doesn’t say that the officer may compel a person to provide assistance, only that the officer my ‘request’ assistance.  Of course anyone can request assistance, legal authority is not required.   So what is the point of s s 38(2)(g)?  The section has to be read along with s 39, which says:

(1) The State is to indemnify every service officer against all actions, proceedings and claims in relation to—

(a) acts done, or omitted to be done, by the officer under section 38; or

(b) acts done, or omitted to be done, by the officer in good faith for the purposes of section 38.

(2) For the purposes of subsection (1), a service officer includes a person required under section 38(2)(g) to assist an authorised officer.

Taken together ss 38(2)(g) and 39 confirm that if a person is assisting a paramedic, the state, and not the person, is liable to deal with any claim or allegation of negligence arising out of the treatment.  It provides legal protection to the person who agrees to help the paramedic.

To return to the question posed by my correspondent, the section does not give authority to ‘instruct a member of the public to do whatever they deem necessary’ or extend to ‘ordering a member of the public’ to do anything.   A paramedic may ask for help, and if a person agrees to help that person enjoys the same liability protection offered to the ambulance officers.  Nothing more.

What legal repercussions might a member of the public expose themselves to if they did refuse such a request?

Basically, none.  There is no obligation to accede to a request for assistance.

It is an offence to ‘wilfully obstruct or hinder any person acting under the authority of this [Ambulance Services] Act (s 46)’.  The offence of ‘wilfully obstruct or hinder’ a Queensland paramedic does not depend on s 38(2)(g).   A person can obstruct an officer regardless of whether the officer requests them to do anything or to stop doing anything.

The Oxford dictionary (online) defines obstruct as ‘Block (an opening, path, road, etc.); be or get in the way of; Prevent or hinder (movement or someone or something in motion); Deliberately make (something) difficult.’   Case law on similar phrases says that ‘obstruct or hinder’ requires action by the accused which makes it more difficult for the person to perform their duties (Evans v Powell [2012] NSWSC 1384; Hayward-Jackson v Mason-Walshaw [2012] WASC 107; Semaan v Poidevin 2013] NSWSC 226; Hinchcliffe v Sheldon [1955] 3 All ER 406).

In Semaan v Poidevin [2013] NSWSC 226, the court had to consider whether the defendant was guilty of hindering police when he refused to hand over his mobile phone which police wanted for fear that he was going to call others to come and cause a breach of the peace.  We don’t need to consider the details of that case, but in coming to his conclusion that the accused was not guilty of the offence charged, Rothman J considered this hypothetical

Assume a police officer stops the driver of a car for a random breath test. Assume that the driver has not been drinking and does not register any, or any prohibited, content of alcohol on the device utilised. At that point in time the officer, who is in uniform, observes an occurrence a distance away that is either a breach of the peace or that would give rise to a breach of the peace. The officer directs the owner of the vehicle to alight from the car, and to give the officer the keys, so that the officer can seize the car and use it temporarily in order to go to the location of the breach of the peace and to prevent it.

In those circumstances, the officer is taking a step that the officer reasonably believes is to prevent a breach of the peace … Is the owner of the vehicle hindering a police officer in the execution of duty if the owner refuses to allow the police officer to take the car and to drive it? …

In my view, it is not resisting a police officer in the execution of duty to assert a right to possess one’s own property, if that property is not to be used directly in the breach of peace or criminal conduct, other than in circumstances where the person is under arrest.

In Bombala Council v Smith [2005] NSWSC 382 the defendant refused to remove stock from his paddock to allow an authorised officer to spray noxious weeds on the property.  Master Malpass held that in the circumstances anticipated by the Act, ‘The failure to remove stock in the circumstances may be seen as impeding or hampering.’

Can refusal of a request, such as that suggested by my correspondent constitute an obstruction or hindrance.   Generally speaking, I would answer that ‘no’.  The request can’t convert an innocent act into a guilty one.    An example may help.  Assume a paramedic is treating a patient and would be assisted if someone were to hold the drip.  A person who is standing a reasonable distance from the scene, watching but doing nothing is not obstructing or hindering the paramedic.  If the paramedic then asks that person to help and they refuse, their inaction that was not an obstruction or hindrance isn’t now making the paramedics job harder, it just isn’t making it easier.

Now consider a request to use ‘a citizens cell phone, or even ordering a member of the public to drive the ambulance to the hospital in an emergency’.  To require the person to hand over their phone is exactly the hypothetical that Rothman J considered in Semaan v Poidevin.   He said ‘In my view, it is not resisting a police officer in the execution of duty to assert a right to possess one’s own property…’ and equally how can it be an obstruction or hindrance to refuse to hand it over to a paramedic.  If there’s no duty to rescue then a person is under no duty to go to the aid of the patient and they’re under no duty to go to the aid of the paramedic (and s 38(2) doesn’t impose such a duty).

The situation must be even clearer where the ‘command’ is to ‘drive the ambulance to the hospital in an emergency’ because that represents a deprivation of liberty. Whatever interest we have in our private property we have even greater interest in being at liberty to move about as we please.  To compel a person, to make it clear that they are no longer free to go about their business is in effect to arrest the person.  Ambulance officers have no such authority.     Take my example of the person watching the event and who is asked to assist but who says ‘no I’ve got to go’ and who then walks off. The exercise of their right to freedom of movement when there is no legal authority for anyone to detain them, can’t be a hindrance or obstruction.

I can imagine one circumstances where there might be, and that is drawing a parallel with Bombala Council v Smith.  Imagine paramedics attend in response to a triple zero call and find the door locked.  They ask the key holder to assist them by unlocking the door.  The key holder refuses.  The paramedics explain that they need to access the patient and they are being delayed and if the keyholder doesn’t open the door, no doubt the fire brigade will happily remove it from the door frame.   That sort of failure to act, where it is intended to make the paramedics job harder, could I think be a wilful obstruction or hindrance but again that doesn’t depend on s 38(2).  The obligation to assist by unlocking the door, if it exists, is because it is an offence to wilfully obstruct or hinder a paramedic, not because he or she asked.

A request or direction in this context is relevant as it may make it clear to a person that what they are doing is making the paramedics job harder.  Given the offence requires a ‘wilful’ obstruction a person who does not realise that they are getting in the way would not be guilty of the offence. But if they are told they are getting in the way and are asked to stop, or leave, or move their car, or unlock the door, then that may be evidence that they are not ‘wifully’ obstructing or hindering the paramedic.  But that direction or request does not depend on s 38(2)(g).

Necessity

A power to compel would not be justified by necessity.  Necessity, when it applies, may give rise to a defence if a paramedic commits a tort but it doesn’t impose an obligation upon anyone else to assist.   And asking, or even demanding, that someone provide assistance isn’t a tort, but equally the person isn’t required to provide that assistance.    Necessity, or self-defence, may be a doctrine that could be relied upon if a paramedic physically removed a person who was getting in the way of the provision of care but that would not extend to requiring them to drive the ambulance.   It might be reasonable and proportionate response to a risk to physically remove or restrain a person who is threatening the paramedic’s or patient’s safety but it would be quite another to forcibly detain a person and require them to drive an ambulance.   As noted above, there is no power of arrest and an arrest occurs when a person is led to believe they are no longer free to go about their business (Eburn and Hayes Criminal Law and Procedure in NSW, 5th ed, 2016, Chapter 11).  Necessity could not justify that sort of compulsion.

Conclusion

I was asked three questions.  In my view the answers are:

To what extent are paramedics legally authorised to ‘order’ members of the general public to assist them in an emergency?  

Queensland paramedics are not allowed to order members of the general public to assist them in an emergency.  They are authorised to ‘request’ assistance.

What rights do members of the public have to refuse such an order? 

There is no obligation to comply with the request for assistance. If a person does comply with that request, they are to be indemnified by the state of Queensland should any legal claims arise from their assistance.

And, what legal repercussions might a member of the public expose themselves to if they did refuse such an order?

In some circumstances, refusing to do what a person is asked to do could, conceivably, constitute the offence of ‘wilfully obstructing or hindering’ a paramedic, but in my view mere failure to refuse a request for assistance would not usually meet that test.   Where a person is hindering or obstructing a paramedic and they don’t stop when asked to do so, may be evidence that their actions are ‘wilful’.  But if they are not obstructing or hindering a paramedic, refusing a request to assist won’t convert a legal action into an illegal one.


Categories: Researchers

Qualifications for registration as a Paramedic

8 February, 2017 - 20:04

The process to see paramedics as registered health professionals moves along  – see this post from ‘The Paramedic Observer’ https://www.facebook.com/ParamedProf/posts/1308854855824931.

The Summary of the Draft Health Practitioner Regulation National Law Amendment Law 2017 attached to that post says:

  1. Approved qualifications for paramedicine will be decided by the National Board in accordance with the usual arrangements for accreditation functions in the National Law

  2. However, in addition to the approved qualifications, and as agreed by the Ministerial Council on 7 October 2016, the Bill recognises that a person who holds a Diploma of Paramedical Science, Diploma of Paramedical Science (Ambulance), Advanced Diploma of Paramedical Science (Ambulance), Diploma in Paramedical Science (Pre-Hospital Care) or Advanced Diploma Paramedical Sciences (Pre-Hospital Care) issued by the Ambulance Service of NSW will be qualified for general registration in paramedicine under the National Law.

A correspondent has written and asked:

I note that the various incarnations of the Diploma of paramedical science will be accepted for registration but only if awarded by ambulance NSW.

My questions…

  1. Is it ok to discriminate against identical qualifications issued by another RTO, that was delivered to a standard defined by a government agency?…

The first proposition isn’t necessarily true.  The Bill, should it become law, will provide that the Diplomas and Advanced Diplomas issued by NSW Ambulance will be acceptable for paramedic registration but it does not mean that Diplomas offered by other RTOs will not be accepted.  Whether they are, or are not, will be a matter for the Paramedicine Board. Having said that it is however unlikely that other Diploma’s will be accepted as they are not currently identified by the Council of Ambulance Authorities as qualifications for employment as a paramedic – see http://www.caa.net.au/paramedic-education/accredited-courses.

Assuming then that the NSW Ambulance Diplomas and Advanced Diplomas will be the only accepted diplomas for accreditation, is it OK to discriminate against other RTO issued Diplomas?  ‘OK’ begs the question of whether we mean morally, intellectually or legally?  The answer is that it is OK on a legal basis.  Discrimination is a matter of making choices, it is only unlawful if the discrimination is made on prohibited grounds, eg gender, marital status, race etc.  That is not the case here.

One could make arguments regarding the notion of ‘competitive neutrality’ in government services and that what this is doing is anti-competitive by denying other RTOs the option to offer paramedic diplomas that lead to registration.   But politics is the ‘art of the possible’ and if this concession was required to get NSW on board then the Parliament can make those laws.

Further the anti-competition provisions of the Competition and Consumer Act 2010 (Cth) only applies to a State to the extent that the state is carrying on a business (s 2B).  I don’t see that NSW Ambulance is a ‘business’, though the point could be argued (see United Firefighters Union of Australia (‘UFU’) V Country Fire Authority (‘CFA’) [2014] FCA 17 (31 January 2014) (February 12, 2014).  I can’t resolve the intricate details of the Competition and Consumer Act 2010 (Cth) but I’ll boldly suggest that I don’t think that it will prove a barrier to this provision.

Further, I imagine that there will be a significant difference to a diploma offered by an ambulance service and any other RTO.  An ambulance service can put their students on the road from day one.  It will still be the case that NSW Ambulance will have a virtual monopoly on emergency ambulance services so graduates from NSW Ambulance will have opportunities for significantly more clinical exposure than students of any other RTO.  If that’s correct the distinction isn’t merely protecting the NSW Ambulance diploma from competition but reflects and actual difference in qualification.

And, as noted, another RTO will be able to apply to the Paramedicine Board to have its qualifications recognised and if it can show equivalency that may be accepted.

  1. How does this help the cause of finding alternative career paths for qualified people, outside the state ambulance services?

Qualified people will be registered as paramedics and will be able to move across the industry.  What changes is what ‘qualified people’ means.  A person with a diploma, rather than a degree, will not be ‘qualified’.

Having said that I do not that there are ‘grandfathering’ provisions.  To return to the Paramedic Observer’s page and a powerpoint presentation that is attached. It there says

  • During the first three years of the scheme provisions allow paramedics who are already practising but do not hold a qualification approved by the Board for general registration under s53 to be granted general registration,

Persons currently working as a paramedic will be registered and they too will be able to move across the industry.  Future students who want to be paramedics will have to have regard to the approved qualifications.

 

 

 

 


Categories: Researchers

Compensation for loss of personal effects

7 February, 2017 - 06:27

This question comes from a NSW emergency services volunteer:

I’m wondering if this is something you can look into. I’ve recently been advised that personal items lost/damage etc are not covered by agency insurance.

Compensation for volunteers in NSW emergency services is governed by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).  This Act not only ensures that volunteers with the Rural Fire Service, the NSW State Emergency Service and other rescue workers receive workers compensation even though they are not employees.  The Act also provides for compensation for the loss of personal effects.

A volunteer firefighter is entitled to compensation for the loss of personal effects whilst fighting a fire or on a relevant journey with respect to firefighting.   Generally speaking, the damage has to occur at or near the place of the fire or whilst proceeding to a place to perform one’s duties (s 12). A firefighter cannot obtain compensation if there is access to other insurance, so if a firefighter’s car is lost and it was insured, they are expected to claim on their vehicle insurance rather than from the Bush Fire Fighters Compensation Fund (s 13(4)).   An insurance company cannot increase the firefighter’s subsequent premium on the basis of that claim (s 28B).  Similar provisions apply for members of the State Emergency Service and other rescue workers (ss 28 and 28A).

With respect to firefighters, the Self Insurance Corporation can allow a claim even where the equipment wasn’t with the firefighter if ‘it was necessary or reasonable for the article to be where it was at the time of the destruction, damage or loss’ (s 14).   There does not appear to be an equivalent provision for emergency and rescue workers.

In other circumstances, for example if equipment is lost by theft or damage of the depot or station, the liability to pay compensation would depend on whether it is possible to allocate ‘fault’ to anyone.  If it is not, then any compensation would depend on the good will of the agency or the terms of the building or contents insurance (if any).

 


Categories: Researchers

Unlicensed driver of an emergency vehicle

6 February, 2017 - 09:25

This question comes from NSW but the answer will be the same nationwide.   The question relates to

… NSW RFS driving SOPS and law on the potential use of an driver for a truck whereby the driver doesn’t have an adequate licence level (e.g. the driver may only have a car licence).

While it may seem common sense that only drivers qualified and trained to use the trucks do so each time, my questions are in relation to the more obscure and very rare situations that may occur.

The underlying question is, is there a scenario where an unlicensed driver may legally operate or drive an RFS truck?

Scenarios where this may arise include:

  • the truck is on a fireground and the driver is unable to drive the truck due to injury or some sort of emergency medical situation, the truck needs to be moved off the fireground for safety reasons.
  • the truck needs to be moved from inside the station to the awning (not on the public road) so it can be checked/serviced, or vice versa where a driver may not be available or otherwise occupied.
  • If the truck remains off public roads, is there some level of RFS officer that can authorise an unlicensed driver to drive the vehicle?
  • Is there some sort of emergency situation where an unlicensed driver can operate a vehicle such as this on a public road?
  • A parallel question is at what point is a person considered to be driving a vehicle, is it when they sit in the driver’s seat, start the vehicle or when the vehicle is moving?

The simple answer is ‘no a driver must have the relevant licence because of the risk to themselves and to everyone else’.   But, having said that, I would anticipate that it would not be considered an issue in a true, life threatening emergency such as that described above, that is ‘the truck is on a fireground and the driver is unable to drive the truck due to injury or some sort of emergency medical situation, the truck needs to be moved off the fireground for safety reasons’. In most cases the appropriate thing to do will be get on another truck or get someone sent to you to drive it home.  If an unlicensed driver does drive it because of an urgent and immediate threat to life, they need to stop as soon as they can, that is as soon as they are out of the immediate danger.    In that case, provided they don’t crash, it is unlikely that anyone would take action and one could make a ‘necessity’ argument (see The Doctrine Of Necessity – Explained (January 31, 2017)).

I would think the appropriate test for any firefighter (or anyone else) would be – ‘am I prepared to wear the prosecution?’  So if the fire appliance is in the path of the fire, the only licensed driver has had a heart attack, you might say – this might be illegal but I’m not going to wait here to die, and let my mate die too – in which case drive it and be prepared to wear the consequences. If nothing happens, or the police take no action, or a magistrate acquits well and good.  But if not, you need to be happy with the decision and say ‘that was a price I was prepared to pay’.   Equally if you are asked to move the appliance onto the driveway ask yourself ‘am I prepared to be prosecuted for this’ and if the answer is ‘no’, don’t do it.

You need a licence to drive on a public road or road related area.    A ‘road related area’ is (according to the Road Rules 2014 (NSW) r 13):

(a) an area that divides a road,

(b) a footpath or nature strip adjacent to a road,

(c) an area that is not a road and that is open to the public and designated for use by cyclists or animals,

(d) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles.

A road or road related area includes a service station and car park. If it did not idiots could use them to drive unregistered and unsafe cars and people injured in accidents could not get compensation from the motor accidents scheme.    It will also include the driveway in front of the fire station.

If a vehicle is not on a road or road related area, you don’t need a licence to drive it.  That is why farmers have unregistered paddock bashers and farm kids can learn to drive.  Whether the RFS wants to allow someone to drive their appliance in those circumstances is a matter for the RFS.

There is no emergency situation where an unlicensed driver should be driving an emergency vehicle.  We’ve noted in earlier posts regarding the need to take reasonable care, and that whatever the emergency it does not warrant risking other lives.  A fire, flood, road accident etc are not emergencies for the emergency services, they are their daily work and they need to be planned for and that includes having relevant drivers.  If there is no-one licensed to drive the truck, that brigade or station must be ‘off line’.

The Road Rules 2014 (NSW) say ‘”drive” includes be in control of’.  The Road Transport Act 2013 (NSW) says ‘drive includes: (a) be in control of the steering, movement or propulsion of a vehicle…’  The Roads Regulation 2008 (NSW) r 3 says ‘“drive includes ride or draw (in relation to a vehicle) and ride or lead (in relation to an animal)’.

A person who attempts to exercise any control over the vehicle, whether they are in the driver’s seat or not, is a driver, so a passenger who steers the vehicle or applies the handbrake may be considered the driver.   In Cordwell v Carley (1985) 31 A Crim R 291 Grove J found that a person who was asleep in the driver’s seat was a driver.  He said “The test of whether a person is driving a vehicle is whether he has the means of control of the vehicle at his disposal.” In the course of his judgement he quoted Langman v Valentine  [1952] 2 All ER 803

… where a pupil sat in the driver’s seat and had her foot in position to use, and did use, the accelerator, foot brake and steering wheel whilst the instructor sat in the front passenger’s seat with one hand on the hand brake and the other on the steering wheel, the ignition being in convenient reach. Lord Goddard CJ said:

“ … on those facts (the justices) could find … that (the instructor) was a driver. I do not think it is impossible either in law or in fact to say that there can be two drivers at the same time, two people controlling the car. One may be controlling the starting and one may be controlling the stopping and they both may be controlling the steering, although that may be rather a perilous thing to do.”

Other cases cited, where people were found to be the driver, included pushing a vehicle with no-one in the driver’s seat, steering a vehicle down an incline with the engine off, a person in the passenger’s seat who woke to find the car rolling down the hill so attempted to steer it.

In Westlaw’s Motor Vehicle Law (NSW) the authors say:

… the courts have not developed a single test with which to determine whether a person was driving a vehicle. Instead, the courts have, depending on the circumstances, had regard to a number of factors, including:

  • the extent of control in fact exercised by the defendant over the movement of the vehicle,
  • the extent of the defendants capacity to control the vehicle,
  • the source of the vehicles propulsion,
  • the position of the defendant in, or in relation to, the vehicle,
  • the perceived legislative policy underlying the statutory scheme in question, or
  • a combination of some or all of those matters.

The determination of the question involves a finely balanced decision and a question of degree and circumstances.

I would suggest if you are in the driver’s seat and the engine is on, then you are a driver.  Merely sitting in the driver’s seat, eg when at open days children are allowed to sit in the driver’s seat, without more, would in most circumstances not constitute being the driver. But if the engine’s on, or the vehicle’s moving, then anyone who is exercising control over the vehicle is a driver.

 

 

 

 

 


Categories: Researchers