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:

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

17. 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.

2. 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.

 

 

 

 

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).

 

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.

 

 

 

 

 

This question comes from an event first aid provider in South Australia.  My correspondent is required to:

  … look at “high risk” event bookings that come into the organisation and review the relevant regulations, assisting us to determine what resources we need to supply to comply with the regulations (and more importantly the clinical needs of the competitors).

One of the major issues I have found when reviewing these is that many regulations appear poorly worded, with seemingly little understanding of the differences in clinical scope of different personnel. I have included some of the more obvious regulations for you to see what I mean.

2015 SA Conditions of Rallying

http://sarally.net.au/wp-content/uploads/2015/01/SA-Conditions-of-Rallying-2015.pdf (2.9.a Safety)

• One or more of the following must be provided, must be incorporated in the safety plan, and must be stationed appropriately.

1. First Aid Accredited person
2. Medical Intervention Vehicle
3. St John Ambulance Medical Vehicle (equipped to the highest level available in the region where the event is being held)
4. Ambulance

Per this regulation, you can provide anything from a solitary first aider (with no mention of a vehicle) to an ambulance (I assume they mean staffed with 2 paramedics but it doesn’t say).

Pony Club Association of SA

http://www.ponyclub.asn.au/files/documents/rule-book/3eventing.pdf

 2.3 MEDICAL A doctor should be present at least during the Show Jumping and Cross Country phases. If it is impossible to obtain the services of a doctor, the minimum alternative is for a current holder of a Senior First Aid certificate to be present. Fall check list to be used by first aider in the event of a fall of rider. (form can be found at rear of this rule book) An ambulance or designated vehicle properly equipped from the doctor’s or first aid personnel’s resources must be in attendance during jumping events.

 Per this regulation a doctor is recommended – but if “impossible to obtain” then a first aider is acceptable. Almost all pony clubs are not able to/will not pay for a doctor to be present.

 Australian Speedway

http://speedwayaustralia.net.au/uploads/Australian%2BSpeedway%2BRacing%2BRules%2B%26%2BRegulations%2B-%2BSeptember%2B2015%2B%28Final%2Bin%2Bamendment%2Blines%29%2BRHYS%2BCHANGE%2BFINAL.compressed.pdf (3.3.3)

 3.3.3 At any Race Meeting or Event, the minimum requirements are (for practice sessions for Sprintcars & Speedcars, Refer to Rule 3.3.5):

(a) Regular Race Meeting standard quantity of fire extinguishers and fire crew

(b) Race Meetings and official practice sessions require:

* a minimum of two (2) first aid personnel (paramedics, ambulance service, doctor or qualified first aid personnel);

* a station wagon capable of transporting minor injury cases; and

* an appointed person equipped with an operative mobile phone and supplied with the phone number of the nearest road transport ambulance service.

(c) It is compulsory that an approved State Service road going ambulance is present at all Sprintcar & Speedcar Race Meetings and is highly desirable at all other Race Meetings.

3.3.5 For all Sprintcar and Speedcar Drivers, minimum safety requirements for practice are:

(a) a minimum of two paramedic personnel or persons with a current first aid certificate issued by St John Ambulance Australia;

(b) suitable trained, attired and equipped fire fighters;

(c) a station wagon or vehicle capable of transporting minor injury cases;

(d) an appointed person equipped with an operative mobile phone and supplied with the phone number of the nearest road transport ambulance service;

There is a large difference between the capabilities of paramedics, a doctor and first aiders.

When it comes to determining what level of medical coverage is required, I’m interested to know where a medical provider stands in the event of regulations being so non-specific or varied and determining liability in the event of an incident?

Using the 2015 Conditions of Rallying SA as an example, sending a first aider along without a vehicle is in my mind completely inadequate to deal with a high speed accident that might occur 10km from that person on a country road. But this would seemingly still meet the regulation.

I do believe that it is an important one as inadequate regulation or interpretation of them by providers may cause patients competing in various high risk events to be receiving insufficient medical coverage. Through personal experience involved in these discussions every day, club organisers often have very little knowledge of the regulations and when confronted with a choice of either paying for a health professional (doctor/paramedic) or a first aider they usually only want the cheapest option they can get away with without understanding the clinical reasons behind it. It is always somewhat of a balancing act to satisfy the customer, comply with regulation and provide a sufficient level of coverage to ensure competitor safety.

Let me first deal with some issues of language. As a lawyer, I think of a ‘regulation’ as a subordinate piece of legislation.  That is the parliament passes an ‘Act’ but the Act can’t deal with all the details so they authorise someone, the Governor, a Minister or a public official to ‘make regulations’ to fill in the gap.  There is a formal process to make a regulation and when it is made it has the force of law.

But regulation includes more than just formal laws.  According to the Oxford dictionary (online) regulation means ‘A rule or directive made and maintained by an authority’.  In this case the authority can be the Pony Club or speedway association.  What they have is a regulation but if it’s not made as subordinate legislation, it is not ‘law’ more like ‘club rules’.   I assume the regulations cited above fit that description.

What that means is the regulations don’t bind the event first aid provider, they bind the event organiser.  That is it is the organiser who has to plan (which requires actually thinking about the issues) and ensure that the requirements of the regulations as well as the needs of participants, are met.  Hopefully the prudent organiser would take advice from the event first aid provider as to the difference in skill levels and the risks involved in their event.

I would suggest the regulations are written the way they are so as not to be too prescriptive as prescription can impose obligations that can’t be met or are unnecessary or that are insufficient.  The answer here is that it’s all about risk assessment.  Who’s competing? What’s the event? Where is it?  In some cases a first aider may be sufficient or the best that can be achieved, in other cases it won’t.

The event first aid provider’s obligations must be:

1. Do a risk assessment and form an opinion what skill level is required.
2. Communicate with the organiser and work with them, and their own risk assessment, and come to an agreement as to the level of care to be provided.
3. If there is a disagreement the event provider must consider whether it will cover the event considering the potential needs of patients and their own staff. If the event first aid provider thinks paramedics will be required, but the organiser only wants to pay first aiders, you have to think ‘what will be the impact on our first aid team if they face the injuries that we think are foreseeable and likely and have to try to deal with those injuries pending the arrival of the state ambulance service?’  If it is unreasonable to put first aiders into that position, then you may have to refuse to provide cover.
4. On the other hand, you may consider that participants will be better off with some cover, rather than none, and that the social benefit of being there to allow the event to run is sufficient. That may well be true for a small event in a country town where the cost of bringing paramedics from some other town will be prohibitive.

Conclusion

In my opinion whether the level of cover meets the requirements of the event organiser’s parent body is a matter for the event organiser, not the event first aid provider.  The event first aid provider must consider whether the level of skill that the organiser wants to engage is sufficient to deal with the foreseeable risks.  If it is not, then the event organiser should advise the event organiser, and consider whether they are being allowed to operate to the professional standard that they think is appropriate.  If they are not, or if they think the risk to participants or their own staff is too great, they should consider withdrawing their services.

 

 

A paramedic from the Northern Territory writes:

I’ve had a number of Mental Health patients recently and still have some confusion on involuntary detainment, treatment and emergency management.  As it stands in the NT, Paramedics treat mental health patients, however we cannot section them, initiate a Section 9 nor 42, and need Police assistance if the patient is to be taken to hospital.

I’m confused only by what Paramedics can lawfully do with mental health patient treatments.  There is also confusion in how the Act influences the management of Minors

We have had limited training or introduction to the changes on the new Mental Health Act, unfortunately.

The relevant Act is the Mental Health and Related Services Act 1998 (NT). I note that my correspondent says the ‘new’ Mental Health Act and I’m not sure what that refers to.  The Mental Health and Related Services Act is the current Act.  It has been in place since 1998 and the sections I discuss, below, were last amended in 2012. There does not appear to be a Mental Health Bill or any other relevant Bill before the NT Parliament.

Section 9 of the Mental Health and Related Services Act says: 

Principles relating to provision of treatment and care

When providing treatment and care to a person who has a mental illness, mental disturbance or complex cognitive impairment the following principles apply:

(a) the person is to be provided with timely and high quality treatment and care in accordance with professionally accepted standards;

(b) where possible, the person is to be treated in the community;

(c) as far as possible, the person’s treatment and care is to be designed to assist the person to live, work and participate in the community and to promote and assist self-reliance;

(d) the person is to be provided with appropriate and comprehensive information about:

(i) the person’s mental illness, mental disturbance or complex cognitive impairment; and

(ii) proposed and alternative treatment and services available to meet the person’s needs;

(e) where possible, the person is to be treated near where he or she ordinarily resides or where relatives or friends of the person reside;

(f) as far as possible, the person’s treatment and any service to be developed for the person is appropriate having regard to the age and gender of the person;

(g) as far as possible, the person is to be involved in the development of any ongoing treatment plan or any discharge planning;

(h) the person is to be given medication only for therapeutic or diagnostic purposes and not as a punishment or for the convenience of others;

(j) except as provided by this Act, the person is not to be given treatment without his or her consent;

(k) the person’s treatment is to be carried out, wherever practicable, within a multi-disciplinary framework;

(m) the person’s treatment and care is to be based on an individually developed plan that is discussed with the person, reviewed regularly and revised, as necessary, and is provided by qualified professional persons;

(n) the person’s treatment and care is, as far as possible, to be appropriate to and consistent with the person’s cultural beliefs, practices and mores, taking into account the views of the person’s family and community;

(p) any assessment of the person to determine whether he or she needs to be admitted to an approved treatment facility is to be conducted in the least restrictive manner and environment possible.

The most important part for the purpose of this discussion is s 9(j) which says ‘except as provided by this Act, the person is not to be given treatment without his or her consent’.  Having said that, section 9 is a statement of general principles, it doesn’t authorise anyone to do anything.  Accordingly it is not possible to ‘initiate a Section 9’.    There is nothing to initiate.

Section 42(1) says “A person admitted to an approved treatment facility as an involuntary patient on the grounds of mental disturbance may be detained for up to 72 hours on those grounds.”  Section 42(2) then provides circumstances where that detention can be extended up to 7 days.   Section 39 makes similar provisions in relation to the involuntary detention of a person because of a mental illness (rather than mental disturbance). Neither section here is relevant to paramedics.  These sections set time limits for the detention of a person ‘admitted to an approved treatment facility as an involuntary patient’ but say nothing about how they might come to be admitted. Again, it is not possible to ‘initiate a … Section 42’ (or 39).

My correspondent said ‘As it stands in the NT, Paramedics treat mental health patients, however we cannot section them… and need Police assistance if the patient is to be taken to hospital’ but that is wrong.  Section 31 provides for the detention of mentally ill and mentally disturbed person by an ambulance officer.  That section says:

(1) An ambulance officer may detain a person being conveyed in an ambulance for up to 6 hours where the ambulance officer believes, on reasonable grounds, that the person may fulfil the criteria for involuntary admission on the grounds of mental illness or mental disturbance.

(2) When detaining a person under subsection (1), an ambulance officer may use reasonable measures, including the use of restraints, on the person:

(a) to prevent the person causing serious harm to himself or herself or to someone else; or

(b) to prevent behaviour of the person likely to cause serious harm to the person or to someone else; or

(c) to prevent further physical or mental deterioration of the person; or

(d) to relieve acute symptomatology.

(3) An ambulance officer who detains a person under subsection (1):

(a) must convey the person to the nearest approved treatment facility or, if that is not practicable, to the nearest hospital, as soon as practicable after the person is detained; and

(b) on arriving at the approved treatment facility or hospital, must complete the approved form and send it to an authorised psychiatric practitioner.

(4) For subsection (3)(b), the form may be sent by fax or email.

In the absence of any ambulance service legislation, the term ‘ambulance officer’ must be defined. For the purposes of the Mental Health and Related Services Act, ‘ambulance officer’ means any person ‘employed as an ambulance officer, or engaged as a volunteer ambulance officer, by an approved ambulance service at the level of qualified ambulance officer or above’ or a person appointed as an ambulance officer by the Chief Health Officer (ss 4 and 24).

The ‘criteria for involuntary admission on the grounds of mental illness or mental disturbance’ are set out in s 14 (mental illness) and s 15 (mental disturbance).

What follows is that if an ambulance officer who believes that the person they are treating:

… has a mental illness; and

(b) as a result of the mental illness:

(i) the person requires treatment that is available at an approved treatment facility; and

(ii) without the treatment, the person is likely to:

(A) cause serious harm to himself or herself or to someone else; or

(B) suffer serious mental or physical deterioration; and

(iii) the person is not capable of giving informed consent to the treatment or has unreasonably refused to consent to the treatment; and

(c) there is no less restrictive means of ensuring that the person receives the treatment.

Then the ambulance officer can detain the person and take them ‘to the nearest approved treatment facility or, if that is not practicable, to the nearest hospital’.  Equally they may be detained and transported to an approved treatment facility or hospital if the person is not suffering from a mental illness but:

… (b) the person’s behaviour is, or within the immediately preceding 48 hours has been, so irrational as to lead to the conclusion that:

(i)     the person is experiencing or exhibiting a severe impairment of or deviation from his or her customary or everyday ability to reason and function in a socially acceptable and culturally appropriate manner; and

(ii) the person is behaving in an abnormally aggressive manner or is engaging in seriously irresponsible conduct that justify a determination that the person requires psychiatric assessment, treatment and care that is available at an approved treatment facility; and

(c) unless the person receives treatment and care at an approved treatment facility, he or she:

(i) is likely to cause serious harm to himself or herself or to someone else; or

(ii) will represent a substantial danger to the general community; or

(iii) is likely to suffer serious mental or physical deterioration; and

(d) the person is not capable of giving informed consent to the treatment and care or has unreasonably refused to consent to the treatment and care; and

(e) there is no less restrictive means of ensuring that the person receives the treatment and care.

If the ambulance officer does not have the appropriate authority, then a mentally ill or mentally disordered person may be detained on the authority of a treating medical or nursing practitioner (s 30) the police (s 32A).  Section 32A will be most relevant where the person is not already in a health facility, that is they are in the community and police are called because of concerns about the person’s behaviour.  Where

… a police officer believes, on reasonable grounds:

(a) a person may require treatment or care under this Act having regard to the appearance and behaviour of the person; and

(b) the person is likely to cause serious harm to himself or herself or to someone else unless apprehended immediately; and

(c) it is not practicable in the circumstances to seek the assistance of an authorised psychiatric practitioner, a medical practitioner or a designated mental health practitioner.

(2) The police officer may apprehend the person and bring the person to an authorised psychiatric practitioner, a medical practitioner or a designated mental health practitioner for an assessment …

With respect to the voluntary treatment of children, that is people under 18, there are some particular considerations (s 26).  There are no provisions with respect to the involuntary treatment of people under 18 so the provisions, above, apply whether the person is a child or not.  The difficulty will be where a child is unable to give consent due to their mental illness and their parent or guardian refuses consent.  If that refusal is ‘unreasonable’ (ss 14(b)(3) or 15(b)) then the person may be detained.

Conclusion

My correspondent wrote ‘I’m confused only by what Paramedics can lawfully do with mental health patient treatments’ and with respect, his comments did confirm that and would also appear to confirm that paramedics in the NT have had ‘limited training or introduction to the … Mental Health Act’.

Under the current law ambulance officers who believe that the person under their care is mentally ill or disturbed, and the conditions set out in ss 14 or 15 apply, may detain the person and take them to ‘to the nearest approved treatment facility or, if that is not practicable, to the nearest hospital’ for an assessment and possible detention as an involuntary patient.   They do not need to rely on the police, but it would be common experience that often police are first on scene if a person’s behaviour is causing concern or appears to be criminal.

The Act applies regardless of the age of the patient.

 

A correspondent writes:

Your recent post regarding emergency driving and the privileges attached prompted me to wonder –  Do emergency personnel have any additional privileges regarding their general movements and access to areas that they might otherwise be barred from?   For example, can a security guard stop a paramedic from going somewhere that the paramedic says they need to go?  Assume here that this paramedic has, at least, reasonable grounds for believing that they must pass this guard to reach a patient in need.   Is the answer any different if the guard has no evidence of the patient? Contrary evidence? Are there general provisions which prevent emergency services personnel from being obstructed?  That is to say, would harm have to be caused by the act of obstructing for it to become something that the obstructer could he held to account for?  If it is different between states, then I am most interested in the law of WA, although the differences between jurisdictions are also fascinating.

There are exemptions from the road rules for emergency workers as pedestrians. Rule 283 of the Road Traffic Code 2000 (WA) says:

(1)       A provision in Part 14 does not apply to a police officer or an emergency worker acting in the course of his or her duty if, in the circumstances —

(a)         the police officer or emergency worker is taking reasonable care; and

(b)         it is reasonable that the provision should not apply.

Part 14 deals with the rules relating to pedestrians on a road way.  So emergency workers and police officers do have ‘additional privileges regarding their general movements and access to areas that they might otherwise be barred from’ if the ‘bar’ is that ‘pedestrians are prohibited’ from any area.  That does not, however, deal with the majority of issues raised by my correspondent.

The owner of a property may choose to exclude a person for whatever reason he or she sees fit.  Denning LJ put it this way in Southam v Smout [1964] 1 QB 308, 320:

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

A security guard who has been engaged to restrict access to private property is the property owner’s agent. He or she can restrict access to the same extent that a property owner can. The belief of the security guard has no relevance with respect to his or her right.

In Western Australia, where there is no ambulance service legislation, any property owner could refuse to allow paramedics onto the property.   If the paramedics believed they needed access they may choose to attempt to force their way in (see The Doctrine Of Necessity – Explained (January 31, 2017).  Ideally, if time allowed, they would call police.

It is in different in other states. In Queensland and Tasmania, paramedics have specific authority to force their way into premises where that is required to protect a person from death or permanent injury (Ambulance Service Act 1991 (Qld) s 38; Ambulance Service Act 1982 (Tas) s 14A).    In New South Wales the power of police to enter in an emergency is also set out in legislation (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 9)).

There is a general offence of obstructing an emergency service worker.  The Emergency Management Act 2005 (WA) s 85 says:

A person must not obstruct or hinder a hazard management officer or an authorised officer in the exercise of a power under this Act.

A hazard management officer is a person appointed by a hazard management agency (s 55). St John Ambulance (WA) is not listed as a ‘hazard management agency’ (Emergency Management Regulations 2006 (WA) Part 3) so that section would not apply to a St John paramedic.    It is different in different states.  In some states, it is an offence to obstruct a paramedic in the course of his or her duties (Health Services Act 1997 (NSW) s 67J; Ambulance Service Act 1991 (Qld) s 46 and Ambulance Service Act 1982 (Tas) s 39B).

If a security guard negligently refused access to a paramedic, for example if a person had called an ambulance, the ambulance crew are on one side of the door, the person who rang is on the other and both are asking the security guard to let them in, it may well be that the security guard is acting negligently in not allowing the paramedics to enter the building.

 

 

 

 

 

 

 

 

 

 

 

 

 

I’ve written two ‘omnibus’ posts to review some key legal issues.

• Scope of Practice – Previous Posts Explained (January 21, 2017)
• Driving, R 306 And Previous Posts – Explained (January 24, 2017).

In response to the post on driving and rule 306, a correspondent wrote ‘Would you consider a general post about Necessity?’  I’m happy to do that but note that much of the text below does appear in earlier posts and in my book Emergency Law (4th ed, 2013).

Necessity is a common-law doctrine (that is it has been developed by the judges on a case by case basis) rather than the subject of legislation.  The gist of necessity is that where a person is caught on a dilemma of obeying the law and allowing some harm to occur, or to befall them, they can be excused from obeying the law.    The problem with a doctrine put as boldly as that, is that it is a licence for everyone to be judge in their own cause and to decide for themselves if the circumstances warrant disobeying the law.     That cannot be the law so the judges have developed tests as to when ‘necessity’ will apply, usually captured by that difficult concept of ‘reasonable’, to which there is added a concept of ‘proportional’.

Necessity is a defence to both the criminal law and the civil law, that is, if an action was ‘necessary’ to prevent a greater harm, that can be used to avoid both criminal charges and civil actions for negligence.  That can be seen to be relevant in context of this blog.  If necessity applies it can be a defence to criminal charges that might arise if you were to cut the roof off someone’s car, or touch them without consent.  It can also be a defence to a claim for damages arising out of the same conduct.

We can then look at the tests for necessity.

Criminal law

The starting point for most cases appears to be Stephen’s Digest of the Criminal Law (1st ed, 1887).   He said:

An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained.

In R v Davidson [1969] VR 667 Menhennit J said ‘The principle of necessity as stated by Stephen contains within it the two elements of necessity and proportion’.   The accused has to believe, upon reasonable grounds, that it is necessary to take the action and that the harm done is not disproportionate to the harm to be avoided.

In R v Loughnan [1981] VicRp 43 Young, CJ and King, J said:

It will be seen from the statement by Sir James Fitzjames Stephen that there are three elements involved in the defence of necessity. First, the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect… The other two elements involved … can for convenience be given the labels, immediate peril and proportion…

In R v Dudley v Stephens (1884) 14 QBD 273 it was said that ‘necessity’ could not be a defence to murder.  In that case the accused was shipwrecked and along with his ship mates they drew straws whilst on the lifeboat.  The loser was killed and eaten. When the survivors were rescued they had survived because of they had eaten their shipmate but the fact that their death was otherwise imminent was no defence.

Even that rule has been doubted.  In Re A (Conjoined Twins) [2000] EWCA Civ 254 doctors and judges were faced with a dilemma.  Ward LJ described the facts:

Jodie and Mary are conjoined twins. They each have their own brain, heart and lungs and other vital organs and they each have arms and legs. They are joined at the lower abdomen. Whilst not underplaying the surgical complexities, they can be successfully separated. But the operation will kill the weaker twin, Mary. That is because her lungs and heart are too deficient to oxygenate and pump blood through her body. Had she been born a singleton, she would not have been viable and resuscitation would have been abandoned. She would have died shortly after her birth. She is alive only because a common artery enables her sister, who is stronger, to circulate life sustaining oxygenated blood for both of them. Separation would require the clamping and then the severing of that common artery. Within minutes of doing so Mary will die. Yet if the operation does not take place, both will die within three to six months, or perhaps a little longer, because Jodie’s heart will eventually fail.

The court authorised the surgery with the sure and certain knowledge that Mary would die and her death would be sooner than it would be without the operation.  The doctrine of necessity allowed that action in circumstances where the death of Mary would save Jodie but there was no sense of choice.  Whether the surgery went ahead or not, Mary would shortly die.  Without the surgery, Jodie would also die, with it she had good prospects.  This is not a situation like R v Dudley and Stephens where the person to die could have been anyone, and a person is not entitled to put their lives above others, that is no-one’s life in the life boat was more important than anyone else’s.  But where one person is fated to die regardless, hastening that person’s death to save others may be justified.  The court gave some examples. Brooke LJ said:

At the coroner’s inquest conducted in October 1987 into the Zeebrugge disaster, an army corporal gave evidence that he and dozens of other people were near the foot of a rope ladder. They were all in the water and in danger of drowning. Their route to safety, however, was blocked for at least ten minutes by a young man who was petrified by cold or fear (or both) and was unable to move up or down. Eventually the corporal gave instructions that the man should be pushed off the ladder, and he was never seen again. The corporal and many others were then able to climb up the ladder to safety.

In his third lecture, “Necessity and Duress”, Professor Smith evinced the belief at pp 77-78 that if such a case ever did come to court it would not be too difficult for a judge to distinguish R. v Dudley and Stephens. He gave two reasons for this belief. The first was that there was no question of choosing who had to die (the problem which Lord Coleridge had found unanswerable in R. v Dudley and Stephens at p 287) because the unfortunate young man on the ladder had chosen himself by his immobility there.

Robert Walker LJ said:

Of the many real and imagined examples put before the court it is worth mentioning two incidents which really did happen, although neither was the subject of a court decision. One is the awful dilemma which faced the commander of an Australian warship, in peacetime, when a very serious fire occurred in the engineroom. He ordered the engine room to be sealed off and flooded with inert gas, in order to save the ship and the rest of the crew, although the order meant certain death for anyone who was still alive in the engineroom. The other is the equally awful dilemma of a mountaineer, Simon Yates, who held his fellow-climber, Joe Simpson, after he had slipped and was dangling on a rope over a precipice at 19,000 feet in the Andes. Yates held Simpson for an hour, unable to recover him and becoming increasingly exhausted. Yates then cut the rope. Almost miraculously Simpson landed on a snowy ice bridge 100 feet below, and survived. When they met again Simpson said to Yates, “You did right”. This incident is mentioned in Professor Smith’s 1989 Hamlyn Lectures, Justification and Excuse in the Criminal Law, p.79.

At the end of Brooke LJ’s long and detailed judgment, His Honour referred again to Stephen’s text and said:

According to Sir James Stephen, there are three necessary requirements for the application of the doctrine of necessity:

(i) the act is needed to avoid inevitable and irreparable evil;

(ii) no more should be done than is reasonably necessary for the purpose to be achieved;

(iii) the evil inflicted must not be disproportionate to the evil avoided.

The point of this (from an academic point of view) simplified discussion of the principle is to show that it is a principle of law and can be applied to all offences, up to and including deliberate killing.   And although it is impossible to set out with certainty when it applies, the principles from 1887 remain the guide.

Discussion

What does this have to do with the emergency services who do not go around deliberately killing people?  The point of mentioning in Re A is not that the emergency services have such terrible choices (but like the captain of the ship mentioned by Robert Walker LJ they may do) but to confirm that the principle is part of the common law of England and, I suggest, Australia.

And the principles will be relevant.  This often arises in the context of getting children out of locked cars – see Getting Children Out Of Locked Cars (February 23, 2016).  You can see the application.  A child is in a car in 40 degree heat.  Getting the child out is required to ‘avoid inevitable and irreparable evil’ ie the death or permanent injury of the child.  ‘No more should be done than is reasonably necessary for the purpose to be achieved’ which presumably involves breaking a window and unlocking the door, unless the road service organisation are there and can unlock the car.   And damaging the car is not disproportionate to the harm averted.    In that case, there’s a defence even though, prima facie, deliberately breaking someone’s car window is an offence.

For those in rescue squads you should realise that this is the same rule that allows you to cut the roof off the car that’s wrapped around the tree.  The driver isn’t consenting and you’re not allowed to just cut the roof off someone’s car, but if you do it to allow access to save their life all, of those principles again apply. If a child’s locked in a hot car, they need rescue as much as someone trapped in a mangled wreck.

Necessity might also be a defence to blocking a road.  It may be an offence to obstruct traffic but putting your car across the road and telling people that the road’s washed away, or blocked by an accident or fire because such an action is necessary to stop the next driver suffering harm, and the ‘harm’ done (obstructing traffic) is not disproportionate to the harm averted (stopping the driver going off a cliff or whatever).

So necessity is, in the right circumstances, a defence to a crime.

Tort

It is also a defence to a civil claim for damages.   Again it must be shown that there was a real and imminent danger and that the conduct of the defendant was such that “any reasonable man would, in the circumstances of the case, have concluded that there was no alternative to the act of trespass if the property [or life] endangered was to be preserved” (Cresswell v Sirl [1948] 1 KB 241, 247.

The doctrine can be traced back to Maleverer v Spinke (1538) 73 ER 79, 81 where the court said:

Yet we will well agree that in some cases a man may justify the commission of a tort, that is in cases where it sounds for the public good … a man may justify pulling down a house on fire for the safety of the neighbouring houses …

The doctrine of necessity can apply where the defendant reasonably believes that some action is necessary even if it turns out later that it was not. In Cope v Sharpe (No 2) [1912] 1 KB 496 the defendant was not liable for setting fire breaks that were not, as it turned out, necessary to control a fire that was extinguished by others before it got to the breaks.

In Proudman v Allan [1954] SASR 336, the South Australian Supreme Court summed up the application of the principle in cases where a person was taking action to save another’s property and in fact did more damage than would have happened if he hadn’t tried at all. It was said (at p 340):

In principle, there seems no reason why the common law should not recognise an exemption from liability to pay damages for trespass to goods of “volunteers” or strangers who, from no other motive than the same desire to save the property of others from damage or destruction as they would feel if it were their own property which was in jeopardy, take reasonable steps on an occasion of urgent necessity to remove that property out of the way of danger or safeguard it by some other means. It would seem that in principle the present respondent should not be absolutely liable for damage caused by his interference with the property of another when he acted in the reasonable belief that his interference was justified by the necessity of the situation and was intended to benefit the owner.

When the damage to property is necessary to save life, greater damage may be done that would be justified “to prevent mere damage to property” (Watt v Hertfordshire County Council [1954] 2 All ER 368; See also Rigby v Chief Constable [1985] 2 All ER 985, 994).

The safety of human lives belongs to a different scale of values from the safety of property. The two are beyond comparison and the necessity for saving life has at all times been considered a proper ground for inflicting such damage as may be necessary upon another’s property. (Southport Corporation v Esso Petroleum Co Ltd [1956] AC 218, 228).

In New Zealand it was said in Dehn v Attorney General [1988] 2 NZLR 564, 580 (Tipping J):

A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm.

In 2008 the High Court of Australia (Kuru v State of New South Wales (2008) 236 CLR 1, [2008] HCA 26, [40] (Gleeson CJ, Gummow, Kirby And Hayne JJ) said:

The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire fighters, police and ambulance officers will often invoke application of that principle.

Necessity will justify almost any property damage in order to save life. The cutting up of the car, the entry onto property and the destruction of property can all be justified where that conduct is necessary to save another’s life. The doctrine is not limited to professional rescuers. A person visiting their neighbour who sees that they are lying injured on the floor is as justified in breaking the door in order to render assistance as is the local ambulance or fire service.

The law still requires that any action taken under the doctrine must be reasonable, so that if the rescuer acts in a way that is not reasonable in the circumstances, they may be liable in negligence (Beckingham v Port Jackson and Manly Steamship Co (1957) SR(NSW) 403).  This principle is subject to the rule that in deciding what was or was not reasonable, the courts, given the agony of the moment, are willing to excuse conduct that would be considered negligent in less urgent circumstances, particularly when life (rather than mere property) is involved.  The “agony of the moment” rule says that courts must take into account that where a person has found themselves in a situation not of their making and where immediate action is required, then the person’s conduct is not to be judged as negligent because, in retrospect, it appears that another course of action would have been better (Leishman v Thomas (1958) 75 WN(NSW) 173, 175):

[A] man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called “agony of the moment”, he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise.

A rescuer, “acting under the pressure of emergency, is to be judged leniently as to the reasonableness of his conduct” (Wallis v Town of Albany (1989) Aust Torts Reports ¶80-283, [69,011] (Pidgeon J); Wagner v International Railway Co 133 NE 437 (1921), 437-38 (Cardozo J)).

Necessity and medical treatment

This issue arose in In Re F [1990] 2 AC 1.  In that case the court had to consider whether doctors could lawfully sterilise a developmentally disabled adult.  Her parents wanted the procedure so that she did not have to deal with menstruation and the risk of pregnancy.  F was not competent to give consent and because of vagaries of the English law at that time, her parents could not give lawful consent.  The question was what doctrine could justify such a procedure.

Lord Goff again turned to necessity. The notion of ‘implied consent’ could not justify the action as you could not have implied consent from a person from who you could not get actual consent.    He said:

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.

As Lord Goff said ‘The principle is one of necessity, not of emergency’.  He gave these examples:

Take the example of a railway accident, in which injured passengers are trapped in the wreckage. It is this principle which may render lawful the actions of other citizens – railway staff, passengers or outsiders – who rush to give aid and comfort to the victims: the surgeon who amputates the limb of an unconscious passenger to free him from the wreckage; the ambulance man who conveys him to hospital; the doctors and nurses who treat him and care for him while he is still unconscious. Take the example of an elderly person who suffers  a stroke which renders him incapable of speech or movement. It is by virtue of this principle that the doctor who treats him, the nurse who cares for him, even the relative or friend or neighbour who comes in to look after him, will commit no wrong when he or she touches his body.

The two examples I have given illustrate, in the one case, an emergency, and in the other, a permanent or semi-permanent state of affairs. Another example of the latter kind is that of a mentally disordered person who is disabled from giving consent. I can see no good reason why the principle of necessity should not be applicable in his case as it is in the case of the victim of a stroke. Furthermore, in the case of a mentally disordered person, as in the case of a stroke victim, the permanent state of affairs calls for a wider range of care than may be requisite in an emergency which arises from accidental injury.

Discussion

Necessity is a general and ill-defined doctrine.  It must be ‘ill-defined’ because the circumstances in which it may be applied are undefined.  But the doctrine does exist.  Where a person, whether a professional rescuer or not, believes and has some reason to believe that action is required to avoid an irreparable and grievous harm, they are justified in taking the action that they believe is necessary if they do no more than is required to achieve their objective and the harm done (which may be no more than to technically breach the law) is not disproportionate to the harm to be avoided.

You can see the doctrine’s relevance to the emergency services.  Breaking into a house or car to rescue someone is the example given by the High Court and the New Zealand court.  Providing care to those that cannot consent, the unconscious, children, the mentally ill or disabled etc are all things that the community at large, and the emergency services are called upon to do.   These things rarely get before a court but when they do it is the doctrine of ‘necessity’ that provides a general and broadly applicable doctrine to justify taking action to save a life or prevent harm.

The policy of the law, that when life is at stake it’s better to do something than nothing, is also behind my conclusion that if you have life saving skills you should use them, regardless of what uniform you are in.  It is also reflected in the good Samaritan legislation that was written to encourage people to act.

This question comes from a volunteer with Victoria’s CFA.  My correspondent tells me:

I’m a CFA volunteer and I’m currently suspended by the Chief Officer pending cancellation of my membership. I’ve not been charged or been provided with any complaint against me as is required under CFA regulations and dispute resolution; however, I’ve been suspended since November 2016. I believe this contravenes r44 and subsequent regulations of S.R. No. 165/2014. Any advice would be appreciated.

Suspension of members of the CFA is dealt with by the Country Fire Authority Regulations 2014 (Vic) r 47.  This regulation anticipates that a member may be suspended pending both an investigation and final resolution of the allegation.  The regulation says:

(1) At any time before the Chief Officer has caused an investigation to be conducted under regulation 46(1), the Chief Officer or an officer of the Authority nominated by the Chief Officer for the purpose may suspend the member from the member’s brigade until the investigation report concerning the member has been given under regulation 46(2).

(2) At any time after the Chief Officer has caused an investigation to be conducted under regulation 46(1), an officer of the Authority nominated by the Chief Officer for the purpose may suspend the member from the member’s brigade until—

(a) the time for the laying of a charge under regulation 48(2) has expired; or

(b) if a charge is laid, the charge has been dismissed or found proven in accordance with regulation 49(3); or

(c) if an appeal has been made to the Appeal Panel, the chairperson of the Authority has given the appellant written notice of the Appeal Panel’s determination.

Under regulation 46(1) the Chief Officer may appoint someone to conduct an investigation and that investigation must be completed by the investigation ‘as soon as practicable after commencing an investigation’ (r 46(2)).  That is a very vague time frame and note that the time doesn’t ‘run’ until after the investigation is commenced, not from the time the member is suspended.  Regulation 46 sets no time limit to say when an investigation must be commenced if a member has been suspended.   So prima facie, the Chief Officer could suspend a member under r 47 but then wait some significant time before directing an investigation to be commenced under r 46.

Once a written report of an investigation has been received, the member must be charged within 30 days, or not more than 60 days if the Chief Officer so determines (r 48).

My correspondent has been suspended since November 2016.  I do not know if the Chief Officer has instigated an investigation under r 46.  If he has, that investigation must be completed ‘as soon as practicable’. There is then 30 days (or up to 60 days) before a charge must be laid.    Given that it’s now the end of January 2017 one might think that the fact that no charge has yet been laid is, of itself, not contrary to the regulations.  Given that between November and January there has been the Christmas and New Year break, it might be reasonable that no investigation has been completed and even if it has, the time frame for laying a charge won’t have passed.

The bigger issue is if the suspension has been put in place but no further action has been taken, eg no investigation commenced, because in those circumstances the members position can remain uncertain and in effect subject to punishment (suspension) without due process.  The point of allowing suspension pending investigation is to protect the community and the CFA but not to allow the Chief Officer to impose a punishment by, for example, suspending a member without due process and thereby in effect dismiss them from the CFA without regard to the rules on disciplinary hearings.

The crucial question then is what has been happening since November.  If the Chief Officer has appointed an investigator and the investigator is attending to his or her duties with due diligence, the current time frame is probably unobjectionable.  If nothing has happened one would infer that some ulterior motive is being pursued.

What’s the remedy?   To determine the matter would require access to documents and internal records.  If my correspondent is aware that an investigation is in place, eg he or she may have been advised who the investigating officer is, they may have been interviewed and know other people who have been etc, then one might think the process is under way. If on the other hand there is no evidence that an investigation has been commenced it would be appropriate to seek independent legal advice (not from a public blog/commentary) but from a solicitor who can take the matter up with the Chief Officer.  An alternative source of support may be the VFBV but I don’t know if they get involved in these sorts of quasi-industrial issues.

Usually on this blog I answer questions or discuss legal developments (cases or new legislation) that come to my attention. That means the discussion is about the issue at hand.  Following discussion on advanced first aid skills I wrote a more generic post, a more ‘helicopter view’ of the issues as I saw them.  That seemed to go down well so I’m now going to do the same thing with respect to the road rules.  To make sure this is generic I’ll refer to the Australian Road Rules as published by the National Transport Commission (Australian Road Rules 2012, as amended to November 2015).  As the Commission says, the Road Rules

…  form the basis of Road Rules of each Australian state and territory. Each state and territory has mostly copied the Rules into their own laws, however, not every provision has been copied exactly in each.

By referencing the model document I’m not referring to the law in any particular state.

We know the relevant road rules for this discussion are rules 78, 79 and 306.  They say:

78 Keeping clear of police and emergency vehicles

(1) A driver must not 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…

(2) If a driver is in 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, the driver must move out of the path of the vehicle as soon as the driver can do so safely…

(3) This rule applies to the driver despite any other rule of the Australian Road Rules.

79 Giving way to police and emergency vehicles

(1) A driver must 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…

Note 2 For this rule, give way means: (a) if the driver is stopped — remain stationary until it is safe to proceed; or (b) in any other case — slow down and, if necessary, stop to avoid a collision;…

(2) This rule applies to the driver despite any other rule of the Australian Road Rules that would otherwise require the driver of a police or emergency vehicle to give way to the driver.

306 Exemption for drivers of emergency vehicles

A provision of the Australian Road Rules does not apply to the driver of an emergency vehicle if:

(a) in the circumstances:

(i) the driver is taking reasonable care; and

(ii) it is reasonable that the rule should not apply; and

(b) if the vehicle is a motor vehicle that is moving — the vehicle is displaying a blue or red flashing light or sounding an alarm.

Rule 305 provides a similar exemption for the drivers of a police vehicle.  Rule 307 provides for exemptions from parking restrictions for police and emergency vehicles.   Rule 300(1)(b) provides that the rule against using a mobile phone whilst ‘not parked’ does not apply to the driver of an emergency or police vehicle.

Let us assume that there is an accident between a responding appliance and another vehicle.  The question people want to answer is ‘who is at fault?’.  The answer to that question does not depend simply on those rules above.  We can use as an example the video that’s been doing the rounds on Facebook of a NSW Police car involved in a minor collision – see  https://www.facebook.com/DashCamOwnersAustralia/videos/1308226399236997/.

Fault – criminal law

With respect to criminal law, the issue is not ‘who is at fault?’ but ‘has anyone committed an offence?’   It may be that both drivers are guilty of an offence or neither are.  It’s not a binary choice – it’s one or the other.

The driver of the police car has the warning beacons activated (or at least let’s assume that is the case).  The rule says that in the right circumstances the police driver commits no offence for failing to stop at the stop line and waiting for the red light that is facing him or her to turn green (Australian Road Rules rr 56 (Stopping for a red traffic light or arrow) and 305 (Exemption for drivers of police vehicles)).    But the police driver isn’t exempt those parts of the traffic laws that are not contained in the Australian Road Rules, given this was in NSW, the Road Transport Act 2013 (NSW) s 117 (“A person must not drive a motor vehicle on a road negligently”).  To drive ‘negligently’ means to drive without due care and attention.

The video shows that the driver slowed, waited etc so we can argue whether he or she was driving without due care and attention.  The more general point to make is that even if you have right of way, it doesn’t mean you can go.  Let’s take a more ‘pedestrian’ example – if you are driving along facing a green light and there are pedestrians walking across a crossing, you can’t run into them and argue it’s their fault as you had ‘right of way’.   Even when you have right of way you have to assume others will not honour that and you have to be prepared to avoid the accident.

In Hine v O’Conner [1951] SASR Abbott J said (at pp 4-5):

He [the bus driver] was not, however, entitled to consider himself as having “an open road” across that intersection because a “Stop Sign” is not always obeyed by drivers of vehicles; and, as he admitted in cross-examination, he has himself had the experience of other drivers disobeying such signs … Despite the existence of a “Stop Sign” at an intersection, it may become the duty of a reasonable driver in O’Connor’s situation to “give way” to another vehicle whose driver has disobeyed the “Stop Sign.”

So the mere fact you have ‘right of way’ (as the police car did) does not mean you are not ‘at fault’ in a collision.

What is evident from the comments that follow the video, and the disagreement as to who’s at fault, is there is more to it than the road rules.   Resolving the question of fault depends on what each driver saw and thought.  To go back to that video there would be questions of whether or not the red car was already blocking the police car’s path (note r 79 says the driver has to stop, r 78(2) says that if the driver is in the path, he or she has to move).  Who saw who?  Where was the driver of the police car looking? The issue is not at the time he or she moved over the stop line but at the time he or she drove into the vehicle in front.

Let me take another example, based on an earlier post – Air Horns on A CFA Appliance (January 20, 2017).   The question in essence was whether the use of air horns added anything to the use of beacons and a siren. A commentator on that post pointed out that

Use of an airhorn whilst responding a CFA appliance is covered under CFA SOP 12.04 which states…

Air horns may be used in conjunction with the siren, but shall only be operates in short blasts. Air horns are not deemed to be a siren.

But what does it mean that the CFA have said that ‘Air horns are not deemed to be a siren’?  It means that from the CFA’s point of view, they are not equated to a siren (or alarm) so if the CFA says you have to use your siren, the air horns, alone, aren’t sufficient.  But that won’t answer a legal question.

Assume that an appliance is being driven in an emergency response with lights, sirens and air horns.   At some point the siren stops working but the air horns are still working.  As far as the driver knows the beacon warning lights are still working so he or she continues to respond using the air horns.   A collision occurs.  After the collision an inspection of the appliance reveals that the beacons had also failed due to some fault in the warning device circuitry so when the siren cut out, the lights did too, but there was no indication to the driver of the extent of the failure.  Who’s at fault.

Assume the driver of the other car says ‘yes I saw the CFA appliance, I heard the air horns, but I’m a bush lawyer and I know the road rules and without flashing lights or siren (which the CFA says air horns aren’t) I knew I didn’t have to give way so I didn’t’.   I suspect any police officer or court would say that r 306 requires lights or an alarm, the horns brought the presence of the appliance to the attention of the driver, it was clear the driver of the appliance was seeking to move through traffic, you should have given way – it’s your fault.

Change the story, the other driver says ‘I heard a siren so I was looking for an emergency vehicle, but then the siren stopped.  I saw the CFA appliance but it had no lights or sirens and I could hear the air horns but couldn’t tell where they were coming from so I thought the best thing to do was keep coming’.  In that case questions are going to turn to the driver of the appliance – you knew your siren wasn’t working?  Did you check the lights?  You must have realised that air horns without sirens are not what people were expecting?  Why did you drive on into the intersection.  It’s your fault.

Now it’s not that simple because I haven’t given a story about the appliance driver’s perspective but the point is that by telling the story differently, we might reach different conclusions even though the nature of the driving of the appliance, and the road rules didn’t change.

So who’s to decide?  Again if you read the comments that follow the video some people think the police officer was at fault, others blame the driver of the red car.  Discussion is all well and good but it doesn’t lead to resolution of issues such as ‘who’s going to pay for the damage?’  A decision has to be made and that is what the police and courts are there for.  So don’t blame the police if they charge a driver, or the court for hearing and determining the matter.  Arguing ‘it shouldn’t be in court as the driver had the benefit of r 306’ is just asserting a conclusion you want the court to achieve, that is it is for the court to determine whether r 306 applies.

So what’s the point of r 306?  If you believe r 306 is going to get you out of trouble in a collision you’ve missed the point of the section.  It’s really a section that allows police and the fire service to avoid criticism.  We know that in today’s world, no matter what you do, someone’s there with a camera.  So when someone photographs a police officer using a mobile phone, or a fire appliance have a near miss when going through a stop sign, someone’s going to put that photo on social media and say ‘why don’t they get a ticket, I would’.  These rules allow the police to withdraw infringement notices for camera detected offences and not issue tickets because they point to a law that says ‘it was authorised; it’s not corruption or mates looking after their mates, the law says they’re allowed to do it’.

But rules like r 306 are written very vaguely and if I can steal a phrase from my friend Stephen Carter (of ACT RFS and SES) it’s a ‘self-licking ice-cream’.  It only applies if you’re taking reasonable care, and if you crash, prima facie you weren’t taking reasonable care.  Because even if you have right of way, the overriding obligation is not to crash.  The very act of being involved in a collision is evidence that you were not taking reasonable care.

Now it’s not correct, but it’s not a bad rule of thumb, that in any accident both drivers are at fault.  It’s not correct because some things aren’t ‘accidents’ eg where a driver deliberately rams another vehicle and sometimes one person’s driving is so bad there really is nowhere to go and nothing the other driver can do.    Classically running into the back of a stationary vehicle would be an accident where the person in front is not at fault.  But let’s stick to my rule of thumb – even when every rule is on your side there is still something you can do to avoid an accident – just ask any motorcyclist how much depending on ‘right of way’ won’t keep you alive.   So the collision is evidence (not proof, but evidence) of a failure to take reasonable care and if that’s the case r 306 disappears so as soon as there’s an accident, police and if push comes to shove, a court is going to have to consider whether or not the driver was taking ‘reasonable care’ so once you have an accident you can’t just point to the lights and sirens, you’re going to have to explain your action and possibly get a ticket or worse.

The effect is that r 306 allows the police and courts to lawfully not proceed against a driver who proceeds through a red light or exceeds the speed limit but it doesn’t determine who is at fault if a crash actually occurs.

Civil liability

Fault is a critical issue here, the driver at fault is required to make good any damage done.  In reality it’s their insurance company and in some jurisdictions, personal injuries compensation doesn’t depend on fault.  That’s true in all jurisdictions if the person’s injuries are catastrophic.  In those cases, the compulsory third party scheme will cover the costs of meeting the person’s basic needs but if they can prove fault they may be entitled to recover more for economic losses and general damages.  This is not the forum to consider all the various schemes but to say that the liability doesn’t really belong to the driver.

When considering civil liability, a court doesn’t have to find it was driver A or driver B at fault.  The court can apportion blame – driver A 40%, driver B 60%.  If that is the case and driver A is suing driver B, the court will determine the value of A’s damages according to law, and then order that B pay 60% of that amount.

The road rules are relevant here in that they are factors that the ‘reasonable driver’ pays attention to, but a ‘reasonable driver’ including the driver of a fire appliance knows that if he or she doesn’t pay attention, someone could die.  Even if they don’t crashing the appliance will defeat the purpose of the emergency response so the driver will pay very careful attention.

Case law, such as Hine v O’Conner quoted above, apportion damages when it comes to collisions between emergency service vehicles, but that is not always the case (No Liability for NSW Ambulance Accident (October 19, 2016) but see, contra see Liability For Motor Vehicle Accident – NSW Ambulance On Urgent Duty (July 6, 2015); see also The Motor Vehicle Accident That’s Not Your Fault (October 26, 2016)).   Remember that in all these cases the rules where the same.

Discussion

The Road Rules are merely the starting point.  The presence of r 306 does not give a broad exemption.  It is very narrow, limited only to an exemption from the other rules set out in the Australian Road Rules (not all traffic law) and only if the driver is taking ‘reasonable care’.  It’s the reasonable care that’s critical.   And if you’re involved in a collision, the question ‘were you taking reasonable care?’ has to be asked and answered – and the answer doesn’t come from the driver but ultimately a court (see Road Traffic Exemption – Who Determines if it is Reasonable that the Provision Should Not Apply? (May 22, 2016)).

In any accident, it may be that neither driver was taking ‘reasonable care’ so fault is not a binary choice, it can be shared.     The conclusion that driver A, or driver B was, or was not, exercising reasonable care depends upon the facts of which the presence of lights and sirens, and the road rules are just part of the factual picture.

As a commentator said, in response to an earlier post Your Rights Under Lights and Siren (December 4, 2015) ‘Emergency driving is a privilege, not a right…’.

Conclusion

I can draw three conclusions after running this blog for some 8 years.  My justifications for two of them are summarised in this post and in my other omnibus post, Scope of Practice – Previous Posts Explained (January 21, 2017).  Those conclusions are:

1. If you have the skills to save someone’s life, use them; and
2. If you are driving an emergency service vehicle, the most important rule is ‘don’t crash’.

To that I would add a third conclusion which is:

3. No, you can’t put red and blue lights on your private car.

 

 

 

A paramedic with NSW Ambulance says:

I recall seeing an article from you about the duty of care of Paramedics to complete Clinical Records and provide them to the hospital before departing on another case.  I can’t seem to find it though?

That post is Completing Paramedic Case Records (September 3, 2015).

The reason I ask is, NSW Ambulance has recently revised their clinical record policy which states:

“It is the responsibility of the paramedic to deliver and receive comprehensive clinical handovers wherever patient care changes from one clinician to another, this includes providing complete, legible and accurate documentation of the clinical observations, findings and management of the patient.”

But in another section states:

“Documentation of the clinical care is to occur at the time of, or as soon as practicable following the provision of professional advice, care, observation, assessment, management/treatment. It should include any other matter worthy of note.  However, response to a subsequent time critical incident should not be delayed in order to complete the CR. Records that are not completed contemporaneously with the treatment of the patient may lack in accuracy due to difficulty in recalling specifics of the incident. Where a CR is completed at a later time, a notation is to be made on the CR stating the reason for the delay and actual time the report was completed.”

To me this is a bit ambiguous because NSW Ambulance definition of “time critical incidents” may include someone with a simple cough “coded as Short Of Breath” or a caller with a cut finger who subjectively states the bleeding is “serious”.

That is a bit of a side issue.  Presumably NSW Ambulance define a time critical event as ‘short of breath’ or ‘severe bleeding’. The call taker and the paramedic don’t actually know what’s going on until they get there.  So the fact that it turns out the person had a simple cough or a cut finger, so their issue was not time critical, is not to the point.  The point is that, at the time, the case is prioritised as time critical.

Can I ask this… If a Paramedic delivers a patient to the hospital who has a complex medical condition/complex allergies/required significant active treatment, and that Paramedic was unable to provide a written copy of their clinical record because they were called away for a “time critical case” (as determined by NSW Ambulance), would that individual be liable for any mishaps that occur with the first patient as a result of the lack of documentation, or are they legally  “protected” by this policy which directs them to complete the written handover later?

The first rule is vicarious liability.  If the paramedic is negligent in the course of his or her employment, it is there employer that is liable.  So no, that individual WILL NOT be personally liable for any mishaps that occur with the first patient as a result of the lack of documentation, if there’s negligence it belongs to the ambulance service.  The other reason the ambulance service will be ‘at fault’ is that it’s the ambulance service’s duty to manage its resources and to give paramedics time to complete their tasks.

Managing resources will however always be a balancing act and a risk assessment.  There’s a risk to a patient if the handover isn’t completed with proper case sheet, but that person is already in hospital where others can provide care.  There is also a risk to the person who’s called triple zero and reported difficulty breathing or severe bleeding and the extent of that risk is not known.   The ambulance service has to manage both those risks with the limited resources that it has.

The ultimate issue is however for the paramedic who has to consider those risks. As I said in that earlier post:

… if there was no significant treatment to record on the eARF there may be little risk in leaving it if the paramedics are being asked to clear for an urgent task. On the other hand, if the patient has a life threatening condition and has received extensive treatment, including drug treatment from the paramedics, then ensuring that is recorded and handed over with the patient to allow their ongoing care is critical.   As noted above the ambulance service may owe a duty to get to other 000 callers as soon as possible, but the individual paramedic has a duty to continue to care for the person who is in their care.   Driving off without completing the eARF may be a remiss as simply dropping the patient at the door of A&E and driving away.

As employees’ paramedics are required to comply with the reasonable directions of their employer.  One can’t get into arguments on the spot about ‘what’s reasonable’ so if they are asked to clear for an urgent job but haven’t finished their paperwork and that does cause some problem, the paramedic won’t be liable, even if the ambulance service is.

When paramedics are registered health professionals the issue will change somewhat as the duty on paramedics to act as a responsible professional will be an independent and personal duty.  Liability will still belong to the Ambulance Service, but professional registration will enhance the paramedic’s capacity to say ‘I can’t clear as I need to complete this paperwork’.

Having said that I appreciate the dilemma both for paramedics and the ambulance service and it really does come down to a risk balance.  The problem for the paramedic is he or she knows what’s happening  with their current patient and can make a call on how important it is to their continued care that the documentation is completed.  What’s happening at the next call is at that stage unknown.

The is the second part of a question received from a member of Victoria’s Country Fire Authority (for the first part, see Air Horns on a CFA Appliance (January 20, 2017)).   The relevant questions are set out in bold, below.

One of my brigade members has been suspended as a result of speeding to the station in his private vehicle and complaints from other members about this driving style on the way to jobs. He insists that while driving to the station to respond to alerts he is not answerable to CFA and therefor is not under their control in terms of speed limits etc. My belief is that he is responding as a CFA volunteer and so any directives regarding driving apply. (If he crashed on the way to the station to respond an appliance he would be covered by CFA insurance therefor they have the right to dictate how he should respond.) While he may say “whether I speed or not is up to me and only the police can fine me” it still seems reasonable that if CFA is aware of a member consistently speeding to the station to respond to fires then they have the right to suspend the member from turnouts. Can you clarify this in legal terms?

Related to the actual right of the CFA to take action is the need to grant ‘natural justice’.  I am the brigade delegate to (the) Volunteer Fire Brigades Victoria (association) which purportedly looks after the interests of volunteer brigades. The member detailed in the above called for my assistance. I gave him the advice on who he should talk to about driving and HR issues. Since then I have had a private telephone call from the brigade captain to say that there is no point in the member talking to the people I had recommended as they will not help and that the captain has private channels to ensure that this is the case. This raises the question of ‘is a requirement for natural justice for CFA volunteers?’ There is a disciplinary process called out in the Act and Regulations but it seems that individual brigades and management team can produce their own independent rules which override the regulations. There appears to be nothing to protect individual volunteers from arbitrary justice imposed by “brigade rules”. Is this really the case or do brigades have to comply with some overarching CFA disciplinary process and regulation?

It’s a bit hard to deal with this in detail without access to CFA documents and no doubt they have a relevant code of conduct or ethics.  On this point let me give a public acknowledgment of NSW RFS who put so much of their documentation online (see NSW Rural Fire Service, Service Standards).  I don’t see any reason for agencies not to make this sort of information public but most don’t.  Without reference to any position statement from the CFA this answer will be quite general.

The statement “whether I speed or not is up to me” must be wrong.   The volunteer who receives notice of a fire call and is making his or her way to the station is acting as a member of the CFA.  Consider what would happen if he or she was to crash on the way to the station and cause death or injury?  Everyone, the police, the coroner, the work health and safety inspector and the family of the deceased would want to know what instructions had the CFA given to firefighters to reduce the risk to others.   The CFA has a duty to ensure that its activities don’t pose a risk to people affected by its activities (Occupational Health and Safety Act 2004 (Vic) s 23).  This duty extends to volunteers and others on the road who the volunteer may put at risk when making their way to a fire station.

Further the CFA owes a duty to consider the welfare of its volunteers.  A volunteer who ‘speeds’ to the station, despite instructions not to, is not only putting him or herself at risk of death or injury, they are also putting themselves at risk of legal prosecution.  Their behaviour may well be a symptom that the fire fighter is struggling to cope with or understand his or her duties.  For all those reasons the CFA has a duty to intervene if they are aware of such risk-taking behaviour by someone responding to a call from the CFA.

Finally, to make it clear that the CFA must have an interest, change the facts and ask would the CFA be able to suspend a member who was guilty of murder, or sexual assault, or robbery, or arson or drug dealing?  The argument that ‘I sell drugs in my time, it’s nothing to do with the CFA’ is unlikely to be persuasive to either the CFA, the community or the press.  The CFA must consider whether people are suitable for the work of the CFA and the CFA’s role in the community, so offending even in your own time affects the CFA.

The authority of the CFA is set out in the Country Fire Authority Regulations 2014 (Vic).  Regulation 58 says:

A member who has been charged with an offence punishable by a term of imprisonment may be suspended from membership of the brigade by the Authority until the charge has been determined.

Regulation 58 is not limited to offences committed whilst acting as a member of the CFA.  Whilst ‘speeding’ doesn’t carry a penalty of imprisonment (Road Safety Road Rules 2009 (Vic) r 20), many other road offences do – for example Dangerous Driving (Road Safety Act 1986 (Vic) s 64).

Regulation 44 says:

A member of a brigade is guilty of an offence if the member— …

(d)     commits an act of misconduct; or…

(g)     is guilty of disgraceful or improper conduct.

What is ‘misconduct’ or ‘disgraceful or improper conduct’ is not defined but it would depend on what directions have been given to firefighters. Failing to comply with a policy statement or direction not to drive contrary to the road rules when turning out to the station could well fall within the description of ‘misconduct’.

I therefore agree that ‘if CFA is aware of a member consistently speeding to the station to respond to fires then they have the right [if not a duty] to suspend the member from turnouts’.

There are disciplinary proceedings set out in the Country Fire Authority Regulations 2014 (Vic) ss 44-58.  These provide for the process of investigation matters, suspending members during the period of investigation and ‘charging’ the member with an offence contrary to r 44.  Following an investigation and a decision by a CFA officer to lay a charge, the Chief Officer must hear the matter and determine whether or not the charge is proved.  In conducting the hearing (r 50(4)):

The Chief Officer must—

(a) ensure procedural fairness; and

(b) in making a decision, have regard to the interests of justice and fairness.

Suspension can occur before a decision is made to charge a member – so a member can be suspended during an investigation or whilst issues are dealt with in court (rr 47 and 58).

What follows is that if the formal proceedings are followed there is an obligation to impose natural justice but sometimes the procedures just are not followed – see Natural Justice and the SES (September 28, 2015), which does relate to Victoria SES).   So the question in this case would be has the member be formally suspended or just ‘told’ not to turn out?  In any event he or she can seek advice and it would be wrong for the Captain to use ‘back channels’ to influence that advice but no doubt such things do happen.

The final problem is if there has been a denial of natural justice, what do you do about it?  As my earlier post said:

The Victorian Civil and Administrative Tribunal (VCAT) found that it did not have jurisdiction to review a decision of Victoria SES to suspend four members of the Bacchus Marsh SES unit.

In Castle v Director General State Emergency Service [2008] NSWCA 231 the NSW Court of Appeal held that the Director-General had to hear from a unit controller before deciding to disband the SES unit and terminate the member’s appointment as unit controller.  That’s all well and good but the court did not that hearing from the member may not change the ultimate outcome, and the member, Mr Castle, did have to take the matter all the way to the Court of Appeal which most people can’t afford and couldn’t be bothered with.

Therefore, in the absence of a tribunal that can resolve the matter (such as VCAT) the right to natural justice may be somewhat hollow.   VCAT would have jurisdiction if the Chief Officer failed to give natural justice when hearing a formal allegation of an offence, but less formal actions, such as those taken with respect to the Bacchus Marsh SES unit may well leave the member without an effective remedy.

See also:

• Revoking Appointments – Queensland SES (October 19, 2014); and
• ‘Reasonable Grounds’ for Disciplinary Action in the South Australian Country Fire Service (October 10, 2014).

This question was posted as a comment to my earlier post, Volunteering with Advanced Skills (January 18, 2017) but I thought it such a useful question that it warrants a post on it’s own.  I’ll break the question up and put comments along the way.

I know that you have responded to many questions that have a common theme and respond with the notion that individuals are likely to be held to the higher skill and a court would more likely question why something wasn’t done rather than why it was.

It’s true that this question, or variations on it, are asked a lot and my answer is ‘if you have skills that you can use for the advantage of the patient, use them’ but that hides many assumptions and subtleties that this post can bring out.

First, my point is not that ‘a court would more likely question why something wasn’t done rather than why it was’ but that a potential plaintiff would.  Law is not self-executing.  You can do something that’s negligent, or illegal, but legal consequences don’t follow unless legal action is taking.    So, let me try to put that in context.

In most of these posts I actually have trouble trying to think of the sort of thing that might arise.  Imagine a first aider is on duty with an intensive care paramedic and a registered medical practitioner.  They are in a first aid post with a standard first aid kit.  What exactly can the paramedic or doctor do that is going to be so different to the first aider in circumstances where it will make a difference?  The paramedic and the doctor might know more, so they can intervene if the first aider tells the person who is having a heart attack that they are OK to leave, but what actual skills do people have in mind?  And if you can identify skills that they have, that might be called for, and which can be performed in the circumstances, why shouldn’t they do that?

Given I’m not a clinician, let’s make some assumptions.  Let me assume that the relevant skill is release of a tension pneumothorax.  As I say, it’s a long time since I’ve had to treat a patient so I won’t rely on my understanding of what that involves, instead I’ll rely the advice published on a US Emergency Medical Service (EMS) website – Jim Sideras, Tension Pneumothorax: Identification and treatment (EMS1.com, January 17, 2011).  It says

Tension pneumothorax is a life threatening condition that can occur with chest trauma and is more likely to happen with trauma involving an opening in the chest wall.

After discussion about the causes, signs and symptoms and the difference where there is a ‘closed’ or ‘open’ pneumothorax it goes on to discuss when a ‘needle decompression’ is required.  For when a needle decompression is the appropriate treatment, it sets out these procedures:

1. The following are steps to perform a chest decompression. However, you should follow your own protocols.
2. Ensure patient is oxygenated if possible
3. Select proper site
   1. Affected side at the second intercostal space and along the mid-clavicular line
   2. Note: Draw an imaginary line from the nipple up to the clavicle. The needle should not be closer to the middle of the chest than this line
4. Clean site with alcohol or povidine solution
5. Prepare needle; if it has a leur-lock or flash chamber, it will need to be removed
6. Insert the needle into the second intercostal space at a 90 degree angle to the chest, just over the third rib.
7. Note: There are blood vessels running along the bottom of the ribs. Ensure the needle is closer to the top margin of the lower rib in the intercostal space. This will prevent these vessels from being damaged.
8. Listen for a rush of exiting air from the needle
9. Remove the needle and leave the catheter in place, properly disposing of the needle
10. Secure the catheter in place with tape. Some suggest covering the end of the catheter, but this will depend on the situation
11. Ensure the tension has been relieved and the patient’s condition improves. If there is no improvement, the procedure will need to be repeated with another needle placed adjacent to the first needle
12. Monitor, then reassess the patient

Now let us assume that a patient with a tension pneumothorax has presented to the first aid post and for whatever reason the first aid organisation has not endorsed the ‘scope of practice’ for either our doctor, or paramedic, to perform this procedure even though, let us also assume, they are both familiar with the procedure, experienced in doing it and by some bizarre circumstance, the relevant equipment is to hand.

There are not two options.  1) The patient is treated in accordance with the first aid manual that does not provide for the release of the tension pneumothorax, or 2) the doctor or paramedic, or both, release the tension pneumothorax.    Let us assume option (1) and let us also assume she dies and the autopsy reveals that had the pneumothorax been relieved, the injury would not have been life threatening.  Now imagine you are a member of her immediate family, her partner, child or parent.   How do you react to that news, assuming that you now know that the doctor and paramedic were there.  Here is a case where a person came to the first aid post seeking first aid, that is the very service they first aiders, including the doctor and paramedic, were there to provide. The person was vulnerable, in that they were injured, and they turned to the very people who claimed to be there to help and provide care.  And two people in that first aid room could have taken action to save her life, but didn’t.

Now imagine scenario (2), the tension pneumothorax is released, the patient is transported to hospital and has a good outcome.  Now imagine you are a member of her immediate family, her partner, child or parent.   How do you react to that news?  With pleasant joy and a letter to the first aid service thanking them for their professional response.

In which scenario are you more likely to get sued?  In the first the organisation and the doctor and the paramedic may well have a legal argument  – it was beyond our scope of practice and all the patient was promised was a ‘reasonable first aid service’ and that’s all she got.  That argument might even win – but in the first scenario, you might have to spend three years in courts arguing the point, in the second you get a pat on the back and a box of chocolates.

My first point, then, is that it’s not so much the court, but the people who are likely to take action, who are going to ask why things were not done, not why were they done.  It’s a risk – but if you want to take a risk management perspective the risk must be lower to act than not act.

What will the courts do?  The courts will ask ‘was the response reasonable’ that is was there good reason to act, or not act.  The reason to act is ‘we were competent, proficient, experienced, knowledgable, had the equipment at hand, knew of the patient’s need and recognised that without intervention the consequences were life threatening’.  All good reason to do something.

What is the reason to not act?  My agency told me not to do it and that I might not be insured – in other words I want to protect my agency, or myself, not my patient.    In a post on his Fire Law blog, on an unrelated matter (Rope Rescue, NFPA Compliance and Liability (January 11, 2017)), US firefighter and lawyer Curt Varone said:

To me it is not a liability issue. We have to stop thinking about things in terms of liability and do things because it is the right thing to do.

I agree with that sentiment.  If your focus is ‘I’ll get into trouble’ it’s time to stop volunteering.

But that doesn’t mean that there aren’t very good reasons for not acting.  They might be that they don’t have the equipment to hand, that if they release the tension pneumothorax they’ll have to escort the patient to hospital because the attending ambulance crew may not be able to deal with that situation, it may be that the ambulance is in fact only a short distance away and the patient’s condition won’t deteriorate in that time so better to leave it to those that will transport, it may be that the doctor or paramedic are already dealing with other life threatening injuries or multiple casualties and they triage the patient as a lower priority.  None of those apply in the story as I told it, but they might and if they did they would be good reason not to act.  They can be summed up by ‘if there is a clinical reason that says ‘let’s not do this’ then don’t do it’.

Let’s change the story somewhat.  Now assume option (2) that is the paramedic and doctor relieve the tension pneumothorax but for whatever reason the patient still dies.  There seems to be some myth that a person can sue whenever there’s a bad outcome.  I suppose a person can sue but whether it will go anywhere is a different matter but the reality is that a bad outcome does not mean liability.  In any event the patient has died and it’s discovered that the paramedic and doctor acted outside their scope of practice.  But so what? It is not the case that if you can prove any default of divergence from procedure liability will be established.  The divergence must be relevant (I saw someone suggest once that if you can show a nurse was wearing non-approved footwear, they would be liable and that is of course rubbish), and the plaintiff would have to show it made a difference.  In this case they would have to show that the patient would not have died if the paramedic and doctor had not tried to relieve the pneumothorax, so it was their intervention and not the initial injury that caused the death.

Now that might be the case if the person did not have a tension pneumothorax and when trying to relieve it they punctured a blood vessel and the patient bleed to death.  But the issue there is not that they did or did not act within their scope of practice, but that they were, or were not, competent.

Here the issue of vicarious liability may be an issue.  At common law vicarious liability extends to ensure that an employer is liable for the negligence of is employees.  It is not the case that any divergence (go back to the approved footwear comment, above) means that the employer is not liable.  Vicarious liability extends to an employee doing an authorised act in an unauthorised way.  If relieving a tension pneumothorax was within the practitioner’s scope of practice and they puncture a blood vessel, the employer will be liable.  I would suggest that a volunteer doctor or paramedic who is there as a first aider, but who ‘are both familiar with the procedure, experienced in doing it and by some bizarre circumstance, the relevant equipment is to hand’ is still doing an authorised act (providing first aid) in an unauthorised way so I would still expect the employer to be liable.

The situation is not so clear for volunteers.  First the volunteer who has watched too much M*A*S*H (Season 5 Episode 8, ‘Mulcahy’s War’ where Radar performs a tracheostomy using a pen knife and a biro) so decides to ‘have a go’ will certainly be on a ‘frolic of his or her own’.  Second, if we take as our example the Civil Liability Act 2002 (NSW) it says (at s 61):

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

(a) organised by a community organisation, or

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

Section 64 goes onto say, however, that

This Part does not confer protection from personal liability on a volunteer in respect of an act or omission of a volunteer if the volunteer knew or ought reasonably to have known that he or she was acting:

(a) outside the scope of the activities authorised by the community organisation concerned, or

(b) contrary to instructions given by the community organisation.

Let us now assume that indeed the doctor or paramedic was sued over the procedure and wants to enjoy protection of s 61.  The plaintiff may want to argue that they are not protected by s 61 because of s 64.  That may be true.  But is that a good reason not to act?

To rely on that, is to say ‘The reason I didn’t relieve the patient’s tension pneumothorax, even though I was ‘familiar with the procedure, experienced in doing it and by some bizarre circumstance, the relevant equipment is to hand’ was because I knew that if I got sued I would not be able to rely on s 61, but if I let the patient die and got sued I could’.    That might be true, but is fear that “I’ll stuff this up and get sued’ a good reason not to act?  Fear that “I’ll stuff this up” is a good reason not to act, if in all the circumstances you think ‘I know what this patient needs but in this setting, in this first aid room, with this lighting, without my usual team about me, I’m not comfortable doing the procedure’ is a clinical reason.  But I don’t think a court would find it ‘reasonable’ to say, again, I was concerned that I would be liable.  But let me accept that it is not an illegitimate concern and it does reflect the notion that agencies that use volunteers must be able to set limits on what those volunteers do and don’t do.

Let me now return to my correspondent’s question which goes on to say:

What I query is that this view / opinion tends to send a message that organisational clinical governance frameworks and process (professional recognition, clinical credentialing and issuance of scope of practice etc) are largely superfluous?

To some extent I agree with that.  I think the issue is particularly true with registered health professionals and I’m going to include state paramedics in that category even though they are not yet registered health professionals.   The critical question will be are the agencies ‘professional recognition, clinical credentialing and issuance of scope of practice etc’ reasonable.  A ‘scope of practice’ that says ‘you must act in accordance with, and only in accordance with the first aid manual’ is easy to write and perhaps enforce, but it’s not reasonable.

For registered health professionals it’s a particular problem as they owe duties to their patients as doctors and nurses.  If the ‘scope of practice’ of the organisation unreasonably restricts their ability to act professionally, that is in a way that is accepted as appropriate by the profession, then they have a fundamental conflict.  If they are not allowed to practice in a professionally responsible way, I would advise them to rethink their volunteering (see ALS Paramedic as Volunteer With St John (WA) (April 5, 2014)).

My correspondent continues:

What if an organisation used a robust clinical credentialing framework to determine the clinical scope of practice of its staff and despite an individual claiming to be qualified / certified in an ‘advanced’ skill(s), the organisation/credentialing process did not include it in their scope of practice?! Hypothetically, where does this leave the individual and organisation.

For a start, we are now assuming that the ‘clinical credentialing framework to determine the clinical scope of practice of its staff’ is ‘robust’ so that it takes into account their professional obligations and the scope of practice of their ‘day job’.   In my view the questions I’ve previously answered have not demonstrated a robust scheme so, for example previous comments have dealt with situations where St John Ambulance (WA) tried to limit the practice of ‘a very experienced paramedic, currently working in a remote capacity in remote Western Australia’ (ALS Paramedic as Volunteer With St John (WA) (April 5, 2014)) or Victoria ambulance tried to limit the practice of one of its own paramedics (‘Just Ridiculous’? When is a MICA Paramedic a MICA Paramedic? (March 28, 2013)) or surf lifesaving trying to restrict the practice of a doctor (Doctor as Volunteer Life Saver and Scope of Practice (February 6, 2015)). Other questions involved paramedic fire fighters where again it was at least inferred that there was no real consideration given by the fire service as to what paramedics who were also volunteer fire fighters might do Victorian Paramedic and CFA Volunteer Assisting with Patient Care (August 25, 2016) and NSW Paramedic and Fire Fighter – When Does One Role Start and Finish? (July 8, 2015)).

That said, those earlier posts have to be read in that context.  If the organisation does have a robust scheme that seriously considers what people do in their ‘day job’ and their professional scope of practice then makes determinations based on that, that is a different matter.  One would expect that whatever the professional scope of practice (and here I’m talking registered health professionals and paramedics) would apply in their first aid volunteering but again there may be good clinical reasons why it doesn’t.  Provided the reasons are based on good clinical governance, not merely convenience and certainly not ‘we’ll all be sued if we let you do that’ then it must be honoured.

As for someone who claims a skill that the credentialing system doesn’t support, that is a different matter.  The person who says ‘I have advanced skills because I’ve got this certificate from Dodgy Brothers First Aid doesn’t have to be recognised.   If the ‘clinical credentialing framework to determine the clinical scope of practice of its staff’ is ‘robust’ there is presumably some Recognition of Prior Learning policy.  So one can ask ‘Is this certificate issued by an RTO or an agency we trust?’ ‘Can the person demonstrate the claimed skills?’   In that case the failure to expand their scope of practice should come with advice that ‘even though you claim to have that skill set, you don’t actually have it’.   Now in the questions I’ve answered I’ve accepted the person has the skill set claimed so those answers are different if they don’t.

That is clearly a problem as the person may not know and this is one of the situations where the legal answer is going to depend on the outcome.  Let’s return to the patient with a tension pneumothorax and the first aid has a Dodgy Brothers Certificate in pneumothorax treatment.  The organisation for which they volunteer has seen it and said ‘that’s rubbish, don’t ever try to do that when on one of our duties’ but here’s the patient in desperate need.    We’re still not in a very different position.  Dodgy releases the pneumothorax, the patient lives, everyone’s happy.  Dodgy doesn’t and the patient dies (remember that law suits against first aiders are virtually unheard of but even so) perhaps the family are upset and they might sue – both Dodgy for not doing it and the organisation for not letting him or her.    Answering whether they’d win or not would depend so much on the facts that I can’t make a prediction.  Or Dodgy does do it and does a bad job and someone sues.

In this case the organisation is going to want to disown Dodgy and if the organisation can point to a ‘robust’ assessment and communication to Dodgy that he or she really wasn’t skilled that will be much stronger than a non-existent process or a simple rule – ‘when you volunteer with us you apply our teaching and forget what you know’.

To repeat, all of my previous answers have been predicated on the unstated assumption that there is not a ‘robust clinical credentialing framework to determine the clinical scope of practice’.  The restrictions that have been imposed have been done due to a misguided legal fear or to avoid paying people for their skills.   If the restriction is evidence based, it’s a different story.

What concerns me is that whilst individuals can only work with the equipment provided, some will use the ‘greater good’ argument to supply their own equipment …

That is both fair enough and relates to the discussion above about ‘professional recognition, clinical credentialing and issuance of scope of practice etc’.   First, if the person starts bringing their own kit they begin to look like they are on a ‘frolic of their own’ that is they are not volunteering for the agency but in their own right.  That could be the case if they start carrying an intubation kit or a kit to release a pneumothorax, it would definitely be the case if they start carrying a drug kit where the lawful authority comes from their status as a registered health professional rather than as a person endorsed by the first aid organisation.  If they are ‘on a frolic of their own’ (as the first aider with the pen knife and biro above) then the agency can argue that they are not vicariously liable for any negligence.

And the problem can be dealt with in this way.   Whilst an agency can’t tell a person ‘pretend you don’t know what you do know’ they can say ‘this is the kit list, this is what is on the first aid post, this is what you can carry if you have our endorsement but don’t bring ‘stuff’ that isn’t on the list’.   In essence if you don’t carry the kit, you don’t have a choice to make.  There can’t be a ‘duty’ to carry the equipment to treat every possible injury because a duty of care is not owed to the world at large – it is owed to actual patient’s not potential ones.  So the mere fact that it is foreseeable that a person may present to a first aid post with a tension pneumothorax does not impose a duty on the event first aider provider to ensure that there is someone there who can treat it. You might also foresee that you might have patients with the bends but that doesn’t mean you must have a decompression chamber.    So the fact that the equipment is not there cannot lead to liability (within reason, there has to be some basic kit that no reasonable first aid organisation would fail to have, but the equipment for relieving a tension pneumothorax probably isn’t on that list).

… and additionally I am concerned (especially with healthcare professionals) that ‘context’ is a large contributor to an individual exercising clinical judgement and undertaking a skill.

Being trained and/or qualified in skills and exercising their judgement in undertaking that skill in their work environment vs in a hostile, minimally resourced mass gathering environ with no similarly or higher skilled clinician for support is a very different shift in context for many clinicians, (I accept for some it will be a comfortable and easy shift but for many (especially doctors and nurses) it’s an unfamiliar one…

That is correct and that is why for example, doctor’s fears of getting sued at an accident are overstated.     So a registered health professional may well be justified, on a clinical basis, in saying ‘I’d do x if I was in my hospital, but I’m not and I’m not going to try it here’.   And that would also be a defence if the injured person (or in extreme cases, the family of the deceased) want to argue ‘you were a doctor you should have done x’ if ‘x’ is what say, an experience emergency physician might have done, but the doctor in question is a city general practitioner with no emergency experience since leaving medical school.  Again, the questions I’ve answered before are predicated on the assumption that the person has the relevant skills.

Another issue to address is that what I’ve been talking about are life saving, time critical issues.  A doctor who volunteers with St John Ambulance is volunteering to do what doctors with St John ambulance do – first aid.  If a person develops a tension pneumothorax and is likely to die within 5 minutes and the ambulance won’t be on scene for 10, acting to relive that is part of providing first aid.  If, on the other hand, a patient comes in with a cut leg and the doctor can see it will need stitches and considers that he or she has a suture kit, there is no ‘duty’ to stitch them up.  St John practice would be to clean and dress the wound and tell them to go to casualty.   They’re not going to die, it’s not going to affect their outcome etc.  Where a relevant duty may arise here is if the volunteer first aider says ‘that’ll be right it won’t need a stitch’.  The doctor may think that as a St John volunteer it’s not his or her place to give medical advice, but as a doctor it would be reasonable to say ‘no, I think it does need stitches, you should go to casualty’ (or, if you prefer, have a quiet word with the volunteer so they can correct their advice).  Again, the doctor can’t not know what he or she knows.

As I said at the start too, I think the situation is mostly hypothetical because it’s difficult to imagine exactly what skill set we are talking about.  When volunteering, health professionals, including paramedics, have knowledge and confidence but what other skills do people think they have that they’ll be able to use, that will make a significant difference to the patient outcome, but which the agency for which they volunteer has said they are not to use?  And if you’re a registered health professional and you seriously think that if it came down to a matter of life and death the organisation would prefer you to let the patient die than do something that you are qualified and competent to do, you need to rethink your volunteering.

Is anyone going to get sued in these cases?  If the patient has a good outcome, no.   And in most other cases, no.  To go back to my starting point, however, if you are worried about risk, the risk is highest if you don’t do what is in the best interests of the patient.

So, should organisations continue to seek to improve clinical governance or is it irrelevant?

Absolutely, because that is the key.  As noted the questions I’ve answered before have implied a failure to have proper clinical governance.  If there is a system that considers each case on its merits, not just a blanket ‘This is Kaos First Aid – We don’t do that here’ (for those that remember ‘Get Smart’) then it is much more likely to stand up to scrutiny.  But any system is going to be difficult to justify if life saving treatment, or treatment that will avoid permanent and/or significant ongoing disability, is withheld by a person capable of providing it on the basis that ‘my organisation said I couldn’t and I didn’t want to be sued if I stuffed it up’.

For a registered health professional, failing to do what they know needs to be done, and is within their professional scope of practice could lead to professional discipline regardless of the edict from their volunteer agency unless, at least, there is an evidence based clinical reason for a decision to restrict their practice.

An employee of the Port Authority of NSW

… was particularly interested in your article on who is the agency for fighting fires and emergency response on Sydney harbour.

I work in marine operations for PANSW which currently has two fire fighting tugs manned 24/7 365 days a year – the ‘Shirley Smith’ in Sydney and the ‘Ted Noffs’ in Botany.  Both tugs were constructed to comply with the Australian Standard for FFSV.  In case of fire and emergency in Port Botany and Sydney we are the lead agency but take direction from the Fire Brigade for fires once they are on board.

The harbour master of the PANSW is planning to change the role of the FFSV.  These tugs are aging and he wants to replace them. The harbour master is currently negotiating with a commercial tug company to take over the primary role of fire fighting and emergency towage with their vessels by making their tugs captive with a minimum one hour call out time

This will take away the role of PANSW as the primary agency in all emergency plans and leave the PANSW employees without a role that they were trained to do.  The tugs are international standard for fire fighting not Australian standard and do not carry the required amount of foam on board.

Is there any advice you can give as to the legality of such a proposed move?

Is there any legal action that could be taken to stop these plans taking effect?

I can’t answer the specific questions asked as that would require much more detail and no doubt access to tender documents and other commercial in confidence material.  I can however provide some brief comments on the claim that ‘This will take away the role of PANSW as the primary agency in all emergency plans.’

Engaging others to provide services, in this case the commercial tug company, doesn’t necessarily ‘take away the role of PANSW as the primary agency in all emergency plans’. The NSW State Emergency Plan defines the combat agency as ‘the agency identified in EMPLAN as the agency primarily responsible for controlling the response to a particular emergency’.  Combat agencies can, and do, call on others to provide services but they remain ‘in control’.  For example, the NSW Rural Fire Service don’t own or fly all of the aircraft they use for aerial firefighting but the fact that they contract with the operators does not mean that the RFS has vacated its role as the combat agency for bushfires.

As I said in my post Combat Agency For Fire On Board A Vessel In Sydney Harbour (July 20, 2015)

… it is the Port Authority of New South Wales that is the combat agency.  They should appoint the Incident Controller who will set the controller’s intent for the response. Fire and Rescue may well take charge of firefighting operations but that doesn’t deny that the Ports Corporation is the combat agency, in the same way that in other emergencies particular agencies have specialised roles but it is the role of the IC to take overall control of the response.

The Port Authority could contract with the commercial tug company to provide fire fighting and tug boat services but that, on it’s own, doesn’t mean that the Authority no longer remains in control of the operation.

As for advice on the legality of the proposed move or any legal action that could be taken to stop these plans taking effect I would advise my correspondent to contact the relevant employees union.

This question comes from a member of Victoria’s Country Fire Authority.  There were really two questions so I’m going to answer them in two posts.  The first relates to, once again, driving an emergency vehicle.

In addition to the normal vehicle horns on our appliances we have CFA authorised lights and sirens. On a couple of the vehicles we have installed additional airhorns. These were installed on the basis that civilian vehicles often ignored – or did not hear – the sirens. We have had complaints of drivers riding these airhorns as a way to get through traffic. I would be interested in your comments on the issues surrounding this in Victoria. Do drivers have to clear a path for, or can they not enter the path of, an emergency vehicle? If an “emergency vehicle” is displaying lights or sirens does an airhorn count as an emergency warning device? Anything else you can add to the question would be appreciated.

Any guidance you can offer regarding code 1 response driving [i.e. lights and sirens] and approach to intersections, roundabouts, etc. would be appreciated.

Any driver has to give way to, and clear the way for, an emergency vehicle.  In Victoria that is provided for in the Road Safety Road Rules 2009 (Vic).   Rule 78(1) says:

A driver must not move into the path of an approaching police vehicle, emergency vehicle, enforcement vehicle or escort vehicle that is displaying a flashing blue, red or magenta light (whether or not it is also displaying other lights) or sounding an alarm.

Rule 79(1) says

A driver must give way to a police vehicle, emergency vehicle, enforcement vehicle or escort vehicle that is displaying a flashing blue, red or magenta light (whether or not it is also displaying other lights) or sounding an alarm.

The reference in the rules is to ‘an alarm’ rather than ‘a siren’.   What constitutes an ‘alarm’ is not defined.  Vehicles must comply with the standards set out in Schedule 2 to the Road Safety (Vehicles) Regulations 2009 (Vic).  Clause 34 of those standards says:

1. A motor vehicle must be fitted with at least one horn or other device that can give sufficient audible warning to other road users of the approach or position of the vehicle.
2. A motor vehicle must not be fitted with a device that can make a sound like the sound of a siren, exhaust whistle, compression whistle or repeater horn.

Clause 34(2) does not apply to, amongst others, police and emergency vehicles (see 34(3)).

The Oxford English Dictionary (online) relevantly defines ‘alarm’ as ‘A warning of danger’ or ‘A warning sound or device’.   So the question becomes, are the air horns ‘an alarm’?

I think they probably would be.  If we go back to rr 78 and 79 drivers have to give way, and make way, to a vehicle that is displaying red/blue lights or sounding an alarm.  The horn, whether it’s the standard horn or an after market air horn is certainly able to warn other drivers so it is a ‘warning sound’ warning of ‘danger’.   If the vehicle is a CFA vehicle with red/blue lights and a siren, the use of the horn (air horn or otherwise) adds to the warning or ‘alarm’.    Equally if the vehicle has red/blue lights flashing whether the horn is an ‘alarm’ or not doesn’t really matter as the obligation on other drivers applies if the emergency vehicle has it lights on, or sounding an alarm.    The definition would only be an issue if the air horn was being used with no siren and no red/blue flashing lights but one would have to ask why anyone would do that?  It might not be ‘reasonable’ given that other drivers may well not understand what is going on, but I imagine most people who saw a CFA appliance trying to push its way through traffic sounding its air horns would probably try to get out of its way, but whether that was sufficient to claim any exemption from the road rules would be debatable.

In summary, I can’t see why an air horn does not fit the definition of an ‘alarm’ but if the appliance driver has the flashing lights and siren activated the question of that definition is irrelevant.  The use of the air horn in those circumstances does however add to the warning function but the exemption under r 306 and the obligations under rr 78 and 79 are triggered without it.  In other words the use of an air horn adds nothing, legally, to the use of flashing lights and siren, but it may add some practical value if it does in fact draw the presence of the appliance to the attention of other drivers.

As for ‘Any guidance … regarding code 1 response driving [i.e. lights and sirens] and approach to intersections, roundabouts, etc’ see https://emergencylaw.wordpress.com/category/driving-and-road-rules/,  and remember the most important rule – ‘Don’t crash’.

 

 

 

 

 

This question has come up time and again.  This time it’s from a life saver in WA who says:

I’m employed by St John Ambulance (WA) as an Event Medic and I also volunteer for them from time to time in a similar role. Additionally, I volunteer at a surf club. As a paid/qualified Emergency 1st Aid provider, when volunteering for either organisation can I be held to account given the higher level of skills I’m trained and employed to use or does the Good Samaritan Act apply at the times I’m volunteering? (Our qualification is Cert IV in Ambulance Care equivalent).

For some earlier, related posts, see

• Student Doctors and Scope of Practice (May 15, 2016);
• Victorian Paramedic and CFA Volunteer Assisting with Patient Care (August 25, 2016);
• NSW Paramedic and Fire Fighter – When Does One Role Start and Finish? (July 8, 2015);
• Good Samaritan legislation and scope of practice (March 27, 2015);
• Doctor as volunteer Life Saver and scope of practice (February 6, 2015);
• ALS Paramedic as volunteer with St John (WA) (April 5, 2014);
• ‘Just Ridiculous’? When is a MICA Paramedic a MICA Paramedic? (March 28, 2013);
• Treatment outside the protocol (April 2, 2012);
• Medical care and medical emergencies (December 30, 2012); and
• Volunteer nurses and their skills (December 12, 2012).

The answer is, if you’re providing care to someone, you know what you know and you can do what you can do.  No-one, certainly not the patient or a judge, is going to reward you for pretending that today, you don’t know, or can’t do something that clearly you can.     And certainly they’re not going to reward you for saying ‘I didn’t do everything I could do because I was afraid of my legal exposure or the exposure of your organisation – that I was putting everyone’s interests ahead of the person in need of care’.

A person is entitled to expect ‘reasonable care’, what is reasonable depends on the person’s level of training and knowledge.  If there is something you can do and you identify that it needs to be done, then it would be reasonable do to it.   Imagine the counter example, assume for example you know how to use an epipen and to recognise the need for it.  A patient is having an anaphylactic episode and would benefit from the treatment.  There is an epipen to hand.  But assume you are, at that time, acting as a volunteer surf lifesavers and the use of an epipen is not part of the life saving training.  Do you use it or not?

If you don’t use it do you think anyone is going to thank you for not doing what you could have done?  If you do use it is anyone going to sue you?  (And if they do sue, whether you use it or not, it won’t be you but the organisation for which you volunteer that will wear that burden.  But remember, there are NO cases of law suits in these situations.)  The reality is you are much more likely to be sued for not doing it because here was a person in need, you were providing some care and there was something you could have done but didn’t.  The good Samaritan legislation won’t help with a decision not to act if your motivation is ‘but today I’m a surf lifesaver’ because you are not acting ‘in good faith’ for the benefit of the patient, but to cover your own backside.

This discussion is only relevant if you don’t need special equipment or you have what you need.   If, for example, one of the skills you have is knowledge of how to intubate, but you don’t have an intubation kit with you, then you can’t be expected to intubate the patient nor can you be judged on the basis that if you’d had that kit, you could have done something more for the person.

As for the good Samaritan legislation (in WA, the Civil Liability Act 2002 (WA) ss 5AB-5AE) it says:

A good samaritan does not incur any personal civil liability in respect of an act or omission done or made by the good samaritan at the scene of an emergency in good faith and without recklessness in assisting a person in apparent need of emergency assistance.

A ‘good samaritan’ is any person ‘acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance’.  I don’t think it applies to St John or lifesaving volunteers.  They are at an event or a beach with the very purpose of providing emergency assistance.  The members do not get paid (either by the service or the patient) but they do get other benefits from their membership and their volunteering.   To extend good Samaritan protection to those volunteers would say that those organisations that hold themselves out as being expert at providing that care, do not have to provide ‘reasonable care’ to their patients.  That was not the intention behind the legislation and I don’t think the Act would be extended that far.

In WA the Volunteers And Food And Other Donors (Protection From Liability) Act 2002 (WA) would ensure that a volunteer is not personally liable but that the organisation for which they volunteer (in this case St John (WA) or the surf lifesaving association) would be.  I do not think the Civil Liability Act was intended to defeat the policy in that legislation which is to ensure that people who are injured by a negligent volunteer are not left without a remedy.

It is my view therefore that the ‘good samaritan’ provisions do not apply to a first aid volunteer when ‘on duty’.

Conclusion

Can I be held to account given the higher level of skills I’m trained and employed to use?

Answer: Yes, you have those skills and knowledge.  If you’re going to help someone, do what you can do to help.

As a general observation, if a person is going to volunteer in an emergency service, but is unwilling to do their best for the person who needs help because of some misperceived fear of legal liability – believing that somehow the law would prefer a person not to do whatever they can to help – then it’s time to reconsider that volunteering.

Does the Good Samaritan Act apply at the times I’m volunteering?

Answer: In my opinion, no.  When volunteering, the relevant law is the Volunteers And Food And Other Donors (Protection From Liability) Act 2002 (WA).  Even if the ‘good samaritan’ legislation did apply, it would not justify withholding care that a person can identify is needed and which they can reasonably provide.

 

 

In an earlier post, THE PRIVILEGE AGAINST SELF INCRIMINATION AND SOUTH AUSTRALIA AMBULANCE (JANUARY 17, 2017) I responded to a paramedics concerns about the approach of SA Ambulance when dealing with traffic infringements issued after red light or speed cameras detected an ambulance entering an intersection against a red light or speeding.  After writing that post I was sent the actual policy document (headed ‘Processing of Expiation Notices & Alleged Driving Offences’ with an effective date of 12 August 2016).   In that earlier post I responded to what people think the policy says, but what does it actually say and is it unreasonable?

The policy starts by saying ‘There is a presumption of guilt if a vehicle is detected by photographic equipment to be driving outside normal legal parameters.’  I’m not sure who makes that presumption, that is whether SAAS ‘presume’ the driver did the wrong thing, or they think that’s the law.  It certainly isn’t the law.  If a photo detects an offence then the police may issue an ‘expiation notice’, but that does not ‘presume guilt’.  If a driver wishes to deny that they are guilty of any offence they are free to elect to be prosecuted and the matter will go to court and the crown have to prove the case beyond reasonable doubt.  The problem for the driver is that the photo in most cases will be sufficient but not always.  Drivers, even of non-emergency vehicles, may have relevant defences and the burden is always on the Crown to prove the case.   What that statement ‘There is a presumption of guilt …’ means is unclear, but it probably isn’t of any practical importance, given the rest of the policy.

The policy says:

SAAS will review and if necessary seek clarification on an expiation notice when it appears that a vehicle:

• Is speeding and is not using emergency lights.
• Is passing a red traffic light to enter an intersection or crossing.
• Shows a speed or driving behaviour that is / or appears to be not reasonable.
• Does not demonstrate compliance with applicable SAAS Policy and Procedures.

(An ‘expiation notice’ would be called an ‘infringement notice’ in most other jurisdictions).

The Service has an ‘Expiation Notice Declaration Form’ (ENDF) that, in some cases drivers are asked to complete in order ‘to supply sufficient information, so that it is clear from that documentation that a reasonable cause was present to allow for an exemption’. (I note that I do not have a copy of that form).

In the original post, my correspondent said:

SAAS management, on alleged pressure from SAPOL to better explain our actions, have now introduced policies that requires the driver of the ambulance to disclose additional information in support of SAAS’s claim that they were in fact driving with due care and attention

Readers should note that it is not SAAS that ultimately decides whether the exemption contained in rule 306 of the Australian Road Rules applies but the process has to be that SAAS first has to think the case deserves the exemption, then it’s up to the police to agree (or not) and then, ultimately, a court (see Road Traffic Exemption – Who Determines If It Is Reasonable That The Provision Should Not Apply? (May 22, 2016)).   It is not unreasonable for police to insist that if they are being asked to withdraw a notice that the SAAS, and ultimately the driver, confirm that the circumstances warrant the application of r 306.

With that background the policy goes into more detail.  First [4.3.1] says that if it’s determined that the ambulance vehicle was not responding to an emergency, the driver will be asked to complete an ENDF in order for the notice to be issued to him or her, rather than the Ambulance Service.  There would, presumably, be no need to go into details of the nature of the driving at that point as the SAAS is not going to be asking for a waiver.   If the re was no emergency, then it’s a standard traffic offence and the driver will, presumably, pay the fine or make their own representations to police.

Paragraph 4.3.2 deals with an emergency response.  First SAAS say that where ‘notices that are sent to SAAS that show a speed (up to 30kph above a posted speed limit) or a manner of driving that SAAS considers within normal expectations for an emergency vehicle’ then the SAAS will review the photo evidence.  If the photo shows that the beacons were activated and the records show that this was an emergency (P1 or P2 case), the SAAS will deal directly with SAPOL to have the matter withdraw.  My original correspondent said

…  historically … when an ambulance vehicle was detected by a road side camera to be committing a traffic offence, South Australia Police (SAPOL) would hand over the traffic infringement notice to South Australian Ambulance Service (SAAS) and they would confirm that the ambulance was appropriately ‘responding’.  After this, enquires would stop and the infringement would be written off.

This paragraph says that is still what is happening when the photo evidence supports the application of rule 306.

If the photo does not show that the beacons were on, then SAAS say they will still ‘request SAPOL to withdraw the notice’ but if SAPOL dispute that on the basis that the beacons were not on then the matter will be referred to the driver who will be asked to confirm ‘that the vehicle lights (and siren) were activated’.  Remember rule 306 of the Australian Road Rules requires that ‘the vehicle is displaying a blue or red flashing light or sounding an alarm’.  A photo can’t reveal whether a siren is sounding or not, and presumably may miss the flashing lights given the ambient light, the angle of the camera and because, by definition, flashing lights alternate between being ‘on’ and ‘off’.  Maybe the driver has turned the switch ‘on’ but the lights aren’t working but he or she does not know that.

Now one could take the point and say ‘I’m not going to say anything, the police have to prove their case’ but what would be the point?  The matter would go to court, the police would tender the photo and the driver would have to lead the sort of evidence that SAAS are trying to collect, ie paperwork to show that it was an emergency response and evidence that the lights and/or siren were on etc.  The police would have to prove, beyond reasonable doubt, that some or all of that were not true.  They probably could not so the case would be dismissed but why go through all that hassle rather than provide that information up front and ask SAPOL to withdraw the notice?

So there’s nothing objectionable in asking the driver to confirm that the lights and siren were activated.   If the lights and sirens were not on, the driver’s going to get an expiation notice because without lights or sirens, r 306 doesn’t apply.

Paragraph 4.3.3 is headed ‘Emergency tasking notices (requiring justification)’ and applies when the photo ‘shows a speed or driving behaviour which would not reasonably be expected by the driver of an emergency vehicle.’

To go back to my original post, the correspondent there said

It was only in extreme cases (i.e. excessive speeds and alike), that a crew might be internally disciplined but it was very unlikely that criminal charges would be pursued,

That is again consistent with this policy, though this policy is not referring to ‘internal discipline’ and it is not up to SAAS to determine whether or not criminal charges are pursued, that is a matter for police.

Where the photo shows

a speed (above 30kph over a posted speed limit, but below the internal SAAS speed threshold for justification) or a manner of driving that SAAS considers outside normal expectations for an emergency vehicle.

then the driver will be asked to explain his or her actions.  The policy says that the SAAS team leader and recommend whether or not SAAS should support an application to have the matter withdrawn as well as whether or not as well as whether ‘any further support / actions’ are required. The Team Leader ‘will forward The ENDF to Client Relations. Client Relations will then apply for the notice to be withdrawn.’

This might be an area that reflects the concerns of my original correspondent as it may lead to internal action depending on the reasons given, and here, if the driver agrees that he or she was ‘driving in a manner which could reasonably convict us of driving without due care’ then they may prefer not to give that explanation, for example if the answer is ‘we knew another car from another station was also going to the job and we just wanted to beat them so in effect we were racing’ the driver may prefer not to say that.   That may be an example where the driver choses not to ‘present ‘cap in hand to the executioner’’.  They may prefer to offer no excuse in which case the notice will be issued to them, but they may avoid incriminating themselves in a more serious offence.

Where notices ‘show a speed or a manner of driving that SAAS considers is excessive (above the SAAS internal speed limit threshold for justification) for an emergency vehicle, or three or more “above 30kph” notices in one calendar year’ then the matter will be referred to the Operations Manager who ‘may choose to instigate remedial actions’.  Again that is consistent with my original correspondents comments about internal discipline but note that at this point the driver is not being asked to justify his or her actions or incriminate him or herself.  The matter is being referred to the OM on the basis of the photo evidence and/or the driver’s history.

SAAS has a duty to its staff and the public to ensure ambulance are being driven in a safe way. If the evidence suggests a problem, then it is indeed appropriate for SAAS to consider the circumstances and take ‘remedial actions’ whether they are supportive (for someone who is struggling) or disciplinary for someone who joined the ambulance service because they wanted an excuse to drive fast.  So far nothing objectionable, no provision compelling ‘self incrimination’ and nothing contrary to what was described in the original post as the ‘historical’ position.

What the policy does say is that

The ENDF with cover letter / email will be sent to SAPOL Expiation Notice Branch so that the Manager Expiation Notice Branch can make the determination to withdraw. All other clinical / administrative documentation collated during the review / investigation will be filed with SAAS.

So SAAS is not saying they will send all information to SAPOL, just the ENDF.  If the driver does not want to incriminate him or herself in a more serious matter he or she may put few details on the ENDF.

Similar provisions apply to red light camera detection devices.   Where SAAS can confirm that the driver was responding to an emergency call and entered an intersection at not more than 25km/h, the SAAS will take the matter up with police and the driver ‘will not be required to complete any further paperwork’.

To return to my original post, my correspondent there said

…  historically … when an ambulance vehicle was detected by a road side camera to be committing a traffic offence, South Australia Police (SAPOL) would hand over the traffic infringement notice to South Australian Ambulance Service (SAAS) and they would confirm that the ambulance was appropriately ‘responding’.  After this, enquires would stop and the infringement would be written off. This also typically happened when a camera unit would capture an ambulance driving in manner that could (on face value of a camera’s photo alone) suggest that the ambulance was being driven without due care or attention. It was only in extreme cases (i.e. excessive speeds and alike), that a crew might be internally disciplined but it was very unlikely that criminal charges would be pursued, principally from my understanding, because of a lack of evidence and no incident arising from the drive (i.e. no traffic crash).

I can’t see that the actual policy reflects any change by SAAS.  If the situation fits their defined criteria then they will take it up with SAPOL on the driver’s behalf.  If the situation is outside the parameters or the photos are ambiguous then further explanation is required.  That will no doubt reflect SAPOL’s not unreasonable response that ambulances are not exempt the road rules except as provided for in r 306 so they need some evidence that the requirements of r 306 have been met.  That does not impose the burden of proof on the accused, rather it attributes what we lawyers call an evidentiary burden, that is the accused has to lead some evidence to support their claim (eg the driver says ‘the lights and sirens were, to the best of my knowledge, on’).  The police, on receiving that may well say ‘we can’t prove, beyond reasonable doubt, that those things are not true’ and so the notice is withdrawn.

If we assume that the driver did in fact do all the things required, why would they not say that?  If they don’t explain the position they’re going to get an expiation notice and they’ll either make the representations to police, go to court and ask a magistrate to acquit them, or pay the fine.    Giving an explanation to SAAS and asking them to make representations to SAPOL would seem a more productive use of one’s time and effort.

There is nothing in the policy that I can see that is SAAS demanding information.  They are trying to collect information so that they can make representations to SAPOL and indeed to ensure that policies are being applied, ambulances are being driven with due care, and if a person’s driving is a warning flag of issues in that person’s performance.  Issues like PTSD in emergency services attracts a great deal of attention, if an agency like SAAS tries to ‘not see’ that someone’s actions maybe a problem that is bad for everyone.  But even so there is no ‘demand’, the driver can put as much detail as they want on the ENDF noting that the less detail they put, the less likely it is that the notice will be withdrawn and the more likely it is they will get a notice in their own name that they’ll have to defend or pay.

The previous post, and my comments on it, are only relevant if the driver knows they did the wrong thing. The driver who agrees that he or she was ‘drag racing’ another ambulance or who says “I came to work still hungover and probably still over the limit, I forgot my glasses so couldn’t see properly and I just didn’t see the red light that I went through and nearly collected that group of pre-schoolers”, probably doesn’t want to write that on the ENDF.  If he or she did then they could expect the notice to be withdrawn and a knock on the door from police with more serious charges.  In that case the issue of the privilege against self incrimination is relevant.

But in that case, you may expect other witnesses and when paramedics are registered health professionals, there will be obligations to report impaired performance by colleagues.  The driver who turns up hung-over or drunk should expect that their colleagues will act as will SAAS, but certainly, as a matter of law, they are not required to incriminate themselves.

Conclusion

The actual SAAS policy confirms that in unambiguous cases SAAS will take the issue of traffic infringements up with SAPOL on behalf of the driver.  Where the situation is not clear cut the driver will be asked to provide details because, without them, SAPOL quite rightly are unlikely to withdraw the notice.  This is not demanding that drivers incriminate themselves nor is it unreasonable.

Having said that a driver can chose what he or she writes on the ENDF and is not required to give an explanation that would expose him or her to prosecution for a more serious offence.  But you do have to ask whether someone who is knowingly committing serious traffic offences should be driving an ambulance.

 

 

 

 

 

 

WARNING

Since receiving the original email, and posting my thoughts, I have been sent a copy of the actual SAAS policy. I have to say it’s not nearly as draconian as my correspondent described in his original post. It certainly doesn’t refer to legal professional privilege nor does it say that all information given will be passed to police. It does say that in many cases SAAS will respond without referring matters to the driver for example ‘ notices that are sent to SAAS that show a speed (up to 30kph above a posted speed limit) or a manner of driving that SAAS considers within normal expectations for an emergency vehicle’. Even in cases where it appears that the driving was beyond that which might be accepted the SAAS say they will seek information and may still seek to have the matter withdrawn.

In light of the actual policy the discussion, below, is an interesting discussion of the right against self incrimination but as noted, I don’t think the policy is really as described so a SA paramedic who receives a notice should certainly want to read the actual policy rather than rely on what’s written here. The discussion here remains most relevant for the driver who actually thinks he or she was doing the wrong thing.

A driver thinks they were driving without due care and in a manner dangerous to others would be advised to offer to pay the notice, as paying an expiation notice is likely to be a much lower penalty, and cheaper, than being prosecuted and it avoids the issue of having to either lie or make admissions.  A driver who thinks their actions were justified is going to have to explain that to someone. If they don’t give the information to SAAS they’re going to have to make their own application to police to withdraw the notice, go to court or pay the notice. Giving the information to SAAS and getting their help to make representations to police is probably more effective than doing it yourself.

The policy does say 

A driver that is charged has all the rights of any public driver charged with an offence and the staff member would be entitled to seek independent legal representation / assistance prior to answering any of the charge/s. 

That would include getting advice before responding to any SAAS request for information.

The original question and answer

This question relates to procedures for dealing with traffic infringement notices in South Australia.  Today’s correspondent says:

…  historically … when an ambulance vehicle was detected by a road side camera to be committing a traffic offence, South Australia Police (SAPOL) would hand over the traffic infringement notice to South Australian Ambulance Service (SAAS) and they would confirm that the ambulance was appropriately ‘responding’.  After this, enquires would stop and the infringement would be written off. This also typically happened when a camera unit would capture an ambulance driving in manner that could (on face value of a camera’s photo alone) suggest that the ambulance was being driven without due care or attention. It was only in extreme cases (i.e. excessive speeds and alike), that a crew might be internally disciplined but it was very unlikely that criminal charges would be pursued, principally from my understanding, because of a lack of evidence and no incident arising from the drive (i.e. no traffic crash).

However, times have changed. SAAS management, on alleged pressure from SAPOL to better explain our actions, have now introduced policies that requires the driver of the ambulance to disclose additional information in support of SAAS’s claim that they were in fact driving with due care and attention (I.e. dry roads, minimal traffic, well-lit etc). This change in policy has a number of staff concerned for the following reasons;

1. Right not to self incriminate. If we have been driving in a manner which could reasonably convict us of driving without due care, why would we present ‘cap in hand to the executioner’? Notwithstanding this, if the driving went without incident, could a charge of due care get off the ground based on a photograph alone with the addition of the information we provide? If I was to refuse to give further information to police via my employer, would there be a reasonable chance of conviction?
2. Right of the employer to demand information from an employee when the employee knows that the employer will provide that information to police as a matter of policy. SAAS informs us that they have sort legal advice (unknown) and from that they say – Legal professional privilege extends to the employee that information given to the employer won’t be handed over to police unless they consider that a breach of their driving policies or the law has taken place.I have a few problems with this… firstly, I thought legal professional privilege only extended to a lawyer that I nominate to represent me. Privilege surely wouldn’t extend to making evidence inadmissible if I provided it to SAAS under the impression that I knew it could fall into the hands of the police.Secondly, for some reason are now casting assertions that I have committed a criminal offence (role reserved for the courts) in which I can be disciplined (using their driver policies). Do I have an obligation to provide my employer with this information even though police might not be interested in pressing criminal charges following its disclosure to them? The reason for giving the information about my driving actions and reasons for my judgements seems so ambiguous. Exactly who am I providing it to?
3. Finally, like all government services – administrative processes take time and staff can find themselves generally being unable to recall an event. Being presented with a photo of your ambulance speeding past a camera car 3 weeks ago when you have do 30-40 urgent drives since makes it impossible to recall.Do we simply answer with the typically ‘dry roads, clear, no traffic’ or put unable to recall… or do we simply refuse to answer full stop. I’m sure writing lies to cover up a memory loss is also an offence in there somewhere as well.

How would you respond to this policy if you were in my shoes?

The Australian Road Rules are incorporated into the law of South Australia by a regulation that rather unhelpfully is called the Australian Road Rules.  The current, South Australian, version of the rules came into force in 2014, replacing an earlier, 1999 version.     A copy of the 1999 version is not readily available so I can’t comment on whether there was a change in law that changed the practice of SAPOL or SAAS.

Privilege against self incrimination.

The right to refuse to answer incriminating questions is a fundamental part of the common law of Australia:  Azzopardi v R [2001] HCA 25; Petty & Maiden v R [1991] HCA 34; R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1.  The implication is that if a police officer, rather than an officer within SAAS asked the driver of the ambulance to explain the circumstances, that driver would be entitled to refuse to answer those questions.     That means the answer to the question

If we have been driving in a manner which could reasonably convict us of driving without due care, why would we present ‘cap in hand to the executioner’?’

is

If you were properly advised, you wouldn’t.

The next question, to rephrase it slightly, is

If the driving went without incident, could a charge of careless driving (Road Traffic Act 1961 (SA) s 45) or reckless and dangerous driving (s 46) get off the ground based on a photograph alone with the addition of the information we provide?

Answer, yes indeed.  An admission alone can be sufficient to justify a conviction.   A photo may be ambiguous – ie the photo, alone and out of context, may not clearly show that the driver was driving ‘without due care or attention or without reasonable consideration for other persons using the road’ (s 45) or ‘recklessly or at a speed or in a manner which is dangerous to any person’ (s 46) but the admissions by the driver may remove that ambiguity and allow the police to proceed, and a court to convict.

If I was to refuse to give further information to police via my employer, would there be a reasonable chance of conviction?

That would depend on all the other evidence available, eyewitnesses, weather and traffic records, other traffic observed in the photo etc.   The choice of the defendant to remain silent does not mean there cannot be a conviction but it does mean that the accused has not contributed to his or her own conviction.

Legal professional privilege

Legal professional privilege is a privilege that allows people to seek legal advice without fear that what they tell their lawyer will become available to the ‘other side’ (ie it applies in both civil and criminal matters).   In Esso Australia Resources v Commissioner of Taxation [1999] HCA 67; Gleeson CJ, Gaudron And Gummow JJ said (at [35]):

Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court … The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers.

The privilege belongs to the client and only to communication between the client and their lawyer for the dominant purpose of obtaining legal advice.   The client, in this case, is the SAAS.  The client can’t know what happened except by the information from its employees.  It follows that if the client asks an employee to record what happened, and the dominant purpose for doing that is to get legal advice with respect to the client’s position, then privilege would apply.   I would however doubt that this is the case.

The SAAS has received a traffic infringement notice.   It knows that ‘it’ wasn’t the driver and it can identify who the driver was.   To avoid prosecution, SAAS can provide details of the driver (Traffic Act 1961 (SA) s 79B(2)).   It doesn’t need legal advice on that basis and further, the legal advice it would receive would, no doubt, be nominate the driver.

If the SAAS wants to write to police to say that the prosecution should not proceed on the basis that the driver in question was complying with r 306 of the Australian Road Rules, then it may do that and it may seek legal advice on the matter.  In that context, the SAAS wants to know about its legal ‘best interests’ but the best interests of the service may not equate to the best interests of the driver.    If the driver clearly did the ‘wrong thing’ an open and frank disclosure may be best for SAAS, but not for the driver but the lawyer that they get an opinion from is acting for the service, not the driver.

I also query whether the Service is really going to put the driver’s statement before a lawyer for a legal opinion on the matter?   Do they get a lawyer to determine whether it appears an offence has been committed, or does a middle manager make that decision?  If the statement is not put before a lawyer for legal advice, the privilege does not exist.

Finally the privilege belongs to the client (SAAS) so may be waived by the client.   The statement may be obtained from the employee for the purposes of obtaining legal advice and it may be privileged which means SAAS can’t be compelled to reveal what is in that statement, but it doesn’t mean they can’t voluntarily make it available.   My correspondent has said that SAAS promise

… that information given to the employer won’t be handed over to police unless they consider that a breach of their driving policies or the law has taken place.

That suggests that they will voluntarily hand the material to police, and defeats the purpose of the privilege.  The idea, from the driver’s point of view, is you should be able to go to a lawyer and say ‘this is what happened, am I guilty or not?’   And the lawyer tells you.  If the lawyer says ‘on what you have told me, you are guilty and should pay the relevant expiation fee’ (as it’s called in SA) then you have your legal advice.  The lawyer does not then go and tell the police what you said – that’s the point of the privilege – what you told the lawyer, the lawyer cannot tell anyone else.  If SAAS are really saying what my correspondent suggests, then what they are in, in effect saying, is ‘if what you tell us suggests r 306 should apply, we won’t tell police what you said; but if what you tell us suggests you should not enjoy the benefit of that section, then we will tell the police.’   And that is not helpful.  What the driver wants them to do is get legal advice and if the driver’s statement suggests that there has been a ‘breach of their driving policies or the law’ then NOT hand the statement to police, but if it shows that the driver did everything right, hand that on the persuade the police not to proceed.

Do I have an obligation to provide my employer with this information even though police might not be interested in pressing criminal charges following its disclosure to them? 

It’s hard for me to answer that, that is a matter of industrial law.  As a matter of law all employees must obey the reasonable directions of their employer but whether answering questions that may lead to disciplinary action is a ‘reasonable direction’ I don’t know.  Perhaps other lawyers/readers of this blog can answer that question.

Time and being unable to recall an event.

If you are asked by police about an event that you can’t recall there are really only two answers.  Either ‘I can’t recall’ or ‘I don’t wish to answer the question’. Don’t make up answers and don’t lie.  You will get caught out.   So not, don’t ‘simply answer with the typically ‘dry roads, clear, no traffic’’ and don’t make up a story.   If you can’t recall say that or don’t answer the question.

The one golden thread of English (and Australian) Criminal law

The essential rule in a criminal trial was set out in 1935 in the case of Woolmington v DPP [1935] AC 462 where Lord Sankey said:

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. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

Making assertions that someone has committed a criminal offence is not a role reserved for the courts.  Anyone can make an allegation either to the person alleged to have committed the offence, or to police or other law enforcement agency.  It is the role of the courts to determine whether the allegation is well founded.

If SAAS get a notice from SAPOL that an ambulance vehicle ‘appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of a prescribed offence’ (Traffic Act 1961 (SA) s 79B(2)) then it’s only appropriate that they pass that on.  Whether one thinks that is asserting criminal conduct or not is irrelevant.

If an ambulance vehicle ‘appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of a prescribed offence’ then the SAPOL may issue an ‘expiation notice’.    At first instance that goes to the owner (SAAS) who may ask the police to withdraw the notice, or tell the police who was driving, or both.   No doubt if the police refuse to withdraw the notice, SAAS would then identify who the driver is.    Assuming that the notice comes to the driver, he or she has three sensible options (see also SAPOL, Dealing with a notice (28 August 2014)):

1. Requestion a review and ask the police to withdraw the notice on the basis that they had an exemption under r 306;
2. Pay the fine or
3. Elect to have the matter dealt with in court.

If the police decline to withdraw the notice, then the driver is left with option 2 and 3 above.  If the driver elects to be prosecuted it is the police who must prove that r 306 does not, in all the circumstances, apply.   If all they have is the photo, that is all they have.  If, however, the driver has made admissions to SAAS which SAAS has provided to police, or if the driver made admissions in their request to have the matter set aside then those admissions can be added to the police evidence.

Assuming no admissions have been made, or questions answered and all the police have is the photo.  In that case the driver would want to lead some evidence to suggest that r 306 applies, eg a document to prove that they are (or were at the time) an ambulance paramedic and that they were going to an emergency, eg the relevant case sheets and dispatch logs, but depending on the circumstances they may not want to say anything else.

The final question – How would you respond to this policy if you were in my shoes?

I may have given that away in an earlier post – see Investigating Accidents – Learning or Blaming for NSW SES? (December 10, 2016).  In any event it would depend on the circumstances.  My initial reaction would be to say that all I would want to provide police with is, as mentioned above, dispatch records and the case sheet to show that you were indeed responding to an emergency.     If those records don’t show that, then pay the fine.

I would also want to review the photo before saying anything. If you really were driving with due care and attention, the conditions were in the circumstances safe, and the photo supports that – eg it shows an absence of traffic, that you proceeded through a red light at 3am and that your recorded speed was 20km/h – then point that out.  The sooner you say it the sooner the police may withdraw the matter and if they don’t you can show the court you’ve been telling a consistent story.

If you were been driving in a manner which could reasonably convict you of driving without due care and the photo shows that – eg your recorded speed was 100km/h at 3.15pm outside a primary school on your way to a non-urgent medical transfer, pay the fine.  In more ambiguous cases say as little as possible and leave it to the police to prove their case. If the SAAS policy is really ‘that information given to the employer won’t be handed over to police unless they consider that a breach of their driving policies or the law has taken place’ my response would be to demand to see the photo and then get independent advice from the relevant union or a lawyer before responding in any detail.

 

 

 

 

 

 

 

 

This question relates to

… the maximum speed at which a trailer can be towed under response conditions SES GLR accredited unit (rule 306). For the purpose of the argument let’s assume that we have level 3 swift water technicians responding to persons trapped by rising floodwater,

The driver is a NSW SES level 3 approved driver (lights & sirens) they are towing a boat on a boat trailer.

At what speed should they respond? One piece of advice that has been obtained is not exceeding the “rated” speed of the trailer, (no rated speed displayed on trailer, possibly contact maker).

Also a similar situation could arise with a vertical rescue unit towing a trailer (with VR gear inside) responding to a call same driver authorisation as the above example.

The reference to rule 306 is a reference to the Road Rules 2014 (NSW) r 306.   This is not a blanket exemption from everything to do with driving.  It is an exemption, to the extent it is an exemption at all, from the other rules listed in the Road Rules 2014 (NSW) and not all the rules relating to driving and vehicles are in the Road Rules 2014.    The Road Rules do contain provisions about towing cars or motorcycles (see for example r 294-3 NSW rule: towing restrictions generally) as well as some provisions about towing trailers.  For example r 294-2 provides that a driver must not tow a trailer or other vehicle

… if the laden weight of the towed vehicle exceeds:

(a) the capacity of the towing attachment fitted to the towing vehicle, or

(b) the maximum laden weight for the towed vehicle.

That says nothing about ‘speed’.

Regulation 21 provides that the maximum speed for a ‘vehicle and  trailer combination with a GCM [Gross Combination Mass] over 4.5 tonnes … is 100 kilometres per hour’.  That appears to be the only relevant speed limit in NSW (see also Road and Maritime Services, Towing (u.d)).

Discussion

If there is a rated speed of the trailer then of course you should not exceed that speed. Remember that the most important road rule is don’t crash and don’t kill anyone.  If there is are ‘persons trapped by rising floodwater’ saving their lives does not justify killing someone else.  And if you crash you’re not going to get there to save their life anyway.   If the trailer has a ‘safe’ speed, exceeding that speed, even if you are lawfully entitled to, would not be exercising ‘reasonable care’.  So if the rated speed of the trailer is 80km/h and the speed limit is 100km/h, you don’t need r 306 to travel at 100km/h but you are not taking reasonable care.  If the rated speed for the trailer is 100km/h and the speed limit is 100km/h, r 306 won’t justify travelling at 110km/h as again you are failing to take ‘reasonable care’.

Remember this case from Victoria – Suspended Jail Sentence for Firefighter Involved in a Fatal Accident (October 24, 2009).  There the driver was travelling under the prescribed speed limit but, according to the sentencing judge, ‘there was an “inescapable inference’’ that [the driver], who knew the truck was top-heavy when filled with water, was driving it ‘‘just too fast’’.

In the context of the question I am considering if the weight, load distribution and recommendations of the trailer and vehicle manufacturer suggest a particular maximum speed then travelling over that speed is ‘just too fast’ regardless of the posted speed limit on the road, or the needs of the people to whom you are responding.

Conclusion

Rule 306 gives some exemptions from the road rules but only when it is safe to do so.  The speed at which you should tow a trailer is a matter of safety.  Driving too fast (taking into account the weight of the trailer, how the load is distributed and recommendations from both the trailer and towing vehicle’s manufacturer), regardless of the posted speed limit, cannot be justified and r 306 will not be relevant.

 

 

 

 

 

This is a long post so I’ve put the relevant questions in bold:

I have a few questions for you regarding the operation of social media organised ‘rescue’ services for off-road enthusiasts. I am not involved in anyway involved with the groups described, nor do I purport to offer such a service.

I’ve been aware of various Facebook groups floating around for a long period in NSW and perhaps other parts of the country that claim to offer ‘rescue’ for stuck off-road 4×4 adventurers. This usually involves requesting help via the Facebook page with their location, to have someone (essentially anyone and/or everyone who responds to the initial request for help) find and pull them out of muddy ruts, swamps, bogs and so on.  As far as I can tell, these groups operate with no financial gain from services rendered.

You can find a couple here, the first one being NSW specific and the second being ‘country wide’:

• https://www.facebook.com/groups/4WD.4X4.RESCUE.NSW/
• https://www.facebook.com/groups/4WD.4X4.AUSTRALIA.RESCUE.NSW.QLD.VIC.SA.NT.WA.ACT/

I have concerns that avid off-road enthusiasts may open many cans of worms if something were to go wrong, especially where these groups claim to offer ‘rescue’ services or seem to operate as a ‘rescue unit’. This seems to contradict quite a few sections of the State Emergency and Rescue Management [SERM] Act 1989 (NSW). I’m unsure of other state legislation equivalent to the SERM Act, though I gather there are similar sections in similar acts.

Most of these off-road ‘rescues’ that I’m aware of seem to be relaxed and non-urgent in nature, which doesn’t strike me as meeting the definition of rescue under s 3 of the SERM Act “the safe removal of persons or domestic animals from actual or threatened danger of physical harm.”   There are undoubtedly instances in off-road touring where danger could be introduced: isolation, extended exposure to extreme temperatures, precariously placed vehicles on a cliff edge and so on.

Where is the line drawn in terms of actual or threatened danger? Could these groups operate legally under the proviso that they don’t assist people subject to “actual or threatened danger” (assuming they then call the relevant authorities)?

Further reading into the SERM Act reveals the following:

“rescue unit” means a unit (comprising a group of persons) which carries out rescue operations for the protection of the public or a section of the public.

Based on this part of s.52, it seems that these Facebook groups (and perhaps groups organised in-person and who meet regularly) are meeting the definition of “rescue unit” for off-road adventurers. Is my interpretation correct?

Section 52 further defines “rescue vehicle” as a

… vehicle that is designed, adapted or equipped for use in rescue work and:

(a) is clearly marked with the word “Rescue”, or

(b) is fitted with warning devices, such as flashing lights or a siren,

or both.

I’ve also noticed that several vehicles have “off-road rescue” clearly written on them (though no red/blue lights or sirens; I’ll give you a break from the Road Rules!), with one group selling stickers that use the word “rescue” in amongst four-wheel drive related terms (see enclosed, I’ve blacked out identifying information which isn’t relevant to the conversation).

My understanding is that most off-road enthusiasts will at least carry a “snatch strap”, an elastic tape like device used by one vehicle for towing another bogged vehicle out of mud or other complication.  Some advanced off-road enthusiasts carry more advanced recovery kit such as an electric winch, ropes, chains, hand winches, high-lift jacks and other gear not dissimilar to what can be found on various off-road equipment providers’ websites, such as: https://www.arb.com.au/products/recovery-equipment/

Some gear, such as an electric winch, is not portable and need to be properly installed on a vehicle. According to s.52, it seems that merely possessing this gear alone does not constitute a ‘rescue vehicle’. That said would applying at least one marking with the word ‘rescue’ such as these stickers to that same vehicle then effectively make it a ‘rescue vehicle’, even if not in the traditional sense? In ‘traditional’ I refer to Fire and Rescue appliances, Volunteer Rescue Association/State Emergency Service appliances and so on?

Can the same be said of that same ‘rescue’ sticker attached on a vehicle, but which only carries a “snatch strap”, still be called a ‘rescue vehicle’?

It seems that these groups, if not complying with the SERM Act, changed their wording to use ‘recovery’ rather than ‘rescue’ would this change their standing under the SERM Act?

Issues of rescue aside, would Good Samaritan provisions in the Civil Liability Act play any part in off-road enthusiasts helping others get out of trouble (not necessarily out of danger)?

First, my correspondent says ‘I’m unsure of other state legislation equivalent to the SERM Act, though I gather there are similar sections in similar acts.’  In fact, the State Emergency and Rescue Management Act 1989 (NSW) is unique to NSW.  I’m not aware of any legislation in any other jurisdiction that regulates ‘rescue’ in the way NSW does.

Where is the line drawn in terms of actual or threatened danger? Could these groups operate legally under the proviso that they don’t assist people subject to “actual or threatened danger” (assuming they then call the relevant authorities)?

The answer to that question is that there is no line.  The Act says what it says. If someone bothered to prosecute one of these organisations for providing an unaccredited rescue unit, and they chose to defend the allegation, a judge would have to make a ruling.  I think the judge could say that this sort of conduct is not the sort of conduct that the Act is aimed at on the basis discussed below.  If the matter was determined at Supreme Court level (or higher) then we’d have a case giving guidance on the ‘line’ but until then, all there is, is an argument.

I would argue that the organisations we are talking about are offering to rescue the vehicle more than the person (though of course they’re related, if the person’s vehicle is stuck, so is the person) and they’re providing a service the Fire and State Emergency Services are unlikely to offer.   If a person has ‘extended exposure to extreme temperatures [or] precariously placed vehicles on a cliff edge’ the ‘rescue’ service will come to get the person, but they are unlikely to take steps to recover the car.  If you ring triple zero and say ‘my car’s stuck but I’m fine’ then I suspect you will not get a fire or SES response.   For that they will say ‘call a tow truck or the local road service organisation’.

It does seem to me that they could make the argument that they are not dealing with the safe removal of a person ‘from actual or threatened danger of physical harm’ rather they are not removing the vehicles, not the person.  If they did say ‘if your vehicle’s about to fall off a cliff – call us’ then they may be sailing to close to the line, but if they say ‘if you’re in physical danger, ring triple zero, but if you’re just bogged and everyone’s safe, call us’ then I don’t think anyone would see that as a breach of the Act.

Do the groups meet the definition of “rescue unit” for off-road adventurers?

I don’t think they do for the reasons given above.  From what I can infer they’re not doing ‘rescue’ as their aim is not to safely remove persons, but safely recover their vehicle.

I agree that simply carrying the various items, even a permanently attached winch does not mean that the vehicle is ‘equipped for use in rescue work’ again given that the intention is salvage of the vehicle, not the sort of work that rescue services do to remove people who at risk of physical harm.   Intention must be relevant, because even a plumber’s truck might be considered ‘equipped’ for use in rescue work given that the tools a plumber has would be useful to help remove a person or animal caught in a drain, but that is not why they carry their kit.  I think the same must be true for people who like off road driving carry kit that can be used to recover their own vehicle and another person’s vehicle.

It seems that these groups, if not complying with the SERM Act, changed their wording to use ‘recovery’ rather than ‘rescue’ would this change their standing under the SERM Act?

The requirement for the offence under s 53 is that the vehicle is both ‘designed, adapted or equipped for use in rescue work’ AND has the word ‘rescue’ on it.  If the words ‘rescue’ are on a vehicle that is neither ‘designed, adapted or equipped for use in rescue work’ then the offence is not made out.  If my argument, above, is correct then the use of the word ‘rescue’ on the stickers doesn’t convert the vehicle to a ‘rescue’ vehicle.

Further one would have to consider whether a car that has the sort of stickers shown here, is ‘clearly marked with the word “Rescue”’.

Even so, I do note that it is not my job to give legal advice to these organisations, but I do agree that the situation would be much clearer if they used the word ‘recovery’ rather than ‘rescue’.

Issues of rescue aside, would Good Samaritan provisions in the Civil Liability Act play any part in off-road enthusiasts helping others get out of trouble (not necessarily out of danger)?

The good Samaritan provisions of the Civil Liability Act 2002 (NSW) would have no application. Those provisions are limited to people ‘assisting a person who is apparently injured or at risk of being injured’ (s 57(1)).  In other states’ the legislation is even more explicit that the aim of those sections is about first aid, not vehicle recovery.   The good Samaritan provisions will apply if, when they get there, they find the person is injured or unwell and they act, but they have no application to the action in recovering the car.

Following my earlier post – Council Lifesavers and Accreditation under the State Emergency And Rescue Management Act 1989 (NSW) (January 7, 2017) a commentator said ‘a competency course is required for anyone who drives a vehicle classed as an emergency vehicle. This certification is required by police, ambulance and fire brigades.’    This question specifically deals with that issue.  This correspondent says:

I’m writing to you this afternoon in relation to a question on the requirement for state government organisations to provide adequate training in emergency driving procedures.

Currently in NSW the only organisation that has a formal driver training program is the NSW Police Force.

I am an emergency vehicle driver for the Newborn and Paediatric Emergency Transport Service. We have constantly asked for advanced driver training in relation to driving under lights and sirens but to-date have been ignored.

There is no specific obligation to provide driving training in emergency procedures that is there is no special licence that requires training and the passing of a relevant competency test.  In other words, a licence to drive an emergency vehicle does not exist like a licence to drive a heavy vehicle (see Learning to Drive a Heavy Vehicle in NSW (November 2, 2016)).

An obligation to provide driver training can be implied in the Work Health and Safety Act 2011 (NSW). That Act requires a Person Conducting a Business or Undertaking (the ‘PCBU’) to undertake a risk assessment and there is no doubt driving a vehicle under emergency conditions is a high risk activity.

The primary duty of the PCBU is to ‘ensure, so far as is reasonably practicable, the health and safety of’ workers and those affected by the business or undertaking (s 19(1)).  One of the things the PCBU is to do is to ‘ensure, so far as is reasonably practicable … the provision of any … training, [or] instruction … that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking’ (s 19(3)(f)).

If the employees identify that emergency driving gives rise to risks to their health and safety, and also risks to others, then it is appropriate to trigger the consultation mechanisms in the WHS Act, including raising matters with Health and Safety Representatives (ss 50-74), Health and Safety Committees (ss 75-79) or relevant trade unions (ss 116-151) to encourage the PCBU to consider and if necessary introduce relevant training or instruction.