I’m asked this question by a first aid instructor from Queensland.

As part of first aid training we talk about consent and the need for patients to provide consent (where possible) before first aid is delivered. I understand that consent in not required when the patient is unable to provide this, such as unconsciousness.

My question is regarding consent for ‘minors’. I have recently had some debate in class as to whether the term minor relates to someone under the age of 18 or 16.

So is parental/guardian consent required before first aid is rendered to a minor (where possible), and if so, what is the age where parental/guardian consent is required.

I have addressed this earlier with respect to Northern Territory law (see The Need for Parental Consent in Emergency Situations (NT) (July 16, 2016)).  In that post I discussed the decision in Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112.  I also discussed the Minors (Property and Contracts) Act 1970 (NSW) s 49.  I concluded that ‘There does not appear to be any equivalent legislation in the Northern Territory so the common law of Gillick will apply’.  It is also the case that there is no specific legislation in Queensland so in that state too, the relevant test is that of competence.  A child can give effective consent to medical treatment if they are sufficiently mature to understand the information that they are being given and to act on that information.

Legal Aid Queensland says “A child or young person under 18 may make decisions about their own medical treatment if they’re capable of understanding its significance” (see Legal Aid Queensland Medical Consent (2015)).

Queensland Health (Queensland Health, Guide to Informed Decision-making in Healthcare (2011)) says, at [3.1.1]:

In Queensland there is no fixed lower limit below 18 years of age at which children or young persons are deemed to be able to consent to healthcare, and so, as they mature, the child’s capacity to consent generally increases. On the other hand, the authority of parents to consent on behalf of a child or young person is not absolute. Their parental responsibility decreases as the young person matures until it ceases to exist when the child reaches 18 years of age. As a result of this there may be times when both someone with parental responsibility and the child or young person simultaneously have the ability to provide consent to healthcare.

(see also Health Law Central Consent – Minors (Children and Young People) – Decision Making by ‘Mature Minors’ (Older children) ‘Gillick Competence’ (Undated) and Sara Bird Consent to medical treatment: the mature minor (RACGP, 2011)).

Discussion

A minor is a person under the age of 18, but just because a person is a minor it does not mean that they cannot given an effective consent.  Parental consent is not required where a child’s life is in danger because even though a child may be ‘gillick competent’ and able to give consent, they may not be able to refuse consent and even if they can, in a life threatening emergency there would be serious doubts about their capacity to take on the information that is being given and the consequences.

For other treatment such as assisting with a wound or illness a mature minor could give consent.  If they cannot give consent and there is no parent present, the doctrine of necessity would justify treatment that is reasonably necessary and in the child’s best interests.    If they cannot give consent and there is someone present who has parental authority then there consent should be obtained and my be implied by their cooperation with the first aid team.

A firefighter has sent me a copy of a NSW RFS Operational Brief relating to the fatal traffic accident involving an RFS appliance that has been the subject of earlier posts on this blog; see:

• Tragic outcome from RFS response(April 4, 2013);
• Rural Fire Service volunteer on trial for fatal collision(May 19, 2016); and
• NSW RFS volunteer acquitted of dangerous driving occasioning death and grievous bodily harm(June 16, 2016);
• Further prosecution over fatal RFS accident (August 17, 2016); and
• Further prosecution over fatal RFS accident (Part 2) (August 21, 2016).

The RFS brief is below.

The important point is the statement:

During proceedings, a number of technical points of law have been raised which has lead to some uncertainly about emergency vehicles using U-Turn and cross over facilities

The operational brief from the RFS goes on to say:

Service members are directed that cross-over points or emergency U-turn bays on motorways or highways are not to be used.  This applies to incident responses and normal traffic conditions, and even where a cross-over point is marked for use by emergency services.

NSW RFS vehicles should travel to the next exit ramp or point on the motorway and re-enter the roadway

I recognise that I only have access to the judgement and some matters may have been raised that were not dealt with there, but I actually doubt that.  And the case did not really raise ‘technical points of law’.  It was a case that depended very much on its own facts.  The law is, and was, that to enjoy an exemption:

1. The emergency worker had to be responding to an emergency and
2. Had to take ‘reasonable care’.

The judge applied that law in ways that, with respect, were not controversial.

As I’ve noted before this case was tragic for everyone involved.  But from a legal point of view it raised few legal issues.  The determination of whether or not the driver’s conduct was reasonable in all the circumstances is what lawyers call a ‘question of fact’ not of law. The finding that in this case, given that he was returning to collect crew rather than to respond to an emergency and given that he didn’t wait for the passing car does not set a precedent.  The judge’s ruling on the nature of what is an emergency for the purposes of the Road Rules is also not a binding precedent as it was not essential to determine the case.  The issue was always ‘did the driver take reasonable care?’

It follows that I disagree with the proposition that this case raised technical points of law that require clarification.

What is an emergency?

As for emergency vehicles, the law in NSW has always been that an RFS vehicle is only an ‘emergency vehicle’ when being used in response to an emergency (Road Rules 2014 (NSW) definition of ‘emergency vehicle’).

The judge did consider what was meant by an ‘emergency’ and reached the conclusion that this was not an emergency.  That may be described as a ‘technical’ point of law but it did not determine the case.  The exemption under the Road Rules only applies if the driver has taken ‘reasonable care’.  The judge found that the driver did not take reasonable care so whether there was an emergency, or not, the exemption would not apply.  Further, the exemption provided under the Road Rules is only an exemption from the Road Rules.  There has never been an exemption from more serious offences such as negligent or dangerous driving causing death.  So whether or not the driver would have or should have enjoyed the benefit of rule 306 of the Road Rules 2014 (NSW) it was never going to determine the outcome of this matter.  For more details on the exemption, see Australian Road Rules and emergency vehicles (July 27, 2012).

With respect to what is an emergency, in this case the judge looked at the definition set out in the State Emergency and Rescue Management Act 1989 (NSW).  That definition says (emphasis added) that an emergency is:

…  an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:

(a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or

(b) destroys or damages, or threatens to destroy or damage, property in the State,

being an emergency which requires a significant and co-ordinated response.

It has been my view that this can’t be the relevant definition for the Road Rules because, on that basis, an ambulance responding to a heart attack victim is not responding to an emergency as they there is not a ‘significant and co-ordinated response’.  That is of course arguable, even one intensive care ambulance is providing a ‘significant’ response – the crew are well trained and there is much behind them to allow them to provide the response, and they are coordinated by the service that is managing competing demands, but even so it does seem a bit of a stretch to fit a single ambulance response into that definition but still we expect them to respond with lights and sirens.

Murray v McMurchy [1949] 2 DLR 442 was a Canadian case, dealing with a surgeon who was performing a caesarean section. During the procedure he observed that the patient had a tumour and further pregnancies would be life threating.  He therefore permanently sterilised her.  He informed her of what he had found, and done, when she came out from the anaesthetic. She was not pleased and sued for assault.  The doctor argued that the procedure was warranted as an emergency.  The court said (at [5]): “There are times under circumstances of emergency when both doctors and dentists must exercise their professional skill and ability without the consent which is required in the ordinary case” but for that doctrine to apply the action taken must be ‘necessary, as opposed to being convenient, for the protection of the life …’ (see [3]).  Whilst not directly applicable to driving, the judge in the RFS case found that when making the u-turn the driver was acting for ‘convenience’ ie to shorten the trip to return to collect the crew, and not out of any necessity to take action to save a life or otherwise respond to an emergency that was occurring on the other side of the road.

Discussion

With respect to the edict that:

Service members are directed that cross-over points or emergency U-turn bays on motorways or highways are not to be used.  This applies to … normal traffic conditions, and even where a cross-over point is marked for use by emergency services.

NSW RFS vehicles should travel to the next exit ramp or point on the motorway and re-enter the roadway

This is not new.   If, as noted above, the exemption under the road rules only applies when responding to an emergency, it was and is the law that the use of emergency turning areas could not be justified in ‘normal traffic’ conditions.    (See, also The NSW RFS, a U-Turn and the Pacific Highway (May 18, 2015)).

This case does not, however, suggest that such an edict is relevant during an emergency response.  One can imagine a motor vehicle accident occurs just near a u-turn bay and it would not be reasonable to ask the first responding emergency service to not make that u-turn.

The court in this case said nothing to the effect that u-turn bays should not be used.    If there was an emergency, such that response was necessary to protect life or perhaps to stop the spread of fire then it would be justified but even so, the driver must take reasonable care.  The obvious requirement is to make sure that other drivers are in fact giving way before proceeding.  If there is any lesson it is “If you are going to use a u-turn bay, make sure it is an emergency and make sure other drivers have in fact given way”.   Drivers of emergency vehicles do, and should, stop at red lights before responding to ensure that other traffic has stopped.  A similar approach in this case would have avoided this tragedy.

What follows is that if there is a belief that this case raised new or technical points of law, then it is the law itself that is not understood, not that this case raised new or controversial issues of law.  Even so the RFS is seeking urgent legal advice.  At the risk of putting myself out of contention as the person who might give that advice, I’ll offer my thoughts for free.  They are:

1. A service such as the RFS should have a clear policy of when ‘response’ driving is permitted. It should be when a faster response is likely to significantly improve the outcome and is it necessary to save life, property or the environment.  That will require consideration of the nature of the call, time of day, traffic environment etc.  It may be appropriate for a first responder to a triple zero call to respond under lights and sirens, but once the service is ‘on scene’ the incident controller needs to consider whether an ‘urgent’ response will make a significant difference to the outcome.
2. The faster response must be necessary, not merely convenient.
3. When the criteria to justify response driving is not met, drivers must drive in accordance with the Australian Road Rules as adopted in your state/territory.
4. The fundamental obligation on all drivers is not to crash. Crashing an emergency service vehicle creates another emergency, delays the response to the first event and causes more trauma. People may die in floods, fires and other events but more people die in car accidents.  Drivers should be reminded that no matter what they are responding to, the most important objective is not to crash.

This is the first of three questions that came in during my recent break to Central Australia – and the break was great, thanks for asking.  But not it’s back to business.

A volunteer trainer/assessor from WA asks:

Are volunteer trainer/assessors (i.e. those teaching a specific endorsed course through a department academy or approved school) open to litigation or accountability should one of the students assessed as competent go on to be injured or cause damage at some future time? At least any more or less than career staff in the same position or volunteers providing other training on station?

I would expect that the answer should be no, the student was assessed at the time as competent, but that does not have any effect on how they conduct themselves in future. Also, the training provides department endorsed procedures at the time, if procedures change in the future, then it is up to the department to ensure that they either advise or provide gap training to all past students.

I have volunteer brigades refusing to allow very competent, experienced, qualified trainer assessors to provide training or assessment because “they could be sued down the track”.

In answering this question, I assume the trainer/assessor has taught the current syllabus and the assessment has been properly conducted and the student genuinely assessed as competent.  In those circumstances the answer is ‘no, there can be no liability attaching to the instructor if a student goes “on to be injured or cause damage at some future time”.  Start with a practical test – if that was the rule then every time there was a car accident, the driver at fault could look to sue their instructor!   Every time there was a plane crash everyone involved could sue the pilot’s trainers and assessors

Let us look at some more basic principle. The issue is one of ‘duty of care’.  A duty of care is not owed to every foreseeable person who may be harmed.    An instructor owes a duty of care to his or her students and no doubt the organisation in whose name they conduct the training but that cannot extend to everyone.  It is impossible to know the circumstances in which a person will come to use the skills that are being taught and assessed, it is impossible to know what experience the student will gain between the training and the application of those skills, it is impossible to know who will benefit from those skills.   A person cannot owe a duty of care to the world at large so the idea that a trainer/assessor owes a duty of care to some person who cannot be identified and who might, at a time and in circumstances that cannot be identified, need to rely on the training that the trainer/assessor provided is too broad a class of persons.   If the trainer/assessor could be sued their liability would be unbounded – it would be owed to everyone forever in circumstances where they can do nothing to ensure their students remain competent. That a duty would be owed to the world at large or to an undefined and unclosed class of persons is a reasons to hold that there is no relevant legal duty (see Graham Barclay Oysters v Ryan (2002) 211 CLR 540).

Second the trainer/assessor’s obligation is to act reasonably in the circumstances. If they properly deliver the training and properly assess the student as competent that means no more than they were competent at that moment in time.   The hope is that they can take those skills and use them but no-one is perfect and we all forget things we are taught, develop bad habits, get influenced by others who may do things differently etc.  There can be no implication on a trainer/assessor if the student for whatever reason doesn’t apply the training they have been provided.  I’m sure none of us drive the way we did when we had an instructor or examiner in the car with us!  A trainer may well teach what we’re meant to know and do, and an assessor may well conclude that we’re able to do what we’re meant to do, but neither can guarantee that we’ll actually do it all the time in all circumstances.

The question was “Are volunteer trainer/assessors (i.e. those teaching a specific endorsed course through a department academy or approved school) open to litigation or accountability should one of the students assessed as competent go on to be injured or cause damage at some future time?”

Again assuming that they have delivered the training and conducted the assessment (not just signed off because they are mates, or the unit needed people with those qualifications, or decided that the training was rubbish and they’d deliver their own syllabus) then the answer to that question is “NO”.

I’m going to be on leave until Mid-October.  During that time, I intend to be away from my phone and computer as much as possible!  So I won’t be responding to questions or approving comments.  Save your questions and thoughts and we can resume the conversation in October.  In the meantime, I hope not to meet you whilst I’m on the road!

The operations manager of an organisation that provides an emergency trade response writes in response to my earlier post Paramedics forcing entry to premises (March 25, 2014).  My correspondent says:

… as a part of a business I run we deliver rapid response call outs to residential premises (Plumbing, Electrical and Locksmiths), we are often asked to attend a property where we may detect an issue with regards to the essential services to the property (Electricity or Gas) or a gas heater that is producing carbon monoxide and need to isolate supply to the property to ensure that the property is left in a safe state.

If we were to leave a detected gas leak or electrical hazard in an unsafe state and someone died as a result of this we would be open to criticism and potential litigation, so have an obligation as an appropriately qualified trade to exercise a duty of care.

However upon the attending trade communicating the risk to the owner of the property of what they have found there have been occasions that the owner of the property has told us to leave the property and has refused the right for us to isolate the problem, so we potentially are leaving the property unsafe and risking life and property.

Are you able to provide any insight as to what the obligations are of us as a trade representative in these occasions?  Do we have a right to remain on the property to preserve life or property essentially exempting us from Trespass, or do we follow the instructions of the owner of the property and leave, while leaving them in a potentially life threatening situation?

Would appreciate any information / guidance you could provide us on this occasion,

You would have a defence of course if you attended the home in response to a report of a gas leak and saw the householder unconscious on the floor so you tuned the gas off before breaking in to remove them but I don’t think that’s the issue you’re asking about.

The law of plumbing is not my field, so I don’t know what arrangements or expectations plumbers and electricians have with the supply authorities but I would not be surprised if there was some obligation to disconnect an unsafe service regardless of the householder’s wishes. With respect to identifying an unsafe installation but being denied permission to fix it, subject to anything in the relevant legislation or trade licenses, you would certainly have the right to contact others if you think the premises are unsafe.  The appropriate authority may be the supply authority, the council, or the emergency services eg the fire brigade if there is an obvious gas leak. The Fire Brigade would have the right to enter the premises and to ensure the gas is disconnected should that be necessary.

The issue is like with health and ambulance services.  A patient may well refuse treatment but that doesn’t mean that the paramedics don’t still have a duty to provide advice or maybe advise others (see Ambulance Service v Neal (January 29, 2009)).

However, given there will be specific rules relating to plumbing, electrical work and gas-fitting both in legislation and licensing standards, this answer can only be considered in the most general terms.

Well not quite, but that is what the new 1.41 Provision and Consumption of Alcohol on VICSES Premises and Surrounds (Version 1.0) appears to say.  A correspondent from Victoria says (emphasis added):

Recently, VICSES management has amended their alcohol policy raising concerns among many Controllers. Apart from dissatisfaction at alcohol now being banned at SES units (especially country Units, where a relaxed beer after some ops might have been seen as reasonable), the specific clause they are concerned about reads:

“Unit Controllers shall ensure that limited and moderate consumption of alcohol occurs at Unit functions being conducted off site”.

This refers to functions such as Unit dinners etc. where alcohol is served. Members are concerned that the wording suggests Controllers should ensure (not advise or recommend) limits on members’ behaviour. Controllers are concerned that

1. they are not given any training on how they should do this, or on what grounds they should do it;
2. they are not trained in recognising what is limited or moderate or how they might determine who has exceeded the limit;
3. they will be liable if a member has an accident (e.g. at the venue, on the way home etc.) and that person might hold them responsible if they had not ensured a limited consumption of alcohol

Would you have any advice on this? Will Controllers be liable for any claims arising from accidents or other matters (e.g. sexual harassment or bullying at the event)? How will they ensure particular levels of consumption for each and every attendee? Controllers feel the service is shifting workplace responsibility onto volunteers, are there insurance considerations for this?

First, no controllers will not be liable. They are acting in their capacity as unit controller’s of the SES.  As the policy says at 7.1 ‘Staff and volunteers members must at all times be aware they represent VICSES…’ any action by the unit controller to give effect to the policy is acting in their SES capacity.  In short if they fail in any duty, it is the SES that has failed and the SES that will be liable (see also Victoria State Emergency Service Act 2005 (Vic) s 42).

The Victoria SES does have duties to those that might be affected by those affected by its work which includes its members but also members of the public who might be affected by intoxicated SES members driving home from an official function where they have consumed too much alcohol (Occupational Health and Safety Act 2004 (Vic) s 23).   Implementing a policy such as this one may go further than is necessary but it is certainly open to VICSES to have a policy on the issue of consumption of alcohol on SES premises and SES endorsed activities and so this is within the area of their discretion.  Having developed a policy they have to give effect to it.  An organisation like the SES is organised hierarchically with unit controllers the front line of management, so it makes sense to place obligations upon unit controllers to take steps with respect to their unit premises and unit events.  So there is no doubt that this is placing responsibility on volunteers but that is always going to be the case.  Unit controllers have workplace responsibility to ensure that their unit operates safely, there is safe training and safe operational behaviour.     Victoria has not joined in the national Work Health and Safety scheme so the Victorian legislation may not impose legally enforceable duties on the volunteer controllers, but Victoria SES has to show that it has taken steps to ensure the safety of its volunteers and how else does it do that but, in part, putting some obligation upon unit controllers?  So yes this is placing ‘workplace responsibility onto volunteers’ but there’s nothing new or unusual in that.

If the SES does not arrange appropriate training, that is an issue that may go to the question of whether or not they have taken reasonable steps to ensure the health and safety of their volunteers, or others.     The reference to ‘limited or moderate’ amount is not the same as saying that people must not exceed a ‘limit’ whether that limit is a number of drinks per hour, or a blood alcohol concentration.   As for the grounds upon which a unit controller can try to limit a person’s consumption, the policy is the ‘grounds’ and to give effect to it I suppose a unit controller could brief members before an event and, during a event, tap a person on the shoulder and say ‘I think you’ve had enough’.   But if VICSES expect more than asking for training is not unreasonable.

Would the SES or a member be liable?  The SES could be liable if for example a failure of training meant the unit controller could not exercise the authority the SES wants them to and this represented a failure by the SES to take appropriate care.  As for the controller, putting aside that it would be the SES who would be liable.  Assuming that the function is being held on licensed premises, the controller is not actually serving the alcohol and the licensee has obligations to limit the amount of alcohol served and to otherwise comply with policies on the ‘responsible service of alcohol’.  And the member also has responsibility for his or her own conduct.

As for the question of liability for sexual harassment or bullying at the event the issues will be the same as for sexual harassment or bullying at the unit.  Of course a unit controller has some responsibility, by virtue of his or her appointment, to manage the unit and to take steps to ensure that such things don’t happen and if they do, to take action with respect to them. I have no doubt VICSES has policies on those matters but they do not appear to be available on the web.   So the situation is no different here.  The unit controller has some responsibilities but if there is a failure, provided everything was done ‘in good faith’ (ie not maliciously and not ‘I don’t need to try to apply this policy because it’s not my problem’) then the responsibiliy lies with the SES.

A correspondent asks if I know

… of any broader law that would regulate the items used by event health service providers in terms of expiry in Victoria?

We often use items that are past their manufactures expiry, usually things that are not intended to be sterile as such for example bandages, Band-Aids and slings.

It’s not clear whether my correspondent works for a paid or volunteer organisation but even if there is only one employee, it is a workplace and there is a duty to ensure that people, including non-employees, are not affected by the work (Occupational Health and Safety Act 2004 (Vic) s 23).   In order to provide ‘practical guidance’ on compliance with the Act, the Minister may approve compliance codes (s 149).  There is a compliance code on First Aid in the Workplace (2008). That Code doesn’t say anything about expiry dates, it does however say (at [55]) ‘Employers need to ensure that first aid kits are restocked as necessary’.  What constitutes ‘necessary’ is not defined.   The compliance codes are not binding (“A failure to comply with a compliance code does not give rise to any civil or criminal liability” (s 150)) they are, as they say, ‘practical guidance’.

SafeWork Australia, ‘a partnership of governments, employers and employees, … [that] drives national policy development on work health and safety and workers’ compensation matters’ has developed a ‘First Aid in The Workplace Code of Practice’ (2016). The Code of Practice says (p 10):

A person in the workplace should be nominated to maintain the first aid kit (usually a first aider) and should:…

• ensure that items are in good working order, have not deteriorated and are within their expiry dates and that sterile products are sealed and have not been tampered with.

Compliance with the Code of Practice isn’t mandatory but adherence to a code of practice may be set up as evidence of reasonable conduct in response to any claim of negligence or to demonstrate compliance with any relevant Occupational, or Work Health and Safety duty.

A search of other websites doesn’t reveal direction to any particular law.  There is a binding standard for “Information requirements – date marking of food for sale”, but that is clearly not relevant to medication or bandages. (One wonders how a ‘sling’ could go past its use by date but I suppose the material may degrade so that the manufacturer can no longer be sure it will actually support the person’s arm as intended.)

Other question and answer sites don’t point to any law: See

• Workplace OHS ‘Must expiry dates on first-aid supplies be observed?’ (26 April 2012)
• IOSH ‘Expiry dates on First Aid stocks’ (5-6 November 2013)
• St John Ambulance New Zealand, Dressing and Bandages (Undated) says ‘A sterile dressing which is past its expiry date should NOT be used’.

With respect to pharmaceutical an article in Australian Prescriber (Michael Dawson, ‘Expiry dates’ Aust Prescr 1994;17:46-8) says:

If the pH of eye drops and other preparations for application to mucous membranes, or injectables, falls outside a fairly narrow range, pain and perhaps tissue damage may result. Similarly, the rate and extent of absorption may be affected by changes in the dissolution rates of tablets and capsules and the particle size of creams, oral suspensions and aerosols.

We are therefore at the position where the non-binding compliance code First Aid in the Workplace (2008) doesn’t refer to expiry dates.  The non-binding First Aid in The Workplace Code of Practice’ (2016) does however say that these should be attended to. Other sites say it’s a matter of risk assessment.   Because the various codes are non-binding I would agree that ultimately it’s a matter of risk assessment.  The greater the risk the more attention needs to be paid so anything that is going to be taken, or put on exposed wounds or mucous membranes is a greater risk than say a triangular bandage that is going to be used as a sling.  A wound dressing that has been kept well stored may be OK compared to one that’s been bouncing around in the boot of a car.   And what a person might keep in the boot of their car may be quite different to what a service that is offering to provide professional first aid care may choose to keep.

In terms of legal issues one has to question how it could be relevant?  It may be; if you pull out a clearly dirty and very old wound dressing and the patient develops sepsis that may raise the question of the quality of care.  And if you use out of date eyedrops and the patient develops pain or tissue damage that may also be an issue.  But using a well-kept triangular bandage as a sling is hardly like to be an issue and even if the sling fails, the chances of anyone attributing that to an out of date bandage is unlikely.

Conclusion

Assuming that the agency my correspondent comes from is a ‘workplace’ (ie it employs someone) then there is a duty to ensure ‘that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer’ and the conduct of the employer, if it provides first aid services, would include the equipment used to provide that service. If the use of out of date material exposes others to a risk then that risk needs to be ameliorated.

If the equipment poses no or little risk, then it’s use may be OK.  But one has to assume that the expiry date on saline, sterile dressings, medication and the like mean something.    A person may choose to keep out of date material in their private first aid kit but it would seem like less than good practice to do so if you are actually a first aid service provider.    To support that proposition the most relevant broader law that I can think of is the Occupational Health and Safety Act 2004 (Vic) but consistent with that Act, the issue is one for a considered risk assessment.

This question comes from a paramedic practitioner with a private provider rather than a state ambulance service.  My correspondent tells me:

A recent cardiac arrest occurred outside a doctor’s clinic.  Help was requested from the doctor’s clinic and was refused, stating the doctors are not legally required to assist and they were reluctant to as they are not covered by insurance.

I would have thought the Hippocratic oath and good samaritan legislation would have covered this scenario.

What are your thoughts?

Given my correspondent is from an ‘Events/Industrial’ paramedic service I’m not sure if they were there as part of their response, or just as citizen on the street.  I also note I’m not sure what jurisdiction this question comes from but none of those things matter.

My thoughts are:(https://imgflip.com/memegenerator/Computer-Guy-Facepalm)

Clearly 7 ½ years of writing this blog is just not making a difference.

I’m going to accept my correspondent’s version, ie the doctor’s excuse for not helping was ‘doctors are not legally required to assist and they were reluctant to as they are not covered by insurance’; not that they were engaged seeing other patients and in the middle of a procedure or any other reason.

Are doctor’s legally required to assist?  The traditional view is that there is no duty to rescue (Stuart v Kirkland-Veenstra [2009] HCA 15) but doctors are in a special position by virtue of their training, the money the community spends on that training, the status they are given and the authority that comes with their position in the medical field.   In short we don’t train doctors so they can earn money, we train them so they can provide medical care and we pay them to provide the care – but the principle of the profession is (or should be) the care that is provided.

So in Woods v Lowns, Dr Lowns was found liable – to the tune of $3m – for failing to render assistance to a young epileptic when he was approached by the boy’s sister at his surgery and was asked to come the short distance to where the boy was fitting.  Dr Lowns was not yet seeing patients and there was no good reason not to attend.    His Honour Mr Justice Badgery-Parker said (Woods v Lowns (1995) 36 NSWLR 344 (Badgery-Parker J); affirmed on appeal Lowns v Woods (1996) AustTortsReps ¶81-376 (Kirby P and Cole JA; Mahoney JA dissenting):

“… circumstances may exist in which a medical practitioner comes under a duty of care, the content of which is a duty to treat a patient in need of emergency care, such as will give rise to a cause of action for damages for negligence in the event of a breach of that duty consisting in a failure to afford such treatment as is requisite and as is within the capacity of the individual practitioner to give… Whether in a particular case a medical practitioner comes under such a duty of care must depend upon … the facts of the particular case…”.

Whether the circumstances described by my correspondent are sufficient to attract that duty would be a matter for a court and would require much more detail than we have, but it does show that a claim ‘doctors are not legally required to assist’ is at least ‘uninformed’ at worst ‘ignorant’ and either way ‘brave’ (in the way that term is used in ‘Yes, Minister’ for those old enough to remember that show).

As for ‘not covered by insurance’ I would bet, even without seeing the policy, that this is rubbish. A medical practitioner has to have a policy of insurance in order to be registered as a medical practitioner and the indemnity policy will have to cover them when practising medicine (Health Practitioner Regulation National Law Act 2009 (Qld) s 129; the Queensland law has been adopted as the law in every jurisdiction so this law applies across the country).   A practitioner who assists a person outside their surgery when they have been requested to assist because they are a doctor, is practicing medicine (see Medical Board of Australia, Professional indemnity insurance arrangements registration standard (2010), definition of ‘Practice’).  Now I haven’t see this doctor’s policy but I cannot believe that a policy that covered a GP in private practice would not extend to providing care either in or out of the practice remembering that this doctor was approached at the practice because he or she was a doctor.

Doctors don’t swear the Hippocratic oath anymore.  The Medical Board of Australia’s Good Medical Practice: A Code of Conduct for Doctors in Australia (2014) does says, at [2.5] (emphasis added):

Treating patients in emergencies requires doctors to consider a range of issues, in addition to the patient’s best care. Good medical practice involves offering assistance in an emergency that takes account of your own safety, your skills, the availability of other options and the impact on any other patients under your care; and continuing to provide that assistance until your services are no longer required.

Whilst there may be limits on what a doctor can do taking into account the factors listed, good medical practice ‘involves offering assistance’, not refusing it and not refusing it for fear of legal liability.  In Medical Board of Australia v Dekker [2013] WASAT 182 it was said:

Because saving human life and healing sick and injured people is a core purpose and ethic of the medical profession, and because members of the profession have the knowledge and skills to do so, the failure by a medical practitioner to make an assessment and render assistance when he or she is aware that a motor vehicle accident has or may have occurred in their vicinity and that people have or may have been injured, … would…reasonably be regarded as improper by medical practitioners of good repute and competency…

The finding that Dr Dekker was guilty of unsatisfactory professional conduct was set aside on appeal (see Further legal ruling affecting ‘Doctors as ‘good Samaritans’ – do I have to stop?’ (January 3, 2015)).  In that case the Western Australian Court of Appeal said (Dekker v Medical Board of Australia [2014] WASCA 216):

The duty, as formulated, arises without regard to the mental state of the doctor, the circumstances in which the doctor is, or may be, aware that a motor vehicle accident has occurred in his or her vicinity, and the circumstances of the accident. The duty as formulated would apply, for example, to a medical practitioner who lacked mental capacity or, for example, was affected by alcohol (eg, a doctor who has been drinking and takes a cab on the way home at the end of a long social evening)…

So a general statement that a doctor always has to stop cannot be supported and in that case given the circumstances including that Dr Dekker was herself nearly involved in the accident, it was dark, she didn’t have a torch or first aid kit and the police station was only 5 minutes away all meant that a finding that she should have gone to the accident rather than the police station could not be supported.  But the story I have is that the doctor is approached at the surgery, we don’t know what time but if the surgery was open presumably it’s business hours and daylight, so given the terms of the Medical Board’s code of conduct it could and I suggest would, still be the case that in the right circumstances failure to offer assistance in an emergency that takes account of the doctor’s safety, skills, the availability of other options and the impact on any other patients’ would constitute unsatisfactory professional conduct.  Again the doctor’s belief that there is no legal obligation to assist is ‘brave’.

My correspondent refers to the Good Samaritan legislation.  The Ipp Review of the Law of Negligence, in the Final Report (at 7.21) said:

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

Even though the Ipp Review recommended against Good Samaritan legislation, every state and territory moved to enact it  – see see Civil Law (Wrongs) Act 2002 (ACT) s 5; Civil Liability Act 2002 (NSW) s 56; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 8;  Law Reform Act 1995 (Qld) s 16; Civil Liability Act 1936 (SA) s 74; Civil Liability Act 2002 (Tas) ss 35B;Wrongs Act 1958 (Vic) ss 31B; Civil Liability Act 2002 (WA) s 5AB).  This legislation was written with doctors who are reluctant to assist, in mind.

The NSW version says:

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

So my correspondent says ‘I would have thought the Hippocratic oath and good Samaritan legislation would have covered this scenario’. It’s actually the Medical Board of Australia’s Good Medical Practice: A Code of Conduct for Doctors in Australia but otherwise that statement is correct.

Conclusion

A doctor who thinks “I’ll only practice where I’m confident I’m insured; not where I’m confident I’m competent” and who puts their insurance concerns ahead of patient care, probably needs to rethink their role in the profession.

My correspondent may well want to consider approaching the Medical Board of Australia and lodging a complaint regarding this doctor’s response.

A correspondent from WA is

… studying my degree in paramedicine. Prior to this I was a high school teacher and at the moment I am still registered with the Teachers Registration Board of Western Australia.  Part of the responsibilities expected of a teacher is that we are legally obliged to report on any suspected child abuse.  However, at the moment, paramedics are under no obligation other than moral to report on suspected or confirmed child abuse.

Hypothetically, if I were to maintain my registration as a teacher, while working within an ambulance and were to witness a situation involving child abuse would I still be legally required to report it, even though I am working within the role of an ambulance paramedic and am in the employ of the service?

The obligation to report suspected child sexual abuse is found in the Children and Community Services Act 2004 (WA) s 124B.  That section says (emphasis added):

124B. Duty of certain people to report sexual abuse of children

(1) A person who —

(a) is a doctor, nurse, midwife, police officer, teacher or boarding supervisor; and

(b)  believes on reasonable grounds that a child —

(i) has been the subject of sexual abuse that occurred on or after commencement day; or

(ii) is the subject of ongoing sexual abuse;

and

(c) forms the belief —

(i) in the course of the person’s work (whether paid or unpaid) as a doctor, nurse, midwife, police officer, teacher or boarding supervisor; and

(ii) on or after commencement day,

must report the belief as soon as practicable after forming the belief.

It follows that if my correspondent forms the belief that a child has been the subject of sexual abuse but that information only comes to him or her because of the employment as a paramedic, and not ‘in the course of the person’s work … as a … teacher…’ then the obligation imposed by s 124B does not apply.

As for reporting on crimes that are observed whilst working as a paramedic, see:

• Discovering crime during an emergency response (July 19, 2016);
• Paramedics and Patient Confidentiality number 2 (July 23, 2015).

This is an amalgam of two questions that I received from members of the same region of NSW SES suggesting something’s been happening there or at least a subject of discussion.    The question relates to the SES closing roads.

The Rural Fires Act 1997 (NSW) s 24 says:

The officer in charge of a rural fire brigade or group of rural fire brigades may cause any street or public place in the vicinity of a fire, incident or other emergency to be closed to traffic.

There is no equivalent provision in the State Emergency Service Act 1989 (NSW).  The closest is s 22 which says (emphasis added):

(1)       The Commissioner may, if satisfied that it is necessary or convenient to do so for the purpose of responding to an emergency to which this Part applies, direct, or authorise an emergency officer to direct, a person to do any or all of the following:

(a)       to leave any particular premises and to move out of an emergency area or any part of an emergency area,

(b)       to take any children or adults present in any particular premises who are in the person’s care and to move them outside the emergency area or any part of the emergency area,

(c)       not to enter the emergency area or any part of the emergency area.

My correspondents infer that the authority conveyed by s 22(1)(c) authorizes the SES to close a road so they ask:

If a road is closed under the s22(1)(c) SES Act 1989, due to a flooded road (emergency area) as it threatens to endanger the safety of persons (s4 SERM Act 1989).

1. What are our responsibilities and authority to ‘staff’ that road closure and then re-open the road?
2. Is there are requirement for personnel to remain at the road closed location, until the emergency is no longer happening? NSW SES or road owner?
3. Are signs and road barricades required?
4. How should they be installed?
5. Should a TTMP be developed for areas the a prone to flooding on a regular basis?
6. Is there any other actions that need to be taken or other legislation?

To answer that we need to first return to s 22.  What is ‘an emergency to which this Part applies’?  Section 22 lies within Part 5 of the Act. Part 5 is headed “Emergencies and Emergency Powers”.  The emergencies to which the part applies are defined in s 19 which says:

This Part applies to:

(a)       an emergency referred to in section 8 (1) (a), (b) or (c) relating to a flood, storm or tsunami, or

(b)       an emergency referred to in section 8 (1) (d) which the State Emergency Operations Controller has directed the Commissioner to deal with.

Section 8(1)(a) says that the SES is the “combat agency for dealing with floods…”  so an emergency referred to in s 8(1)(a) is a flood emergency.    Section 8(1)(aa) also says that it is a function of the SES ‘to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis’.

An ‘emergency officer’ is the Commissioner and any other person appointed by the Commissioner as an ‘emergency officer’.  It follows that not every member of the SES is an emergency officer, and not every emergency officer needs to be a member of the SES (s 15).   There are also senior emergency officers (s 18A).  A ‘senior emergency officer’ is:

(a) a police officer of or above the rank of sergeant or a police officer for the time being in charge of a police station,

(b) an officer of Fire and Rescue NSW of or above the position of station commander,

(c) an officer of the State Emergency Service of or above the position of unit controller,

(d) a member of a rural fire brigade of or above the position of deputy captain,

(e) a Regional Emergency Management Officer.

The emergency area is, unhelpfully described as ‘the area affected by an emergency to which this Part applies’ (s 18A).

So the Commissioner can authorize an emergency officer (and one can infer that this includes a senior emergency officer) to direct a person ‘not to enter the emergency area or any part of the emergency area’.   There are questions about whether there can be a standing authorization or whether it has to be granted for each emergency, and who defines the emergency area, but we’ll skip over these and assume that the floodwater over the roadway means the road is in the emergency area, and the emergency officers are duly authorized.

Note that it is not a power to close a road, it is a power to direct a person not to enter the emergency area. It doesn’t matter if they are on the road or in the forest; it doesn’t matter if they are driving, walking, riding a horse or flying a helicopter.  This is a power to direct people to remain out of the area.  Compare s 22 with the Fire Brigades Act 1989 (NSW) s 14.  That section says “The officer in charge at a fire may cause any street or public place in the vicinity of a fire to be closed to traffic during the fire”.  If the road is closed to traffic it’s closed to all traffic and that can be communicated by a sign or anyone saying ‘the road’s closed’.   The SES Act on the other hand refers to an ‘emergency officer’ directing ‘a person’, not ‘all persons’ or ‘closing the emergency area’ or the like.  It implies a singular direction.

The Act gives no indication on how a ‘direction’ is to be given.  The obvious way is to have an ‘emergency officer’ standing at the road block telling drivers ‘I am directing you not to proceed further as you must not enter the emergency area’ or, in more simple terms, ‘you can’t go on, the roads closed due to the emergency’.

The section says that the commissioner can authorize an emergency officer, it doesn’t say that the emergency officer can then authorize someone else to communicate the direction.  On one view that should be OK – if I give a direction to someone does it matter whether I tell them in person, or get some other person to tell them?  Either way my ‘direction’ is communicated.  On another view, the fact is that an emergency officer has to be appointed by the Commissioner. It means that not all SES members are emergency officers and that may reflect a policy that the legislature does not want all SES members to exercise those powers.  Ideally they should be identified as suitable and trained.  If that’s true allowing an emergency officer to communicate his or her directions via another volunteer would defeat that policy objective.    Whilst I think it could be arguable my preferred interpretation would be that as an emergency officer can only exercise the power under s 22 if directed or authorized by the Commissioner, it has to be the emergency officer that gives the direction.

I don’t see that putting up a barricade could constitute an emergency officer directing ‘a person’ not to enter the emergency area; even if it had a sign on it signed by the emergency officer saying ‘all persons are directed …’

It should also be noted that there is no obligation upon any person to comply with a direction – that is there is no specific offence of failing to obey a direction given by an emergency officer, so a road closed sign would be pretty meaningless. If a person fails to comply with a direction, the emergency officer can use reasonable force to gain compliance (s 22(2)), so you can use force to get the person out of the emergency area, but they still have committed no offence.  In some circumstances it may be possible to argue that the actions constitute the offence of ‘obstruct or hinder’ an emergency officer (s 24) but that is not axiomatic and would depend on the particular circumstances and facts.

My answer to the first two questions is therefore, there would need to be an authorized ‘emergency officer’ at the road block who could issue the appropriate direction to each person that wanted to enter the emergency area.

The better response, in line with an all hazards/all agencies response would be to seek assistance from others.

The Rural Fire Service

As noted, the Rural Fires Act 1997 (NSW) s 24 says (emphasis added):

The officer in charge of a rural fire brigade … may cause any street or public place in the vicinity of a fire, incident or other emergency to be closed to traffic.

Emergency is not defined in the Rural Fires Act but the definition from the State Emergency and Rescue Management Act 1989 (NSW) (the SERM Act) does apply.  That Act says that an emergency is (emphasis added):

… an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:

(a)       endangers, or threatens to endanger, the safety or health of persons or animals in the State, or

(b)       destroys or damages, or threatens to destroy or damage, property in the State,

being an emergency which requires a significant and co-ordinated response.

Even though the ‘emergency’ is a flood, the fire fighters could exercise their authority under s 24 so the SES incident controller could ask the RFS to close the road.

The police

A police officer may temporarily close a road due to obstruction or danger on the road. A police officer may also prevent vehicles, people or animals using a road that has been closed to traffic (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 186(1)).  The SES incident controller could ask the police to close the road.

The Roads Authority

The council of a local government area is the roads authority for all public roads within the local council area the area, other than freeways, a ‘Crown road’ or a road where someone else is the declared roads authority (such as a private tollway).

A roads authority may regulate traffic on a public road by means of barriers or by means of notices conspicuously displayed on or adjacent to the public road…

(b)       for the purpose of protecting a public road from serious damage by vehicles or animals as a result of wet weather, or …

(d)       for the purpose of protecting members of the public from any hazards on the public road…

Further

A person:

(a)       must not, in wilful contravention of any such notice or in wilful disregard of any such barrier, pass along, or cause any vehicle or animal to pass along, a length of public road, and

(b)       must not damage, remove or otherwise interfere with a notice or barrier erected for the purposes of this section.

It follows that once council (or the roads authority if it is not a council road) has put out the relevant signs, failure to comply with them is an offence.

The SES incident controller could ask the relevant roads authority to close the road.

Conclusion

My conclusion is that the SES do not have the power to close the road per se.  An authorized emergency officer has the power to direct ‘a person’ not to enter an emergency area.  That may, for many practical purposes, be the same but it is not a general power.  It follows that in my view, the answer to the questions:

1. What are our responsibilities and authority to ‘staff’ that road closure and then re-open the road? And
2. Is there are requirement for personnel to remain at the road closed location, until the emergency is no longer happening? NSW SES or road owner?

Is that you actually have to have an authorized emergency officer at the scene to give the direction; but given there’s no offence for failing to comply with the direction it doesn’t matter much.   The SES could certainly put up signs and barriers not so much to ‘close the road’ as to warn of danger that happens to be on the road.  One doesn’t need any particular authority to say ‘mate don’t drive down there, it’s flooded’, or, consistently with s 8(1)(aa) of the SES Act, put an SES truck across the road in order to protect persons who might otherwise drive down the road, from dangers to their safety and health.

The SES could put up barriers and signs again as a warning, even though they have no legal effect, just like they can put SES tape around obstacles on the footpath and fallen trees.  The warning is just that, a warning.  The warning may be more effective if there’s someone there to actually talk to drivers, but it’s not essential.  As for removing the warning when the danger is gone, that would be essential to maintain the value of the warning and because the aim is to allow communities to return to normal operations.  Leaving the warning there when the flood is gone will diminish its future value and no doubt annoy lots of people.

As for question 3 and 4:

3. Are signs and road barricades required?
4. How should they be installed?

To actually close the road the best option is to contact the relevant roads authority which, for local roads is the council.  The authority can close the road with signs and barricades and a driver commits an offence if he or she ignores them.

5. Should a TTMP be developed for areas the a prone to flooding on a regular basis?

I understand a TTMP is a traffic management plan (I assume the first T is probably ‘Temporary’).  The answer is that this would sound like a sensible option and something that should be considered by the Local Emergency Management Committee (State Emergency and Rescue Management Act 1989 (NSW) s 29).  A  TTMP may certainly make it easier for the SES as the council may already plan, as the roads authority, to close the road at certain pre-determined flood levels.

Finally

6. Is there any other actions that need to be taken or other legislation?

That has been addressed, above.

That’s the title of a paper that my ANU colleague, Geoff Cary, and I wrote and which I presented at the 2016 AFAC (Australian Fire and Emergency Services Authorities Council) conference in Brisbane.  For those that are interested you can read the paper (or see the abridged power point version) on the AFAC Conference website.

A correspondent from WA wants to know:

… are drivers of emergency vehicles required to display P-plates if they would otherwise be required to do so? I see that you’ve previously addressed this question in regards to the rules in New South Wales and Victoria, however I don’t believe you’ve specifically addressed the regulations in Western Australia.

You’ve noted before that there are significant differences between the, supposedly harmonised, road rules between different states, and so I’m wary to extrapolate from what you’ve written about NSW and Vic. I also tried to work out the answer myself, but was disappointed at how hard it was to access and interpret the laws and regulations (and the right versions of these) online.

Specifically I’m interested in vehicles operated by St John Ambulance WA (some of which do not have red/blue lights but which I’m told are still considered ’emergency vehicles’), but it would be interesting to know if there are differences which apply to fire fighting appliances and SES vehicles. In addition, does the answer depend on the activities being undertaken in the vehicle (e.g. refuelling vs responding to patient, responding under lights/sirens vs responding without lights/sirens).

Indeed I have discussed that issue for NSW and Victoria – see

• Probationary Licence Holders and driving emergency vehicles in Victoria (July 18, 2014); and
• Displaying Green P plates and response driving in the NSW RFS (May 31, 2015).

So now to WA.  The ‘harmonised road rules’ relate the rules about driving.  The Australian Road Rules are incorporated in WA law by the Road Traffic Code 2000 (WA).  These rules, however, do not include the rules about ‘P plates’ (equally the Road Rules 2014 (NSW) and the Road Safety Road Rules 2009 (Vic) do not contain relevant rules regarding a driver’s licence).   In WA, the relevant rules are found in the Road Traffic (Authorisation to Drive) Regulations 2014 (WA).  Regulation 36 says:

1. The holder of a provisional licence who drives a motor vehicle on a road must display on the vehicle 2 plates conforming with subregulations (3) and (4), one of which is readily visible from the front of the vehicle and the other of which is readily visible from the rear of the vehicle.
2. Subregulation (1) does not apply if the licence holder is a police officer driving in the course of duty.

Regulations (3) and (4) deal with the colour and size of P Plates.

There is no other exemption in WA.  So in WA the holder of a provisional licence is required to display their ‘P’ plates whether they are driving their private car or a vehicle operated by St John Ambulance or QFES.  It is only an ‘on duty’ police officer who is exempt from the requirement to display ‘P plates’.

At least not in these days when everyone has a camera on their phone, as this photo shows.

The associated question was:

G’day Michael- saw this one earlier in the week outside a Court House- I assume the Police are attending court. Thought it might be a good discussion/blog.

I was curious though- when is it acceptable (in terms of law) for the Police to park in a no standing zone? This is a sweeping bend and as can be seen, very busy (and yes I was stopped when I took the photo!).

I assume they’re exempt to a degree but if it’s a potential safety issue, where do they stand? What happens if there’s an accident as a result of their parking?

Indeed the police and all the emergency services have some exemptions from the parking rules.  Rule 307 of the Australian Road Rules, reproduced as rule 307 of the Road Safety Road Rules 2009 (Vic) says:

A provision of Part 12 does not apply to the driver of a police vehicle, emergency vehicle, enforcement vehicle or escort vehicle if, in the circumstances—

(a)     the driver is taking reasonable care; and

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

Part 12 is headed “Restrictions on stopping and parking”.

Was it reasonable to stop there? That of course depends on why they stopped there.  If they stopped to go to court then that would seem hard to justify, saying ‘I had to go to court’ is unlikely to get your I off a parking ticket so why police?  If however they had to rush to court due to a duress alarm or they were escorting a prisoner and there was no-where closer to stop that may have been different.   We simply can’t know what they were don’t so we can’t address whether it was ‘reasonable’ that they should stop there.

Was the driver in this photo taking ‘reasonable care’?   Arguably not, perhaps if the car had to be stopped there the warning lights should be on.  But the car’s out of the traffic lane, the mere fact that it appears to be on the wrong side of the sign but otherwise not obstructing traffic may well show that the driver was taking reasonable care, particularly if you consider (which we can’t) what duties they were performing and what alternatives were open to them. It’s certainly safer than double parking in the traffic lane.

If there is an accident because of their parking, then of course issues would arise.  The first would be whether or not the parking exemption should apply and if it’s decided that it should not as the parking was not ‘taking reasonable car’ (as evidenced by the collision) they may get a parking ticket.    If there was damage or injury someone could, in the right circumstances, sue but it would be difficult.  It is always difficult to claim that a stationary vehicle is the cause of an accident because even if it shouldn’t have been there, other drivers have to be alert to obstacles on the road and drive in a way that will allow them stop or avoid them.  Those obstacles might be animals, fallen trees, wandering children, broken down cars etc   So if someone ran into the police car it would, I suggest, be hard to claim that it was the police driver’s fault.  But in the right circumstances anything is arguable.

See also Victorian police car stopped in a ‘no-stopping’ zone whilst officer eats lunch
(November 29, 2014).

A NSW RFS volunteer has

… a question regarding who legally owns vehicles that are purchased by NSW RFS Volunteer Brigades, with funds raised from public donations?

I’ve asked senior staff of the NSW RFS this very question and have received conflicting answers.

A legal person can sue and be sued and can enter a contract.   Only a legal person can ‘own’ something.  A legal person is a natural person (you and I) or a corporate entity.  A corporation may be a company or it may be a government or an organization created by an Act of Parliament.

The Rural Fire Service Act 1997 (NSW) establishes the Rural Fire Service (s 8).   The Act also provides for the creation of brigades by a local authority (s 15; though local authorities have delegated that authority to the Commissioner (RFS Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades).  The RFS Act does not say that fire brigades, or the RFS, are legal entities – see also How autonomous are NSW Rural Fire Brigades? (February 25, 2015).

Compare the RFS position to, for example, the ‘Health Administration Corporation’.  That corporation is established by the Health Administration Act 1982 (NSW) to provide a legal entity for the delivery of health services.  The Act provides that the Corporation ‘may take proceedings, and be proceeded against in its corporate name’ (s 9).

So if a brigade is not a legal entity, and the RFS is not a legal entity, who does own the RFS assets?  The Government Sector Employment Act 2013 (NSW) defines the public service, departments, public service executive agencies and separate public service agencies. The Office of the NSW Rural Fire Service is an executive agency related to, or part of, the Department of Justice (Government Sector Employment Act 2013 (NSW) s 22 and Part 2 of Schedule 1).  The Crown Proceedings Act 1988 (NSW) says that the ‘Crown’ can sue (s 4) and be sued (s 5).  The Crown includes ‘the Government of NSW’ as well as ‘a statutory corporation, or other body, representing the Crown in right of New South Wales’ (s 3). (See also the Rural Fires Act 1997 (NSW) s 12(5) which says (emphasis added) that:

The Commissioner (on behalf of the Crown) may make or enter into contracts or arrangements with any person for the carrying out of works or the performance of services or the supply of goods or materials in connection with the exercise of the functions of the Service’.)

The relevant legal entity is, therefore, not the Rural Fire Service, it is the Crown in Right of NSW.  That the relevant legal entity is ‘NSW’ is why legal actions against the RFS are described as being a case against ‘NSW’ – see for example the legal action arising out of the 2003 Canberra fires: Electro Optic Systems Pty Ltd v State of New South Wales; West and Anor v State of New South Wales [2014] ACTCA 45.

Conclusion

So ‘who legally owns vehicles that are purchased by NSW RFS Volunteer Brigades’, with funds raised from public donations?’

It can’t be the brigade as the brigade does not have a separate legal existence, a brigade is a part of the RFS.  It can’t be the RFS as the RFS does not have a separate legal existence, it is an executive agency and part of the Crown in Right of New South Wales.  The answer, therefore, is that the assets of a brigade, including ‘vehicles that are purchased by NSW RFS Volunteer Brigades, with funds raised from public donations’ are owned by the State of New South Wales.

Australian Emergency Law (Michael Eburn) is in Brisbane for the annual Bushfire and Natural Hazards CRC/Australian Fire and Emergency Services Authorities Council (AFAC) Conference. Looking forward to three days of learning and presenting at 11:30am on Thursday. Any followers of this blog who are at the conference should say hello!

Victoria’s Herald Sun newspaper is reporting on a legal action against Ambulance Victoria following the death of a man who was being winched into a helicopter after he ‘lost his footing and broke his ankle while walking in dense bush’ – see Peter Mickelburough, ‘Death fall lawsuit: Ambulance Victoria ‘failed’ in rescue after hunting mishap near Lake Eildon’ Herald Sun (Online) August 28, 2016 (and thank you Luke, for bringing the story to my attention).

Herald Sun stories are behind a paywall so readers may not be able to see it and I can’t reproduce the whole story here – the gist of it is however that the deceased man’s widow is suing AV in negligence over the rescue operation.  She says ‘Ambulance Victoria failed in its duty of care to winch and treat her husband with reasonable skill, care and diligence’ when they used a rescue ‘strop’ that could cause injury by compressing a patient’s chest. As the deceased ‘reached the helicopter, he became “limp and unresponsive” and was “making no apparent attempt to hold on” as he slipped from the strop.’  He fell some 30 metres to his death.

The Australian Transport Safety Bureau (the ATSB) conducted an investigation into the matter (you can read their report, online).

The ATSB found that, due to the compressive nature of the rescue strop around the patient’s chest, combined with the patient’s weight and pre-existing medical conditions, the patient probably lost consciousness during the winch operation. While the rescue strop was serviceable at the time, it was not suitable for the patient and contributed to them falling from the strop following their loss of consciousness.

The ATSB also identified that the operator and Air Ambulance Victoria had limited documented guidance to assist rescue personnel select the most appropriate winching rescue equipment.

I would not consider this a controversial law suit. This is not a case where paramedics are being sued for not achieving a good outcome even though they administered proper treatment nor being sued for not following all the protocols because of the particular danger of the situation (which is not to say those cases happen, but they would be controversial if they did and they are the sort of cases paramedics appear to worry about).  Further, and as one would expect it’s not the paramedics being sued at all, it’s Ambulance Victoria and it’s over the use and choice of equipment, in this case the rescue strop.

In the context of the emergency services, ambulance services do owe a duty of care to their patients, in fact such a duty would be axiomatic, it would be hard to find a closer relationship where the conduct of the defendant (ambulance) would affect a foreseeable person (the patient) and therefore there is a need to act with ‘reasonable care’ (see also Kent v Griffiths [2001] QB 36). In the context of the emergency services it has been said that the fire brigades do not owe a duty of care to individuals other than a duty not to make the situation worse (Capital and Counties v Hampshire Council [1997] QB 2004).  Even if that were the rule here, the plaintiff may well argue that her husband, given his injury was a fractured ankle, would in fact been better off if Ambulance Victoria had never appeared on the scene!

It would be my view, given that I have very limited information about the matter, that the plaintiff would have little difficult establishing that ambulance Victoria owed her husband the relevant duty of care.  The issue, should the case go to trial rather than settle out of court, would be whether or not there was negligence.

It will no doubt be open for Ambulance Victoria’s insurers to argue that the choice of the strop was ‘reasonable’ in the circumstances and given the state of knowledge at the time.  Following its investigation,

The ATSB advises helicopter emergency medical service and other operators carrying out winching operations to note the circumstances of this accident and consider the implications for their operations of the risk of patients or other persons being winched slipping out of a rescue/retrieval strop. In this context the size, weight and medical condition of the person(s) being winched may indicate that other recovery options offer reduced risk.

Before this accident, ‘the circumstances of this accident’ were not something Ambulance Victoria or any other operator could ‘note’ or consider.  If it was this accident that revealed the problems with this piece of equipment such that it would be negligent to keep using the equipment now, it does not follow that the use of the equipment was negligent at the time of this accident. An argument along those lines would require relevant expert evidence as to the industry’s state of knowledge, and what should have been known, at the time.  Such an argument would be akin to the argument in Ambulance Service of NSW v Worley [2006] NSWCA 102 where the issue was the use of adrenaline IV. The adverse outcome for Mr Neal was part of the evidence that brought about a change to IM administration, but it was not negligent to administer adrenaline IV to Mr Neal because, at the time, the evidence of the best route was inconclusive.

Any other defence would depend on claims and evidence that, given I’m relying on a newspaper report, I am not aware of.

What I think is unfortunate is the plaintiff’s lawyer saying “The Davis family hopes lessons can be learned from Robert’s untimely death to prevent any other family having to endure such grief,”’  If there are lessons to be learned they’ve no doubt been identified by the ATSB which has issued appropriate safety warnings to helicopter operators.   Lawyers make these claims to paint their client in a light that is favourable to the media and the public.  That this is required is also a tragedy.  Mrs Davis has no doubt suffered terrible, inconsolable losses and my sympathy goes to her.   If those losses were caused by the negligence of Ambulance Victoria she is entitled to the remedies that the law provides, inadequate as they will be.  There should be no need to apologise for that.  But if she thinks, or her lawyers have advised her, that the motivation for litigation is to identify lessons ‘to prevent any other family having to endure such grief’ then they are, in my view, likely to be disappointed.  Remember too that most cases settle out of court and if they do there are no admissions and no identified lessons (see also Settlement in Black Saturday litigation is approved (December 23, 2014)).

Finally let me acknowledge and remember the tragic outcome here that this theoretical and analytical post can hide.  A man suffered an injury and looked to Ambulance Victoria for assistance. He fell to his death, his widow has lost her husband with all the emotional hurt that brings.  The financial losses, which are all a court can compensate, will pale when compared to that loss, but money is the only remedy a court can give and if the facts and the law say she’s entitled to money compensation that will be paid.   Let us not forget, too, the other victims of this event, the paramedics and pilots involved who set out to provide care and comfort but who witnessed this man’s death and now have to live with those consequences.

Readers of this blog will be familiar with changes to the law that came with the Work Health and Safety Act 2011 (NSW) (the ‘WHS Act’).  The earlier Act, the Occupational Health and Safety Act 2000 (NSW) governed the relationship between employees and employers.  The WHS Act deals with a ‘Person Conducting a Business or Undertaking’ (a PCBU) and ‘workers’.  The concept of ‘worker’ is much broader than ‘employee’ and today a worker, includes volunteers.  The NSW Rural Fire Service, for example, has 824 employees but, with a volunteer workforce of 74516, there are over 75000 workers! (NSW Rural Fire Service ‘Fast facts: About the NSW Rural Fire Service’, accessed 27 August 2016).

The WHS Act imposes obligations upon a PCBU to ‘consult’ with workers (WHS Act, Part 5).  The facilitate consultation, the Act provides for the election of Health and Safety Representatives (ss 60-74) and for the established of Health and Safety Committees (ss 75-79).     A worker may request a PCBU to conduct elections for Health and Safety Representatives (s 50).  If a request is made the PCBU must consider how to divide the workforce into work groups.  Where agreement cannot be reached on the establishment of a work group, a worker can or the PCBU can ask the regulator (formerly WorkCover and now SafeWork NSW) to appoint an inspector.  The inspector can determine the establishment of workgroups or they may decide ‘that work groups should not be determined or that the agreement should not be varied (as the case requires)’ (s 54).  A person unhappy with the inspector’s decision can apply for an ‘internal review’ (s 224(1).  A person is appointed as the reviewer and he or she may confirm, vary or set aside the original decision and substitute whatever decision the reviewer considers appropriate (s 224(2)).  A person dissatisfied with the outcome of an ‘internal review’ can apply to the Industrial Relations Commission for an ‘external review’ (s 229).

Shane Bryant, a volunteer with the NSW RFS has exercised his rights as a worker under the WHS Act.   On 4 April 2013 he made a request for the election of Health and Safety Representatives. On 6 May 2013 he asked the regulator to appoint an inspector.  ‘The Inspector determined that no changes were required to the extant consultative arrangements’ (NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4, [6]).  On 2 July 2014 Mr Bryant sought an internal review of the inspector’s decision.   That review set aside the Inspector’s decision – ‘SafeWork then required RFS to consult and implement work groups and facilitate the appointment of health and safety representatives’ ([8]).

The RFS then applied to the Industrial Commission for in external review.  The RFS then took steps to enter negotiations with the relevant union representing paid staff, and the Rural Fires Service Association (the RFSA) representing volunteers.  The RFS, with the support of SafeWork, sought adjournments of the external review whilst those negotiations took place.

Mr Bryant opposed those adjournments and asked the Commissoin to hear and determine the matter.  This raised the question of Mr Bryant’s ‘standing’ and who was the other ‘party’ to the case.  The Commission noted that it ‘is, generally speaking, an arbitral tribunal’ ([68]).  That means the Commission is used to resolving an issue where there two parties present their claims, which the Commission rules on.    In this case the RFS was the ‘applicant’ but the legislation did not provide for who was to be the ‘respondent’.

SafeWork argued that they were not the respondent. They had made the decision that was the subject of the review but their job was to be impartial.  SafeWork’s ‘role in the review was to make submissions on interpretation of the legislation and provide assistance to the Commission in respect of the questions for determination by it’ ([41]).  It was not their job to ‘defend’ the decision made on internal review and argue that the Commission should confirm that decision.

The fact that Mr Bryant had made all the initial applications did not make it axiomatic that he was the appropriate ‘respondent’.  Although he had made all the applications the law did not require that he do so, the person who made the application for the election of health and safety representatives, did not have to the person who applied for an inspector to be appointed and that did not have to be the same person who then applied for an internal review.  Any one of the RFS’ 70 000 workers could have made any of those applications.

The RFS submitted that Mr Bryant does not have sufficient interest, over and above other workers, to be joined as a party to an external review … His interests, and those of other workers, are protected by their authorised representatives, the PSA and the RFSA ([34]).

The problem was that the RFSA was not before the Commission that is the RFSA was not there claiming to represent the volunteers.

SafeWork did not object to Mr Bryant being permitted to ‘intervene’ in the proceedings ([42]).   In the absence of any other respondent, the Commission said it should have regard to the fact that ‘It would be incongruous for RFS to be able to call evidence and make submissions in relation to the substantive issues but exclude the initial mover in the underlying application’ ([42](6)].

The question then was whether Mr Bryant should be considered an ‘intervener’ or a ‘party’ to the proceedings.  An intervener has only a limited interest in the proceedings and their involvement is subject to direction by the tribunal.  Without going into the differences, the Commission allowed Mr Bryant to ‘intervene’.  In coming to this decision the Commission said that Mr Bryant

… has a sufficient interest to be recognised at least as an intervener. In particular because:

(1)      Mr Bryant was:

(a)       the person who made the initial request under s 50;

(b)       the person who made the request under s 54 for the appointment of an inspector; and

(c)        the applicant for an internal review under s 224.

(2)       RFS workers would be potentially adversely affected should the application succeed and it follows that Mr Bryant would be potentially adversely affected.

(3)       There is no party presently representing the interests of workers or to advance material contrary to the RFS contentions or material.

(4)       In the circumstances it would be an appropriate protective step to grant Mr Bryant leave to intervene.

In what might be perceived as a ‘dig’ at the RFSA, Judge Kite said (at [78]):

 I have given particular weight to the absence of a party representing the interests of workers. Should that position change, and an organisation or person with authority to represent the class of workers involved seek to participate, it may be appropriate to review Mr Bryant’s position.

The result of the Commission’s ruling is that Mr Bryant is allowed to:

… call evidence, cross-examine witnesses and make submissions. The extent to which these matters can be undertaken continues, of course, to be under the control of the Commission’s discretion ([79]).

Discussion

This cases raises some interesting issues about the WHS Act.  The fact that the Act provides for various reviews but fails to indicate who is to be considered a ‘party’ before a tribunal is problematic.  It is also problematic that each of the RFS’ 70 000 workers could be making those applications.   The RFS said (at [27]):

If Mr Bryant was given a right to participate as a party or intervenor then every other worker affected in the same way as a worker should be given the same right. Permitting every single worker the right to participate in either capacity is not consistent with the proper functioning of the Industrial Relations Commission nor with the provisions of s163 of the Industrial Relations Act.

Whether or not it is ‘consistent’ with the Act, it would certainly be problematic if every worker sought to intervene in proceedings.    Of course the commission wasn’t faced with every worker, or even multiple workers, it was faced with only one and the absence of any person or organisation seeking to represent the collective workforce.

Conclusion

The decision here is certainly giving effect to the principle that a volunteer is a worker and enjoys the rights and privileges once only given to employees.  Regardless of the merits of Mr Bryant’s claims, he is certainly committed and dedicated and willing to put his money and his effort into what he must see as the best interest of the RFS and its workforce.

A friend related this story to me.  I find it hard to believe it could be true (I hope it isn’t) but just in case it is, I’ll comment on it here.  The gist of the story is

… a parent was at a park with a young child. The parent was injured in an accident.  Paramedics attended and transported the parent to hospital but refused to carry the child, allegedly as they had no adequate child restraint. Instead the child was left with a stranger who agreed to care for the child and deliver it back to the family.

That the child was delivered safe and well reflects on the general good nature of most people, but the risk is obvious and shocking.  Could such an action possibly be justified?  In my answer it can’t.

The ambulance service may be there to treat the injured person, but no doubt transporting the injured person but leaving their child behind is not acting in the injured person’s best interests.

The doctrine of necessity would provide sufficient justification, if any was needed, for taking care of the child even though the child is not sick or injured.

… 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 circumstances take, acting in the best interests of the assisted person (Lord Goff in In Re F [1990] 2 AC 1).

It is a doctrine of necessity, not emergency. The fact that an infant child is not injured does not mean that you can’t take care of them when it is reasonable to do so.  Taking a lost child by the hand and leading them to their parents or the police is no more an assault that doing CPR when required.  Necessity would have justified, if justification were necessary, taking the child into the ambulance.

As for the claim about a child restraint, there is generally an exemption from seat belts in an ambulance.  For example, the Road Rules 2014 (NSW) say that a person is exempt from the need to wear a seat belt if they are a passenger in an emergency vehicle (Road Rules 2014 (NSW) r 267(5)).   Even if there is no exemption what’s the worst that can happen? A traffic infringement notice?  If there is an accident and the child is injured that is not good, but if you leave the child with a stranger and they are never heard of again, that would be worse.  Again the doctrine of necessity as a defence to a minor traffic offence would, in all the circumstances, provide a defence.

Leaving the child in the care of a stranger would be negligent. The ambulance service is there to treat the patient but a patient is a complete person and includes not just their injury (they are not ‘the broken leg’) but all their concerns, including the child.  As the parent has responsibility for the child, the ambulance service as a statutory authority not only has the knowledge of the child and the knowledge that if they take the parent the child will be vulnerable they also have the authority to take some action.  People expect and trust the emergency services to take steps to mitigate risk and they have the means to communicate with police if that is required to ask them to take care of the child.  An ambulance would be a safe and effective place to secure the child and either transport it with the parent or wait for further assistance.  I don’t think it would be at all difficult to argue that the service owed a duty of care to both the parent and the child.  If that is the case, they would need to take reasonable care to protect the child and that would not involve leaving it with a stranger.  It would require transporting the child or making arrangements for police or family to come to the scene and collect it.  Whether waiting was reasonable, or not, would depend on the parent’s injuries and the need to take him or her to hospital for definitive care.    I can think of no situation where leaving an infant child with a stranger with directions to take him or her home would be a reasonable response.

Ambulance officers generally enjoy some liability protection.  For example, the Health Services Act 1997 (NSW) s 67I says:

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

(a) the provision of ambulance services, or

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

Take care of a child whose parent has been injured would be covered by sub-clause (b) above.  But failing to take care of the child would not.  A paramedic who refuses to take the child for fear or repercussions of having the child without an approved child restraint is not acting in good faith as he or she is not acting in the best interests of either the parent or the child.  He or she is concerned with his or her or the agencies best interests.

Conclusion

Leaving the child with a stranger, if indeed it did happen, would be unprofessional and outrageous. It would not be required by law; on the other hand, taking care of the child and transporting the child with its parents would be lawful, regardless of the presence or absence of suitable child restraints.

I hope my friend heard an incorrect version of events.

There has been commentary in the media, and an extensive campaign by NSW Paramedics, regarding changes to the Death and Disability benefits scheme.  This comment, dated 22 August 2016, was on Facebook page called “Zero One – Code One” (which appears to be a page operated by the Ambulance Division of the Health Services Union).

Today Mr Baird’s government closed the legal loop on struggling NSW Paramedics. His government created a law that made it illegal for the IRC to rule against his financial interests. He then made an application to the IRC to replace preexisting paramedic death and disability protections with substandard protections. He was successful and his law ensured it.

Given that I thought I’d better look into the relevant law.

The legal issue was the future of the Ambulance Service of NSW Death and Disability (State) Award.   This Award was originally made on 29 February 2008 and had been amended over time.  References to the Award, below, are references to the (Ambulance Service of NSW Death and Disability (State) Award as amended on 30 April 2009 (No. IRC 615 of 2009); the ‘Death and Disability Award‘) unless otherwise indicated.

The award provided for lump sum payments for paramedics who were killed or rendered permanently unfit for work, whether that death or injury was work related or not.  From 11 July 2015, the lump sum for the ‘off duty’ death of a paramedic ranged from $73,572 to $367,869 depending on the age of the paramedic at the time of death (Ambulance Service of NSW Death and Disability (State) Award; Review of Award pursuant to Section 19 of the Industrial Relations Act 1996 (No. IRC 621 of 2015), 15 October 2015).  For on duty death or permanent disability the lump sum was calculated as a percentage of the paramedic’s salary, ranging from 3.71% to 8.5% again depending on the paramedic’s age.  These benefits were over and above whatever entitlements the paramedic may have under Workers Compensation law and from their superannuation scheme (Death and Disability Award, [6]).

To obtain the benefits of this award eligible paramedics had to contribute between 0.92% and 1.8% of their salary depending on their age and other whether they had elected for other relevant cover with their superannuation (Death and Disability Award, [5]).   The Service in turn agreed to contribute not more than 3.6% of total salaries.  The contributions were paid to First State Super that in turn maintained a ‘a superannuation scheme to pay the lump sum benefits’ for on duty death and total and permanent disability.  The Ambulance Service would establish ‘a separate scheme to pay the benefits’ for death and death and total and permanent disability that occurred ‘off duty’.

Critically the award provided that ‘The Governments contribution to the costs of the superannuation scheme and the separate scheme … is limited to 3.6% of salaries …’ (Death and Disability Award [10.1]).    The Award provided (at [14.2]) that where:

… the long term cost to the Government is likely to exceed 3.6% of salaries, there will be an immediate review of the benefits and/or the officer contributions of the scheme. Appropriate steps will then be taken by the parties to implement a revised scheme that maintains a maximum cost to Government of 3.6% of salaries.

It was this clause that triggered the latest issue as that threshold had been met.  That is it was likely, and all the parties agreed that it was likely, that the long term cost to Government would exceed 3.6% of salaries so a review was required (NSW Ambulance Death and Income Protection Benefits Interim (State) Award [2016] NSWIRComm 5, [7]).

The IR Commission was required, by the terms of the award and the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW) to consider the cost to government in any new scheme and to limit government liability under any scheme to 3.6% of salaries.

The Industrial Relations Commission (comprised of Judge Walton and Commissioners Stanton and Murphy) said (in NSW Ambulance Death and Income Protection Benefits Interim (State) Award [2016] NSWIRComm 5, [6]) that the government proposed a new scheme that provided for:

(1)       Unchanged Lump sum payments in the case of on or off duty death;

(2)       Income protection (rather than lump sum) benefits for on and off duty injuries or illnesses

(3)       Transitional provisions in relation to injuries or illnesses incurred prior to the commencement of the proposed award to provide that benefits under the Death and Disability Award would still be paid;

(4)       A commitment to a Health and Wellness Program for paramedics with 1.9 per cent of the scheme’s funds to be used for health and wellness initiatives;

(5)       The Government’s commitment to contribute a maximum of 3.6 per cent of salaries is continued, as is the review trigger should the long term costs to Government be likely to exceed this amount; and

(6)       No employee contribution towards the revised scheme is required.

I infer that ‘Income protection benefits’ are paid as regular payment, like a salary, rather than as a single lump sum.  (Anyone who’s been involved in compensation knows the problem with ongoing benefits which is that they usually require the claimant to be subject to supervision to ensure that they remain entitled to the benefits).   There would be a 90 day waiting period before income protection was paid and it would ensure that the paramedic received 75% of their pre-injury salary.  It was proposed that income benefits would be paid for a maximum of 2 years ([19]).

Extra benefits of the proposed scheme were that it would extend income protection to officers who were sick and injured but not permanently disabled and it did not require a contribution from paramedics giving, in effect, an up to 1.8% pay increase (see [21]).

The unions proposed alternative schemes. The HSU proposed that the scheme be transferred from an insurance/superannuation scheme to a scheme managed by the Government ([9]).  The APA proposed amending the existing award by removing the limit on the government’s commitment ([10]).

There were further discussions and offers to try to reduce the areas of disagreement but, at the end of the day, agreement could not be reached and the Commission had to determine whether to make the award sought by the government, or one of the alternatives sought by the trade unions.   Here the Commissioners were very critical of the unions.

One issue that was in dispute was whether income protection should be paid for 2 years, or for 7 years.  The Government brought in financial evidence as to the cost of the proposed programs in order to keep their commitment to 3.6% of salary.  With respect to the union’s claim for a 7 year period of entitlement the Commissioners said ([42]-[43]):

Unlike the Ministry’s proposal, the seven year scheme proposed by the unions was entirely unsupported by any evidence…

The failure of the two unions to advance any evidence in support of the claim for a maximum benefit period of seven years, or to engage in any meaningful way with the evidence relied upon by the Ministry in support of its two year proposal, meant that the Ministry’s position assumed greater weight than would otherwise have been the case.

They later said ([45]-[46]):

In the matter presently before the Commission, the obstinate refusal of the two unions to engage in any meaningful way in the arbitral process has, in effect, greatly assisted the Ministry in achieving the outcome for which it has contended.

As a consequence of the lack of evidentiary support for the claim pressed by the two unions, the prospects of that claim or, indeed, any outcome which improved upon the Ministry’s proposal, being awarded in arbitral proceedings were virtually nil.

Given the lack of evidence in support of alternative claims, ‘the Full Bench was left with no alternative but to announce its decision to make an interim award with a maximum benefit period of two years and other provisions as proposed by the Ministry, but with a duration of twelve months’ ([49]).   Some further negotiation did lead to some changes in waiting periods: “A waiting period of 90 days before any benefit is payable in the case of an Off Duty Injury, or 26 weeks in the case of an On Duty Injury” ([60]).    The new scheme operates from 20 August 2016 for 12 months during which time, no doubt there will be ongoing negotiations.

What of the HSU’s comments?

Today Mr Baird’s government closed the legal loop on struggling NSW Paramedics. His government created a law that made it illegal for the IRC to rule against his financial interests.

That’s “playing the man, not the ball” because of course it’s not “Mr Baird’s … financial interests’ that are at stake but the governments albeit a government which he leads so we can forgive that.

I would infer that this is a reference to the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW) which did restrict the Commission’s powers.  This regulation came into force on 24 June 2014, two months after Mr Baird took office as premier (23 April 2014).     It is correct that it was ‘his government’ that passed this law.  That regulation provides that ‘Public sector employees may be awarded increases in remuneration or other conditions of employment, but only if employee-related costs in respect of those employees are not increased by more than 2.5% per annum…’ (cl 6(1)(a)).  The Commission felt that it could not accept the suggestion that the government simply take over the liability for death and disability scheme or that the cap of government contribution at 3.6% of salaries should be removed, as either approach would ‘offend the terms of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014’ (at [20]).

As for the clause in the award that said that the government would not commit more than 3.6% of salaries, that was a matter of agreement between the government of the day and the relevant unions.  As that agreement was made in 2008 that was certainly before Mr Baird’s time in office.

That ‘He then made an application to the IRC to replace preexisting paramedic death and disability protections’ is correct but hardly suprising.  It was a term of the agreement that should actuarial review suggest costs to government would exceed 3.6% of salaries, the Award had to be reviewed.  Applying for that review, in accordance with the agreed terms, is not bad faith – people should be expected to, and expect others to,  honour their agreements (see also Industrial Relations and asking the CFA to stick to its bargain (January 26, 2015)).  The unions or paramedics could hardly be surprised that the matter ended up back on the negotiating table, and ultimately in the Commission, given that all parties agreed that the trigger for a review had been met.

I make no comment on whether the new, interim award contains ‘substandard protections’.   Whilst it has removed lump sums for permanent incapacity it has extended benefits to those that suffer an incapacity that is not permanent and removes the need for paramedics to make a contribution to the scheme.  The Commission did note (at [5]) that:

In September 2015, the Service conducted a ballot in which affected officers were invited to vote to either replace the existing scheme with a death benefit and income protection scheme or to wind up the existing scheme, cease employee contributions and return 85 per cent of achieved employee related cost savings to employees in the form of a new allowance. The HSU advised its members not to participate in the ballot. Of the 579 employees who chose to vote, 365 (63 per cent) voted for the first option, that is, to replace the existing scheme with a death benefit and income protection scheme.

Accordingly whether the conditions in the new award are ‘substandard’ is for others to judge and no doubt with reference to other government employee schemes by which the ‘standard’ can be determined.

Conclusion

It is certainly true that the Ambulance Service of NSW Death and Disability (State) Award (2008) is no longer available to provide lump sum payments for death or permanent disability for paramedics.  A new interim award is in place that continues to provide lump sum payments in the event of death, but ‘income protection’ in the event of injury.  There are wins and losses – the lump sum may be gone but the class of people who can benefit is increased and individual contributions are gone.

Whether a better deal could have been struck is no doubt debatable.  The IR Commission was of the view that the relevant trade unions did not support their claims with sufficient evidence and that left them with no choice but to accept the government’s proposal, given, as the HSU have noted, they were constrained by the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW) and the initial agreement that the government’s contribution was to be limited to 3.6% of salaries.   I have no doubt that many will disagree with that analysis of events, but that is how the Commissioners’ saw it.

A fulltime ambulance paramedic for Ambulance Victoria who is also a volunteer CFA firefighter says that:

Over the last few months I have had 3 occasions where I have arrived on the scene of very serious vehicle accidents as a member of the CFA and I have been asked by attending Ambulance crews to assist due to lack of ambulances early in the response and multiple/very unwell patients.

I would like to know if I attend the scene as a CFA volunteer and then need or asked to use my clinical skills as an off duty Paramedic, are there any problems legally if I do so and do I open up myself to possible litigation?

My understanding is that I can use my skills as long as I don’t step outside of my training/scope, it is for the benefit of the patient and it is what a reasonable paramedic would do in the situation. I have also heard of an example of other CFA members facing discipline because they “changed helmets” and where not first aid accredited. This member was a MICA paramedic/Div 1 nurse.

I am curious as I have also been told not to blur the lines of the CFA role but don’t want to risk life or negative outcomes by standing back when I have the skills and knowledge to assist in these situations

I have answered similar questions before.  See:

• NSW Paramedic and fire fighter – when does one role start and finish? (July 8, 2015); and
• Potential role conflict – NSW Police officer as SES volunteer (amended) (December 3, 2015).

The difference between this scenario and the one for the NSW Paramedic, was in the NSW case I was asked to assume that ambulance was not in attendance and the paramedic was limited to whatever equipment is on the fire appliance.  In the scenario given above, the paramedic/firefighter is asked to assist by fellow paramedics so no doubt there is more extensive equipment on the ambulance including, perhaps, scheduled drugs.

The Country Fire Authority is established ‘For the more effective control of the prevention and suppression of fires in the country area of Victoria …’ (Country Fire Authority Act 1958 (Vic) s 6).   Even so, s 20A says:

… any group of brigades or any brigade … may … in response to a call for assistance, attend and carry out any function in relation to the provision of assistance to any person or the protection of any property involved in any accident or emergency not connected with the suppression or prevention of fire and the provisions of this Act shall with such adaptations and variations as are necessary apply to and in relation thereto to the same extent as in the case of the prevention and suppression of fire or the protection of  life  and property in the case of fire.

That’s a rather complex way of saying when asked, a CFA brigade can attend at any emergency or accident and all the powers given to the CFA officers to allow them to exercise their firefighting duties may, as necessary, be relied upon to all ow the CFA to protect life and property.

I can only imagine that if the CFA were at the scene of a fire and Ambulance Victoria paramedics asked for assistance in treating an injured person, CFA firefighters would assist if they could, and the CFA would expect them to do so.   The difference here is that the CFA firefighter is also a paramedic.   When he or she begins to treat a person they can’t deny their knowledge or skills and more importantly they may have access to drugs and other equipment and use it.  In that case they are really acting as a paramedic not as a CFA volunteer.  What makes the difference, in my mind, is the request from other paramedics for assistance and that there is an ambulance on scene so that the paramedic can incorporate into their activities.

The situation can be compared to what might happen if an off duty paramedic approached paramedics at a multi-casualty event and offered to assist.  I can’t imagine Ambulance Victoria doesn’t want its staff to do that.  By stepping up the reality is that the paramedic is an Ambulance Victoria paramedic and has become part of the Ambulance Victoria response to the event.    Expecting a paramedic to do anything other than exercise their skills and training as a paramedic would not be acting in the best interests of the patient and would be remiss.  I think that is quite different from the firefighter/paramedic providing care before the ambulance service gets there.  In that case they are providing care as a firefighter even if whatever care they can provide may be more than other firefighters.

Let me turn to the questions:

I would like to know if I attend the scene as a CFA volunteer and then need or asked to use my clinical skills as an off duty Paramedic, are there any problems legally if I do so and do I open up myself to possible litigation?

I can’t see it.  Either your part of Ambulance Victoria or the CFA.   Certainly if you provide competent care it doesn’t matter.   If your conduct is negligent, then you will not be the defendant as no-one wants to sue someone who can’t pay. Ambulance Victoria is responsible for the care of the patient and if the on duty paramedics asks a CFA volunteer to assist and they injure their patient, it will still be the case that the patient received sub-standard care from Ambulance Victoria.  So either way, whether your seen as a CFA volunteer or an ambulance paramedic, any liability will fall to Ambulance Victoria.

My understanding is that I can use my skills as long as I don’t step outside of my training/scope, it is for the benefit of the patient and it is what a reasonable paramedic would do in the situation.

That is indeed correct and applies whether you’re on duty with the CFA or just walking down the street.

I have also heard of an example of other CFA members facing discipline because they “changed helmets” and where not first aid accredited. This member was a MICA paramedic/Div 1 nurse.

I can understand why a CFA member may face discipline or criticism ‘because they “changed helmets”’ if that took them away from vital firefighting duties and exposed others to risk, but not because they were not ‘first aid accredited’ that is simply a failure to recognise prior learning and an administrative issue for the CFA.

I am curious as I have also been told not to blur the lines of the CFA role but don’t want to risk life or negative outcomes by standing back when I have the skills and knowledge to assist in these situations

Anyone who says do not ‘blur the lines’ is looking to protect the CFA and the objective should be to help the person in need.  Surely both CFA and Ambulance Victoria want to save lives rather than worry about potential legal liability.  Remember also that cases of responders, or the emergency services getting sued in the circumstances described are unheard of.

Conclusion

Providing assisting the patient doesn’t compromise the CFA response then there are no legal issues in assisting the paramedics.  That is what an ‘all hazards, all agency’ response must require.