A correspondent has drawn these two stories from New Zealand to my attention:

• ‘Wellington firefighters stop at red lights’ Radio New Zealand (Online) (30 May 2016) and
• Thomas Manch and Talia Shadwell ‘Wellington volunteer firefighter being prosecuted after crash on way to house fire’ The Dominion Post (Online) (May 30 2016)

The story relates to reaction from the fire service after a volunteer was charged with ‘careless driving’ after a collision when responding to a fire call – ‘The driver of the car involved in the collision had to be cut from it, and was taken to hospital with broken ribs after the vehicle spun 180 degrees on impact’.   The article by Manch and Shadwell quotes the defendant’s solicitor saying:

“What more [he] could have done is beyond me, aside of course from just completely stopping at the intersection and not going through it.

“We want our emergency responders, such as ambulance drivers, police, fire, to get to the scene of an emergency as quickly as possible.

“If they’re paranoid about being charged with offences such as going through red lights, carefully, then they are not going to get to the scene of emergencies as quickly as they should do.”

A senior Wellington firefighter, who declined to be named, has confirmed that some firefighters in his brigade would now stop at red lights, fearing they might cause a crash.

“From instances in our brigade, drivers are taking particular care, even to the point that, when they get stuck in traffic, they’re turning their lights and sirens off and waiting for traffic to clear,” he told RNZ.

Of course we want emergency services ‘to get to the scene of an emergency as quickly as possible’ but as ‘quickly as possible’ has to take into account the driving conditions and the presence of other road users. No matter what the emergency, it can’t warrant killing or injuring other road users.    Further, an accident will delay the emergency services more than turning off the lights and sirens or stopping at a red light.    As a police spokesperson, quoted in the article says:

“No emergency justifies causing an accident. All responders should be aware that, if they crash, they do not get to the emergency, and they put other road users at risk.

But what else could the driver do?  Perhaps nothing but that is not for either his lawyer, or the police to determine.  People overlook the fact that the arbiter of what is ‘reasonable’ or ‘justifiable’ or ‘necessary’ (or whatever the relevant legal test is) is not the police but the court.  There is the idiom that ‘Not only must justice be done; it must be seen to be done’ – that is not that (or just) that outcomes should have the appearance of justice, but that people can see the process – that the process is open and public.  Courts are open to the public, anyone can sit in and watch proceedings and the judicial officer must hear both sides and must deliver the reasons for the decision in public.  That decision is then subject to review by the appeal courts, again in public.

Imagine if your loved one had been killed or injured in an accident involving an emergency service vehicle, and imagine too if the police said ‘we’ll they were proceeding to an emergency and we want to encourage our heroes so no charges will be laid’.  Whatever the merits of the case that would be outrageous.  The idea of the rule of law is that we are all ruled by law – including the emergency services.  The police can’t have a special rule or an attitude that ‘the firies or paramedics are part of the thin ‘blue line’ so there are special rules for them’.  There are indeed special rules, in Australia we’ve talked often about r 306 of the Australian Road Rules, but these are still part of the law, and the law still says that drivers must take care to avoid injury to other road users.    So if the circumstances suggest negligence (or worse) emergency service drivers can expect to be charged because it is the role of the police to put that sort of case before a court.  It is open to the defendant to put to the court the facts and arguments to the effect that the driving was not negligent and that the driver was taking all due care and did all that he or she could have done.  The answer to the question – was the driver guilty of the offence charged? – is then left to the community’s representatives, the jury.

Conclusion

The police spokesperson is correct ‘All responders should be aware that, if they crash, they do not get to the emergency, and they put other road users at risk’ and they can expect to face criminal charges particularly if someone is killed or injured.  If that reality causes drivers to go ‘…through red lights, carefully…’, ‘stop at red lights’ or ‘when they get stuck in traffic, … [turn] their lights and sirens off and waiting for traffic to clear’ then that has to be for the good.

A correspondent who is a land surveyor:

… has a very big interest in both land law and emergency service law.  I was just reading this (https://au.news.yahoo.com/thewest/wa/a/31696560/woman-83-sued-over-parkerville-bushfire/?cmp=st (Amanda Banks, ‘Woman, 83, sued over Parkerville bushfire’ The West Australian (Online) 26 May 2016).  I’m not sure on WA land laws but I am assuming that there was an easement on this property? How is it possible to sue the servient tenement for this? Have you heard of this before? I’d love to find out more about this case, do you know where I can find out more information?

The gist of the story is that there is legal action over the Parkerville bushfire where, it is reported, 183 residents are suing for the loss of homes that were destroyed or damaged in the fire.  The article says

They are suing Western Power as owner of the allegedly defective pole where they claim the blaze started… The residents allege Western Power had a duty to maintain the pole in a safe condition.

They claim Thiess Services owed a duty of care under its contract for maintaining and inspecting the pole.

The amended writ also claims further and alternatively that Ms Campbell, as owner-occupier of the property on Granite Road, owed the plaintiffs a duty to take care to make sure the pole was in a safe and fit condition.

My correspondent refers to an ‘easement’ which is a right to use land for a particular purpose, in this case one would infer to run the power line across the land.  The ‘servient tenement’ is a fancy way of saying the owner of the land that was subject to the easement.   The fact that the new defendant is 83 is of course irrelevant but it makes the story more dramatic.

So how can this happen?  The answer is I can sue anyone simply by going to the court house and completing the relevant form and paying the relevant fee.  The Registrar isn’t there to review my claim and decide whether or not it is legally tenable, that is the role, ultimately, of the judge.    So the relevant plaintiffs can sue her simply by naming her on the claim. Equally the other defendants could have joined her as a defendant.

We don’t know if the defendant holds a ‘servient tenement’, may be Western Power say they don’t have an easement and it wasn’t their pole, but hers.  We don’t know what the defence has been but if that is the case, the parties may have wanted to join this defendant in case that was indeed the case.

Why would they do that?  Academics and High Court judges may like to think tort law is all about principle and apportioning liability where it should fall.  Others would realise it’s all about trying to find defendants with money.  Further defendants with money (insurance companies) try to find other defendants to share the losses.  Remember that the primary obligation of the board of an insurance company is to earn an income for their shareholders, not to waste money on issues of principle.    So Western Power and Thiess are being sued and they claim they are not liable; a prudent plaintiff joins the land owner just in case it turns out Western Power and Thiess are correct.

So what that she’s 83.  She owns a property that is worth something and more importantly, and I’m sure no doubt, she has an insurance policy and it is that insurer who the plaintiffs and other defendants want to bring into the action.  It’s nothing personal.

Now if she wins, and if she wins because the pole really did belong to Western Power and she was just the owner of the ‘servient tenement’ and if that’s decided by a Court of Appeal or the High Court, then lawyers and academics will say ‘you can’t sue the servient tenement’ but we don’t mean ‘you can’t name someone on the writ’, we mean ‘you can’t win if you do’. It’s like saying to someone ‘you can’t swim the English channel but you can try if you want to’.   It’s not that “can’t” means ‘not allowed to’ it means ‘you won’t actually succeed’.  Of course most people can’t swim the English channel, but some can and equally one might say ‘you can’t [successfully] sue’ but the right facts and the right lawyer, and the right judge in the right circumstances may well mean that there is success and perhaps a change in the law and sometimes just a sufficient difference from the ‘norm’ that the outcome is different.

It’s really important to distinguish the allegation from the outcome.  Starting court proceedings is simply to make an allegation. The plaintiffs here are alleging negligence by various parties.  They can do that but it doesn’t mean the claims are well founded.   Where can one find out more about the allegations?  At this stage the only place would be to approach the lawyers, who no doubt would not be willing to discuss it, or seek access to the files in the Supreme Court which are also unlikely to be given out to someone who happens to be interested.  If the matter goes to court, and if a judge makes a ruling on it, the judgment will be publically available, but this is clearly early days yet and there is much to go through before the matter ever gets near a judge.

Conclusion

Like most litigation in these circumstances this will turn out to be a fight between insurance companies.  Of the 183 plaintiffs most, if not all, are probably actually represented by an insurance company, an insurance company that has paid out and now stands in the shoes of the insured. They are not suing ‘on behalf’ of the insured, they are suing ‘as’ the insured and their aim is to get back money they have paid.  Thiess and Western Power and, no doubt, the new defendant will also not really be the defendants it will be their insurers.  It’s all about shifting the money.  Having a headline ’83-year-old woman gets sued’ sounds dramatic, but doesn’t begin to tell anything relevant about the story, and assuming facts (such as that there was an easement) also doesn’t help.  We’ll have to wait for the matter to be resolved to learn anything and of course, if it settles (as most cases do) there will never be any public exposition of what happened.

Today’s news from Victoria involves a tragic, fatal, multiple vehicle accident on a Melbourne freeway – see ‘Petrol tanker crash, rollover on Calder Freeway’ Herald Sun; and; see also ‘Calder Freeway crash: One dead after petrol tanker rolls, fuel spilt’ ABC News (Online).

A correspondent who was there says:

I was in the vicinity of the area and on my drive into work I observed 2 VicRoads vehicles attempting to get to the scene.   In this instance, both were unmarked (Though they do have marked vehicles as well). They were both using their purple and white strobe lights, but I didn’t hear any sirens.  There seemed to be confusion among other drivers- they’re not red and blue as people would expect, and I noticed a lot of people seemed to just ignore them.

Where do VicRoads fit in with the Regs in relation to emergency vehicles and the use of lights and sirens?

The relevant rules are the Road Safety Road Rules 2009 (Vic).   On this blog we have often discussed the application of the road rules to emergency vehicles (ambulances, fire appliances etc) but a VicRoads vehicle is not an emergency vehicle.  For the purposes of the Victorian rules it is an ‘enforcement vehicle’ (Road Safety Road Rules 2009 (Vic) r 4).

Drivers of other vehicles have an obligation to move out of the path, to keep out of the path and to give way to an enforcement vehicle that is displaying a flashing ‘magenta’ (ie purple) light (Road Safety Road Rules 2009 (Vic) rr 78 and 79).    The driver of an enforcement vehicle has the same exemption from the road rules as a police officer or the driver of an ambulance (Road Safety Road Rules 2009 (Vic) r 306A), that is

A provision of these Rules does not apply to the driver of an enforcement vehicle … if –

(a) in the circumstances—

(i) the driver is taking reasonable care; and

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

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

Rules relating to parking and pedestrians also do not apply to enforcement workers when on the road in the course of their duties (Road Safety Road Rules 2009 (Vic) rr 307 and 308).

An enforcement vehicle may be fitted with a siren (Road Safety (Vehicles) Regulations 2009 (Vic) Schedule 2, cl 34) and ‘may be fitted with any light or reflector’ (Road Safety (Vehicles) Regulations 2009 (Vic) Schedule 2, cl 118).

Conclusion

The driver of an enforcement vehicle operating its magenta light and/or siren has the same right of way and exemptions as the driver of an ambulance, police vehicle or fire appliance.  It follows that ‘to just ignore them’ is to commit an offence. Having said that, however, I don’t mean to suggest that anyone at this accident did commit an offence.  Making way for the vehicles given the congestion would not have been easy, if it was possible at all and I certainly don’t know and can’t imagine the circumstances that everyone was facing.   I would also expect that even if there was an offence, a police officer at the scene had more important things to do that try to write an infringement notice.

A correspondent from WA asks for an opinion regarding the Road Traffic Code 2000 (WA) and, in particular, its application to the driver of an emergency ambulance.  Rule 281 says:

A provision of these regulations does not apply to the driver of an emergency vehicle that is not being used for official duties by a police officer if –

(a)  in the circumstances –

(i) the driver is taking reasonable care; and

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

and

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

My correspondent asks:

Who determines if it is reasonable that the provision should not apply?

For example: An ambulance crew is instructed to drive under emergency conditions – lights and sirens – from an ambulance station to a nearby hospital in order to transfer a patient to another hospital.  Under normal driving conditions this journey, from the ambulance station to the hospital, would take approximately three minutes.  The patient is in a medical facility being treated by doctors and nurses. Can claiming this exemption be considered reasonable particularly if the patient is not ready for immediate transportation.

On raising this scenario with my employer the feedback received was that if a Doctor instructs an ambulance to drive under emergency conditions this removes the liability from the driver of the ambulance. In your opinion is this interpretation by my employer correct?

I’m not sure what my correspondent means by ‘liability’; so I’ll address the first question – Who determines if it is reasonable that the provision should not apply?

The first ‘person’ who has to make that determination is the relevant service.  Each service must have a policy (stated or unstated) as to when a ‘response’ is required.  In the context of an ambulance service it might be ‘respond to every triple zero call’ or perhaps ‘response’ driving is only authorised to calls that have gone through some triage process and the coordinator has determined the urgency of the required response.    The policy may be general, requiring officers in each case to determine how the policy applies to the given job, or it may be specific where the response status is actually given by the ComCen or supervisor when the job is allocated.   Whatever the policy it will be the first benchmark.  If a traffic ticket (for example a speed camera ticket) is issued the service is likely to, or I would say should, ask the driver what was happening.  If the driver confirms that they were ‘responding’ to the job the service should consider whether that accorded with their policy and if it did, write to the police to have the infringement notice withdrawn.

The second, but beyond doubt the most important judge of whether ‘it is reasonable that the provision should not apply’ is the driver.  Regardless of the response policy, regardless of the direction from ComCen, regardless of the pressure from the other crew members, it is the driver who has to decide whether or not he or she should take advantage of the exemption.   If the driver is approaching red traffic lights and considers that he or she should not proceed, the he or she should stop, turn off the warning devices and wait for the green traffic light.  The driver is always responsible for the safety of the vehicle, the other crew members, other road users etc.  I shall return to this later.

The next person called upon to decide whether or not ‘it is reasonable that the provision should not apply’ is a police officer.   A police officer who sees an ambulance drive contrary to the road rules, or is reviewing the speed or traffic light camera photo must decide whether or not, in that officer’s view, the conduct was ‘reasonable’.  To make that decision he or she should consider any representations as to the service policy and training and the task that had been assigned, but ultimately it is their call.  If they think that the driver was not taking reasonable care or the rule that driver ignored should not have been ignored, then they will issue a Traffic Infringement Notice and further, would decline to withdraw it when asked to do so.

Anyone who receives a traffic infringement notice can pay it, or they can declare that they are not guilty of the offence and elect to have the matter dealt with by a court.  That applies to the driver of an ambulance too, so if the driver thinks that the police officer was wrong they can elect to have the matter determined by a court.    In that case the matter will be heard by a Magistrate.  The magistrate will hear from police as to why they think the conditions necessary for r 281 were not met, and then hear from the driver and, if he or she is supported by the ambulance service the magistrate would also hear from the service officers, as to why they think what the officer was doing was reasonable.  The magistrate will explain what he or she thinks are the relevant facts and legal considerations and will determine whether or not r 281 does provide a defence in that particular case.

If either party, the driver or the police, disagree with the Magistrate’s ruling on what the law requires they could appeal.  In most jurisdictions an appeal from a Magistrate goes to a single Supreme Court Judge.  If that occurred the Judge would have to determine whether or not, in the circumstances, r 281 did apply to give the driver a defence.

If one of the parties thinks that the judge got the law wrong they may appeal to the Court of Appeal in which case three judges will review the decisions of the lower courts and give a statement as to what factors should be considered when deciding whether or not a provision of the Road Traffic Code should be applied to the driver of an emergency service vehicle.

Finally, if there is still disagreement, and if the disgruntled party can convince the High Court of Australia that there is a real, complex issue of law, and that perhaps courts in different states are taking different approaches to what is meant to be a scheme of national road rules, then there could be an appeal to the High Court.  The judges of that court will give the final answer of what are the relevant considerations that a service or police officer has to consider when deciding whether ‘it is reasonable that [a] provision should not apply’.

It should be noted that appeals to a Court of Appeal or the High Court of Australia are incredibly unlikely.  The value of a traffic infringement notice means such a fight just isn’t worth it and the High Court is unlikely to be very interested in sitting as the 4th court to determine a road traffic matter.  So appeals to that level of court are unlikely, but they are theoretically possible.  Most people, of course, don’t take these matters further than asking the police to withdraw the traffic infringement notice, and if they refuse to do so, they just pay the fine.

Where does the caller, whether it’s a citizen who calls triple zero or a doctor fit into that list?  The answer is ‘they don’t; they don’t get to decide what response is required’.    This goes back to my first decision make, the relevant service. They should have a policy and it may be that they have a policy that a doctor can request an ambulance and if the doctor says the request is ‘urgent’ then the ambulance service will direct its officer to ‘respond’ with lights and sirens. But it’s the service, not the doctor that is making that decision.    If a doctor is travelling with the patient and paramedics and expresses the view that the urgent nature of the patient’s condition requires an expedited response, he or she can ask for that to happen, but the doctor cannot direct the driver as to how to drive or to ‘turn on the lights and sirens’.

Let me then turn to the scenario – is it ‘reasonable’ for an ambulance to rely on r 281 and use lights and sirens to require other vehicles to give way and perhaps travel contrary to the normal road rules to travel 3 minutes to a place where the person is already receiving medical care?  I can’t answer that (I’m not one of the people listed above) but I can have some thoughts on how police or a magistrate may answer it.  The first thing to consider is that the treating doctor, who is with the patient, has requested an urgent ambulance response.   That would certainly be a factor to consider.  Then one would want to consider the traffic conditions and the time of day, is ‘response’ driving really going to make a difference to the response time? It’s going to cause other drivers to take steps to get out of the way, it will increase the risk.  If you’re driving through a congested area that’s full of cars and pedestrians your claim that you did not need to honour the 40km/h speed limit may not be ‘reasonable’.  On the other hand, if it’s a 3-minute drive in normal conditions but normal conditions are on a road with an 80km/h speed limit, it may be quite reasonable to put the lights and sirens on and travel at 100km/h.

Let me now turn to the second question – “On raising this scenario with my employer the feedback received was that if a Doctor instructs an ambulance to drive under emergency conditions this removes the liability from the driver of the ambulance. In your opinion is this interpretation by my employer correct?”   As I said I’m not sure what they mean by liability, so I’ll address a couple of possible interpretations.

1. Will the doctor’s request mean that the paramedic can’t get a traffic infringement notice? Answer, ‘No’. As noted above that a treating doctor has requested an urgent response may mean that the paramedics and the service can have more confidence that they are required – more than when responding to a call from an untrained citizen who’s rung triple-zero, but that is only one factor to be considered.  The issue is about the nature of the driving; What rule the driver is seeking to ignore? What are the driving conditions? The requesting doctor knows none of those things.   A request for an urgent response means ‘as soon as you can safely get here’ but it can’t be a binding direction.
2. Will the doctor’s request mean that the paramedic isn’t liable if there is an accident? No. The driver of the ambulance is the person responsible for how that ambulance is managed in traffic.  If there is a collision or if, at the end of the day, the police (or magistrate, or judge, or court of appeal or High Court of Australia) think that in the circumstances r 281 did not apply, then it is the driver who will pay the fine, or worse.
3. Will the doctor’s request mean that the paramedic or ambulance service isn’t liable to pay damages to anyone injured in an accident? Again the answer is ‘no’. It is the driver who must take ‘reasonable care’ and no-one can relieve him or her of that obligation.  The paramedic is not the doctor’s servant acting under the doctor’s direction or control.

Conclusion

The status of the doctor’s request that an ambulance attend as a matter of urgency is just one factor to be taken into account in deciding, in any given case, whether or not response driving is justified and, if it is, whether the application of any particular rule should be waived.   The doctor’s request for an urgent response in no way relieves either the ambulance service, or the paramedic driver from the need to consider the particular circumstances and whether or not response driving is ‘reasonable’.

A correspondent from WA asks for an opinion regarding the Road Traffic Code 2000 (WA) and, in particular, its application to the driver of an emergency ambulance.  Rule 281 says:

A provision of these regulations does not apply to the driver of an emergency vehicle that is not being used for official duties by a police officer if –

(a)  in the circumstances –

(i) the driver is taking reasonable care; and

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

and

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

My correspondent asks:

Who determines if it is reasonable that the provision should not apply?

For example: An ambulance crew is instructed to drive under emergency conditions – lights and sirens – from an ambulance station to a nearby hospital in order to transfer a patient to another hospital.  Under normal driving conditions this journey, from the ambulance station to the hospital, would take approximately three minutes.  The patient is in a medical facility being treated by doctors and nurses. Can claiming this exemption be considered reasonable particularly if the patient is not ready for immediate transportation.

On raising this scenario with my employer the feedback received was that if a Doctor instructs an ambulance to drive under emergency conditions this removes the liability from the driver of the ambulance. In your opinion is this interpretation by my employer correct?

I’m not sure what my correspondent means by ‘liability’; so I’ll address the first question – Who determines if it is reasonable that the provision should not apply?

The first ‘person’ who has to make that determination is the relevant service.  Each service must have a policy (stated or unstated) as to when a ‘response’ is required.  In the context of an ambulance service it might be ‘respond to every triple zero call’ or perhaps ‘response’ driving is only authorised to calls that have gone through some triage process and the coordinator has determined the urgency of the required response.    The policy may be general, requiring officers in each case to determine how the policy applies to the given job, or it may be specific where the response status is actually given by the ComCen or supervisor when the job is allocated.   Whatever the policy it will be the first benchmark.  If a traffic ticket (for example a speed camera ticket) is issued the service is likely to, or I would say should, ask the driver what was happening.  If the driver confirms that they were ‘responding’ to the job the service should consider whether that accorded with their policy and if it did, write to the police to have the infringement notice withdrawn.

The second, but beyond doubt the most important judge of whether ‘it is reasonable that the provision should not apply’ is the driver.  Regardless of the response policy, regardless of the direction from ComCen, regardless of the pressure from the other crew members, it is the driver who has to decide whether or not he or she should take advantage of the exemption.   If the driver is approaching red traffic lights and considers that he or she should not proceed, the he or she should stop, turn off the warning devices and wait for the green traffic light.  The driver is always responsible for the safety of the vehicle, the other crew members, other road users etc.  I shall return to this later.

The next person called upon to decide whether or not ‘it is reasonable that the provision should not apply’ is a police officer.   A police officer who sees an ambulance drive contrary to the road rules, or is reviewing the speed or traffic light camera photo must decide whether or not, in that officer’s view, the conduct was ‘reasonable’.  To make that decision he or she should consider any representations as to the service policy and training and the task that had been assigned, but ultimately it is their call.  If they think that the driver was not taking reasonable care or the rule that driver ignored should not have been ignored, then they will issue a Traffic Infringement Notice and further, would decline to withdraw it when asked to do so.

Anyone who receives a traffic infringement notice can pay it, or they can declare that they are not guilty of the offence and elect to have the matter dealt with by a court.  That applies to the driver of an ambulance too, so if the driver thinks that the police officer was wrong they can elect to have the matter determined by a court.    In that case the matter will be heard by a Magistrate.  The magistrate will hear from police as to why they think the conditions necessary for r 281 were not met, and then hear from the driver and, if he or she is supported by the ambulance service the magistrate would also hear from the service officers, as to why they think what the officer was doing was reasonable.  The magistrate will explain what he or she thinks are the relevant facts and legal considerations and will determine whether or not r 281 does provide a defence in that particular case.

If either party, the driver or the police, disagree with the Magistrate’s ruling on what the law requires they could appeal.  In most jurisdictions an appeal from a Magistrate goes to a single Supreme Court Judge.  If that occurred the Judge would have to determine whether or not, in the circumstances, r 281 did apply to give the driver a defence.

If one of the parties thinks that the judge got the law wrong they may appeal to the Court of Appeal in which case three judges will review the decisions of the lower courts and give a statement as to what factors should be considered when deciding whether or not a provision of the Road Traffic Code should be applied to the driver of an emergency service vehicle.

Finally, if there is still disagreement, and if the disgruntled party can convince the High Court of Australia that there is a real, complex issue of law, and that perhaps courts in different states are taking different approaches to what is meant to be a scheme of national road rules, then there could be an appeal to the High Court.  The judges of that court will give the final answer of what are the relevant considerations that a service or police officer has to consider when deciding whether ‘it is reasonable that [a] provision should not apply’.

It should be noted that appeals to a Court of Appeal or the High Court of Australia are incredibly unlikely.  The value of a traffic infringement notice means such a fight just isn’t worth it and the High Court is unlikely to be very interested in sitting as the 5 court to determine a road traffic matter.  So appeals to that level of court are unlikely, but they are theoretically possible.  Most people, of course, don’t take these matters further than asking the police to withdraw the traffic infringement notice, and if they refuse to do so, they just pay the fine.

Where does the caller, whether it’s a citizen who calls triple zero or a doctor fit into that list?  The answer is ‘they don’t; they don’t get to decide what response is required’.    This goes back to my first decision make, the relevant service. They should have a policy and it may be that they have a policy that a doctor can request an ambulance and if the doctor says the request is ‘urgent’ then the ambulance service will direct its officer to ‘respond’ with lights and sirens. But it’s the service, not the doctor that is making that decision.    If a doctor is travelling with the patient and paramedics and expresses the view that the urgent nature of the patient’s condition requires an expedited response, he or she can ask for that to happen, but the doctor cannot direct the driver as to how to drive or to ‘turn on the lights and sirens’.

Let me then turn to the scenario – is it ‘reasonable’ for an ambulance to rely on r 281 and use lights and sirens to require other vehicles to give way and perhaps travel contrary to the normal road rules to travel 3 minutes to a place where the person is already receiving medical care?  I can’t answer that (I’m not one of the people listed above) but I can have some thoughts on how police or a magistrate may answer it.  The first thing to consider is that the treating doctor, who is with the patient, has requested an urgent ambulance response.   That would certainly be a factor to consider.  Then one would want to consider the traffic conditions and the time of day, is ‘response’ driving really going to make a difference to the response time? It’s going to cause other drivers to take steps to get out of the way, it will increase the risk.  If you’re driving through a congested area that’s full of cars and pedestrians your claim that you did not need to honour the 40km/h speed limit may not be ‘reasonable’.  On the other hand, if it’s a 3-minute drive in normal conditions but normal conditions are on a road with an 80km/h speed limit, it may be quite reasonable to put the lights and sirens on and travel at 100km/h.

Let me now turn to the second question – “On raising this scenario with my employer the feedback received was that if a Doctor instructs an ambulance to drive under emergency conditions this removes the liability from the driver of the ambulance. In your opinion is this interpretation by my employer correct?”   As I said I’m not sure what they mean by liability, so I’ll address a couple of possible interpretations.

1. Will the doctor’s request mean that the paramedic can’t get a traffic infringement notice? Answer, ‘No’. As noted above that a treating doctor has requested an urgent response may mean that the paramedics and the service can have more confidence that they are required – more than when responding to a call from an untrained citizen who’s rung triple-zero, but that is only one factor to be considered.  The issue is about the nature of the driving; What rule the driver is seeking to ignore? What are the driving conditions? The requesting doctor knows none of those things.   A request for an urgent response means ‘as soon as you can safely get here’ but it can’t be a binding direction.
2. Will the doctor’s request mean that the paramedic isn’t liable if there is an accident? No. The driver of the ambulance is the person responsible for how that ambulance is managed in traffic.  If there is a collision or if, at the end of the day, the police (or magistrate, or judge, or court of appeal or High Court of Australia) think that in the circumstances r 281 did not apply, then it is the driver who will pay the fine, or worse.
3. Will the doctor’s request mean that the paramedic or ambulance service isn’t liable to pay damages to anyone injured in an accident? Again the answer is ‘no’. It is the driver who must take ‘reasonable care’ and no-one can relieve him or her of that obligation.  The paramedic is not the doctor’s servant acting under the doctor’s direction or control.

Conclusion

The status of the doctor’s request that an ambulance attend as a matter of urgency is just one factor to be taken into account in deciding, in any given case, whether or not response driving is justified and, if it is, whether the application of any particular rule should be waived.   The doctor’s request for an urgent response in no way relieves either the ambulance service, or the paramedic driver from the need to consider the particular circumstances and whether or not response driving is ‘reasonable’.

I have previously commented on the case of the RFS volunteers who has been charged following a fatal collision between an RFS appliance and another car (see Tragic outcome from RFS response (April 4, 2013)).   The trial has now commenced in the District Court of New South Wales; see:

• Daniel McCulloch, ‘Sydney firie’s U-turn dangerous: court’ 7News Online, May 18, 2016
• ‘RFS Volunteer in Court’ 7News video via Facebook.

Of course I make no comment on the merits of the prosecution or the Crown case, they will be matters for the jury but no doubt the outcome will be a matter of great interest to those in the emergency services.

A reminder that the decision of a jury in a criminal trial, whatever they decide, does not create a ‘precedent’.  Juries determine the facts of the case but do not make decisions on law.  The facts of each case are different so whether this jury finds the accused guilty, or not guilty, it will not be relevant to the next driver who is involved in a fatal collision.

No doubt there will be more to report on this case when the trial has concluded and the jurors have returned their verdict.

I am a physiotherapist / first aider at Athletic events and I’d like to ask a few queries?

1. Should a person be assessed prior to giving ice out? I think the answer is yes.
2. Should we be keeping detailed notes for each person who presents not just the minimum? Again I think the answer is yes.
3. How do we cover ourselves for verbal advice given, be it to follow up or to not compete? Write it and get them to sign and you sign and another witnesses? Normally you have two signatures but what if only one person is working?
4. Do you recommend some good pro-forma for noting down findings/ assessment and treatment given?
5. Last but certainly not least; should the AED be noted as to its location for each and every event? Currently it could be locked away, it could be at the warm up track or at the main stadium. It is of no fixed abode or easy to access or locate. I realise security for a $3000 piece of equipment is the underlying issue but I find it worrisome.
6. Are the same laws applicable in NZ?

These questions are too specific to answer effectively here.  The answer in each case will depend on the circumstances in which the first aid is being provided,  the types of injuries that might arise etc.  This requires particular advice based on the particular circumstances rather than a discussion here.  In very general terms:

1. I think I have previously answered this – see Don’t be bullied into inappropriate first aid treatment (November 14, 2015).
2. This is a question of risk assessment. The more complex the issue the more detailed the notes but taking detailed notes takes time, they need to be stored and retrievable and what really is the risk?  In any event, see Completing paramedic case records (September 3, 2015) and First aid patient records – who and what are they for? (January 31, 2015).
3. One should try to keep contemporaneous notes of the discussions and advice. Whether you can get the person to sign is an issue in each case.  Certainly ambulance services have forms for patients who decline treatment and they ask them to sign those forms, but of course the person doesn’t have to.  There is no ‘rule’ that you have to have multiple witnesses or indeed any.   Again consider what are the records for, and what is the risk.
4. No I can’t recommend a particular ‘pro forma’.
5. Again it’s a question of risk – who’s going to use it and what processes are in place to call for it? If people don’t know where the AED is or how to access it then there is no point having one.  There should be some way to get it, or summons it; but as for how that is managed at a  particular event or venue that again requires specific advice.
6. No, the law in Australia is not the same as in New Zealand, in particular New Zealand has the Accident Compensation Commission which provides no fault personal injuries compensation. A person cannot sue another for negligently inflicted injuries so issues of negligence law are not directly applicable in that jurisdiction.

I have previously written about how the law might view limitations on a registered health practitioner’s ability to treat people when they are working for a volunteer health organization.  See:

• Doctor as volunteer Life Saver and scope of practice (February 6, 2015);
• ALS Paramedic as volunteer with St John (WA) (April 5, 2014);
• ‘Just Ridiculous’? When is a MICA Paramedic a MICA Paramedic? (March 28, 2013); and
• Volunteer nurses and their skills (December 12, 2012).

See also:

• Good Samaritan legislation and scope of practice (March 27, 2015);
• Treatment outside the protocol (April 2, 2012); and
• Medical care and medical emergencies (December 30, 2012).

Those posts all deal with qualified health professionals – medical practitioners, nurses and paramedics – but what of students?  A first year medical student and a volunteer with St John (WA) can see the potential for role conflict and asks:

… a question about the responsibilities of student doctors who volunteer with St John Ambulance (WA) (“SJA”). All members are required to treat according to their SJA scope of practice and according to the clinical practice guidelines (CPGs) when with SJA.

My understanding is that in the case of doctors SJA cannot discharge them of their responsibility to a patient, and cannot prevent that responsibility from extending beyond what is covered by the CPGs. However, what of student doctors? Obviously the entire premise of being a student doctor is that one eventually becomes a doctor, and so may in some situations may have a greater understanding of a medical situation than can be covered in a CPG.

For example, consider a situation where a complex patient requires attention and the treatment prescribed by the CPGs differs from the ideal management in that case. Would it be permissible for student doctor to rely on the CPGs rather than forming an independent clinical judgement? Would it be permissible to disregard the CPGs in favour of an independent clinical judgement?

There are two types of situations where I see there might be a conflict:

1. Acting expressly against the CPGs: One of our GPGs states that adrenaline auto-injectors “must not be used for treatment of asthma.” There is evidence, however, that adrenaline may be helpful in severe asthmatic cases. One could hypothesize that this requirement is in the CPGs to prevent overzealous use of adrenaline, a drug that requires caution. What is the student doctor, who has come to the decision that adrenaline would be appropriate for this patient, ought to do?
2. Acting outside of scope: In addition to the CPGs, we have a skills matrix which outlines the skills that each clinical qualification has access to. For example, no volunteers are permitted to cannulate or administer IV fluids. The equipment is, however, sometimes stocked in our vehicles and kits. Would it be permissible for a student doctor who has been taught cannulation skills, faced with a severely dehydrated patient, to cannulate and begin IV fluids?

In each of these situations assume, for sake of argument, that there is no person better qualified (paramedic, doctor) immediately present, and that it is either inexpedient or impossible to call for clinical advice from an appropriately qualified health practitioner.

Further, if something went wrong in the course of such a treatment, who would be liable? Does St John remain vicariously liable? Many student doctors hold professional indemnity insurance which includes cover for Good Samaritan acts, would they need to rely on this?

This is the sort of question where the answer will depend entirely on the circumstances and, unhelpfully, on the outcome.   Assume at first instance that the student doctor does use an ‘adrenaline auto-injector’ or cannulates and administers IV fluid and in either case saves the patient’s life or at least improves the outcome.  Assume also that in a review the expert medical opinion is that what the student doctor did was entirely appropriate and represented best quality care in the circumstances.  That’s all well and good – even if SJA wanted to counsel the student they would have some difficulty in counselling someone for not following the rules but by so doing, advancing the patient’s best interests.  That’s the sort of conduct that gets a person labelled a ‘hero’ and is portrayed on TV shows (like ‘Chicago Fire’) as being virtuous and putting good practice and best interests above petty rules, but that doesn’t mean there won’t be repercussions.

There is another alternative here, and that that is where the student administers appropriate treatment using appropriate skill but there is still a poor outcome, for example the patient dies, but as a result of their injuries, that is the treatment although appropriate just wasn’t effective. Not everyone can be saved even with the best treatment.  That is not negligence so the legal issues would be the same as if the student does act and there is a good outcome

What if there is a bad outcome because of the student’s decision?  There are, again, two possible alternatives.  The first is that the treatment does improve the patient’s condition, or at least does not make it worse, but on review it is agreed that it was the wrong thing to do and the good outcome was the product of ‘sheer dumb luck’ rather than good practice.  The second alternative is that the patient suffers an adverse outcome, either because the treatment was not in fact called for or even if it was good treatment, it was poorly administered, eg the cannula misses a vein and instead sees the IV fluid pumped into muscle tissue.

The final scenario is where the medical student does not give the treatment he or she thinks is called for in circumstances where the equipment is available and the student believes that he or she would be competent to administer it.  Further, on review, it is found that the student was correct, the treatment was called for and would have, on balance, led to a better outcome for the patient.

We can summarise the scenarios that will be discussed as:

1. The student does act and the action is appropriate and competent, regardless of the outcome;
2. The student does act and there is a bad outcome because the action was either inappropriate or not competently delivered; and
3. The student does not act and there is a bad outcome.

Scenario 1: The student does act and there is a good outcome;

The patient’s not going to sue if they suffered no harm or, better yet, got a better outcome but there could still be repercussions.  First adrenaline is a scheduled drug.  “ADRENALINE in preparations containing 1 per cent or less of adrenaline except in preparations containing 0.02 per cent or less of adrenaline’ is listed in Schedule 3 of the Poisons Standard 2009.  All other preparations of Adrenaline are listed in Schedule 4.

It is an offence for a person who is not authorised to supply scheduled drugs (poisons) – Poisons Act 1964 (WA) s 32(d).    A medical student is not a medical practitioner and we can infer that a student has no authority to supply a scheduled drug.  It follows that ‘supplying’ adrenaline may be an offence.

A student medical practitioner must be registered and is subject to disciplinary proceedings, that is a student can be disciplined or have his or her student registration cancelled if they engage in professional misconduct.  Professional misconduct means:

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

A student doctor is not a doctor so acting contrary to guidelines which the person has agreed to follow and supplying a drug contrary to law might be unprofessional conduct.  On the other hand, administering a drug that is in fact required and in the client’s best interests, in circumstances where the student did not have the opportunity to seek guidance from a more experienced or qualified person and where the judgement was indeed correct, sounds like it is meeting the highest ideals of the profession.   Such action would also be justified by the common law doctrine of ‘necessity’ that justifies action that is, prima facie illegal, if on balance the (illegal) action taken is intended to prevent a serious harm and is proportionate to the harm avoided.  Giving a drug that a person is trained to use, in circumstances where it is warranted in order to save a life (not just because it is convenient or might be ‘nice’) and where the legal problem is a lack of licence, is likely to be accepted as ‘necessary’.

Getting it wrong of course, sounds like a failure to exercise proper judgment and action below that expected of other medical students.

This is how law, and lawyers work.  The lawyer for the Medical Board (if they were seeking to punish the student) would make the arguments in favour of a finding of unprofessional conduct.  The lawyer for the student would make the arguments in favour of the student.  How the disciplinary tribunal would see it would depend on all the circumstances surrounding the student’s knowledge, level of training, thought processes and ultimately what happened.  As I say the legal outcome will depend on the actual outcome, which makes it hard for anyone to predict what would happen.

Scenario 2: The student does act and there is a bad outcome

This has got to be negligence.

The first question is what is the standard of care of the ‘reasonable medical student’?  According to decision of the High Court of Australia in Rogers v Whitaker (1992) 175 CLR 479, [6] ‘The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill.’   A court may well think that a medical student who chooses to go against the CPG’s of the organisation that he or she volunteers for is holding him or herself out as have the skill of a medical practitioner in which case the standard he or she would be judged against is the standard of the ‘reasonable medical practitioner’ not the ‘reasonable medical student’.  (See also Imbree v McNeilly [2008] HCA 40 where the High Court said, in quite a different context, that the standard of care expected from a learner (driver) was that of a reasonable driver: ‘Knowledge of inexperience can thus provide no sufficient foundation for applying different standards of care…’[54]).

The reasonable doctor and even the reasonable medical student is not going to administer treatment that is not warranted by the patient’s condition or do so badly.

Scenario 3: The student does not act and there is a bad outcome.

This is the toughest case.  The patient, or his or her family, are likely to be aggrieved if they believe they, or their loved one, could have benefited from treatment that the student recognised they needed, had the means to administer, but chose not to deliver.  But what could their remedy be?

In the scenario painted by my correspondent they’ve come to the St John first aid post to be treated by St John first aiders.  My correspondent tells me that doctors have the word ‘Doctor’ on their uniform but there is nothing to identify a medical student.  A medical student is not a doctor.  Like a doctor they will have obligations to persons who come into their care but in a clinical placement that is a duty to act subject to supervision rather than entirely on their own initiative (though not doubt their power to exercise their initiative grows with their experience and standing).   There will always be a duty to act in the patient’s best interests but that is limited by the phrase ‘to the best of their ability’.    A medical student who is a volunteer with St John agrees to act in accordance with their clinical practice guidelines and can’t be under a duty to administer treatment that they are not generally authorised to administer on their own initiative.

On the other hand not all treatment requires authority.  Adrenaline may be a scheduled drugs, but there is no law on who can or cannot cannulate or administer non-scheduled IV fluids.  In this case the medical student is there, has the knowledge and the capacity to administer the treatment.  And let us assume the case is extreme and the patient dies but would have been saved if that treatment had been given. In that case the person had come to St John for care so St John owed them a duty of care.  The person administering the care knew what was required, knew they could give the treatment, had the resources to give that treatment in circumstances where the risk to the patient was catastrophic, they could take no further action to protect themselves but the person who was providing the care could take appropriate action.  In the circumstances it would be reasonably easy to argue that the failure to give that treatment was negligent.

St John doesn’t really have the capability to assess each person’s skills, rather it might accept that a ‘doctor’ has certain skills that a first aider does not, but medical students range from those in their first week of study to those in their last week.  Trying to work out when they acquire particular skills seems impracticable.  And a policy that says ‘administer treatment you think you are competent in’ is hardly reasonable as that would invite people to say ‘well I looked it up on Google and thought I could do it’.  So it would also be possible to argue that a policy banning everyone other than a registered nurse, doctor or paramedic (when they are registered) from performing certain treatments is quite a reasonable response to the various risks that could occur with untrained people applying treatment.

There may be cases where it is appropriate for a medical student to go beyond first aid, a senior student, in a remote area who can cannulate a patient who will otherwise dehydrate is in a different position to a student at a first aid post in an urban centre with an ambulance 10 minutes away.    Even in that urban environment there are things that a medical student can and should do that perhaps a first aider may not.  The medical student may well recognise that a case is more complex than others and so may be the one who says ‘we need to call an ambulance for this person’ when first aiders may think the person can be treated in the first aid post.  The medical student who gives the handover to paramedics as he or she is able to explain the circumstances and the signs and symptoms that cause them to suspect that certain treatments are required.

As always the answer to what should the student do will come down to what is ‘reasonable’.  What’s going to happen with no action?  What could happen if the action is wrong?  What alternatives are there?  Would waiting for an ambulance make a critical difference (it might in remote WA, less likely in urban Perth) etc.  How experienced is the student? How certain are they of their diagnosis, prognosis and treatment decision?  A medical student would, I suggest, want to be very sure that the decision they were going to make was necessary to save the patient’s life, not just convenient or even optimal.  It should not be ‘but this is what we’d do in hospital’ because he or she is not in a hospital.

Who would be liable

The person who comes to a St John first aid post is looking for help from St John Ambulance, not from the particular members on duty.  St John is representing by its corporate badging, both on the post and on the members’ uniforms that they are St John.  If the members are negligent then it would be St John that would be liable for the sub-standard care that the patient receives at the hands of ‘St John’.  They would be entitled to seek any remedy from St John.

St John would not normally seek recompense from its volunteers partly because they couldn’t afford it and St John, like any organisation that depends on volunteers, must realise that to do so would mean that tomorrow there would be no volunteers.  Where the volunteer does carry private insurance however, the St John insurer (rather than St John) may well take a economic view that it would like to shift its losses to the other insurer so that might happen. The presence of insurance will no doubt increase the chances of being sued (see Insurance for first aiders (August 13, 2014)).

I presume personal indemnity insurance for medical students is a condition of their student registration.  Insurers would extend that to ‘good Samaritan’ acts because it sounds good whilst being virtually no risk.  To be a good Samaritan however is to provide emergency care without expectation of fee or reward.  I have argued elsewhere that I don’t think those Acts are intended to apply to members of an organisation like St John who are in uniform, holding themselves out as experts in first aid and where both St John and the members do get a reward for their service (see Who to treat? A question for St John first aiders (June 30, 2013)).  The more interesting question would be whether or not the insurance medical students have does actually apply if they are volunteering for a service like St John.  I imagine it would but one would need to see the exact terms of the policy.

Conclusion

In earlier posts I’ve discussed restrictions on medical practitioners, nurses and paramedics.  I have argued that those professionals should not be restrained from providing care that they know is required, they are trained to provide and where they have the resource available.  To do so would be to fail to act in the patient’s best interests and fail to allow that professional to meet his or her professional obligations.  If the agency insists that a health professional does not provide care to the best of his or her ability, consistently with their professional standards and the expectations of their peers, then the health professional should reconsider their volunteering.  In all those discussions I was working on the premise that the care the health professional wanted to provide was warranted and was delivered with proper professional competence.

This discussion raised a new issue – the student health professional.  There were 3 scenarios raised:

1. The student does act and the action is appropriate and competent, regardless of the outcome;
2. The student does act and there is a bad outcome because the action was either inappropriate or not competently delivered; and
3. The student does not act and there is a bad outcome.

In each case there could be legal consequences for the student.   The critical issue is that although a medical student may have knowledge and skills, a medical student is not a medical practitioner.  They will still owe duties to those that come into their care consistent with the professional expectations of their peers, but that is still to be a student, not a doctor.

One cannot give a definitive answer.  As noted at the start, this is the sort of question where the answer will depend entirely on the circumstances and, unhelpfully, on the outcome.   A medical student, like any St John first aider or doctor, has to ask, fundamentally ‘what can I do that is in this patient’s best interests?’   If they genuinely believe the patient will die or suffer serious and permanent complications without their intervention and they feel competent to perform that intervention and are sure that it is required, then I think anyone would expect them to act.  Refusing to act because ‘St John says I can’t but I know what to do and know that the person will die if I don’t’ (and they do in fact die) is never going to go down well, but most courts would accept ‘I applied my advanced knowledge, I knew the circumstances were dire and this was the best and only option’ and if that is confirmed by post-event opinion, then that is likely to be accepted as both reasonable and justified – certainly if the patient survives but even if they do not.

If, on the other hand, the thought process is ‘well the optimal treatment that we’ve talked about in class is ‘x’, but we don’t do that here, but I could because it would be ‘nice’; or I could wait for an ambulance which is nearby and it won’t really make any difference to the outcome’ then I think no-one would expect the medical student to act.  Between those two extremes are an infinite number of variables.

A correspondent has drawn my attention to a program introduced on Radio National’s ‘Breakfast’ on 6 May (http://www.abc.net.au/radionational/programs/breakfast/background-briefing:-silencing-public-servants/7389700) and then broadcast on ‘Background Briefing’ (May 8 and May 10).   I haven’t listened to the full program but I have read the cases that they were discussing, that is Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370 and Starr v Department of Human Services [2016] FWC 1460.    In both cases the applicants (Gaynor and Starr, respectively) were dismissed from their jobs because of comments that they made on social media in their private capacities but in both cases when it was clear, and admitted that, in Gaynor’s case he was a member of the Australian Army Reserve and formally a full time soldier, and in Starr’s case that he was an employee of Centrelink.   In both cases the tribunal (the Federal Court and the Fair Work Commission respectively) determined that the termination of employment was not appropriate.

The reason this has been brought to my attention was to ask whether it had implications for emergency service volunteers, ie members of a uniformed organisation who might take to social media to make comments both about matters of social interest generally, or issues relating to their service in particular.  (For related discussions see

• Political discussion on a NSW RFS closed Facebook Group (April 14, 2016);
• ‘Views expressed are my own’ – a useful disclaimer on social media? (February 15, 2016)).

Linking these decisions with volunteers and their rights isn’t obvious.  The difference is that these people were employees and there really is a difference between employees and volunteers but there will be some relevant overlap.

Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370

Major Gaynor was a decorated army officer who had served in Iraq and Afghanistan.  He had transferred to the Army Reserve and been promoted to the rank of Major.  He embarked on a short lived political career nominating as a candidate for ‘Katter’s Australian Party’.   On a variety of social media sites (Facebook, Twitter, websites etc) he made comments where he was critical of the ADF’s moves to effect cultural change by inter alia, opening combat positions to women and allowing ADF members to march in uniform in the Sydney Gay and Lesbian Mardi Gras parade.  He expressed views that criticised both defence and the Australian government policies in Afghanistan and to allowing Muslim believers to enter Australia.     In those posts it was apparent that he remained a member of the ADF but in a reserve, rather than full time capacity.

Without going into all the details (of a 125-page judgment) Buchanan J found (at [277]):

…  the applicant’s commission was, in substance, terminated for two reasons.  The first was that he made public comments critical of the ADF while a member of the ADF.  Those comments were in contravention of Defence instructions but much more important to their assessment was their tone and content, which was viewed within the ADF, and by CDF, as wholly unacceptable.  The second reason was the applicant’s defiance of direct orders by his superiors, a circumstance which is anathema in military service.

This all occurred at the time of various scandals within the ADF and the then CDF’s famous speech on ‘the standard you walk past is the standard you accept’.  In dealing with the matter the CDF told Major Gaynor ([145]) that he, the CDF:

… was less interested in whether any “technical” breach of specific instructions had occurred and would place greater weight on whether the public comments revealed inappropriate attitudes and intolerance contrary to current ADF policies and demonstrated an irreconcilable conflict.

The beliefs expressed by Major Gaynor were, in the CDF’s view, incompatible with continued service in the ADF.

Major Gaynor challenged the decision to terminate his commission on many grounds to do with procedural fairness and the ability of the Army to issue orders that applied when he was not on duty and not in uniform.  The court rejected all of those grounds.  The court accepted however that service in the ADF did not deny a citizen the right to hold, and express, political views.   The Australian Constitution established a representative democracy so to allow that to function people have to be able to express their political views.   His Honour traced the case law on the implied freedom of political communication and said that there were three questions to be answered (see [240]).  They are:

1. Does the law effectively burden the freedom of communication?
2. If “yes”, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the … system of representative government?
3. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? This question involves a “proportionality test” to determine whether the restriction on freed political speech is justified.

Major Gaynor was terminated for the expression of views on matters of politics, at [248] Buchanan J said:

The subject matter of the applicant’s comments are ones upon which many people may differ for reasons of religion, morality, social conscience or practical politics.  I do not accept the suggestion … that some matters fell outside the field of political discourse.  They cannot be seen as falling outside, or even at the fringe of, political discourse.  The better view, it seems to me, is that they were all within that field of discourse, even when directed at personal insult or condemnation…  Even in that case, it appears to me that the applicant was attempting to make a public statement of a political kind.

So the termination, or the attempt to direct Major Gaynor to refrain from making such statements, was a burden on the freedom of political communication.  The need to maintain discipline within the ADF meant that the action of the CDF was to achieve a legitimate purpose but it was not, in his honour’s view a proportionate response.  At [285], [287] and [289] he said:

In my view, the burden on the exercise by the applicant of his freedom of political communication was considerable …  I cannot accept that the right to exercise that freedom was lost only because the applicant remained a member of the ADF  …

Membership of the ADF, while on service in one form or another, undoubtedly carries with it obligations of obedience to lawful commands, and all the rigour and restrictions of military service but it does not seem to me that it extinguishes either freedom of belief or, while free from military discipline, freedom of expression.  It may be the case that members of a full time regular service are rarely (if ever) free to publicly express opinions against the policies of the ADF or the decisions of their superiors but the same cannot always be said about members of Reserves.  Such persons are often not on duty.  They are private citizens, in substance, when not on duty and not in uniform… In my view, their freedom of political communication cannot be burdened at those times…

I conclude that the applicant’s commission was terminated because of the publication of his private views about political matters.  The fact that those publications were at variance with ADF or government policy, or were in terms of which some may strongly disapprove, or were critical of ADF policies or instructions, does not appear to me to be sufficiently connected with any legitimate legislative aim to displace the freedom of political communication implied in the Constitution.

The ADF has appealed this decision (Chief of the Defence Force v Gaynor [2016] FCA 311).

Starr v Department of Human Services [2016] FWC 1460

Mr Starr was an employee of the Department of Human Services (Centrelink) and had been for over 21 years.  He also engaged in discussion over many years on social media using a pseudonym.  On some of those discussions issues of Centrelink and government policy and action had been discussed and he had joined in those discussions, at time admitting that he was an employee of Centrelink.  Various criticisms of Centrelink and the government came to the attention of superior officers and his employment was terminated on the basis that his actions were contrary to the Public Service Code of Conduct and specific social media policies.   Some of his comments were particularly inappropriate, referring to Centrelink clients as ‘spastics and junkies’.

Mr Starr, having had the various policies brought to his attention admitted that his conduct did constitute valid grounds for dismissal but he sought a ruling that the dismissal was ‘unfair’.   Vice President Hatcher in the Fair Work Commission agreed. Many of the grounds for termination could not be justified, in particular one complaint was that he was bringing the social media team into disrepute when he kept pointing out that the information they were providing was indeed wrong.  It could hardly be grounds for dismissal if Centrelink was putting out information that they must have wanted people to know, but it was in fact and in law, wrong so another member sought to correct it!

The decision to dismiss failed to take into account Mr Starr’s many years of excellent service, there was no evidence that his criticism of Centerlink or its clients in any way affected his work or the way he dealt with clients which had been exemplary, he had taken steps to remove the offensive posts, there was no evidence that he intended to damage the reputation of Centrelink (the allegation that his use of a pseudonym was evidence of his knowledge and intention was rejected as he’d been using that for many years before any of the comments that were the subject of the complaint).

Discussion

So what’s the implication for volunteers who want to put comments on social media?  Like Major Gaynor volunteers agree to be part of an organisation and are subject to its discipline and authority (albeit not to the same extent a soldier is).   Like Major Gaynor’s reserve service, that membership is ‘part time’ and when members are off duty and out of uniform they retain the right to hold and express political views.    It is essential in a democracy that people are able to express them so people are free to express their views even if they are critical of the service to which they belong and even if it is apparent that they are members of the relevant service but not perhaps if they ‘tie’ their comments to that service or make those comments when serving.  A person who is identified as a member of the RFS could make comments on his or her web page, but not to the media on the fire ground when part of a strike force.

The most obvious exemplar is of course the former Prime Minister and still serving Member of the House of Representatives, Tony Abott.  He is a well-known member of the RFS and also, clearly political. But I’ve never seen him attempt to link the two even when news media took photos of him in his RFS uniform.  I don’t suppose he was overtly critical of the RFS when he was Prime Minister but even so he was clearly expressing political views and was a known member of the RFS.  The RFS couldn’t do anything to stop him on the basis that he was somehow linked to the RFS, but it might well have done so if, say, during an election he was seen wearing his RFS uniform to the polling place or when giving a political speech.

As for Starr’s case, that doesn’t say much given Mr Starr did admit his action did give grounds for dismissal.   Further the court noted that governments have more control over public servants than perhaps other employers.  Volunteers with the emergency services are not public servants even if they do volunteer for government agencies, but one can still imagine that a career in the RFS may be short lived if a volunteer were to get online after a fire and be critical of home owners that stayed to defend and used pejorative terms to describe them.

Finally employees really do have more rights than volunteers.  The law is concerned, perhaps over concerned, with economic interests and employment and the associated payment of a salary is important.  Volunteers can’t go to the Fair Work Commission and may have limited chances of a remedy if their volunteer service is terminated (see Natural Justice and the SES (September 28, 2015)).  If you volunteer to join an organisation and you don’t like its management or its policies, you’re free to stop volunteering in a way that an employee is not so free to stop working there.   It means the decision to terminate a volunteer’s service may not need quite the same balance as the decision to terminate a person’s employment and all that comes with having a job and an income.

Conclusion

One can’t really draw too much from these cases to volunteers.  I have no specific case where a volunteer has been disciplined for speaking out on social media with which to draw parallels.  The inference is that just because one is a member of an emergency service one retains the right to have political views and take part in the political process.  What is permissible, as in so many cases, is really a question of context and proportion.  Expressing views, even critical views, is ok but deliberately doing that whilst subject to the discipline of the service, ie when in uniform and on duty, is not.  The problem in Gaynor’s case was that the real issue for the ADF was that he was a member of the ADF, not that he did what he did when in uniform and on duty.  That was not enough for the court.  One might expect a similar result for a volunteer.

I don’t think that is inconsistent with my discussion in Political discussion on a NSW RFS closed Facebook Group (April 14, 2016).  In that case membership of the group was intended to be for RFS members so by virtue of being in that group one was, in effect, putting on the uniform, and therefore subject to the RFS service standards.

The issue for Starr’s case was the failure to properly balance the mitigating factors.  It says little about what can be said, but I suppose a volunteer with 21 years exemplary service might not expect to be terminated if he or she says something to the detriment of the service but which, on balance, is better dealt with by alternative means.  The volunteer, however, can’t go to the Fair Work Commission to have the issue tested.

The Senate has been dissolved to allow for the forthcoming federal election.  As part of the finalisation of Senate business, the Constitutional and Legal Affairs Committee handed down it’s report into the ‘Establishment of a national registration system for Australian paramedics to improve and ensure patient and community safety’.  The committee recommended:

1. That the paramedic profession be nationally registered and accredited throughout Australia, and that such a scheme give consideration to ‘grandparenting’ arrangements for current paramedics, while ensuring that they meet the agreed professional standards.
2. The establishment of a paramedic board, operating in conjunction with the National Registration and Accreditation Scheme (NRAS) and administered by the Australian Health Practitioner Regulation Agency (AHPRA); and.
3. That all Australian states and territories participate in a national registration and accreditation system for paramedics.

That is, they recommended that the paramedic profession join the other 14 registered health professionals which will bring such things as protection of title, transferable qualifications and the ability of the profession to determine standards of practice through the yet to be established Paramedic Board.

The recommendations of the Committee are not binding, and it has already been noted that the Council of Australian Governments had also recommended national registration (see National Registration for Paramedics – or perhaps not (November 6, 2015)).  The important aspect of this recommendation is that it will bring pressure onto NSW, which is the only state currently resisting national registration, to join the scheme and make it truly national.   Whether that will happen remains to be seen.

You can download the final report here.

This is a complex question from NSW

I have a question about when brigades attend a grass or bush fire, they are to deal with that fire to mitigate fire activity. So I pose this scenario as the legalities.

A RFS brigade is responded to a fire and the fire is in a safe assessable area where the brigade can extinguish the fire and the emergency is over. They request permission from the paid duty officer to extend the fire to ‘tidy up the fire’, making it larger and possible environmental damage and do so.

The question is if permission is sought from the duty officer to extend the fire, to take out an area to reduce further future fire activity, would it be

1)         A permissible action by the duty officer to give permission to extend the fire and would it be legal?

2)         Be an illegal hazard reduction, due to the emergency not existing, that brigades are in attendance with no threat to people and property?

3)         Does the brigade officer have authority under the act to complete these extensions to the fire without authority of the duty officer?

4)         Should the Environment Protection Act also be encompassed in some sort of decision making process as to actually increasing the size of the fire?

I pose these questions as paid staff have made comment about extending fire as being illegal hazard reductions.

I’ll rephrase that question to make clear what I understand it is about as that will also make clear what questions I’m answering. What I infer from this is that in some circumstances the RFS will turn out to a bushfire and, rather than extinguish it, they’ll allow it to burn perhaps even adding ignition points, in order to take advantage of the unplanned fire to gain a hazard reduction benefit.  The question is, ‘is that legal?’

It is well understood that conducting a hazard reduction burn takes significant planning to ensure that firefighting resources in place to minimize the risk of escape, that the weather is favourable both to control the burn and to limit the risk to others from smoke and fire, that appropriate notices are served, that consideration is given to potential damage to the environment including important environmental assets such as habitats and water courses.   An unplanned fire, by definition, occurs but even so it can have a hazard reduction benefit by reducing fuel loads.   There is a concern that taking steps to fight every fire does lead to a build-up of fuel and creates a risk for later mega-fires.

Turning then to the questions and assumptions, above. The first thing to note is that the Rural Fires Act 1997 (NSW) does not say that the RFS is required to extinguish every fire it goes to.  One of the functions of the Rural Fire Service is to ‘provide rural fire services’ (s 9(1)). Rural Fire Services include ‘services for the prevention, mitigation and suppression of fires in rural fire districts’ (s 9(4)).   Supressing fires is a function of the RFS but not surprisingly the Act doesn’t say that they have to supress all fires, because if it did it would be setting them up to fail – they simply can’t extinguish all fires.   Services for ‘mitigation’ is also a function of the RFS and this covers hazard mitigation work (see Rural Fires Act 1997 (NSW) Part 4).

For bushfire hazard reduction work there generally needs to be in place a bushfire hazard reduction certificate (s 100D).  Further “Part 5 of the Environmental Planning and Assessment Act 1979 does not apply to or in respect of managed bush fire hazard reduction work carried out on land other than excluded land if: (a) the work is carried out in accordance with a bush fire risk management plan that applies to the land… (s 100C).   Further:

(1) Before a certifying authority carries out any bush fire hazard reduction work on land, the certifying authority must certify:

(a) that a bush fire risk management plan applies to the land, and

(b) that the certifying authority has taken into consideration the provisions of any bush fire code applying to the land and determined which of them should be complied with in carrying out the work and whether any conditions should be imposed having regard to any provisions of that code, and

(c) if the certifying authority is a local authority or a public authority, that the notice will be given to the fire control officer for the district in which the land is situated before the work is carried out and to any other person prescribed by the regulations.

The “certifying authority” for fire hazard reduction work to be carried out by the RFS is the Commissioner of the RFS (s 100E(2)).

It stands to reason that, except in the most bizarre set of circumstances, where there is an unplanned fire it will not be burning in accordance with the terms of any certificate or bushfire risk management plan, nor has the Commissioner of the Rural Fire Service taken into account the terms of any bush fire code applying to that land.

There are provisions that require that a person seeking to conduct a hazard reduction burn must have an appropriate bush fire hazard reduction certificate and must also give notice of the fire (s 86). During a declared bush fire danger period the person must also have a fire permit (s 87).  Neither s 86 nor 87 apply to the Rural Fire Service if it is lighting a fire for the purposes of ‘back burning’ (ss 86(2) and 87(2)).  Back burning “means the application of fire to combustible matter so as to provide a fire break to control or suppress a fire or protect persons, property or the environment from an existing or imminent danger arising out of a fire, incident or other emergency” (s 4).

Discussion

Hazard reduction burns are dangerous.  Because of that there are extensive provisions in place regarding the development of plans and the issue of notices.  The complexity involved in their planning means that often areas that are the subject of a planned burn cannot be burned for a long time (see for example, the discussion in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation And Land Management [2012] WASCA 79 discussed in No liability for damage to grapes caused by WA hazard reduction burn (April 25, 2012)).   Taking advantage of a naturally occurring wildfire to obtain a hazard reduction benefit, without going through all that planning process must be an attractive option but it still carries risks to people, the property and the environment.

In my view the legality of the situation will really turn on the difference between ‘action’ and ‘omission’ and what is intended.   If the fire is simply allowed to burn, that can’t be an unlawful action as the RFS didn’t light the fire and they aren’t under an obligation to extinguish every fire.  This is an ‘act of omission’, in this case the RFS are simply doing nothing.    An authority is only liable for an act of omission if there was some legal duty to do something, and as noted the RFS Act doesn’t say that the RFS has to extinguish all fires and the common law has also found no duty to take positive action (see Liability for fire – a review of earlier posts (January 8, 2016)).  Merely allowing the fire to burn without regard to risks to others could well be negligent because of the unique position of the RFS as the control authority, the limited ability of people to step in and fight the fire if the RFS won’t and the RFS knowledge of the risks.  The RFS would have to think about the risk to lives, property, and the environment so there could be negligence if they simply allowed a fire to burn but I can’t see that it would be contrary to the legislation surrounding hazard reduction burns.

If the RFS adds to the fire that is by setting fire to fuel around the fire, that is take positive steps with the effect of ‘actually increasing the size of the fire’ that would seem to be a breach.   If they are setting fires for the purposes of hazard reduction they need to comply with all the relevant provisions, the mere fact that there is already a fire burning there does not change the obligation to plan for a hazard reduction burn.  There may be limited liability for failing to extinguish a fire, but liability for the escape of a fire that is deliberately lit is quite strict (see Burnie Port Authority v General Jones (1994) 179 CLR 520).   It follows that if the intention is to simply by pass the normal planning processes to take advantage of a naturally occurring wildfire by adding to that fire by further ignition, that would be inconsistent with the Rural Fires Act and the need for planning for hazard reduction burns.

If, on the other hand, the intention behind lighting the further fires is to back burn, that is to use fire to ‘control or suppress a fire or protect persons, property or the environment from an existing or imminent danger arising out of a fire’ that is permissible.  The RFS then may set a defensive line at a convenient place and set fires there to stop the fire, and allow the fire to burn to that point with the added bonus that fuel hazards that in less benign conditions may cause a threat, are removed.

The question would really be one of ‘intent’; and that is actual motivation, not just claimed motivation.  Merely saying ‘it’s a back burn’ won’t determine the matter.  Further, ‘pretending’ to set a ‘back burn’ when really intending to take advantage of a hazard reduction opportunity is hardly acting ‘in good faith’ (s 128). To act in good faith is to act honestly.  If one honestly believes that the appropriate response to a fire is a ‘back burn’ and to allow the fire to burn to the area then that’s fine. If one honestly believes that the normal or routine response to the fire would be to take some other action, but if it’s allowed to burn there’s a hazard reduction benefit so a fire will be lit with the real motive of clearing fuel but with the stated motive of a ‘back burn’ that is not honest, and therefore not ‘in good faith’.

Conclusion

Without answering the specific questions asked, it is my view that where a fire is burning, an honest decision to set further ignition as a legitimate back burn, to control the fire, is lawful even if other firefighting options are also available.    Equally allowing the fire to burn rather than putting fire fighters ‘in harm’s way’ can be a legitimate decision.

A decision to set further fires simply to make the fire bigger and take advantage of the fire as a means of unplanned hazard reduction would be contrary to the provisions of the RFS Act.  It is unlawful to conduct hazard reduction burns without complying with the RFS Act and the presence of a naturally occurring fire in the area won’t change that.

A decision to simply let a fire burn, provided due consideration is given to protecting persons and property could well be lawful as it is up to the RFS to determine how it responds to fires.  If the fire did escape and cause damage to private property, a person may well be able to sue the RFS if it can be shown that the decisions were made were not a legitimate decision on how to approach the fire taking into account risk and benefit – that is if the decision to let the fire burn was so unreasonable that no fire authority would think it was a legitimate exercise of the discretion vested in the RFS (see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 discussed in A Question on the ACT Emergency Services Authority Volunteer Charter (April 14, 2016)).

This is a general question from a CFA volunteer but the answers must be applicable across all services.  It is a very general question so it will have a very general answer:

The local CFA brigade is having a few issues with crews turning out without the correctly trained members. For example, the trucks have turned out without properly trained or qualified Crew Leaders or inadequate personnel numbers.  Other members, especially higher ranking members are not seeing any issue with their actions and are dismissing any questions or concerns raised. Whilst these are clear breaches of the CFA’s policies, at what stage could these actions or decisions have legal implications for either the CFA as a whole, the local brigade or the members who made those decisions?

At what stage could these actions or decisions have legal implications?  Well that really depends upon what happens.  Imagine if a fire fighter is killed taking action in the absence of a ‘properly trained or qualified Crew Leader’ – then the question will be would a Crew Leader’s attendance have made a difference and if so why did the crew and the CFA allow the crew to turn out without the appropriate leader.

On the other hand, imagine a crew stand around and let someone die because there was no ‘properly trained or qualified Crew Leader’ present even though the task was easy and they felt and probably were quite competent to attend to it.  It will not be comfortable to say ‘we let someone die because we had to comply with a rule we didn’t think was relevant in the context’.   It is also uncomfortable, but justifiable, to say ‘we let someone die because the risk to our crew was too great’.   For further discussion in particular of the coroner’s response when Scottish firefighters failed to rescue a woman trapped in a disused coal mine in order to comply with the fire services’ standing orders and procedures, see:

• Legal confusion leads to unnecessary death (December 8, 2011);
• Michael Eburn, ‘Enforcing safety with law – implications for incident controllers and fire agencies’ (Keynote). International Association of Wildland Fire, 12th International Wildland Fire Safety Summit, Sydney, 25 October 2012;
• Michael Eburn ‘Emergency services and health and safety’ (2012) 8(1) Crisis Response10-13).

The problem is that whilst an answer may be justifiable in law, it is harder to justify to the media.  The media like to promote fire fighters as ‘heroes’ and rushing in contrary to policy and in the face of danger not only accords with the hero myth, it’s the sort of thing TV responders do all the time so people get rewarded for that sort of action; but are unlikely to get rewarded for taking a cautious approach and saying ‘this was not our emergency, so we stood by until we had the resources we needed to do the job with due regard to our safety, even though that increased the risk to others’.

Further, the media would enjoy it even more if firefighters were willing to say ‘we could have saved the person but were hamstrung by WHS red tape’.  That statement is easy to make at the time because then the person speaking knows the ‘victim’ has died and can believe that had the responders been allowed to act they would have successfully rescued the victim.  That is of course a matter of pure fiction; one can’t have any idea what would have happened and whether or not compliance with the procedures just saved 3 fire fighters that would in fact have died had they attempted to act.  But ‘fire fighters act in accordance with policy and all go home; but couldn’t save innocent victim’ is not a good story.  Fire fighters die trying to be heroes is, I’m afraid, a fantastic story.  And ‘fire fighters die trying to be heroes but are unsupported by heartless central command that didn’t back them up with sufficient resources so that they turned out improperly crewed’ is an even better story.

So what’s the legal answer?  As with everything it comes down to ‘risk assessment’.  At the broad level, we might assume (hope? Trust?) that a risk assessment was done when the relevant policies were written to determine when a crew is ready to turn out, so that includes minimum staffing levels both in numbers and qualifications.   If that’s been done then the policy should say what the CFA intends, and if that is that a crew must not turn out, then say it, and mean it.   It might, on the other hand, mean a crew must not engage in active firefighting but it may be OK to turn out to start a reconnaissance and wait for more fire fighters before actually attacking the fire.   Perhaps there is a discretion in senior officers or ComCen to allow a crew to respond provided there is some review of what tasks they may or may not do.   That too should be in the policy.

The risk assessment, whether it’s at crew, region or state level has to answer ‘what do we do for a fire call if we don’t get sufficient numbers or sufficient numbers of relevantly qualified people?’ and in the cold calm of a non-emergency actually determine what the response to that will be.    And then put that in the policy and then apply the policy – say what you mean; and mean what you say.    That’s not going to deny there will be unpleasant questions when inevitable consequences occur, eg response times are delayed whilst there is a wait for sufficient crew numbers or, a crew at a scene does in fact not take action even if they think they could, but if the policy is well thought out and justifiable, then there will be answers for those unpleasant questions.

A NSW Ambulance paramedic with many years service asks about the transition to degree qualifications.    My correspondent says:

When I joined the NSW Ambulance Service 13 years ago, the requirement was a Diploma of Paramedicine.  This involved an initial induction course of 7 weeks, up to 12 months on road as a probationer, another 3 weeks to do In-service 1, another 2 years on road as a level 2 or intern and then another 3 weeks of In-service 2 which we graduated with our Diploma and deemed qualified as a Paramedic with the NSW Ambulance.  This has now changed with the Paramedic degree as the entry method.  My question is: can I be discriminated against in regards to promotions, Intensive care paramedic placements etc because I don’t have the degree.  I can understand that the degree has its place and that ambulance services in Australia want professional recognition but at the same time, I’m older with family commitments and at this stage of my life I really don’t want to (or have time to) complete a degree or conversion.  How does this all add legally?

The reality is we discriminate all the time.  To discriminate is to ‘Recognize a distinction; differentiate’ (Oxford English Dictionary, online).   There is a difference between a person with a degree and one without, as there is a difference between a person with 13 years on road experience and a person just out of university.

The prohibition on discrimination is that an employer is not allowed to discriminate for any of the prohibited reasons; gender, sexual orientation, marital status etc (see for example Anti-Discrimination Act 1977 (NSW)).   So can a paramedic without a degree be ‘discriminated against’? The answer has to be ‘yes, if it’s relevant’.  If two people are applying for the same position and one has a degree and the other does not then if that’s a relevant distinction that could be grounds for preferring the degree qualified paramedic over the non-degree qualified one.   By the same token the employer may prefer to discriminate in favour of the road experience.

The transition to the degree qualification for paramedics is not unique. Nurses had to go through the same process so there are ‘grandfathering’ provisions to allow non-degree practitioners to continue their work.  For example in NSW it is now an offence for a person to call themselves a paramedic (Health Services Act 1997 (NSW) s 67ZDA and Health Services Regulation 2013 (NSW) s 19A) unless they hold either:

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

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

There are industrial issues here and that’s relevant to how job descriptions and selection criteria are set.  According to the Government Sector Employment Rules 2014 (NSW) the employment of a government employee ‘is to be based on an assessment of the capabilities, experience and knowledge of the person concerned against the pre-established standards for the role to determine the person best suited to the requirements of the role and the needs of the relevant Public Service agency’ (r 16). If the job in question calls for a ‘paramedic’ there should be no discrimination.  If it calls for the person to hold the degree there should be clear reasons why that is essential.   Where the position is with the state service, the Ambulance Service of NSW, a candidate who thinks they have been unfairly treated does have appeal rights (Government Sector Employment Rules 2014 (NSW) r 24).

So my correspondent is entitled to continue to use the title paramedic and one would hope an employer would not discriminate on the basis that there is no degree.  To discriminate on that basis would not breach the anti-discrimination legislation but it may breach the provisions and intention of the Government Sector Employment Act 2013 (NSW) and the Government Sector Employment Rules made under that Act.

This question from a ‘current bachelor of paramedic practice student’ comes in two parts.

Part 1

The Mental Health Act 2007 (NSW) s 20, states that an ambulance officer may take a person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this act.

1. Does this apply even in the case of a minor under the age of 14 who appears to be displaying mental health effects that are deemed to represent a danger to themselves, others or their reputation, even in the case where the guardian makes the decision not to have the child admitted? Between the Mental Health Act and the rights of the guardian which takes precedence?

Part 2

The second part deals with a number of questions related to the Children and Young Persons (Care and Protection) Act 1998 (NSW).  We have been told that medical decisions for children under the age of 14 are the sole domain of the legal guardian. Between 14 and 16 the children have a right to make decisions regarding their healthcare treatment but that the guardians must be notified. Whilst children over the age of 16 have right to both autonomy of decision regarding their treatment and confidential privacy with respect to their health information. Provided this is accurate the questions are below.

1. First is that the definitions of child and young person are defined as under 16yrs and 16-18yrs respectively. Does this have any impact upon the age ranges discussed in the above paragraph of this email which appear to only be in effect under certain circumstances described in chapter 13 of the act? What are the relevant age ranges and associated rights that constitute the precedent for our application of treatment for a minor?
2. Further to this, section 9(2)(a) states that where a child or young person has the ability to form an opinion on their safety, welfare and well-being their views must be given weight. How does this play out when those views are in conflict with the views and wishes of the guardian and/or medical advice? In the context of a paramedic situation on road which party has the final say on the treatment of said minor?
3. Section 174(1) provides that a medical practitioner may carry out emergency medical treatment on a child or young person without the consent of (a) the child or young person, or (b) a parent of the child or young person, if the medical practitioner is of the opinion that it is necessary, as a matter of urgency, to carry out the treatment on the child or young person in order to save his or her life or to prevent serious damage to his or her health. This is further supported by section 175 subsection 2 (a) with respect to cases of special medical treatment.  Does an ambulance officer qualify under the (unspecified) definition of a medical practitioner? The Australian Institute of Health and Welfare’s (AIHW) definition is that a medical practitioner is a person whose primary employment role is to diagnose physical and mental illnesses, disorders and injuries and prescribe medications and treatments that promote or restore good health. Under this definition the argument is that an ambulance officer does qualify and as such, in the case of an illness which is life threatening or has the likelihood of causing serious harm, we have the right to treat a minor with, or against the wishes of the child and/or guardian.

I was hoping you could provide some clarification. Additionally I realise that this email hardly qualifies as a short and succinct and I wanted to thank you in advance for taking the time on any of this, especially when this is simply for the case of my own curiosity and passion.

Well it’s certainly correct that this question or questions is not ‘short and succinct’ but it’s interesting enough.

Part 1.

Section 20 of the Mental Health Act 2007 (NSW) says:

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

(2) An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.

That section makes reference to a ‘person’ not an ‘adult’ or a ‘child’ or a ‘young person’; it is not age specific.   That the Act applies to children is confirmed by s 71 that lists who might be the ‘designated carer’ for a person subject to treatment under the Act.  A designated carer includes the parent of a child or if the child is over 14 a person nominated by them as their designated carer.

So the first answer is

Yes s 20 does apply in the case of a minor under the age of 14 who is mentally ill or ‘mentally disturbed’ (whatever that might mean) and where the paramedic/ambulance officer is of the view that ‘it would be beneficial to the person’s welfare’ for them to be treated under the Act. 

Note that the key criteria for involuntary treatment is that it is required (see ss 14 and 15):

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

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

The Act doesn’t refer to ‘reputation’ but one can imagine that in some circumstances, damage to reputation could be a serious harm.

Does the section apply in the case where the guardian makes the decision not to have the child admitted? Between the Mental Health Act and the rights of the guardian which takes precedence?

Section 20 allows an ambulance officer to transport a patient to a mental health facility, they don’t have to go to the nearest casualty department.   The section doesn’t specifically say that the person can be detained without their consent or even in the face of their objection to treatment but the section has to be read in context.  The section appears in ‘Chapter 3, Part 2 – Involuntary Detention and Treatment in Mental Health Facilities’ and has to be read with s 18 which says

A person may be detained in a declared mental health facility in the following circumstances: … (b) after being brought to the facility by an ambulance officer…

So I think we can safely infer that the section anticipates treatment with consent, treatment in the absence of consent, and treatment in the face of an express refusal, subject always to the criteria for involuntary admission set out in Chapter 3, Part 1 – Requirements for Involuntary Admission, Detention and Treatment and s 68 Principles for care and treatment.

If a parent refuses consent for treatment of their child who is aged under 14, then the normal issues have to be considered.  Is the parent competent and informed?  Are they making the decision in the best interests of the child or for some other reason (Secretary of the Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (‘Marion’s case’))– eg they may want to refuse treatment because it is inconvenient to go to hospital now or they would rather the child was taken to a hospital closer to home?  Is that acting in the child’s best interests or their own?  If the parent is not competent or informed or not acting in the child’s best interests, then there is no valid refusal and both the Act and the doctrine of necessity would justify treatment even in the face of their objection.

If the parent’s do understand the situation and genuinely believe that they are acting in the child’s best interest, the whole point of the Act is to allow, in restricted circumstances, involuntary treatment.  If the paramedic believes that the situation is such that immediate detention and treatment is required, then such action would be justified.  Fundamentally ‘Chapter 3, Part 2 – Involuntary Detention and Treatment in Mental Health Facilities’ is, as the title says, about ‘involuntary’ detention, that is detention where the patient (or their parent) doesn’t want it.

Of course just because a person can be detained doesn’t mean that they should be.  A young person may be mentally ill or mentally disordered but it may be in their best interests to go home with mum and/or dad and seek treatment that way rather than be bundled into an ambulance, perhaps with police involvement and with obvious conflict between the paramedics, police and the parents.  If the parents seem competent and reasonable and have generally taken care of their child, it may be best to leave the matter in the hands of the parents.  That would be consistent with the philosophy of the Act, that ‘people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given’ and ‘any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances’ (s 68).

But if the circumstances of s 20 have been met, which requires an opinion that ‘the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’ (rather than being left in the care of his or her parents) then as between the Mental Health Act and the rights of the guardian it is the Act which prevails.

Part 2

The Minors Property and Contracts Act 1970 (NSW) s 49 says:

(1) Where medical treatment or dental treatment of a minor aged less than sixteen years is carried out with the prior consent of a parent or guardian of the person of the minor, the consent has effect … as if … the minor were aged twenty-one years or upwards and had authorised the giving of the consent.

(2) Where medical treatment or dental treatment of a minor aged fourteen years or upwards is carried out with the prior consent of the minor, his or her consent has effect…  as if … he or she were aged twenty-one years or upwards.

That’s a pretty old fashioned way of saying that if a young person is aged over 14, they can give consent to medical treatment and if they are aged under 16 their parent or guardian can give consent.  It means that where a child is under 14 the parent’s consent is essential, where they are over 16 their own consent is essential and if they are aged between 14 and 16 the consent of either the patient, or their parent, is sufficient.  This also reflects the position at common law

In Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112 Mrs Gillick sought orders to restrain the Area Health Authority from giving contraceptive advice to her 14 year old daughter without first obtaining Mrs Gillick’s consent.  In the Court of Appeal, Parker LJ said:

It must be stated at the outset that Mrs. Gillick’s purpose in bringing the action is to establish the extent of parental rights and duties in respect of girls under 16, for there is not the slightest suggestion that any of her daughters is likely, when under 16, to need contraceptive or abortion advice or treatment much less to seek it and accept it without her knowledge and consent … It is however clear that even in the best of families something may go suddenly and badly wrong and that, if and when it does, a parent may either be unaware of the fact or left with little time in which to act. She has therefore in my opinion ample interest to justify her attempt to establish the extent of her rights and duties…

The court of appeal found that the consent of a child under the age of 16 was no consent.  The matter was taken to the House of Lords.  In the House of Lords, Lord Fraser said:

It is, in my view, contrary to the ordinary experience of mankind, at least in Western Europe in the present century, to say that a child or a young person remains in fact under the complete control of his parents until he attains the definite age of majority, now 18 in the United Kingdom, and that on attaining that age he suddenly acquires independence. In practice most wise parents relax their control gradually as the child develops and encourage him or her to become increasingly independent. Moreover, the degree of parental control actually exercised over a particular child does in practice vary considerably according to his understanding and intelligence and it would, in my opinion, be unrealistic for the courts not to recognise these facts.

He quoted another judgment where Lord Denning put it this way (Hewer v. Bryant [1970] 1 Q.B. 357 at 369):

… the legal right of a parent to the custody of a child ends at the 18th birthday: and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.

Lord Scarman said:

I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.

That is now a general test for competency and a person who has that capacity is often described as being ‘Gillick competent’.

With the Minors Property and Contracts Act 1970 (NSW) the position is that a child over 14 can give consent provided they are ‘Gillick competent’.    For a child under 14 their parents must give consent. Where the child is aged between 14 and 16 the consent of either the child or the parents will suffice but where they disagree, a doctor is faced with a dilemma that we can’t begin to resolve here.

To the specific questions:

1. The Children and Young Persons (Care and Protection) Act 1998 (NSW) makes some provision for the treatment of children.  As my correspondent has noted a child is aged under 16; a young person is aged over 16 but under 18 (s 3).  Those definitions in the Children and Young Persons (Care and Protection) Act 1998 (NSW) make no difference or have no effect on The Minors Property and Contracts Act 1970 (NSW) s 49.
2. How you balance a conflict is difficult. If you want to treat a young person and they agree but their parent’s do not, the young person’s consent is effective.  If the parent’s want you to treat and the young person does not want treatment, the parent’s consent is effective but not if you’re going to have to use force to treat the child or forcing treatment is going to make the matter worse.  Then you have to negotiate with everyone and ultimately make decisions on what is practicable and in the child’s best interests.  There’s no easy answer.
3. Before the current regulation of health practitioners under the Health Practitioner Regulation (Adoption Of National Law) Act 2009 (NSW) there was the Medical Practice Act 1992 (NSW). A person was registered as a ‘medical practitioner’.  Today the Medical Board is ‘Regulating Australia’s medical practitioners’.  The reference to a ‘medical practitioner’ in the Children and Young Persons (Care and Protection) Act 1998 (NSW) s 174 is a reference to a doctor, not a paramedic.

I’ve been doing work on law and emergency services for some time now- the first edition of my book Emergency Law came out in 1999.  The work I’ve done has been in the context of an academic career in a publicly funded institution (first at the University of New England and then the Australian National University).  That work has taken the form of research for publication, funded research and, of course, my blog.  Working in an institution like that has limitations including one can’t give specific legal advice.

To add another string to my bow, I have now joined Blackburn Chambers – a floor of barristers here in Canberra.   As a practising barrister I am now in a position to give specific legal advice on issues involving the emergency services. (This will be in addition to my continued work at the ANU so rest assured, the blog will continue).

So now, for all those that have asked questions that I couldn’t on the blog, I can now offer a professional service.  For enquiries, my new practice email is eburn (at)blackburnchambers.com.au.  (Substitute @ for (at) in that email address, I’m just trying to minimise spam).

I have received versions of this question from two correspondents, which makes me wonder if they are from the same brigade or referring to the same incident?  The question below is a ‘mash up’ of the two messages I received:

Recently a NSW Rural Fire Service tanker was responding to a fire call.  The tanker collided with a another vehicle and was at fault. The driver didn’t leave the truck a didn’t have/or produce their licence.  What are the legal aspects of this? Does the driver of an emergency vehicle have to have their licence with them when attending a call?  If they are involved in an incident are they required to exchange particulars?

The obligations to hold a licence and the various classes of licences are set out in the Road Transport Act 2013 (NSW) and the Road Transport (Driver Licensing) Regulation 2008 (NSW).   Section 53 of the the Road Transport Act 2013 (NSW) s 175 provides that an ‘authorised officer’ may require the driver of a motor vehicle to produce his or her driver licence.   Failure to comply with that demand is an offence punishable by a maximum fine of $2200.

Section 146 makes it an offence if a driver who is involved in a collision fails to ‘stop and give any assistance that may be necessary and that it is in the person’s power to give’.    The maximum penalty for a first offence is a fine of $3300 or 18 months imprisonment, or both.  For a second or subsequent offence the maximum penalty increases to a fine of $5500 and/or 2 years imprisonment.

Rule 287 of the Road Rules 2014 (NSW) says that a driver involved in an accident must give details of:

(a)       their name and address;

(b)       the name and address of the owner of the vehicle;

(c)        the vehicle’s registration number; and

(d)       any other information necessary to identify the vehicle (eg unit and callsign).

to:

(a)       any other driver involved in the crash;

(b)       any person who is injured; and

(c)        the owner of any property damaged in the crash (unless the owner is also the driver).

The driver must, if possible, exchange those details at the scene of the accident but if that is not possible (eg because the injured person is being treated by paramedics and transported to hospital) as soon as possible and generally speaking, within 24 hours.  If you cannot provide those details at the scene, the owner of the vehicle may provide them to other parties.

The driver must also provide those details to the police if:

(a)       anyone is killed or injured in the crash, or

(b)       the driver cannot give their details to any of the people listed above;

(c)        any other driver involved in the crash does not share their details;

(d)       a vehicle involved in the crash is towed or carried away, or

(e)       a police officer asks.

When giving their details to police, a driver is also be required to give to police an explanation of the circumstances of the accident.

In this blog we have often discussed rule 306 of the Road Rules 2014 (NSW) and its equivalent in the other jurisdictions.  That rule says:

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

(a) in the circumstances:

(i) the driver is taking reasonable care, and

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

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

The first thing to note is that the exemption only applies to a ‘provision of these Rules …’ not all law or all traffic law.  The obligations to hold a licence, to produce it to an authorised officer and to stop and render assistance at an accident are all set out in Acts and Regulations other than the Road Rules 2014.  It follows that there is no exemption from those rules discussed above.

Rule 287 is a ‘provision of these Rules’ so could be covered by the exemption in rule 306 but one would have to ask would it ever be reasonable that the rule should not apply?  If a fire appliance or other emergency vehicle is involved in an accident why would it be reasonable not to require the driver to exchange details with other drivers and, in appropriate circumstances, with police?  Even if it was not practicable to exchange those details at the time of the accident, eg if a fire appliance is being driven to a house fire, the fire crew can see the address and see smoke and flames coming from the building and they fear persons are trapped inside. In making their way to the fire they side swipe a parked car.  It may not be ‘practicable’ to stop and exchange details at that point but the rule can still apply, and remember that the rules says if it is not practicable to exchange details they should be provided within 24 hours.

If a person has been injured then the driver has an obligation to stop and render assistance.  They have already taken themselves ‘off line’ so whatever they were going to, they are not going now so how could it be reasonable to exempt the driver from the obligation to provide their details to other drivers and police?

Remember too that if a person is injured, or their property is damaged due to the negligence of another driver they are entitled to seek recompense for their losses. It does not matter that the other driver was driving an emergency vehicle (save that may be relevant to the conduct of whether the driving was ‘reasonable in all the circumstances).  Driving to an emergency does not warrant putting others at risk.  All emergency service vehicles are insured so the obligation to pay does not fall on the driver, it falls on the insurer.  The injured party however has to have information about the driver and the vehicle in order to make his or her claim and it would be quite wrong to fail to give them that information to allow them, or their insurer, to make the relevant claims (see Volunteers and driver’s liability (NSW) (April 5, 2015)).  And that of course goes both ways, so a member of the emergency services injured in the accident needs to know the other driver’s details as does the service that may want to seek compensation for the damage to its appliance.

Conclusion

Does the driver of an emergency vehicle have to have their licence with them when attending a call? 

The law doesn’t actually say that, what it says that the driver has to produce their licence when asked to do so by an authorised officer (which includes a police officer) but it follows that one can only comply with that obligation if they have the licence with them, so the answer is “yes”.

If they are involved in an incident are they required to exchange particulars?

The obligation to exchange details is set out in the Road Rules 2014 (NSW) so there could be an exemption if that was reasonable (r 306) but it’s hard to imagine how that could be reasonable particularly when the rule says that those details must be given at the time of the accident or within 24 hours; so even if the emergency did mean they couldn’t be given immediately they could be given within 24 hours.  Further if someone is injured the emergency services have to stop anyway, so whatever it was they were going to is no longer relevant.

It follows that although it is theoretically possible that in the right circumstances there could be an exemption under r 306, I can’t imagine what those circumstances would be.  In my view, the driver of an emergency vehicle involved in an accident is required to exchange details with other drivers and with police. 

In an earlier post (The risk of liability for performing emergency CPR is overstated – even in the USA (October 7, 2015)) I reported on a report – ‘Strategies to Improve Cardiac Arrest Survival: A Time to Act’ (Institute of Medicine, 2015). That report included this (at p 113-114; emphasis added):

A fear of legal consequences and a lack of familiarity with Good Samaritan laws are frequently cited as reasons for not performing bystander CPR. These fears are not without justification: although a bystander has no legal duty to rescue, there can be legal consequences for intervening.  Theoretically, a member of the public could be sued for providing bystander CPR; however, the committee is unaware of any successful suit of this type. To mitigate the confusion and fear of potential rescuers, CPR instructors are urged to inform trainees of the protections available for lay rescuers in their area.

My friend and colleague Luke Dam has drawn to my attention a US case that may, or may not, confirm that principle – see David Statter, Lawsuit blames Firehouse Subs theme for workers thinking they are rescuers (STATter911 (online), 29 April 2016).   The gist of the story is that staff at a restaurant called ‘Firehouse Subs’ attempted CPR on a choking customer but failed to ensure a clear airway before beginning Expired Air Resusciation (mouth-to-mouth).   The online article quotes a local paper reporting that the deceased’s widow is:

… now suing Firehouse Subs for her husband’s wrongful death, claiming that the firefighting theme made staff brazen enough to try to attempt CPR—instead of waiting for the actual first responders to arrive. The suit accuses franchise owners Doroty and Edvard Dessalines for not training their employees how to treat choking victims.

Statter asks ‘If the workers had waited for the real rescuers to arrive and Mr. Skoff still died, you don’t think there would have been a lawsuit about the employees doing nothing, do you?’

Luke asks ‘I assume with our Good Samaritan laws, this would not happen here?’

Discussion

Let me then discuss some of the issues here.   First, Good Samaritan laws – take the NSW laws as an example.  The Civil Liability Act 2002 (NSW) s 57 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.

(See also Civil Law (Wrongs) Act 2002 (ACT) s 5; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 8; 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).

That does not mean that someone can’t bring a legal action.  The person who, ultimately, has to decide whether s 57 applies is a judge and litigation is the process to bring a case before the judge.  Section 57 creates a defence and a hurdle for the plaintiff to jump but a plaintiff who wanted to argue that the defendants were not good Samaritans (I’ll come back to that) or were not acting in ‘good faith’ can do that.  So s 57, and no doubt the good Samaritan laws in Florida, don’t stop the allegation being made, but they do frame the legal issues the plaintiff has to address.

Would Good Samaritan laws apply here?

The first thing to note is that that the lawsuit is not against the staff.  Accepting what has been reported (noting that we’re relying on a newspaper report and an online report, not the actual court documents) we are told that ‘The suit accuses franchise owners Doroty and Edvard Dessalines for not training their employees how to treat choking victims’; it is not accusing the staff for failing to perform CPR properly.

Are the franchise owners’ good Samaritans?  Using the NSW definition, a good Samaritan is ‘a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured’ (s 56).  The franchise owners didn’t do that so on one view, the Act wouldn’t apply to them.

The alternative argument is that as with all aspects of a business, the business doesn’t operate by the hands of the owners only.  The owners employ people to act on their behalf so when the employees stepped forward, they were ‘the owners’. The franchise may not have had a duty to provide CPR, whilst any business would owe a duty to their customers, they couldn’t just try to work around the dying customer, they duty may require no more than calling 911 (in the US) or triple zero in Australia.  If the owner’s representatives stepped forward to help it makes sense to say that it was the owners who provided CPR and that they too are entitled to good Samaritan protection. That is something the court will have to resolve if it ever gets there (and I doubt it will, see below).

Note that if the staff were trained in first aid and were being paid an allowance to be a workplace first aid officer then they would not be good Samaritans as they would not be acting ‘without expectation of payment’ because they are in fact paid to provide first aid.  That would not change the defendant, under the doctrine of vicarious liability their employer – the franchisees – would still be liable for any negligence (see Vicarious liability for the actions of fire wardens (March 5, 2016) and Queensland paramedics, registration and misunderstanding the law on liability (April 12, 2016)) but it might change the nature of the allegations.

The next issue will be ‘Did the owners need to train someone to provide CPR?’  Again I’m going to use NSW law as my example.  I’ve previously talked about the Work Health and Safety Act requiring that a PCBU (a person conducting a business or undertaking) has to have in place first aid and emergency procedures (Work Health and Safety Regulations 2011 (NSW) rr 42 and 43) which includes having persons trained in first aid (r 42(2)).  I have argued that this may not extend to having in place AEDs (see Liability for failing to install an AED? (April 7, 2016) and Making the installation of AED’s compulsory (September 27, 2015) but CPR does not require any technology and equipment.

So a lawsuit against a PCBU for not having anyone trained in first aid (which I would infer includes CPR) may well be a live issue, but it would still face the problem of trying to show it would have made a difference, ie that even with proper training, and a clear airway, the patient would have survived.  (I suppose ‘choking’ is different to sudden cardiac arrest so that issue may be easier to get over than in other cases).

Will it ever get to court?

I doubt it.  For all the reasons discussed above, and before, this case has bugger all chance of winning.  The plaintiff would have to show that the defendant owed the deceased a duty to actually take action, the action taken was not ‘reasonable’ and that had they acted differently it would have made a different to the outcome. They will also have to deal with the Florida good Samaritan statutes (if any).

That doesn’t mean they won’t get some money.   People involved in the emergency services and emergency response may like to think that it’s all about the principle and that someone should not be liable here, and that the widow should be grateful someone tried something.  And that a successful outcome for the plaintiff puts the defendant’s in an unwinnable position because, as Statter noted, there would be a much better cause of action if the staff had done nothing.

But insurance companies have little interest in principle (see Settlement in Black Saturday litigation is approved (December 23, 2014)).  Their obligation is to maximise return to shareholders and that is by paying out as little as possible.  And paying the plaintiff to go away may cost much less then defending the case.  Further, if they defend it, win or lose, there becomes a precedent that other people can look at.  If the defendants win this one, the next case will be phrased in such a way to avoid the obstacles that get tested here.   IF the defendants lose well that just encourages other.  Settle the case and it disappears. Remember that in this blog I have said that there are no reported cases of people being sued for doing first aid or CPR.  The US report, cited above, also said ‘the committee is unaware of any successful suit of this type’.  If this case settles it disappears into the dust, there is no ‘report’ and the case is not, from an academic lawyers’ point of view ‘successful’ (though not doubt the plaintiff and her lawyers would see it as a success).  If this case does settle, this blog and other writers will still say no-one’s been successfully sued because no court has ruled on the issue and report writes will still be ‘unaware of any successful suit of this type’.

Further insurance companies want to keep the customers happy (within reason).  If they chose to defend it, their customers have to give evidence, and await verdicts.  People pay insurers to make problems go away.  Making a settlement does that and people then say ‘my insurance company was great, they made the problem disappear’.  Of course it depends on the attitude of the insured. If the insured was, say a first aid company, they may well take the view that in a case like this they don’t want to settle in which case they may be pleased that the insurer fought it.  Whilst the ultimate decision does rest with the insurance company, and the bottom line has to be the ultimate issue, the attitude of the insured may certainly be something an insurer wants to consider when deciding whether or not to settle.

Application to Australia

This is a case out of left field.  I would not expect to see such a case run, and even seeing it started is novel.    In Australia we don’t have ‘wrongful death’ suits like the US so I would be very surprised to see a case like this here.  There are other issues here too.  In Australia lawyers are not allowed to charge a percentage of the verdict and lawyers have to give a personal assurance that they think a case brought to court has ‘reasonable prospects of success’ so there is less incentive to speculate in litigation.  That might make it harder to bring a case like this here.  Even so I’m surprised to see it even from the US.

Having said that if my prediction is correct, this case will never see a final hearing.  In the US there are lots of steps to remove hopeless cases (if you watch American legal TV consider a ‘motion to dismiss’).  Cases can get kicked out of court at an early stage if there’s really no chance.  That might happen here but if it’s a single judge of a Florida court it’s not a major precedent.  If the issue moves up the judicial scale it may end up saying something useful about the state of the law.  If the case settles, either with payment to the plaintiff or not, it will not make a difference to the current view that the risks of litigation and liability are very low and it would still be the case of no ‘reported’ decisions on liability for performing CPR.  But perhaps we can no longer say ‘no-one‘ has been sued.

Here’s a quick question, and a quick answer:

I am a paramedic in the private space (Events/Industrial etc).  And would like some advice on what skills we can perform outside a state service.  Are you able to advise on these, either in the blog or paid for.

Paramedicine is an unregulated industry.  You can do whatever you are competent to do.  The only restrictions involves scheduled drugs and that depends on the authority granted to you or your employer.    If the quality of treatment isn’t ‘reasonable’ or if the treatment isn’t ‘reasonably required in the circumstances’ there may be liability in negligence but there is no law that says what paramedics may or may not do; and in states other than South Australia, Tasmania and New South Wales, there is no law on who is a ‘paramedic’.

As noted in the ‘about’ page (https://emergencylaw.wordpress.com/about-2/) ‘This is not a place for providing specific legal advice…’ so that is a general proposition.  If you do want advice on what particular paramedics, with particular skills sets can do when working for a particular provider with reference to their training documents and authorities, then that is advice you have to pay for.   Always happy to discuss that too.

As we know, Australia’s emergency services depend on volunteers.  Volunteers may respond after a day’s work and spend many hours in the field.   Fatigue management has become an important issue in the emergency services but it can have implications on service provision as suggested by my correspondent, a community first responder with the Queensland Ambulance Service.

I’m hoping you are able to provide your opinion regarding a recent imposition of a maximum “10 days in 14” On call constraint by the Queensland Ambulance Service (QAS) imposed on volunteer QAS Community First Responders (FRs) to manage fatigue.

My understanding, from my correspondent, is that QAS has introduced a policy that volunteers must have ‘at least 4 continuous days of no On Call duty in every 14-day period (“10 days in 14”)’.  Further ‘The QAS asserted that this is in accordance with “QAS Operating Procedures” (specifically the QAS First Responder Policy 2007), the Ambulance Service Employees’ Award – State 2012 (“Award”) clause 6.1.5 and the Queensland Ambulance Service – Determination 2013 (“Determination”) Part 4 s19 (g) which specify that “no employee will be placed on-call for more than 10 Days in a continuous 2 week period”.  My correspondent further says

My interpretation is that First Responders are not covered by either the Award or the Determination, and the QAS using these as the argument to impose the “10 days in 14” policy is therefore flawed.

Specifically, my questions are:

1. What legal constraints (including industrial relations laws, duty of care) can be applied to volunteer emergency workers (specifically QAS volunteer First Responders) that limit the hours that a volunteer can be available On Call to respond to emergency calls?
2. Are there any ‘best practice’ methods of managing emergency services volunteers fatigue in an environment similar to that described in this paper?
3. Are there enforced ‘on call’ constraints applied to other volunteer 24×7 emergency services (eg rural firefighters) in Queensland or other states?
4. Ultimately the QAS can simply direct FRs to follow the 10 days in 14 constraint, however would this stand up to community, public, media, legal or coronial scrutiny (and the Queensland “Courier Mail” test) if the resultant reduction in FR coverage contributed to a poor patient outcome?

1. What legal constraints (including industrial relations laws, duty of care) can be applied to volunteer emergency workers (specifically QAS volunteer First Responders) that limit the hours that a volunteer can be available On Call to respond to emergency calls?

Critically the legislation is the Ambulance Services Act 1991 (Qld) and the Work Health and Safety Act 2011 (Qld).

I’m told that ‘QAS first responder volunteers are classified as honorary ambulance officers under section 14(1) of the Ambulance Service Act 1991’.   That section says:

(1) The commissioner may appoint such persons as the commissioner considers appropriate to be honorary ambulance officers.

(2) Honorary ambulance officers—

(a) may carry out, without remuneration, such of the functions of the service as the commissioner may direct; and

(b) are subject to the control and supervision of the commissioner.

The Work Health and Safety Act 2011 (Qld) says at s 19 that ‘A person conducting a business or undertaking [a PCBU] must ensure, so far as is reasonably practicable, the health and safety of’ workers.  The definition of ‘worker’ includes ‘a volunteer’ (s 7).  The fact that a person is a ‘worker’ for the purposes of the Work Health and Safety Act does not make him or her an employee for other purposes.

Fatigue is an important issue for both employees and volunteers in the emergency services – see for example Bushfire CRC, Awake, smoky and hot; Safe Work Australia Guide for Managing the Risk of Fatigue at Work; Queensland  State Emergency Service Fatigue Management and Duty Time Limitations; NSW Rural Fire Service Service Standard 3.1.14 Fatigue Management; NSW Health Fatigue – Preventing & Managing Work Related Fatigue: Guidelines for the NSW Public Health System.

What follows is that a service like QAS has to undertake its own risk assessments and develop control methods to minimise those risks. One of the risks is danger caused by fatigue.  Further the duty to manage to fatigue applies whether the person is an employee or a volunteer.

As noted an honorary officer is ‘subject to the control and supervision of the commissioner’.

It follows that the Commissioner can develop policies to meet the Ambulance Service’s obligations to ensure worker health and safety and honorary ambulance officers are required to comply with those policies.

2. Are there any ‘best practice’ methods of managing emergency services volunteers fatigue in an environment similar to that described in this paper?

I am a lawyer not an expert on fatigue management.  What I would suggest, however, is that there are no doubt a number of approaches that could be adopted.  As the Work Health and Safety Act says a PCBU must manage a risk via a risk assessment that includes ‘the availability and suitability of ways to eliminate or minimise the risk’ (s 18(d)).  For all risks there is more than one way to manage that risk that has to take into account the context of the operations.

3. Are there enforced ‘on call’ constraints applied to other volunteer 24×7 emergency services (eg rural firefighters) in Queensland or other states?

I do not know.

4. Ultimately the QAS can simply direct FRs to follow the 10 days in 14 constraint, however would this stand up to community, public, media, legal or coronial scrutiny (and the Queensland “Courier Mail” test) if the resultant reduction in FR coverage contributed to a poor patient outcome?

It’s true, ‘QAS can simply direct FRs to follow the 10 days in 14’ roster.  Would this stand up to public scrutiny?  I suspect it would.  My correspondent says:

The “10 days in 14” On call constraint has reduced the availability of FRs to be on call by 30%, potentially reducing the response capability of the group (and therefore impacting service delivery capability of the QAS). The constraint does not manage fatigue … and seems to have no purpose other than “tick the box” for QAS. I would argue that reducing First Responder availability without good reason fails to support the QAS Mission and at least two of the strategic objectives for the QAS.

Even if that’s correct attributing any poor outcome, eg a delayed response, to a particular policy would be difficult.  If a coroner was investigating ambulance response times then there may be questions asked, but being asked questions does not mean that there are no acceptable answers.  QAS would rightly say it did have to manage its workforce, including volunteers, and take into account fatigue issues.

The issue will be whether or not QAS have reasons for the implementation of this policy; it does not matter that there are other policy options or some would argue that a different policy would be better.  Provided that QAS can point to reasons behind their policy and their choices, then their choice is open to them (see the discussion on Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and the concept of ‘Wednesbury unreasonableness’ discussed in A Question on the ACT Emergency Services Authority Volunteer Charter (April 14, 2016)).

Whether it would stand up to the Courier Mail depends on how they want to paint it.  If a patient dies and the press want to blame the ambulance service, then no doubt the policy will be subject to criticism.  Equally if a fatigued paramedic dies in a car accident then again the approach will be blamed.  But that’s true no matter what policy is.  When someone dies, the press can always paint a picture to blame whoever they want and blaming government is always more attractive than blaming the patient or the paramedic, or simply recognising that life is not risk free.

Conclusion

I am a lawyer and my blog is on legal issues.  I do not know what best practice of fatigue management is but I can confirm that:

1. QAS has an obligation to manage fatigue issues for workers, which includes paid staff and volunteers.
2. How they do that is a matter, ultimately for the Commissioner. There are, no doubt a number of options or approaches that could be adopted, provided the policy is not ‘so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions’ (Civil Liability Act 2002 (Qld) s 36(2)) then it’s a legitimate exercise of their authority.
3. If a member, such as my correspondent, thinks that the policy is less than ideal the only approach is to advocate for change. There is no legal rule that one can point to to say that the policy is indefensible.

On 7 August 2011 an airport fire appliance was travelling to assist the Northern Territory Fire and Rescue Services when it was involved in a fatal collision (see Airservices Australia to be prosecuted over fatal fire appliance accident in Darwin (January 14, 2015)).  At long last that prosecution has been resolved with Airservices Australia being fined $160 000 in the Federal Court of Australia (Kristy O’Brien ‘Fire truck operator ordered to pay $160k over 2011 Darwin crash that killed three’ ABC News (Online) 22 April 2016; and thank you Luke Dam for bringing this report to my attention).  (Interestingly the ABC Report says that the case was heard by Justice John Reeves, but if you go to the actual judgment, Comcare v Airservices Australia [2016] FCA 418, the judge is named as Justice White.  I’ll assume the transcript from the Court is correct.  References in [square brackets], below, are to numbered paragraphs in White J’s judgement).

In the Federal Court White J accepted that Airservices Australia breached its obligations both to its employees and to others ([1]-[2]) by:

a) failing to train, inform and instruct its employees appropriately in driving on public roads under emergency conditions; and

b) failing to conduct an appropriate risk assessment to identify and subsequently control hazards relating to the task of driving on public roads under emergency conditions.

It should be noted that Airservices Australia never denied its liability.  At [10] White J said:

Airservices admits its contraventions and acknowledges that Comcare is entitled to the relief which it seeks. It did this in the defence which it filed two weeks after the commencement of the proceedings and, therefore, at the earliest practical opportunity. Accordingly, this judgment concerns principally the penalty to be imposed on Airservices.

The Court made a declaration that the conduct of airservies Australia was a breach of the (then) OHS Act.  Such a declaration was required by the Act and had the effect of giving a public statement both to the defendant, and to others, that this conduct is a breach of the Act.  That sort of declaration is to give guidance to others as to what is, or is not, a breach.  The Court made the declaration but then had to consider whether a monetary penalty was also appropriate.  The maximum possible penalty was a fine of $242 000 ([19]-[21], [24]).  Because the defendant was a ‘body corporate’ ([7]-[8]) and not an individual, gaol was never an issue.   (The driver of the fire appliance had been charged with various traffic offences including proceeding through a red traffic light, dangerous driving and dangerous driving causing death but those charges were withdrawn by the Director of Public Prosecutions on 15 November 2012).

What is the point of imposing a fine?  White J (at [27]-[28]) referred to the decision of the High Court of Australia in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA.  In that case

… the plurality (French CJ, Kiefel, Bell, Nettle and Gordon JJ) made two observations concerning civil penalty regimes generally which are pertinent in the present context… The second is that the object of civil penalties is primarily to achieve deterrence. They seek to do so by putting a price on contraventions which is sufficiently high to deter repetition by the contravenor and by others who might be minded to contravene the particular regime in the same way: at [55]. Punishment and retribution are not the purpose of civil penalties …

This means that the penalty the Court imposes must be such as to deter Airservices from further contraventions of the OHS Act and serve as a signal to those in a similar position of the need to comply with their obligations under work, health and safety legislation.

In deciding the penalty the Judge had to weigh up how serious the contraventions by Airservices were, recalling that the contraventions were the failure to provide training, not the seriousness of the actual outcome.  At [51] White J said:

Airservices’ contraventions are objectively serious because it failed to recognise and act on what was plainly a reasonably foreseeable risk and one which, if realised, was capable of producing very grave consequences for its own employees and other road users

On the other hand there were a number of factors that operated in favour of Airservices Australia ([57]-[59]):

Airservices has expressed its sorrow and regret to the surviving victims and their families. It did so long ago and not just in the course of the submissions on penalty to this Court. It is evident that Airservices has conducted itself in relation to the surviving victims and their families with genuine compassion and sorrow. I note that a senior employee of Airservices made a public statement of apology and regret on its behalf at the Coroner’s inquest held in May 2013. It has repeated those statements in the submissions to this Court. I accept these statements as sincere. I note that Airservices has taken a number of steps to give effect to its contrition.

As noted earlier, Airservices admitted at the earlier opportunity the contraventions alleged by Comcare. This was consistent with its expressions of contrition and reflected a willingness to facilitate the course of justice in relation to its contraventions. This is a significant matter of mitigation and by itself warrants a significant reduction in the penalty which would otherwise be appropriate.

Since 7 August 2011, Airservices has addressed, conscientiously and diligently, the deficiencies in its training and risk assessments and has sought to identify any other shortcomings in its equipment and systems. In particular, it has undertaken itself, or has commissioned others to undertake, several investigations and reviews in respect of matters arising from the incident …

Airservices took other action as well. Shortly after 7 August 2011, it informed each State and Territory authority with which it had an MOU that it would not respond to any requests for assistance until it had addressed the issues arising from the incident of 7 August 2011 to its satisfaction. At the same time, Airservices issued an interim direction to all its employees requiring compliance with all road rules at all times, irrespective of whether they were driving on a public road under emergency conditions.

The Northern Territory Coroner conducted an inquest into the incident. Airservices cooperated responsibly and thoroughly with the inquest and has implemented many of the recommendations made by the Coroner in his report.

Airservices has acted in accordance with the recommendations in the reports and reviews it has commissioned… It has developed and implemented an enhanced driver training program involving both theoretical and practical elements which all drivers of its vehicles must undertake; and it has reviewed the configuration and profile of the Rosenbauer Mark 8 vehicles resulting in modifications to improve visibility and recognition, including by repainting all of its ARFFS vehicles a lime green colour.

Finally, I note that Airservices cooperated fully and frankly with all independent investigations concerning the incident on 7 August 2011. I respectfully agree with the following assessment made by the Northern Territory Coroner of Airservices’ response:

There is little doubt that Airservices Australia has responded to this tragedy in a thoughtful, thorough and determined way. The management of that organisation [has] been humble and willing to admit the mistakes that were made and the need for improvement. The gravity with which they view their task is reflected in the number of excellent and detailed reports commissioned on their behalf and then provided without hesitation to the inquest and interested parties.

Weighing everything in the balance, his honour imposed a fine of $160 000.

Comment

This was always a tragic case, and the law has to be applied, but I do wonder to what effect.  As noted by the High Court the point of the penalty is to deter future conduct.  Although I’m not a criminologist I think it can also be taken that deterrence or punishment is most effective if it is reasonably swift.  This fine has been imposed some 4 ½ years after the event. There is no doubt that Airservices Australia took on board the ‘lessons learned’ and have taken action to ensure it doesn’t happen again.  As the judge said (at [68]):

Airservices has responded to the incident of 7 August 2011 in a responsible and conscientious manner. It is not easy to identify what more it could have done by way of facing up to its responsibilities.

If there is not much more that it could have done, what further deterrence does a $160 000 fine provide?

Fining a ‘for profit’ company makes sense because that takes money, ultimately, from the shareholders.  They in turn want to maximise their return so are likely to influence the Board and senior executives on how they want the company to run.  When fining a commonwealth agency the money is taken from one part of the Commonwealth and given to another.   Further, being in the nature of a penalty, it will not come from insurance but from the agencies budget.   As the sister of one of the victims is reported to have said ‘… the money was not going to benefit the family and it was “shifting from one Commonwealth bucket to another”’; and she’s right.  (Compensation to victims is governed by the Motor Accidents Compensation Act (NT) and hopefully claims under that scheme have been resolved.  The difference with compensation schemes however is that they are covered by relevant insurance so the money to pay that compensation would not have come from the budget Airservices Australia had to maintain airport fire fighting and rescue services).

On the other hand, the rule of law is meant to apply equally and exempting the Commonwealth from fines imposed, in effect, by the Commonwealth would not send the right message.  This fine is intended to signal to everyone, government and private sector alike, that there are financial penalties that come with failing to adequately assess and address risks to employees and others.

Given that Airservices Australia has cooperated fully with each inquiry and admitted liability as soon as it was prosecuted, it does beg the question of why it took 4 ½ years to determine penalty.   Presumably some of that delay was occasioned by waiting for coronial processes and for Airservices Australia to complete its own reviews so it could make an informed decision on whether to defend the case or not.  But even so ‘justice delayed is justice denied’ and as evidenced by the response of Airservices Australia, the organisation today is not the same as it was.  It seems unlikely that this fine will make any difference to Airservices Australia’s efforts not to make the same mistake again.