A NSW RFS volunteer likes to wear a hi-vis jacket when turning out, but what’s legal?

I am a volunteer with the NSW RFS and at times ride my motorcycle to incident calls. I sometimes where a high-vis vest for night calls. This vest has black and white chequer striping on it. I was told by a highway sergeant to remove the vest and not where it again as I am impersonating a police officer as blue/black chequered markings are reserved for emergency service vehicles and uniforms only. I can’t find any legislation regarding this and would appreciate a point in the right direction if possible.

It is indeed an offence to impersonate a police officer.  The maximum penalty is 2 years gaol and a fine of 100 penalty units (ie $11 000) or both (Crimes Act 1900 (NSW) s 546D).  To ‘impersonate’ is to ‘Pretend to be (another person) for entertainment or fraud’ (Oxford dictionary, online).   My correspondent was not ‘impersonating a police officer’; there was no attempt to pretend to be a police officer even if there was a risk of confusion.  Impersonation is not the relevant offence.

The relevant offence is set out in the Police Act 1990 (NSW) s 203.  Relevant parts of that section say (emphasis in underline added):

203 Wearing or possession of police uniforms by others

(1) A person (not being a police officer or a special constable appointed under section 82L) who wears or possesses a police uniform is guilty of an offence…

(3) A person (including a police officer) who uses police insignia otherwise than in the course of, and for the purpose of, exercising the functions of a police officer is guilty of an offence…

(5) A person is not guilty of an offence under this section if:…

(c)        the person establishes that the person had a reasonable excuse for the act or omission.

(8) In this section: …

“police insignia” means:

(a) any items (being insignia, emblems, logos, devices, accoutrements and other things) that are generally recognised as pertaining to the NSW Police Force or as being used by police officers, or

(b) any parts of any such items, or

(c) any reasonable imitation of any such items or parts, or …

“police uniform” means the uniform of a police officer, and includes:

(a) any parts of such a uniform (or any accoutrements of a police officer) that are generally recognised as parts of the uniform or accoutrements of a police officer, or

(b) any reasonable imitation of such a uniform, parts of a uniform or accoutrements.

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both

(For a similar offence dealing with the insignia of the other emergency services, see State Emergency and Rescue Management Act 1989 (NSW) s 63B).

Let us assume that it is correct that the blue/white cheque pattern is ‘generally recognised as pertaining to the NSW Police Force’.  This is not, I suspect, an unreasonable assumption as these images captured off the web show:

There is no law that says specifically that ‘blue/black chequered markings are reserved for emergency service vehicles and uniforms only’ but it is still the case that ‘blue/black chequered markings’ may be perceived to be a ‘reasonable imitation’ of a police uniform or insignia.  Whether it would, or not, may be debatable but it is of course easier to avoid the fight than have to persuade a magistrate that there was no ‘reasonable imitation’.

Does my correspondent have a reasonable excuse?  The mere fact that the equipment is being worn for safety purposes whilst riding a motorcycle at night will not be a ‘reasonable excuse’ because there are alternatives.  If it was a ‘reasonable excuse’ a person could wear a police vest but that can’t be right.  The real answer why it’s not a reasonable excuse is because there are indeed standards for hi-vis gear (see http://www.elevenworkwear.com.au/high-visibility-standards; see also https://www.worksafe.vic.gov.au/__data/assets/pdf_file/0014/10157/FINAL_web_ready_file_High_Vis_clothing_design.pdf).  Wearing gear that looks like police chequer-board is not ‘reasonable’ when appropriate day/night vests are cheap and easily available.

Conclusion

It is not expressly provided that wearing a vest with ‘black and white chequer striping on it’ is illegal but it could be if, in the circumstances, it appears as a ‘reasonable imitation’ of insignia used by the police force.   My correspondent has already been put on notice that one police officer thinks that is the case.  The ultimate judge, should the police prosecute, would indeed be the judge (well really a Magistrate). Whether it’s worth having that argument depends on whether my correspondent does think the vest could or might be confused with a police uniform; and how much it might cost to go and buy a new vest.

This question comes from a volunteer with NSW RFS.  In answering this question I make no comment as to whether the RFS is intending to act as suggested.  I just answer the question as asked.

In response to the coronial inquiry into the Wambelong fires the NSW RFS recently announced that they would be hiring more state mitigation crews and increasing their role to include conducting mid week burns in areas with low mid week volunteer availability. When state mitigation crews were first introduced volunteers were promised that they would be used for hazard reduction preparation only and not actual burning. Given this increase in duties it seems like a small logical jump for state mitigation crews to go from conducting HR burns in areas with low midweek availability to being “strategically” deployed to respond to incidents in areas with poor mid week volunteer availability. To this end I was wondering if you could provide your perspective on the following questions:

1. Does the RFS act allow the RFS to employ paid firefighters in what is meant to be a volunteer based firefighting force?
2. What changes if any would be required to RFS service standards to facilitate the use of state mitigation crews as front line firefighters?
3. Is there any requirement for the RFS to consult with volunteers or volunteer representative groups such as the RFSA or VFFA?
4. If used for active firefighting would state mitigation members then be represented by the fire brigades employee union (FBEU) from a union perspective?

1. Does the RFS act allow the RFS to employ paid firefighters in what is meant to be a volunteer based firefighting force?

The RFS Act says nothing about employing paid firefighters. The RFS is made up of ‘the Commissioner and other staff of the Service’ and ‘volunteer rural fire fighters’ (Rural Fires Act 1987 (NSW) s 8).  The reference to volunteer fire fighters doesn’t say that fire fighters can only be volunteers, just that those that are volunteers are members of the RFS.  There is nothing in the Act to suggest that the service cannot have employed firefighters.

There is also nothing in the RFS Act to say that it is, or is intended to be, a ‘volunteer based firefighting force’.  Compare this to the Country Fire Authority Act 1958 (Vic) s 6F which says ‘The Parliament recognises that the Authority is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner’. Even though that provision is there, the CFA does employ career firefighters (see http://www.cfa.vic.gov.au/volunteer-careers/career-firefighting/).

The NSW Rural Fire Service is an executive agency within the Department of Justice (Government Sector Employment Act 2013 (NSW) s 22 and Schedule 1). People may be employed to allow the service to perform its functions (s 21).   It follows that the RFS could employ people as fire fighters should it choose to do so.

2. What changes if any would be required to RFS service standards to facilitate the use of state mitigation crews as front line firefighters?

There are many service standards and they are not readily searchable.  In any event I can’t find one that appears to deal with state mitigation crews.  If changes were required, the Commissioner could make the necessary changes.

3. Is there any requirement for the RFS to consult with volunteers or volunteer representative groups such as the RFSA or VFFA?

The RFS Commissioner ‘… is responsible for managing and controlling the activities of the Service’ and ‘may determine the various duties that members of the staff of the Service are required to perform and allocate the duties to be carried out by each member of the staff’ (Rural Fires Act 1987 (NSW) s 12).  There is no legislated obligation to consult with volunteers (compare the Rural Fires Act to the Country Fire Authority Act 1958 (Vic) ss 6F-6I (see also The role of volunteer associations in Victoria’s SES and CFA (March 2, 2016)).

Even so the Commissioner makes use of consultative committees (Service Standard 1.1.8 NSW RFS Consultative Committees) and the RFS and RFS Volunteers Association have entered into a Membership Charter where

As an organisation, the Rural Fire Service agrees to consider the impact of policy and development on its members.  We also recognise the role of the Rural Fire Service Association and acknowledge that they represent the collective membership of the Service.  As such, as an organisation we will endeavour to ensure appropriate consultation with the Rural Fire Service Association on matters that may impact on membership.

4. If used for active firefighting would state mitigation members then be represented by the fire brigades employee union (FBEU) from a union perspective?

I cannot make informed comment on that.  I imagine it would be a matter for firefighters and the union that currently represents RFS employees (which as far as I can tell is the Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales).  This is however a matter of industrial law, an area outside my field.

My correspondent writes:

The New South Wales RFS run a closed Facebook group which is intended to only be for members of the RFS. Over the last few days there has been a bunch of debates on the group regarding whether or not various RFS service standards apply or not within the group. Some of this discussion got very heated leading one of the paid staff who look after the group to delete comments from several members and posting the following message:

“Just a reminder that this is an official NSW RFS channel managed by the NSW RFS for members of the service. As a result Service Standard 1.4.5 Social Media applies to any discussions that occur here and we expect people to behave in a way that is consistent with our organisational values.

I’ve just removed a bunch of posts and comments that used offensive language, were making personal attacks on other people or which served no purpose other than to agitate other members. This kind of behaviour is certainly not in line with our values and is therefore not acceptable within this group. People who choose to repeatedly post this kind of content will be banned.”

This has led to further discussion about whether members can potentially face disciplinary action as a result of content posted in the group or whether the admin is overstepping the mark and the worst that can be done is the removal of the member from the group (but not disciplinary action under the service standards). As there seems to be a variety of opinions being raised on the matter I was hoping you could provide your expert opinion on some of the questions being raised as there doesn’t seem to be much clarity on the issue at the moment.

Particularly some of the questions being asked include:

1) Does the RFS social media service standard apply in an official rfs members only group? If so could disciplinary action be bought against a member for conduct posted in the group?

2) Do other service standards (specifically the service standard on safe and inclusive workplace) apply within the group?

3) If service standards do apply in the group do they only apply to staff or volunteers as well?

4) If members have removed any public material identifying themselves as an RFS member and don’t have the RFS listed as their employer but are a member of the group are they exempt from the social media service standard and RFS discipline processes (if it would otherwise apply to the group)?

5) Are comments posted in the group protected by the concept of freedom of speech even if other members may find them offensive or bullying? if so do the staff admins have the right to remove them?

Your thoughts on the matter would be most appreciated

A closed Facebook group has to be the property of the administrator who can decide who is allowed into the group and the rules that apply to the group.  It certainly seems that Service Standard 1.4.5 Social Media is intended to apply to public sites (see [3.1]) so arguably it does not apply to a ‘closed’ group that only contains RFS members.  But even so postings to that group ‘may reflect on the image or reputation of the NSW RFS’ [1.1].  But to return to my opening statement, if the site is managed by the RFS and the administrator wants to apply the Service Standard, he or she can.   In short it applies if the administrator says it does.

Even if it did not, other service standards would, such as Service Standard 1.1.7 Code of Conduct and Ethics.  Even without that an administrator can remove any comment he or she sees fit and may well be duty bound to remove those that ‘used offensive language, were making personal attacks on other people or which served no purpose other than to agitate other members’.

To turn to the questions:

• Does the RFS social media service standard apply in an official RFS Members only group? If so could disciplinary action be bought against a member for conduct posted in the group?

It does if the administrator says it does.  A breach of discipline in the RFS includes a failure to comply with the Service Standards (Rural Fires Regulation 2013 (NSW) r 9).  Disciplinary action could be brought against a member for breach of any service standard, whether that occurs online or at the station.

• Do other service standards (specifically the service standard on safe and inclusive workplace) apply within the group?

Yes.  If this is a closed group, open only to members of the RFS, conduct in that group is as much bound by the service standards as conduct in the tea room or in an appliance.

• If service standards do apply in the group do they only apply to staff or volunteers as well?

Yes, the service standards apply to all members of the RFS (Rural Fires Act 1997 (NSW) ss 8 and 13), in accordance with their terms (ie if they say they only apply to volunteers or staff then that is the case (see for example [3.49] of Service Standard 1.1.42 Respectful and Inclusive Workplace).

• If members have removed any public material identifying themselves as an RFS member and don’t have the RFS listed as their employer but are a member of the group are they exempt from the social media service standard and RFS discipline processes (if it would otherwise apply to the group)?

No, they are still members of the RFS, otherwise they wouldn’t be part of the group.  That’s like asking ‘am I bound by the service standards if I turn up to a meeting or the fire station out of uniform’.    A member of the RFS is bound by the service standards because they are a member.  For example paragraph 3.1 of the Social Media Service Standard say ‘Members must be mindful of the information they post on public forums because it may impact on the reputation of the NSW RFS’ and there follows a list of material that must not be posted including ‘confidential or sensitive information’.  That has to apply even if one does not say ‘I’m a member of the RFS’.  On the other hand a member must not post material that may be ‘interpreted to be of a commercial or political nature’ but that has to be fine if the are posting on a public group and give no RFS affiliation, for example if they want to publicly comment on political matters or promote their own business.  But then the publication in no way reflects on the RFS.  It all has to be considered ‘in context’.   In this context given it’s a closed group, removing any identifying material won’t make a difference.  Clearly the person’s part of the RFS, it’s an RFS group.

• Are comments posted in the group protected by the concept of freedom of speech even if other members may find them offensive or bullying? if so do the staff admins have the right to remove them?

No.  There are limits to freedom of speech.

Although Australian law does not have an express guarantee of free speech, the High Court has acknowledged in various decisions that an implied freedom of communication exists under the Constitution in relation to political and government matters (Leanne Griffiths ‘The Implied Freedom Of Political Communication: The State Of The Law Post Coleman And Mulholland’ (2005) 12 James Cook University Law Review 93-111, 93)

Given the ‘implied freedom’ in the Australian Constitution could or should be able to disagree with government policy and you think they are going the wrong direction. But that’s not defence to saying rude, personal or defamatory things about the Minister.  But remember this is a private group.  Just because you have a right to say something doesn’t mean others have an obligation to listen and just because you have a right to express a political opinion doesn’t mean you have a right to do it in any forum you want.  You may want to express your political views but the local paper doesn’t have to publish them, and the administrator of a private group doesn’t have to let them remain.

I have previously discussed the Volunteer Charter that was agreed to by the Government of Victoria, Volunteer Fire Brigades Victoria Incorporated and the Country Fire Authority (see The role of volunteer associations in Victoria’s SES and CFA (March 2, 2016)). This question relates to a similar charter in the Australian Capital Territory (ACT):

On the 9 September 2008 the ACT Government sign a volunteer charter with volunteers of the ESA see here for charter http://www.firebreak.com.au/vol_charter.html, it was updated and again signed on 20 November 2013 an updated version is here http://www.firebreak.com.au/Volunteer_Charter_Final.pdf. The Charter was signed by the ACT Chief Minister, The ACT Emergency Services Minister and the Commissioner of the ESA.

The question from a ‘legal’ standpoint how much value does a charter have? Secondly there are a number occasions where I believe the ESA Commissioner has not fulfilled one of the key points of the Charter “it ensures that the ACT Government and the Emergency Services Agency will commit to consultation with all Volunteers about all matters that could affect Volunteers” so is a Charter just meaningless document that just pays lip service to keep volunteers quiet or does it have some sort of legal standing?

Unlike the Victorian charter (see Country Fire Authority Act 1958 (Vic) ss 6F-6H) the ACT charter has no basis or recognition in the relevant legislation (except perhaps Emergencies Act 2004 (ACT) s which says that one of the objects of the Act is to ‘recognise the value to the community of all emergency service members, including volunteer members’; and s 8(4)(e) which says that one of the Commissioner’s functions is to ‘recognise the importance to the services and the community of—  (i) all emergency service members, including volunteer members).

So what is the value of the document?  It’s clearly not intended to be legally enforceable, it’s a statement of commitment.  As the Charter says

The parties commit themselves to use and apply the Charter in a spirit of mutual respect and goodwill and to work together in that spirit to resolve any disputes that may arise between the ACT Government, the Emergency Services Agency and the Volunteers by reference to the key principles set down in this Volunteer Charter.

Whether ‘the ESA Commissioner [has or] has not fulfilled one of the key points of the Charter’ with respect to consultation is a matter of debate.  According to the Oxford online dictionary, ‘consult’ means ‘Have discussions with (someone), typically before undertaking a course of action’ (see also Firefighters and the need to consult with landowners in WA (September 1, 2015)).

How the Commissioner should consult and whether any consultation is effective is a matter upon which opinions may differ.    The Charter can’t be read literally, it would not be possible for the ‘ACT Government and the Emergency Services Agency’ to consult ‘with all Volunteers about all matters that could affect Volunteers’ because that would require them to discuss changes with every single volunteer and that can’t happen.  What could happen is that they could consult with representatives (eg a representative from each rural fire service station or SES unit, or volunteers’ association) or provide opportunities for those that want to comment to do so, or adopt probably an infinite range of other methods to try to hear from their volunteers.  Having a  commitment to consult does not equate to a commitment to adopt the views of the volunteers or any of them, given that there is unlikely to be a single view of all volunteers.    What follows is that a volunteer may feel that there has been inadequate consultation and the Commissioner and others may think that they have adequately consulted.  If the Commissioner honestly believes that then he or she has meet the commitment under the charter.

An analogy can be drawn with the law that would apply if the terms of the charter were set out in statute (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223).   A court will only interfere with a decision of a ‘competent authority’ if the authority’s decision

… is so unreasonable that no reasonable authority could ever have come to it … but to prove a case of that kind would require something overwhelming… It is not what the court considers unreasonable, [which is] a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy … and all over the country I have no doubt on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere.

So if the Charter says there has to be ‘consultation’, that is a matter upon which ‘honest and sincere people [may] hold different views’ on what that means or requires.  If the ESA, as a ‘reasonable authority’ adopts some method to undertake effective consultation or otherwise apply the principles of the charter, then a court won’t intervene unless the system proposed ‘is so unreasonable that no reasonable authority could ever have come to’ the conclusion that it was an honest attempt to honour the charter.

What action could a person take who thinks the charter has not been honoured?  If the ESA were going to introduce a change that impacted volunteers and it was believed the principles of the charter had not been complied with, it may be possible to seek a legal remedy using the principles of equity and/or administrative law.  I won’t try to explain the differences but the gist of it would be that having made the commitment and promised to take into account the views of the volunteers, failure to do so could mean that the decision maker has not considered a factor that he or she had to consider and that the decision is therefore invalid.   If that argument got up the remedy would, at best, be an injunction from the Supreme Court to the effect that the decision is stayed (or stopped) and the decision maker then has to go back and engage in proper consultation.    The problems with that are:

1. Actions in the supreme court are expensive and difficult;
2. Courts are going to give significant leeway to the executive arm of government (ie the ESA) so if the ESA can say they have had meaningful consultation or have acted in accordance with the principles of the charter, even if not everyone is happy, then a court would be unwilling to say that the ESA has not met its obligations. The failure to act on the Charter would have to ‘so unreasonable that no reasonable authority could ever have come to’ the conclusion that it was an honest attempt to honour the charter;
3. Even if a volunteer won such an argument, the decision maker may go back, consult and then still make the same decision as was originally made.

Alternatively one could seek a declaration that some action is inconsistent with the Charter.  The effect of a declaration would be that the agency would have to go back and act in accordance with the Court’s direction. It is unlikely that any government would refuse to honour a court declaration and failure could be punished as a contempt of court.  Seeking a declaration would face the same difficulties as getting an injunction.

In the ACT there are simplified procedures to review an administrative decision.  The Australian Capital Territory’s Civil and Administrative Tribunal (ACAT) is what I call the ‘Swiss army knife’ of tribunals as its jurisdiction is so varied.  One can apply to ACAT to review an administrative decision and ACAT can substitute the tribunal’s decision for the original decision maker if it thinks it should, it does not need to find that the decision was ‘unreasonable’ as defined by Wednesbury (ACT Civil and Administrative Tribunal Act 2008 (ACT) s 68).    But ACAT can only act on decisions that are ‘reviewable decisions’ under legislation.  Some decisions that might be made by the Commissioner or his or her delegate under the Emergencies Act 2004 (ACT) are reviewable (see s 185 and Schedule 2) but a decision on how to consult or otherwise implement the charter is not one of them.

Conclusion

The Charter could have some legal standing and in the right circumstances an aggrieved person could approach the Supreme Court for an injunction to stop a decision being implemented if the process used did not comply with the charter, or to obtain a declaration that some action did not comply with the charter.  The prospect of bringing, and winning such an action, is remote.  The reality is that the Charter is more a political statement.   A person who thought the charter was not being complied with could use that in an argument with the ESA or the Government that they are not doing what they promised to do, and they should.  If enough people agree then pressure from the Volunteers and their associations would no doubt cause the government or the ESA to reconsider their position.

The Senate Legal and Constitutional Affairs Committee is holding an inquiry into ‘The establishment of a national registration system for Australian paramedics to improve and ensure patient and community safety’.   I was reading the submissions to the Inquiry including one from Australian Paramedics Association Queensland Inc.

The Australian Paramedics Association describe themselves (at http://www.apaq.com.au/about) as:

… a professional industrial association that was setup by paramedics and ambulance employees, to support and advocate for the rights and well being of paramedics and ambulance employees.

What caught my attention was a section in there senate submission on ‘Liability’.  They say:

The single biggest question being asked of Australian Paramedics Association Qld in regards to registration is whether each officer will require personal indemnity insurance. Currently, each service (or at least Queensland do) have protections under legislation for any act or omission performed in ‘good faith’ and without negligence, thereby preventing the need for paramedics to be forced to pay for additional protection.

This would need to be addressed within the registration framework, for both government and privately employed paramedics.

I don’t understand what they mean when they say Queensland ambulance officers have ‘protections under legislation for any act or omission performed in ‘good faith’ and without negligence’.    That sounds like a provision from the Fire Service Act 1990 (Qld) s 129 – and that reference is deliberate, I’m looking at the 1990 version of the Act that said:

No matter or thing done or omitted to be done by any person pursuant to this Act or bona fide and without negligence for the purposes of this Act subjects that person to any liability

It is not what the Act currently says.  Today the Fire and Emergency Service Act 1990 (Qld) s 153B says ‘No liability attaches to any person for an act done, or omission made, honestly and without negligence’.

The problem with a section like the original s 129 and now s 153B is they don’t say much.  If someone is suing someone for negligence, it stands to reason there can be no liability for an act done ‘without negligence’ whether the action was ‘honest’ or in ‘good faith’ or not.  To say ‘‘No liability attaches to any person for an act done, or omission made, honestly and without negligence’ is exactly the same as saying ‘‘No liability attaches to any person for an act done, or omission made without negligence’ and if the allegation that is said to lead to liability is that the defendant was negligent that has to be true whether the statute says it or not; that is if I say ‘you are liable to me because your action was negligent’ and your action was not negligent, then you are not liable.    The section may be relevant if the cause of action – the allegation – is assault or trespass rather than negligence.

That’s all well and good but it’s not what the Ambulance Service Act 1990 (Qld) says.  It says (at s 39(1)):

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

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

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

Section 38 sets out the powers of an authorised ambulance officer to take action in an emergency.   Section 39 just restates the law of vicarious liability that is an employer is liable for any default by an employee.

So why don’t paramedics need professional indemnity insurance.  Because they are employees. If the issue was that there was a section that said they are not liable for ‘for any act or omission performed in ‘good faith’ and without negligence’ that would not be enough.  That would give a defence but it wouldn’t stop someone alleging that some action was done negligently.  If that were the case the act would not be ‘in good faith and without negligence’ so the alleged defence would not apply.  Even if it did you would still want insurance so that the insurance company paid to defend the case.    Even if you’re going to win you don’t want to pay to have the argument.  A clause that said there was protection for acts done ‘‘in good faith and without negligence’ are not a bar to legal action.  It provides a defence but it is up to a court to determine whether it would apply in the circumstances.  To say therefore that that Queensland paramedics don’t need PI insurance because they have ‘protections under legislation for any act or omission performed in ‘good faith’ and without negligence’ is wrong.  It’s wrong because that is not what the legislation says and it’s wrong because even if it did it would not mean that one wouldn’t want insurance to be able to defend any claim that is made.

The correct statement is that Queensland paramedics don’t need PI insurance because, as employees, it is there employer who is liable should there be any claim of negligence or other tort.  For a more detailed discussion see:

• Professional indemnity insurance for NSW Paramedics (January 30, 2016) and
• Vicarious liability for the actions of fire wardens (March 5, 2016) and

Then there’s the question of ‘with registration will paramedics require personal indemnity insurance’?  The answer there is not necessarily.  Registered health professionals do have to be covered by indemnity insurance in order to practice their profession but it doesn’t necessarily have to be personal.  Take for example, a person seeking to be registered as nurse.  The Nurses and Midwifery Board has a registration standard on PI insurance.  It says “Nurses and midwives must not practise their respective profession unless they are covered by appropriate professional indemnity insurance (PII) arrangements” but it doesn’t say exactly what that insurance must cover.  It says ‘Nurses and midwives in different types of practice will require different levels of PII cover, according to their particular level of risk’ and then lists some types of cover that should be considered.  ‘It is the responsibility of nurses and midwives to understand the nature of the cover under which they are practising’.   When applying for registration a nurse has to tick a box on the Application for General Registration that says ‘yes’ to the question ‘Do you commit to have appropriate professional indemnity insurance arrangements in place for all practice undertaken during the registration period?’  The nurse is then referred to ‘… the Information and definitions section of this form’.   In that section it says (emphasis added):

PROFESSIONAL INDEMNITY INSURANCE (PII)
You must not practise the profession unless you are covered by appropriate PII arrangements in accordance with the requirements of the NMBA. You may be covered by your own private cover, your Australian employer’s cover or another third party. You are accountable for ensuring that you have PII cover in place and for understanding the nature of that cover. For more information, view the registration standard and guideline for each profession online at www.nursingmidwiferyboard.gov.au/RegistrationStandards.

So will paramedics require personal PI Insurance?  That remains to be seen and will depend upon the decisions of the (yet to be established) Paramedic Board but if the Paramedic Board takes the same approach as the Nurses and Midwifery Board, and if s 39 remains part of the Ambulance Service Act 1990 (Qld) then I would think any Queensland paramedic who practices only with Queensland ambulance could comfortably tick the box to say that they have appropriate cover.

Conclusion

Queensland paramedics do not need PI insurance because they are employees; not because they ‘have protections under legislation for any act or omission performed in ‘good faith’ and without negligence’ (which they don’t).

If Paramedics do become registered under the scheme that applies to other registered health professionals, it is not axiomatic that they will have to obtain personal professional PI insurance.   That will depend on the standards set by the (yet to be established) Paramedic Board, but the example from the Nurses and Midwifery Board is that cover offered by employers can be sufficient.  Section 39 guarantees that the State of Queensland will indemnify its paramedics, but that would be the case even if s 39 was not there (see Hollis v  Vabu  Pty Ltd (2001) 207 CLR 21; Sweeney v Boylan Nominees Pty Ltd  (2006) 226 CLR 161).

A West Australian paramedic asks:

… a few questions regarding the legality of ‘not for resuscitation’ (NFR) forms in Western Australia.

Frequently we are given not for resuscitation forms from hospitals when transporting patients either home from an admission or between hospital facilities. Each hospital in WA seems to have their own form developed by the hospital with varying format and requirements for who may initiate a form and how many signatures are required (E.g some need family and two doctors to agree, others only need a single doctor and no family). Some of these forms are labelled “for this admission only”.

None of these forms are of the format of the ‘advanced health directive’ form available from the state government. The NFR forms we see are usually filled out by doctors on behalf of patients who are not competent to make decisions, e.g dementia. There has been discussion by ambulance staff regarding the legalities of these forms outside a hospital as these are hospital forms.

So far I have been unable to find much information on legislation regarding NFR’s (particularly if a patient is unable to make decisions for themselves) in Western Australia, the only information I can find refers to advanced directive forms which appear much different.

My questions are:

1. Are these forms legally valid outside of a hospital, seeing as they are hospital developed forms and do not appear the same as an advanced health directive form?
2. Are forms initiated by a doctor or family on behalf of a patient legally valid for patients who are unable to make decisions for themselves e.g. advanced dementia?
3. I understand no one has yet been sued for attempting to help in an emergency, but in the instance a NFR form is ignored – due to not having a copy present, believed to be incomplete or a belief it isn’t legally valid, could the responder be guilty of assault for administering CPR.

Western Australia has no ambulance service legislation. It does have legislation dealing with ‘advanced health directives’ (Guardianship and Administration Act 1990 (WA) Part 9B).  Where an advanced health directive has been made on the form and in the circumstances required by the Act, then the decision made in that directive applies if the person is no longer able to communicate their wishes (s 110S(1)).  There are circumstances in which the decision will no longer apply but they need not be discussed here.  Most importantly Part 9B does not ‘not affect the common law relating to a person’s entitlement to make treatment decisions in respect of the person’s future treatment’ (s 110ZB).  It is the common or judge made law that is most relevant here.

The common law says that ‘except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’ (Rogers v Whitaker (1992) 175 CLR 479 [14] (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ)).   Where a patient’s consent is required, it follows that a patient can refuse consent even if that means that they will die.  In Airedale NHS Trust v Bland [1993] AC 789, Lord Lord Goff said (at 864):

… it is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so. … [t]o this extent, the principle of the sanctity of human life must yield to the principle of self-determination…

The common law of necessity (In Re F [1990] 2 AC 1) says:

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

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

Where patients are not competent to make decisions necessity (and not fictitious notions of ‘informed consent’) justify treatment that is in the patient’s best interests but not treatment that they have previously made clear that they do not want.  In In Re T [1992] EWCA Civ 18 it was said that a refusal of treatment must be competent, informed and cover the situation that now arises.  If that is the case the decision to refuse treatment must be honoured.

Exercising these common law rights don’t require a particular form and the provision of s 110ZB of the Guardianship and Administration Act 1990 (WA) confirms that is still the case in WA.   Where the form has been completed by the patient or they have otherwise expressed and have had documented their treatment decision that remains binding on everyone, including paramedics (see also Medical tattoos offer important health information (March 3, 2012)).

Others may also make health care decisions for those that cannot decide for themselves. An enduring guardians can make medical treatment decisions in the best interests of the incompetent person Guardianship and Administration Act 1990 (WA) ss 45, 51 and 110G).   Where there is no guardian the ‘person responsible’ (ie the patient’s spouse or nearest relative) can also make medical treatment decisions (s 110ZD).   Having made that decision there is no requirement that it be communicated on a particular form (s 110ZK(2)(a)(ii)(II)).

In Western Australia a health professional is a person registered under the Health Practitioner Regulation National Law (Western Australia) (s 110ZH and Civil Liability Act 2002 (WA) s 5PA(a)).  Paramedics are not registered health professionals so that provision does not apply to them.    A health professional is also a ‘person who practises a discipline or profession in the health area that involves the application of a body of learning’ (Civil Liability Act 2002 (WA) s 5PA(b)) and that probably does include a paramedic, at least a university qualified paramedic.    A ‘health professional’ can rely on treatment decision made by a guardian or person responsible (Guardianship and Administration Act 1990 (WA) s 110ZK) so if a guardian or person responsible has refused treatment then that too is binding.

What of forms not completed by the family?  The first part of the doctrine of necessity was that treatment must be such that ‘a reasonable person would in all the circumstances take, acting in the best interests of the assisted person’.  That begs the question fo what is there best interests.  In Airedale NHS Trust v Bland [1993] AC 789 the UK House of Lords had to consider whether life sustaining treatment could be withdrawn from Anthony Bland.  Anthony had been a victim at the Hillsborough football tragedy of 15 April 1989.  95 people had died on that day or in the immediate aftermath.  Anthony was left in a persistent vegetative state.  He died on 3 March 1993 and was the 96th fatality from that event.

Prior to his death, the treating doctors sought permission to withdraw feeding and other care that was sustaining Anthony’s life.  The Crown solicitor advised them that they may be guilty of murder by withdrawing that treatment.  The health service (the Airedale National Health Trust) took the matter to court seeking a declaration that the decision to withdraw treatment would be lawful.  The courts agreed.  In the House of Lords it was held that a doctor’s duty was to act in their patient’s best interests, but the provision of futile treatment was neither advancing the patient’s interests and may be contrary to his best interests.  Lord Browne-Wilkinson said:

In my judgment it must follow from this that if there comes a stage where the responsible doctor comes to the reasonable conclusion (which accords with the views of a responsible body of medical opinion) that further continuance of an intrusive life support system is not in the best interests of the patient, he can no longer lawfully continue that life support system: to do so would constitute the crime of battery and the tort of trespass to the person. Therefore he cannot be in breach of any duty to maintain the patient’s life. Therefore he is not guilty of murder by omission.

The judgment is long and complex and I won’t go through it all but the gist of the conclusion is that doctors are not obliged to provide futile treatment that is treatment that will not treat the patient’s condition.  To give a simple example, a doctor is not obliged to prescribe antibiotics for a viral infection as they are futile.

Hopefully no single medical practitioner determines that further treatment is futile or not in the patient’s best interests. Hopefully that decision is made by a medical treatment team and the family and the patient to the extent that they can be involved.  But if it is the case that further treatment is futile, for example that the person is in the terminal stage of a terminal illness, then it is appropriate to withhold further treatment.  An NFR order signed by a doctor and delivered to paramedics is evidence that this decision has been considered and made.   What follows is that if the ‘order’ is made on the basis of an informed clinical judgment that the treatment is futile it is not so much they are ‘binding’ (a doctor can’t tell a paramedic what to do – see Step aside – I’m a doctor (October 17, 2014)) but one would have to consider that it is a serious ethical issue to administer treatment when a person’s treating doctor has determined that the very treatment is not warranted in the circumstances.

Let me then turn to the questions asked:

1. Are these forms legally valid outside of a hospital, seeing as they are hospital developed forms and do not appear the same as an advanced health directive form?

Yes, the common law is preserved so the ‘Advanced health directive’ form is one way, but not the only way for a patient to communicate their wishes.

2. Are forms initiated by a doctor or family on behalf of a patient legally valid for patients who are unable to make decisions for themselves e.g. advanced dementia?

Yes; If the NFR order is made by a doctor on an assessment that resuscitation is futile that is not so much binding but is a relevant factor to consider and it would be appropriately to honour it.  A paramedic in Western Australia has no more power to provide treatment that is not in a patient’s best interests than anyone else.  If there is an informed medical opinion that for this patient further treatment is futile that should be honoured.

3. I understand no one has yet been sued for attempting to help in an emergency, but in the instance a NFR form is ignored – due to not having a copy present, believed to be incomplete or a belief it isn’t legally valid, could the responder be guilty of assault for administering CPR.

This is a dilemma.  If the refusal of treatment form is ignored simply because the paramedic would rather treat than not treat or because he or she thinks that is the legally ‘safer’ position then that may be an assault, particularly if it is the patient that has refused treatment.  But if in fact the refusal was not properly made it may be negligent.  In In Re T [1992] EWCA Civ 18, Lord Justice Staughtan said (at [60]):

The notion that consent or refusal of consent may not be a true consent or refusal presents a serious problem for doctors… The surgeon will be liable in damages if he operates when there is a valid refusal of consent, and liable in damages if he fails to operate in accordance with the principle of necessity when there was no valid decision by the patient…

That must be true for a paramedic too.  If you have genuine doubt about the decision and treat, but the court says the decision was valid and binding then the treatment is an assault.  The alternative for a paramedic in the circumstances is not so clear.  If you have actually been given documentation that says a treatment decision has been made it can hardly be negligent for a paramedic to honour that even if, later, it turns out the doctors or the family had not properly considered the situation or deliberately set out to harm the patient.  The paramedics can only go on the documentation they have.

In most states paramedics employed by the relevant state ambulance service could rely on provisions that protect them from liability for acts done in the good faith performance of their duties.  In the absence of any ambulance service legislation in WA, paramedics in that state don’t have that extra level of legal protection.

There have been many posts on this site about refusing and withholding treatment: see Refusing treatment.

This is a matter that I too have had to consider when working as an SES media officer.

I’m a volunteer with a local NSW SES unit and manage the Facebook Page for the unit. It has always been unit policy not to log request for assistance (RFAs) over Facebook and ask the person to contact 132 500.

Today a member of the public sent a private message to the page in regards to a tree down, resting on powerlines, she also attaches a photo, and by sticking to Unit policy the following ‘saved reply’ was sent:

“Please call 132 500 to log a job with the NSW SES. Unfortunately we can not take requests for assistance over social media. If the situation is life threatening call triple zero (000).”

Later on another page admin and I had a discussion regarding our duty of care, as we know about this issue but we aren’t doing anything until the informant calls 132 500, what if the tree falls down onto someone or something causing injury / death or property damage or what if the person fails to call 132 500, where do we sit in regards to liability and duty of care, it’s like a person approaching a police officer and saying there is an armed robbery next door, but the police officer returns with “call triple zero” and walks away.

Is there a requirement for us to act on information we have or can we just turn our backs and tell the informant to call 132 500.

Without going into the details let us just assume, for the sake of the argument, that there is a legal duty to respond to emergencies caused by floods and storms (but see Liability for fire – a review of earlier posts (January 8, 2016) and the principles there will in many (but not all)  cases also apply to the SES).    The use of the 132 500 number (or the triple zero service for police, fire and ambulance services) is the ‘system’ that has been adopted to allow people to seek emergency assistance, but the critical issue is that they need assistance and the service knows about it; it can’t be ‘how did the service come to know about it?’  As my correspondent says that’s akin to ‘a person approaching a police officer and saying there is an armed robbery next door, but the police officer returns with “call triple zero” and walks away’.  Other examples also come to mind, a person calling for help from within a building and emergency services declining to respond until a triple zero call is received, or paramedics being told that someone has collapsed nearby but not responding without a triple zero call (see Failure to attend by NSW Police and Ambulance (December 18, 2013)).

Every service has to consider how it will respond to emergencies that it discovers by means other than a triple zero or 132 500 call.  But each service has limited capacity and monitoring social media is labour intensive and messages will no doubt be missed.   To consider that from a legal perspective let us assume there is a duty to respond (a position that is not clear and probably not true as plenty of earlier posts on this site will show) and consider the classic rule set out in Wyong Shire v Shirt and repeated in plenty of earlier posts.  Where there is a duty of care, it is up to the court to:

… determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position. (Wyong Shire v Shirt (1980) 146 CLR 40, 48).

It is clearly foreseeable that with all the best efforts in the world, people will send messages via twitter, Facebook and the like.  As the 2009 Victorian Bushfires Royal Commission made clear, emergency services can’t plan on everyone doing what the services recommended.  In that context it was that the fire services may encourage everyone to have a plan and either prepare, stay and defend or leave early, but you have to plan for people who don’t do any of those things.  In this context the publicity may well be ‘for emergency help in floods and storms call 132 500’ but we know that not everyone will.   So there is a risk that people will try to send a message via twitter or Facebook.  How likely is it that they will do that?  Very likely.

How bad will it be if that’s missed –it could be fatal.

What is the ‘expense’ of taking action?  That might mean having someone monitor facebook 24 hours a day but even then messages will be missed.  Someone who posts on their own page ‘help I’m in trouble’ isn’t going to be heard and even if they #ses the message may slip through particularly during a big event when there is a large amount of traffic.   The requirement to provide a reasonable response is not a requirement to guarantee an actual response.  Setting up to monitor social media for those purposes is both expensive and difficult and ties up resources that are needed elsewhere.  So perhaps a response of an automatic message that says

“Please call 132 500 to log a job with the NSW SES. Unfortunately we can not take requests for assistance over social media. If the situation is life threatening call triple zero (000).”

Is just fine.

But that doesn’t answer the question of what to you do if you do know of the emergency.  Perhaps people can’t call for help.  They’ve got an iPod that can connect to a wi-fi signal but no phone or having posted the pictures and requested help they’ve been washed into the river; who knows?  Now the messages you’ve missed, you’ve missed, but this one you’ve seen.   A person has attempted to make contact, they have succeeded in making contact, but then the service doesn’t respond because the person didn’t make contact in the way preferred by the service.

It’s not a legal test but run that through the ‘Telegraph Mirror’ (for NSW readers) test – what would the media say when it’s found out that the SES did see the request, complete with photos and let us assume sufficient information to identify the address, but didn’t come?   Or, a favourite question for emergency service personnel, what’s the coroner going to say if the next day the SES are recovering the person’s body?

It seems to me that if there is a duty to respond (again putting that question to one side) then it can’t matter how you come to know of the emergency.  If the duty to respond only arose because someone rang 132 500 that would mean that there would be a duty to rescue someone who knows your phone number, but not someone who doesn’t.   Can you imagine surf lifesavers refusing to rescue someone as they didn’t put their hand up in the recommended way, or police because the person was being attacked and didn’t call triple zero etc.

A colleague of mine, Dr David Hudson, did his PhD on data and trust, asking what data do emergency managers ‘trust’ and why?  This begged the question of why do they ‘trust’ and therefore respond to a phone call but not a tweet or Facebook post?  Even more complex issues arise with the sort of algorithms that can monitor social media and suggest, via the traffic, that there’s an emergency happening even before someone rings.

One cannot say where the SES stands ‘on liability’ as it would depend on far too many factors about what was going on, the nature of the request for assistance and what attempts were made to get the person to ring 132 500 or perhaps getting the SES to ring them back.  One can’t say that there is a duty to monitor all social media, but if an agency’s going to have a social media presence it has to at least think about what the response will be to these inevitable requests.   I don’t imagine a blanket response of ‘we just don’t respond’ will be sufficient but I also suspect that the technology is still so new that it’s reasonable for agencies not to have the matter fully resolved.   But an extreme example can make the point, imagine someone has managed to skype in so they are talking one-on-one to an SES operator and providing all the information required.  To not respond because they didn’t call 132 500 could not be reasonable.  The operator themselves could take the details and complete an RFA.  If that’s true why is it not true if the information is received via Facebook and Twitter?  Often the information will be incomplete and that’s then a different issue but assuming it’s not?

Conclusion

I can’t reach a legal conclusion because each case and circumstance will be different but I think I can safely say that a decision to ignore information just because it isn’t received by the ‘preferred’ method would be hard to justify.  It may not lead to legal liability but given everyone’s fear of coroners, it is not something I would want to explain if the person made contact (that is they didn’t just send the message, they sent it and it was actually received) and were ignored.

A correspondent poses a scenario that was discussed:

… during safety training at the research institution where I am currently studying.

In this scenario, a researcher working in a laboratory was subjected to a rather nasty accident involving chemical exposure and laser burns requiring medical assistance. Upon arrival of the ambulance access to the patient was delayed while the laboratory was cleaned up.  The explanation given by the safety training instructor was that the institution in question (which wasn’t named) could deny access to the emergency services.

Though, even with a basic understanding of emergency law I fail to see how this could possibly be the case.  Is this indeed true, or was he just trying to scare us?

Further to the above question.  I would have thought that delaying medical aid in such a manner – for the purposes of mitigating perceived liability under WHS legislation (perhaps to cover deficiencies in workplace practices prior to the accident), with such a callous disregard to the safety of the effected individual, would be exposing that institution to criminal liability.

Unless the institution in question is a secret commonwealth establishment (see Responding onto defence areas (June 1, 2014)) then the state laws will apply.  Depending upon which state you are in, the ambulance service may have a right to force entry (see for example Emergencies Act 2004 (ACT) s 34; Ambulance Services Act 1991 (Qld) s 38; Health Care Act 2008 (SA) s 61; Ambulance Service Act 1982 (Tas) s 14A).  Even in those states where ambulance officers do not have an express power to force entry (New South Wales, Victoria, the Northern Territory and Western Australia) others do.

Given this is ‘chemical exposure’ it may well be a hazardous materials incident which would give the fire brigades a power to force entry.  Legislation in most, if not all, jurisdictions would also give police a power of entry in an emergency (see for example Law Enforcement (Powers and Responsibilities) Act 20002 (NSW) s 9).  The common law would also extend the power of entry to police, fire brigades and ambulance personnel. In Kuru v State of New South Wales [2008] HCA 26 the High Court said:

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

In short, unless the establishment is a commonwealth facility and there is a valid law of the commonwealth that would allow them to deny entry then no, the institution can’t deny access to the emergency services.

Under Work Health and Safety laws a Person Conducting a Business or Undertaking (a PCBU) must have in place emergency plans and procedures and must give effect to them should an emergency occur (see for example Work Health and Safety Regulation 2011 (NSW) rr 42 and 43).    Failure to allow access by the emergency services (either an ambulance or hazmat team if that is what required) would not be consistent with any reasonable emergency procedure or the PCBU’s primary duty to ensure the health and safety of a person at work (Work Health and Safety Act 2011 (NSW) s 19).

Nor can the PCBU take steps to mitigate ‘perceived liability under WHS legislation’.   Where there is a ‘notifiable incident’, which includes an incident that causes a serious injury or an ‘uncontrolled escape, spillage or leakage of a substance’ then this is a ‘notifiable incident’ (Work Health and Safety Act 2011 (NSW) ss 35 and 37).   The PCBU ‘must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred’ (s 38).  The PCBU ‘must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs’ (s 39).  The scene may be disturbed to rescue the injured or to make it safe but any attempt to cover up the event will be evident.  If the worker has to go to hospital and reports what happened then it will be clear that a notifiable incident did occur and if it is not reported, one can imagine the WHS regulator taking a ‘dim’ view of the PCBU’s response.

‘Delaying medical … with such a callous disregard to the safety of the effected individual’ would be exposing that institution to criminal liability under both WHS law and general criminal law.  For example depending on all the facts they may be guilty of an offence such as manslaughter (should the victim die), ‘Failure…to provide necessities of life’ (Crimes Act 1900 (NSW) s 44); negligently causing grievous bodily harm (s 54) and no doubt other offences depending on the jurisdiction and the circumstances and motivation.

A callous disregard for the rights of others can also lead to an award of ‘exemplary damages’ in a civil case.  Normally damages are calculated by the plaintiff’s losses and are designed to put the plaintiff in the position he or she would have been but for the accident.   Australian courts do not like exemplary damages, that is damages over and above the plaintiff’s losses as they are a ‘windfall’ for the plaintiff and it is up to the criminal law, not the civil law, to ‘make an example’ of the defendant and to impose punishment. Even so exemplary damages can be obtained ‘in cases of conscious wrongdoing in contumelious disregard of the plaintiff’s rights’ (Gray v Motor Accident Commission (1998) 196 CLR 1, [8]-[20] (Gleeson CJ, Mchugh, Gummow and Hayne JJ)).

A person who intentionally denied aid to an employee in order to try to cover up a serious industrial accident could well find themselves open to the claim of ‘conscious wrongdoing’ and a ‘contumelious [that is “scornful and insulting”] disregard of the plaintiff’s rights’ and so face these extra damages which one would not expect the insurer to cover.

Conclusion

Assuming this is not a Commonwealth establishment with a specific law that would allow them to exclude the state services then no, they cannot exclude the emergency services. Yes, refusing or delaying aid is likely to see the PCBU guilty of offences under both Work Health and Safety and the general criminal law.  Such action may also expose the PCBU to an award of exemplary damages. Planning to react in the way suggested in the scenario would not be a good plan.

POSTSCRIPT

In response to the post, above, there have been comments here and via FaceBook about the need to keep paramedics or others out of the scene for their own safety, and the reference to ‘clean up’ may well mean using experts to make safe a dangerous site.  That’s all relevant but was not how I understood the question.  I took ‘deny access to the emergency services’ to mean the ability to deny access to the facility, that is to lock them out, as opposed to the ability to warn them of danger and to cooperate to resolve the issue.

If the site is hazardous then it is appropriate for the PCBU to warn the paramedics and to tell them the situation is being made safe.  I would imagine (or hope) that the ambulance service has a procedure in place when faced with a hazardous material incident not to enter and call the fire brigade.  Fire brigades when they turn out will no doubt talk to the laboratory owner and between them formulate a plan.  Ideally if the facility is hazardous there have been discussions with the emergency services and the body responsible for local emergency management planning long before an incident to develop a local emergency plan (see also Workplace Health and Safety Regulation 2011 (NSW) r 361).   The Fire Brigade may be the relevant ‘combat’ or ‘control’ agency but that doesn’t require them to send in fire fighters if the local emergency plan is working well.   But I wouldn’t see any of that as denying access to the emergency services, rather that is including them in the response.

So my answer, above, has to be read in that context.  It was not referring to a case where a hazardous chemical has been spilled and it is unsafe for rescuers to enter so that aid is delayed whilst the site is rendered safe by the facilities expert team.  I don’t see that as denying access to the emergency services who are also on scene.

To reiterate, I took ‘deny access to the emergency services’ to mean some claimed right to simply operate without them and to deny them entry to the premises (eg locking the front gate).  That can’t be lawful.

This question relates to the installation of Automatic External Defibrillators in public places.  My correspondent writes:

Hi Michael, was just on LinkedIn in and I saw this Q&A posted by a sales rep/manager for a company that manufactures AED’s.  I attached a screen shot of the Q&A. I have my ideas on what this gentleman has put forward…basically I see this as scaring people and organisations into a sale! I’m all for AED’s in public locations and workplaces etc…but I see this as quiet an uneducated “comment” on the topic..

So in saying all that I pose the question is there any potential liability for an organisation not having an AED installed?

The screen shot appears below but do note that I have edited it (and the original question) to de-identify the company and the author of the answer.

I have largely answered the issues raised in an earlier post – see Making the installation of AED’s compulsory (September 27, 2015).   In that post I noted ‘that there is very little relevant legislation’ so I’m not sure what this person means by the claim ‘state and local laws have gone to great lengths to encourage the placement of AEDs’.   ‘Local Laws’ would mean council bylaws that are impossible to talk about (there are some 571 local authorities in Australia (http://regional.gov.au/local/) and no-one can find or know what all the local laws are).   To refer to ‘state and local laws’ sounds awfully like a reference to US law where local authorities (cities and counties) have much greater legislative power than Australian councils.

It is true that there are no obvious state laws that would present a burden or ‘prevent anyone desiring to install AEDs from doing so’.

The controversial claim is that ‘AEDs have become so commonplace, the standard of care has now shifted creating a potential liability for organizations that do not have AEDs installed’.   That is certainly NOT the case in Australia.  In my earlier post I spoke about obligations under Work Health and Safety Laws.  There I said:

For example, the Work Health and Safety Regulation 2011 (NSW) requires an employer to ensure that there is provision for first aid at the workplace. As with other aspects of this Act, this requires a risk assessment. Some workplaces such as shopping centres may well consider that there is a sufficient risk to warrant putting in a defibrillator.

But what this person is referring to when he says ‘the standard of care’ is the common law of negligence.  Could a business be liable in negligence for not having an AED in place?  My view is ‘no’ and in particular no if what is intended is an AED for use on members of the public rather than employees or in some cases clients – so this answer is not intended for a doctor’s surgery or nursing home, but what I’m talking about is public access AEDs.

Assume I operate a shopping centre – is it negligent not to have an AED?  The person who might use it is a customer who has a sudden cardiac arrest in my centre.  I don’t know who that will be and the risk that it will happen on any given day is very low, but with a sufficient number people passing through over a long enough period one couldn’t say the risk is ‘far fetched and fanciful’ (Wyong Shire v Shirt (1980) 146 CLR 40, 47 (Mason CJ)).     But that doesn’t alone give rise to a duty of care.  If a person has a sudden cardiac arrest the centre owner didn’t cause it.  This is a person in need of assistance but there is no duty to rescue (Stuart v Kirkland-Veenstra [2009] HCA 12.  As Justices Crennan and Kiefel said (at [127]):

The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm… The law draws a distinction between the creation of, or the material increase of, a risk of harm to another person and the failure to prevent something one has not brought about…

The shopping centre has not created the risk of a heart attack.  But people are invited into a shopping centre and there is no doubt people will become sick and injured and need assistance.  The proprietors can’t sensibly ignore that so they will have to have first aid and emergency response procedures in place, not just for heart attacks but for all sudden illness.  So let us assume for the sake of the argument that there is a relevant duty of care will it extend to the installation of an AED.

According to Mason CJ, assuming there is a relevant duty, it is up to the court to

… determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position. (Wyong Shire v Shirt (1980) 146 CLR 40, 48).

The risk of a sudden cardiac arrest is as bad as it gets.  Without assistance the person will die.  What is the degree of probability that it will occur?  It depends on your time frame, in my earlier post I said:

First I’m told that there are 30 000 sudden cardiac arrests a year in Australia. That would equate to about 82 per day.  The chance that on any given day there will be a sudden cardiac arrest we can assume is 1. But the chance that it will happen in any given location, shopping centre or library is very small.   To give a personal anecdote, I’ve been trained in first aid since I was 13 years old. I have never had to do CPR simply because I was the right person at the right spot at the right time.  Putting an AED in a spot, even a high traffic spot like a train station or shopping centre does not mean it will ever be in the right spot.

So it’s a risk assessment.  The more people coming through a public area the higher the risk that it might occur, but there could be no question that some public spaces will never see a sudden cardiac arrest so that they may install an AED that would never be used.

Expense, AEDs do cost.  Again to quote my earlier post:

Having an AED does cost. Not only the purchase price but maintenance and training staff.   Requiring premises to have an AED adds compliance costs, ie some process to ensure that the rules are being complied with.

There would be no significant ‘difficulty and inconvenience of taking alleviating action [ie installing an AED, nor] any other conflicting responsibilities’ that would stop their installation.

With some assumptions then we might argue that given a large public space, with lots of people, the risk that someone will have a sudden cardiac arrest is reasonably high, it will be catastrophic for them and the installation of an AED is neither complex nor does it conflict with other responsibilities.  There are costs but they are probably not very much (see http://defibshop.com.au/product-category/defibrillators/ where prices seem to start at about $2200).

So will a centre be liable for not having one?  No.  Why not?  Because even if someone has a sudden cardiac arrest and dies, their estate would have to argue that had there been a defibrillator it would have made a difference.  But an AED on the wall won’t achieve anything.

Even if the AED is close to a person with a cardiac arrest it does not mean it will be used.   Someone would have to know that the AED is there, or likely to be there.   An untrained person may not know what an AED is let alone to look for one.  Even if they can see it they are unlikely to know what it is or that it is something that could be used without training.  The chance that there is an AED and a trained person at the right place at the right time is even lower.

The AED has to be used and even if it’s used it doesn’t guarantee success.  People still die.   So proving that the absence of the AED made the difference between life and death will be virtually impossible.

None of this is to suggest that they are not a good idea, but one can see why businesses may not be willing to invest and more importantly, why governments may not want to compel business to invest in the equipment that imposes a cost with limited chance that it will be used.

So the operator of a large urban shopping mall may well consider that investing in an AED is good practice, reflective of their general duty to have in place emergency procedures and they probably have emergency wardens who could be trained in the use of the AED.  That’s a good idea but it doesn’t mean that there could be any claim in negligence if a person died in the centre and the AED could not be found or was not used.

The issue becomes clearer when you move down to smaller places with less public access.  The term ‘Organizations’ [sic] covers a myriad of business with different risks.  The owner of a small corner shop will probably never have someone have a cardiac arrest in their store.  The statement ‘the standard of care has now shifted creating a potential liability for organizations that do not have AEDs installed’ is just too broad and simply does not reflect Australian law.   It may be true for some places, so your local Westfield may be remiss if they don’t have one or two, but saying that this would or could actually lead to a finding of negligence or liability is a very long stretch.

Another question from WA

A couple of law students commenting on a post about police using phones while driving and stating that  Road Traffic Code 2000 r280 provides an exemption to r265.  I don’t believe that’s the case, am I missing something? When the phrase “A provision of these regulations does not apply” are they meaning everything after that statement or in that part?

Rule 265 of the Road Traffic Code 2000 (WA) says ‘A driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked, unless…’ the phone can be used hands free or is in a secure mount.  There is no exemption for police.

Rule 280 is the traditional exemption for police.  It says

A provision of these regulations does not apply to the driver of an emergency vehicle 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 moving; and

(c) in the case of a motor vehicle, it is displaying a blue or red flashing light or sounding an alarm.

The statement ‘A provision in these regulations…’ means the entire Road Traffic Code.  If it meant just a part of the code it would refer to ‘this part’.

So that means rule 280 does provide an exemption from r 265 but only when the police are proceeding to an emergency under lights and sirens, in which case you might think talking on the phone is not exercising reasonable care, but all circumstances are different.  If the criteria of r 280 are met, there is an exemption from r 265.

Compare this however to the situation in NSW.  In the Road Rules 2014 (NSW) rule 300(1) is in the same terms as r 265 of the WA Code.  What NSW has, and WA does not, is r 300(1)(c) which says that the rule against using a mobile phone does not apply if ‘the vehicle is an emergency vehicle or a police vehicle’. (And yes, they are meant to be national road rules).

An emergency vehicle is a vehicle driven by an emergency worker in the course of his or her duties in an emergency, so it is not open ended exemption for SES members and firefighters.  But a police vehicle is ‘any vehicle driven by police officer… in the course of his or her duties as a police officer’ (s 4). No reference there to an emergency or use of lights etc.  So a police officer in NSW can use a mobile phone whilst driving.  In WA they can do so only when proceeding to an emergency.

A correspondent says:

I’ve been racking my brain over the last couple of days trying figure out where Department of Parks and Wildlife (DEPW WA) gets the power to light prescribed burns during restricted periods, are they meant to have a permit like private land holders as the Bush Fires act 1954 binds the crown or are they exempt under the conservation and land management act?

It is impossible to answer this question with any certainty.   First I have to accept that the Department does set fires during the restricted period.  If that is true what can be their authority?

The issue of ‘restricted periods’ is found in the Bush Fires Act 1954 (WA).  Prohibited burning times may be declared by the Minister; Restricted burning times may be declared by the FSES Commissioner (ss 17 and 18).   During a restricted burning period it is ‘unlawful to set fire to the bush … except in accordance with a permit obtained under this section and with the conditions prescribed for the purposes of this section’ (s 18(2)).  There is no particular exemption for DEPW in that section.

Interestingly my correspondent says ‘the Bush Fires act 1954 binds the crown’ but does it?

Some legal history

Historically legislation was made by the monarch on the advice of the Parliament. Legislation used to begin:

‘BE it enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and the Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same…’ (see for example,City of Perth Parking Facilities Act 1958 (WA)).

 To make a law, the Bill has to pass through both houses of Parliament (except in Queensland where there is only one house) and then receive Royal Assent. In England, Royal Assent is given by the Queen, in Australia her assent is given by her representative; the Governor at state level and the Governor-General for the national parliament.   By convention, the Queen, the Governors and the Governor-General act on, and only on, the advice of their ministers. This means that they will never refuse to assent to an Act that has been passed by the relevant parliament.   To reflect that modern legislation no longer has the archaic introduction but the situation still remains that as a matter of legal history, the parliament recommends to the monarch that he or she should make a law and they then do so.

Again as a matter of history, it was said ‘the Crown can do no wrong’ so one could not sue or prosecute the monarch and the monarch was not bound by the laws that he or she made unless they specifically said that they were. Today the Crown is much more than the monarch, it is the whole of government made up of the ministers and the government departments. They all represent, and are captured by the phrase, ‘the Crown’.

It is now possible to sue the Crown as if it were a natural person (see Crown Suits Act 1947 (WA)) but it’s still the case that an Act of Parliament does not bind the Crown unless it specifically says that it does, so see, for example, the Animal Welfare Act 2002(WA) s 4 which says ‘This Act binds the Crown in right of the State and, so far as the legislative power of Parliament permits, in all its other capacities’.

The Bush Fires Act 1954 (WA) does not say that it binds the Crown.  It follows that the offences set out in that Act dod not aply to the Crown. Without confirming it by reference to chapter and verse, we can assume that the Department of Parks and Wildlife is part of the Crown in right of the Government of Western Australia (Crown Suits Act 1947 (WA) s 3) and so is not bound by the Bush Fires Act.

If I’m wrong about that there are plenty of ways they would get permission to conduct  burns. First they may get the relevant permit (s 23). The area of Crown Land might be exempted from the restrictions (s 17(4)); they may get an exemption from the Minster (s 25A).

I don’t see any exemption under the Conservation and Land Management Act 1984 (WA).

What follows is that it is not possible to answer the question without more detail about what DEPW are doing, when and why and what authority they claim to rely on.  The most obvious authority is that, as part of the Crown, they are not bound by the Bush Fires Act 1954 (WA).

This question came to me as a comment on my earlier post (Paramedics and the mentally ill – Queensland (February 13, 2014)) but I thought it warranted a post of its own.    My correspondent writes:

I’d like to offer another hypothetical case and request your opinion. Then I’d like to offer my interpretation of how a paramedic must act to correctly apply this Act and see if you agree.

First, the case: Imagine a sober, adult patient who has a history of mental illness (say, depression) who calmly and reasonably explains that they no longer wish to struggle with this terrible disease and so they intend to commit suicide. They discuss this with a family member who calls ‘000’. Paramedics are dispatched and they discover the patient to be alert and oriented to person place and time and clearly of sound mind. The person says that while they do struggle with depression, and have been diagnosed with depression, and take antidepressants, they do not currently feel depressed. They feel that they have made a reasonable decision in a ‘lucid interval’ to end a life they consider unpleasant and they subsequently refuse assessment and transport.

Question 1: Would it be legal for the paramedics to initiate an EEO in this case?

My reading of the Act seems to suggest that any patient who is alert and oriented and appears to have the capacity to understand the consequences of their actions can’t be detained under the Act; it would only be those who appear to be irrational and disoriented, who are therefore lacking in ‘capacity’ to make an informed decision regarding their care (and only if this condition is due to a legitimate mental illness) that can be detained.

This seems a bit counter-intuitive, but my argument would be this: in your post you state that someone who has the capacity to accept care also has the right to refuse care. So a patient who is lucid, and has been deemed to have the ‘capacity’ to make a rational decision (regardless of whether others agree with it or not) would therefore have the right, regardless of this Act, to refuse care if they chose.

Now, my interpretation: I have suggested that the most appropriate way to determine if the Act can be applied would be to perform a Glasgow Coma Scale assessment, ensure that the patient is alert and oriented to person, place and time, to ensure that they have distant, recent and current memory, then to ensure that they understand the treatment you are offering and the potential causes of refusing that treatment. If they pass this assessment, then I don’t think they can be said to “appear to have a mental illness” that “requires immediate assessment”.

Question 2: Would you agree with the recommendation for the correct way for a paramedic to apply the Act offered in the above paragraph?

Let me say from the outset I’m not going to able to answer question 2 or comment on suggested ‘most appropriate way to determine if the Act can be applied’.  That is raising clinical issues and not something that it would be appropriate for me to comment on here when I don’t have the expert advice from clinicians.  How paramedics approach this is a matter for their professional judgment and the judgment of their service as set out in relevant protocols, guidelines and procedures.  If what is suggested here is considered ‘reasonable’ by the profession then that will be sufficient; but it’s up to the profession, not me to make that determination.

With that out of the way, let me turn to question 1.  The Mental Health Act 2000 (Qld) s 33 says that it applies ‘if a police officer or an ambulance officer reasonably believes— (a) a person has a mental illness…”  A mental illness is ‘a condition characterised by a clinically significant disturbance of thought, mood, perception or memory… [A] decision that a person has a mental illness must be made in accordance with internationally accepted medical standards’ (Mental Health Act 2000 (Qld) s 12).

In the scenario we are given the person is ‘a sober, adult patient who has a history of mental illness (say, depression) [but who is behaving] calmly and reasonably’.  The person is ‘alert and oriented to person place and time and clearly of sound mind’.  If the person is not exhibiting ‘clinically significant disturbance of thought, mood, perception or memory’ then they are not suffering a mental illness so s 33 will have no application.  Any paramedic or police officer who purported to detain a person under that section may be motivated by a desire to help, but their actions would not be authorised by the Act and they would be stepping away from the principles of respect for autonomy and back to ‘paternalism’ – we know what’s best for you!

Question 1 was ‘Would it be legal for the paramedics to initiate an EEO in this case?’ and the answer is, ‘if the patient is not exhibiting ‘clinically significant disturbance of thought, mood, perception or memory’ then no it would not be legal.

But don’t just take my word for it.   Consider what the High Court of Australia had to say in Stuart v Kirkland-Veenstra [2009] HCA 12.   This was a case with similar facts.  Police found a man sitting in a car with a hose running from the exhaust into the car.  He was clearly contemplating suicide but at the time the engine was not on and was cold so had not been on for some time. He was contemplating but not yet attempting suicide.  Police spoke to him:

Both officers were of the opinion that Mr Veenstra showed no signs of mental illness. He appeared to them to be rational, cooperative and very responsible the entire time. During their conversation he removed the hose from the exhaust and placed it in the vehicle. He did this of his own initiative and not as a result of any suggestion made to him by the officers. (Stuart v Kirkland-Veenstra [2009] HCA 12, [10] (French CJ)).

At the time,  Mental Health Act 1986 (Vic) s 10 (now repealed and replaced by the Mental Health Act 2014 (Vic)) said

Apprehension of mentally ill persons in certain circumstances

(1)            A member of the police force may apprehend a person who appears to be mentally ill if the member of the police force has reasonable grounds for believing that –

(a)             the person has recently attempted suicide or attempted to cause serious bodily harm to herself or himself or to some other person; or

(b)            the person is likely by act or neglect to attempt suicide or to cause serious bodily harm to herself or himself or to some other person.

As Chief Justice French (or French CJ) said (at [11]) ‘The two officers were aware that they had a power under s 10 of the 1986 Act to apprehend a person who appeared to have a mental illness and to have attempted or to be likely to attempt suicide. They did not exercise that power. They allowed Mr Veenstra to leave the car park.’  Mr Veenstra returned home and took his own life.  Mr Veenstra’s widow sued Victoria Police alleging that they were negligent in allowing Mr Veenstra to leave rather than detain him.  She argued the police should have know that he was mentally ill, in the process of committing suicide; and likely to attempt suicide or to cause serious bodily harm to himself.  She argued that the police were duty bound to take Mr Veenstra into protective custody such duty coming from either the common law, or s 10 of the 1986 Act (Stuart v Kirkland-Veenstra [2009] HCA 12, [16] (French CJ)).

The High Court disagreed and had this to say about mental illness, suicide and taking people into custody ‘for their own good’.    French CJ looked at the explanatory memorandum that accompanied the 1985 Bill (that became the 1986 Act).  When presenting the Bill to Parliament the Memorandum ‘said that the Bill recognised that the classification of a person as an involuntary patient involved a curtailment of civil liberties. It took the approach that such action should only be contemplated if absolutely necessary for the safety and wellbeing of the person, or for the protection of the community’ [33].   The Act was intended to modernise the law and to recognise that the mentally ill retain rights including the right to exercise autonomy and be involved in health care decision making to the extent that they could do so.

In 1995 the Act was amended to add a definition of mental illness.  That definition said (at [37]) ‘a person is mentally ill if he or she has a mental illness, being a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory”

If Mr Veenstra was not displaying ‘significant disturbance of thought, mood, perception or memory’ then the police had no power to detain him under s 10 and could not be liable for failing to exercise a power that they did not have (see [63]).  But what of Mr Veenstra’s apparent contemplation of suicide?   French CJ (at [44]-[46]) said:

Section 10 does not assume a necessary linkage between mental illness and attempted suicide. This accords with the long-standing resistance of the common law to the proposition that such a connection necessarily exists… the construction of s 10, which would not treat attempted suicide as necessarily reflecting mental illness, is consistent with the long-standing caution of the common law about that proposition. Given the complexity and variety of factors which may lead to suicidal behaviour, it would be a bold legislative step indeed to sweep it all under the rubric of mental illness, however widely defined. That step has not been taken in the 1986 Act.

And later [58] ‘The fact that a person has decided to commit suicide may indicate deep unhappiness or despair. It does not mean that the person is mentally ill …’ According to French CJ neither the Act nor the common law assume that just because a person is contemplating suicide, they must be mentally ill.

Justices Gummow, Hayne and Heydon agreed there was no relevant duty to protect Mr Veenstra from himself.  They said (at [87]-[89]):

The duty which the plaintiff alleged the police officers owed her late husband was a duty to control his actions, not in this case to prevent harm to a stranger, but to prevent him harming himself. On its face, the proposed duty would mark a significant departure from an underlying value of the common law which gives primacy to personal autonomy, for its performance would have the officers control conduct of Mr Veenstra deliberately directed at himself…

It may be said that the notion of personal autonomy is imprecise… But expressed in the most general way, the value described as personal autonomy leaves it to the individual to decide whether to engage in conduct that may cause that individual harm. As Lord Hope of Craighead put it in Reeves v Commissioner of Police of the Metropolis, “[o]n the whole people are entitled to act as they please, even if this will inevitably lead to their own death or injury”

There may be a duty to intervene if a person is not competent but ‘Section 10 does not reveal any legislative view that to attempt suicide is to be mentally ill. Nor, as explained below, has that been the unqualified position of the common law’

Justices Crennan and Kiefel said (at [127]-[128]):

The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm… The law draws a distinction between the creation of, or the material increase of, a risk of harm to another person and the failure to prevent something one has not brought about… So far as concerns situations brought about by the action of the person at risk, it is the general view of the common law that such persons should take responsibility for their own actions…

The refusal of the English common law to impose a general duty to act has been criticised. Civil law countries impose criminal sanctions where a person fails to assist… Even so, that obligation does not arise in the case of a person attempting suicide because the peril is viewed as an act of will, at least in cases where the person is not insane.

With respect to s 10 of the Victorian Act they said (at [147] and [150]):

The power of apprehension in s 10(1) required, critically, that there be an opinion, held by a police officer, that the plaintiff’s husband was mentally ill when he was observed. Depending on the circumstances, a person who has attempted, or is likely to attempt, suicide may or may not satisfy the criteria of mental illness… It is not a sufficient condition that an officer be aware that the plaintiff’s husband had recently contemplated suicide. The purpose of s 10(1) is to allow officers lawfully to apprehend a person who appears to be mentally ill and is also at risk of harm. Its purpose is not to prevent suicide. In this regard the Act does not deviate from the common law view of autonomy…

Absent the holding of an opinion that the plaintiff’s husband was mentally ill, the power to apprehend was not available. A condition necessary to the power did not exist in law…

Section 10 of the Mental Health Act 1986 (Vic) had one substantial difference to the current Queensland Act.  The Victorian Act said ‘A member of the police force may apprehend a person who appears to be mentally ill…’ (emphasis added).  The High Court judges spent some time discussing whether the use of the word ‘may’ could give rise to a duty to act, that is to convert ‘may’ to ‘must’.  That is not an issue in Queensland.  If a paramedic or police officer has the necessary opinion that the person is mentally ill and also meets the other criteria set out in s 33 then the paramedic or police officer ‘must take the person to an authorised mental health service’ (s 34; emphasis added).  But nothing turns on that.  The obligation imposed by s 34 only arises if the paramedic or police officer reasonably believes, amongst other things, that the ‘person has a mental illness’.  If they don’t hold that belief s 34 is irrelevant.

As noted by the judges of the High Court, the mere fact that a person intends to take their own life is not evidence that they are mentally ill for the purposes of the Act.  They were talking about the Victorian Act but the definition of mental illness in the Queensland Act is not significantly different.  The Victorian Act required:

a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory”

The current Queensland Act requires:

a condition characterised by a clinically significant disturbance of thought, mood, perception or memory…

The Queensland law has added the word ‘clinically’ so if there is any difference it is to make the test harder to meet by adding a further factor – is the disturbance ‘clinically significant’ instead of just ‘significant’.

What follows is

1. A paramedic cannot lawfully rely on the Mental Health Act 2000 (Qld) s 33 unless he or she believes that the patient is mentally ill.
2. To be mentally ill means to be suffering from ‘a clinically significant disturbance of thought, mood, perception or memory’. It does not mean ‘to be contemplating suicide’.
3. If a person is not mentally ill then s 33 is not relevant.
4. If a person is sober, adult, behaving calmly and reasonably, ‘alert and oriented to person place and time and clearly of sound mind’ albeit with a history of mental illness but not currently displaying any symptoms of disturbance of thought, mood, perception or memory then there is no power, nor any duty, to take steps to prevent them taking their own life. People are allowed to kill themselves if they want to.

The Australian State Emergency Services grew out of the cold war or earlier civil defence organisations (see for example, NSW SES, The SES Story, 19 April 2011 (accessed 4 April 2016)).   Today Civil Defence is no longer listed as a function of most State Emergency Services (see State Emergency Services Act 1989 (NSW) s 8; Emergency Management Act 2013 (NT) s 46; Fire and Emergency Services Act 1990 (Qld) s 130; Fire and Emergency Services Act 2005 (SA) s 108; Fire And Emergency Services Act 1998 (WA) s 18A).

The exceptions are Tasmania and the ACT. In Tasmania, one of the functions of the SES is to ‘in time of enemy action or hostilities against the State, to coordinate civil defence measures’ (Emergency Management Act 2006 (Tas) s 26).  In the ACT it is a function of the SES ‘to undertake civil defence planning and civil defence operations’ (Emergencies Act 2004 (ACT) s 57(2)).  In Victoria one of the functions of the SES is to take part in ‘other authorised emergency activities including … participating in civil defence activities’ Victoria State Emergency Service Act 2005 (Vic) s 5(d).  To ‘take part in’ is not, however, the same as leading or coordinating those activities as required in Tasmania and the ACT.

So what is civil defence?  This is a concept known to international law and in particular 1st additional protocol to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts.   The first protocol defines Civil Defence (Article 61) as:

… the performance of some or all of the undermentioned humanitarian tasks intended to protect the civilian population against the dangers, and to help it to recover from the immediate effects, of hostilities or disasters and also to provide the conditions necessary for its survival. These tasks are:
(i) Warning;
(ii) Evacuation;
(iii) Management of shelters;
(iv) Management of blackout measures;
(v) Rescue;
(vi) Medical services, including first aid, and religious assistance;
(vii) Fire-fighting;
(viii) Detection and marking of danger areas;
(ix) Decontamination and similar protective measures;
(x) Provision of emergency accommodation and supplies;
(xi) Emergency assistance in the restoration and maintenance of order in distressed areas;
(xii) Emergency repair of indispensable public utilities;
(xiii) Emergency disposal of the dead;
(xiv) Assistance in the preservation of objects essential for survival;
(xv) Complementary activities necessary to carry out any of the tasks mentioned above, including, but not limited to, planning and organization;

Civil Defence organisations have a special place in the law of war and ‘their personnel shall be respected and protected’ during time of war (art 61(1)).  Where a country is invaded, the ‘Occupying Power’ must allow Civil Defence organisations to continue to operate for the benefit of the civilian population (art 63).  Further Civil Defence organisations that are operating in a conflict area are entitled to the same protection so if, for example, the ACT SES were to deploy a force to provide civil defence assistance in a war zone (unlikely I grant you) the parties to the conflict have to allow them to operate for the benefit of the civilian population and protect their staff and assets (art 64).

Parties to the conflict should take steps to ensure civil defence personnel, buildings and shelters are identifiable (art 66).  To this end there is an internationally recognised symbol for civil defence that is ‘an equilateral blue triangle on an orange ground’ (art 66(4)).

Emblem of Civil Defence

International armed conflict is war (whether declared or not) between states.  Non-international armed conflict is ‘”armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties” (ie a State).   Non-international armed conflict includes a conflict between government forces and rebel groups or between groups within a state (see International Committee of the Red Cross (ICRC) How is the Term “Armed Conflict” Defined in International Humanitarian Law? (March 2008))

The ICRC, as custodians of International Humanitarian Law (ie the law of war) also say, with respect to civil defence (ICRC, Civil Defence in International Humanitarian Law (June 2001)) that:

… the rules regarding [Civil Defence] … should also be complied with during non-international armed conflict, as part of the general protection accorded to the civilian population against the dangers resulting from military operations.

There is an International Civil Defence Organisation (the ICDO) that is

… an intergovernmental organisation with the objective to contribute to the development by States of structures ensuring the protection and assistance of population and safeguarding property and the environment from natural or man-made disasters.

On that definition the ICDO is interested in more than protecting populations in time of war.  It is actively engaged in trying to promote international cooperation in natural disaster response arrangements.   The ICDO has 55 member states but they are concentrated in China, Russia and the former Soviet Union States and Africa.  Australia, Canada, the United States, the United Kingdom are not members of the ICDO.    There is a Red Cross/Red Crescent International Disaster Response Law program that is trying to encourage states to pre-plan for how they will receive international disaster assistance and to facilitate the movement of responders across national borders.  There is already in existence a Framework Convention on Civil Defence Assistance (22 May 2000) that if adopted could help facilitate international civil defence assistance in ways anticipated by the Red Cross/Red Crescent movement.  Again the convention, like the ICDO is not widely adopted across the Western world.

Discussion

Agencies involved in the tasks listed article 61 are civil defence organisations even if that is not specifically mentioned in their functions.  So Fire and Rescue NSW, being an organisation that provides fire-fighting (art 61(vii)) is a civil defence organisation even though civil defence is not mentioned as a function.  Equally the State Emergency Services are civil defence organisations are civil defence organisations even if that term is not used in their legislation.

What is interesting for Tasmania and ACT SES’ is the requirement to ‘coordinate civil defence measures’ (Tasmania) and ‘undertake civil defence planning and civil defence operations’ (ACT).  And presumably the National Capital, ACT and Canberra is a potential war target, perhaps more so than Hobart?  Does civil defence planning (ie planning to support the civilian population should international or non-international armed conflict reach Australia’s shores) occur?  I suspect it does but I’m not sure it’s led by the SES.  I imagine that it’s seen as a task for the police and/or the ADF.  Perhaps Tasmania and ACT SES are leading the planning but keeping it ‘on the quiet’ on the basis that they don’t want to scare the population and it’s pretty unlikely to be called upon?

Does anything turn on this?  Probably not, it was just interesting to observe that Tasmania and ACT State Emergency Services maintain that express link to civil defence and therefore have particular obligations, recognised in international law, to take the lead in supporting the civilian population in the event of a war.  Let us hope it is one function they never need to actually exercise.

I received a message via Facebook.  My correspondent wrote:

 G’day Michael- on Facebook and other sites, there’s a lot of calls for mandatory sentencing for those who assault Police and Paramedics. Have you written anything about this in terms of why it would or wouldn’t work and if there are any other legal implications and other issues? Luke

In fact I have written on this subject. On 26 December 2015 on my Emergency Law Facebook page I responded to a story in the Adelaide Advertiser – Amanda Blair: Harsher jail terms for assaulting ambos won’t make them safer.

In my comment I said:

At the risk of offending many people who read this blog, I feel I have to comment on this giving the criticism Ms Blair has received for her comments. Because I agree with her – mandatory jail sentences are not and never have been the answer to any crime problem. Mandatory sentences do not achieve deterrence, they just move the discretion. With mandatory sentences it comes down to the police to decide who goes to gaol (do they charge the alleged offender or not). When the police make the decision the person cannot explain their situation and the decision is not made in public with published reasons, as must occur when a judge imposes a sentence.

A prison sentence may have some deterrence affect on an individual but little effect on others. A person who is intoxicated is unlikely to think ‘I’d better not hit this person because someone I don’t know in other circumstances went to gaol for something that may nor may not be similar’. At that point in time the implications of punishment are not likely to be on their mind.

As for references, like Ms Blair and other commentators, I can’t point to specific criminological research but it is I think well accepted that gaol is a very expensive and ineffective way to reduce crime at large and carries with it much higher costs and broader social implications.

Remember too that assault is more than just physical contact. People may ‘hit’ a paramedic but many of them will not be guilty of any offence – see for example https://emergencylaw.wordpress.com/…/tasmania-alcohol-affe…/. The offender there was guilty of assaulting a paramedic, but was not guilty of assaulting the police officer involved even though he quite clearly intended to hit him. Other people will be not guilty because of the impact of the very injury or crisis that has brought them into contact with paramedics and that can include the impact of drugs and alcohol. Some people will take drugs or alcohol knowing they turn into jerks, for others it may be a poor and unexpected result. If they don’t understand what they are doing, or intend to do it, they will not be guilty of any offence. If there’s no offence, there’s no sentence.

For a more detailed discussion see https://emergencylaw.wordpress.com/…/responding-to-violenc…/

There were a number of comments to that post including the following:

Hi Michael,

Firstly, I would like to emphasize that I’m not offended, I just have some questions / comments.

You mention that under mandatory minimum sentencing, it comes down to the police as to who goes to gaol. I don’t quite understand your comments on this point.

As I understand, whether a person is charged with assault comes down to two things.

1) The victim wanting to press charges, and

2) There being sufficient evidence for police to proceed with laying charges.

This does not change if there are minimum mandatory sentencing rules in effect. There would still be many instances where the victim decides that they do not want to press charges. However, if the victim wants to press charges, then assuming there is sufficient evidence, police will charge them. This does not mean the alleged offender will automatically go to prison.

The alleged offender, once charged, would still have to go to court, be able to make their case and would need to be found guilty before any sentencing is imposed. As you rightly pointed out, if the alleged offender is found not guilty for whatever reason, then there is no sentencing.

From what I understand, there are examples where following minimum mandatory sentencing for assaults against police, the rate of assaults has decreased. I certainly agree that this will not be a deterrent for all. But it will be a deterrent for some and I’m assuming that is where the incidences of a reduction in assaults have occurred. Saying that, if talking about strategies relating to reducing occupational violence, then any changes to the legal system should only be thought of as a part of the solution (with some States benefiting from changes, while others already have fairly strict legislation).

I replied:

Dear …

You say:

“As I understand, whether a person is charged with assault comes down to two things.

1) The victim wanting to press charges, and

2) There being sufficient evidence for police to proceed with laying charges. “

That is not correct. What determines whether or not charges are laid is whether police believe there is sufficient evidence and whether, all things considered, they wish to bring charges and what they charge people for. The attitude of the victim is only one consideration. If a victim does not want to cooperate with police then that may make it harder to prove but if the police think they can prove the case without the victim’s cooperation they are entitled to bring charges. If that was not the case no-one would be charged with murder or assault on children. Domestic violence is one situation where increasingly police bring charges even where the victim asks them not to because it is intended to send a message that this is a crime like any other. In the Australian criminal justice system the victim is a witness but the question of whether or not there is a crime does not depend on them. Police can bring charges the victim doesn’t want them to and can refuse to charge people even if the victims want them to. It is ultimately the Crown, not the victim, that presses charges.

As a prosecutor the police (like the Director of Public Prosecutions) has to consider many things, the evidence, the likelihood of success, the community interest in the prosecution etc (see http://www.odpp.nsw.gov.au/prosecution-guidelines).

With respect to mandatory sentences, it’s up to police to decide what to charge a person with. Assume there is a mandatory sentence for assault occasioning actual bodily harm. The police can choose to prosecute for that offence with the mandatory sentence or try a lower offence e.g. Assault that doesn’t carry the mandatory sentence. If the mandatory sentence applies to assault, they could chose to charge a person with ‘offensive behaviour’. Or perhaps they’ll make a decision to issue only a caution because they don’t think the mandatory punishment is warranted. In all these cases it’s the police who exercise discretion but not in public and without giving detailed reasons for their decision, as a judge must do.

As for a decrease in rates of ‘assault police’ I have no data on that but even if it were true it would be hard to say there was a direct causal link and that it was the increase sentence not other things that may have had that effect. It may be that courts or juries are unwilling to convict if they think the mandatory sentence is too great; some police may also chose not to prosecute for those offences in the same circumstances.

None of that denies that there will be circumstances where gaol is the appropriate penalty, but if one wants to stop violence, mandatory gaol sentences will not be effective.

This question comes from a Queensland paramedic but is relevant nation wide as it relates to interactions between paramedics and midwives.  As my correspondent says:

Some interesting points have come up about the paramedic interaction with a home birth midwife and/or a Doula at a scene and the obligations around standards of care.

What interests me, and if you don’t mind I would love your opinion are the new guidelines just published last week by the Australian College of Midwives concerning transfer of a mother from a home birth, see link below

https://www.midwives.org.au/sites/default/files/uploaded-content/field_f_content_file/20160330_-_acm_transfer_from_planned_birth_at_home_guidelines_-_endorsed.pdf

I draw your attention to page 14 onwards and the sentence ‘If circumstances escalate, the midwife recommends transfer: if the woman continues to decline transfer, the midwife calls an ambulance, requests that the personnel wait outside if possible, continues to provide care and documents the decision-making process and care provided.’

I wonder about the ‘wait outside’ legally don’t paramedics have a duty of care to assess the patient if called?

They are indeed interesting points.  The heading on p 14 is ‘Recommended Process in the Event a Woman Declines Transfer to Hospital for Herself’.  The Recommended process says ‘In the event of an emergency or birth is imminent, the midwife: … calls an ambulance and requests that the personnel wait outside if possible’.

Later:

If circumstances escalate, the midwife recommends transfer: if the woman continues to decline transfer, the midwife calls an ambulance, requests that the personnel wait outside if possible, continues to provide care and documents the decision-making process and care provided.

These recommendations are repeated in Figure 3 which a flow chart for the same ‘process’.

One wonders why someone is going to call an ambulance and then ask them to wait outside, and also what does ‘if possible’ mean?  Let us consider the issues from a legal point of view.

First health professionals need to work together.  A registered mid-wife has professional obligations to the woman and child in her care and no doubt has a prior and long standing relationship with them.  IT would be erroneous to think that is somehow secondary to the duty of the ambulance paramedics once called.  It would be inappropriate for the paramedics to simply push the midwife aside and say ‘where here now’ just as it would be inappropriate for a midwife to push aside paramedics who were already assisting a woman in labour (see also Step aside – I’m a doctor (October 17, 2014).

Professional respect should mean that paramedics when called should engage with the midwife to determine what is the situation, how it is being handled and what does the midwife think they paramedics can offer.  Working together is of course the best solution.   Working together would also require the midwife to work with the paramedics, not leave them outside until she or he is ready to call them in.  The critical issue is that all the health professionals communicate to act in the best interests of the woman and child and with due respect for the woman’s autonomy.

But, at the end of the day, the paramedics do have a duty to the person in need of care and having been called could not just ‘wait outside’ forever nor could or should they leave the scene without first talking to the woman involved, making an assessment of her condition and giving their recommendations as to whether transport to hospital is required.  If the woman is competent and informed she may refuse treatment and/or transport but they are all things the paramedics would want to document in accordance with their own treatment or protocol.    If the paramedics were to just wait outside and the patient’s condition deteriorated or she died, there would not doubt in my mind that both the paramedics and the midwife would be in breach of their professional obligations to both mother and child.

Whilst respect for patient autonomy does mean that the woman, if competent and informed, can refuse treatment and transport, the same is not so clear for the baby.   Whilst a parent can give or refuse consent for the treatment of their child that decision must be informed and in the best interests of the child (see Secretary of the Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 or ‘Marion’s case’).   A woman who is going through a critical labour and refuses treatment or transport of her infant may not be either competent or informed.   Paramedics and the midwife owe a separate duty of care toward the child who, once born, is a separate legal entity and they would have to assess that child and make a separate decision as to whether transport to hospital is needed.    The paramedics can’t do that if they are waiting outside.

The Recommended Procedure does not say how long the paramedics should be asked to wait and they may well, rightly, point out that there are other demands on their time.

Conclusion

It is my view that the recommendation that ‘the midwife calls an ambulance, requests that the personnel wait outside if possible’ is both silly and unprofessional.

It is silly as it doesn’t say how long they are expected to wait nor reflect the reality that ambulances are not available to stand by at a midwife’s convenience.

It is unprofessional as it does not recognise that the paramedics are also health professionals with their own treatment protocols, capacity to engage with their patients and their own duty of care.  It treats paramedics as old fashioned ‘load n go’ ambulance drivers (and was, presumably, written without consultation with a body such as the Australian and New Zealand College of Paramedicine or some other body representing the professional concerns of paramedics).  The ‘Recommended process’ does not encourage communication between the midwife and the paramedics to develop a plan of action to advance the interests of both mother and child.  A better statement would be:

‘the midwife calls an ambulance and, upon their arrival, discusses with the paramedics the situation at hand, treatment provided so far, details of the midwife’s concerns and recommendations and then works with the paramedics to develop a treatment plan that is in the best interests of the woman and child and gives full affect to her autonomy to the extent that she is capable of making informed health care decisions’

Another question for first aiders:

Hi Michael, I have a question in relation to the administering of emergency first aid, especially in circumstances where the “patient” is unable to provide permission themselves.

I believe it is generally well understood that a person is able to reject first aid treatment even if the obvious outcome from rejecting that first aid assistance is dire.  However where a person is unable to make their wishes known (such as a state of unconsciousness) the First aid worker can safely assume the person would have given their consent and can commence treatment such as resuscitation, application of a defib device or whatever else the first aid person believes is appropriate.

However what happens if, upon commencing that potentially life saving treatment a third person steps forward and claims to be a close relative of the patient and demands that you cease your treatment.  I am thinking of someone claiming to be a Husband, Brother or Father.

In some cultural settings it may be perceived that the male relative always speaks for the female, but what does Australian law say about it?

Can the the person claiming to be a close relative stop the persons treatment?

Does it make a difference if the patient is a child?

I look forward to your reply.

Let me start with an essential correction.  My correspondent says

I believe it is generally well understood that a person is able to reject first aid treatment even if the obvious outcome from rejecting that first aid assistance is dire.  However where a person is unable to make their wishes known (such as a state of unconsciousness) the First aid worker can safely assume the person would have given their consent and can commence treatment such as resuscitation, application of a defib device or whatever else the first aid person believes is appropriate.

That may be generally well understood … and it’s wrong.   Let me say that again – it’s wrong.  What’s being described here is what is traditionally called implied consent and implied consent does not justify the treatment of the unconscious, the doctrine of necessity does.  If a person is not capable of making a decision, reasonable treatment may be given but you cannot assume consent. Rather the relevant law is that of necessity. In Re F [1990] 2 AC 1 Lord Goff said:

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

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

The problem with the notion of ‘assumed’ consent was that it provided for the legal fiction of assuming consent when people simply could not consent (eg children) or when people had clearly indicated they did not want the treatment.

So a person can receive treatment that is necessary and in their best interests but not if it is contrary to their known wishes. Can a person claiming to be a close relative of an adult stop the person’s treatment?  The answer is generally no.

If a person claiming to be a close relative demands that you cease treatment that may cause pause to think about whether they are telling you of the person’s prior wishes and can they support that, ie can they produce for example a refusal of treatment certificate.  Whether you accept that depends on the circumstances protocols and procedures of the ambulance service involved – see Withholding Resuscitation in Victoria (April 8, 2013).

If the person is the parent of a child or the adult patient’s appointed legal guardian and medical attorney (different names in different states) then they are the people entitled to make treatment decisions.  It is often the case that the treatment must accord with the patient’s known wishes and/or be in the patient’s best interests.   In many cases the consent is not required in an emergency (see for example Guardianship Act 1987 (NSW) s 37).

The common law says that a competent adult has the right to refuse treatment even if that means they will die.   The critical questions are:

• Was the patient competent?
• Was their refusal informed?
• Does it cover the situation that now arises?

If the answer to those three questions is ‘yes’ then the refusal is binding, and must be honoured (see In Re T [1992] EWCA Civ 18).  If the refusal is being given by a parent or guardian the same questions have to be asked and answered.  If the parent or guardian is not fully informed because of the emergency nature of the situation and there is no time to explain their options any purported refusal will not be binding.

In short where you have a previously competent adult who is now incapable of making decisions due to the nature of their injuries or illness then no-one has the authority to refuse treatment on their behalf and treatment that is reasonably necessary and in the patient’s best interests can be given.  A parent or guardian can refuse treatment but that is not likely to be relevant in the situation of emergency first aid.

For a more detailed discussion see my book Emergency Law, (The Federation Press, 4th ed, 2013) pp 58-60.

This question comes from a volunteer with St John (NSW).

I have a question for you. Everyone I ask seems to provide a different answer.

Current NSW has red lights and sirens on their vehicles.

Is St John entitled to have lights and sirens independently? If the answer to the previous question is yes, are we then entitled to move to red and blue lights?

Some believe our authority comes from Ambulance. And we always intend to work closely with Ambulance on these matters. However I am keen to know the legal position.

There is no way St John’s authority to have red lights (or red/blue lights) and siren comes from an affiliation with the Ambulance Service of NSW.  It has to come independently.   The relevant rules are in the Road Transport (Vehicle Registration) Regulation 2007 (NSW).    The Vehicle Standards are set out in Schedule 2.

Clause 33(2) says that a ‘motor vehicle must not be fitted with a device that can make a sound like the sound of a siren, exhaust whistle, compression whistle or repeater horn’.  This rule does not apply to, amongst other things, an ‘emergency vehicle’ (cl 33(3)(b)).    An emergency vehicle includes a vehicle that is being driven by ‘a member of the Ambulance Service rendering or providing transport for sick or injured persons’ (Schedule 2, Dictionary).  Note that it says ‘the Ambulance Service’, not ‘an ambulance service’ so one has to infer that means the Ambulance Service of NSW.

An ‘emergency services vehicle’ (which is different to an ‘emergency vehicle’) may be fitted with flashing headlights (cl 86).  An ‘emergency service vehicle’ includes ‘an ambulance’ (cl 86(7)(b)).  Does St John Ambulance (NSW) operate an ambulance?   ‘Ambulance’ is not defined.  According to the oxford dictionary (online) it is ‘A vehicle equipped for taking sick or injured people to and from hospital, especially in emergencies’.  I’m sure many of the vehicles used by St John would be considered an ‘ambulance’ even if they are not actually used for patient transport.  (For a similar discussion see Does St John Ambulance (Vic) operate ambulances? (March 26, 2015)).  The critical issue will actually be the attitude of the Roads and Maritime Services (RMS).  If there is some endorsement on the registration papers that the vehicle is an ‘ambulance’ then it is indeed an ambulance for the purpose of these rules in which case you can have the flashing headlights.  :

A vehicle must not have ‘a light that flashes or rotates’ or ‘shows a red light to the front’ or ‘shows a blue light’ (cl 124(2)) unless it is provided for in the rules.   Ambulances may be fitted with ‘a light or lights, at least one of which must be mounted on top of the vehicle, capable of displaying a flashing or rotating light’ (cl 124(4)).   In the case of an ambulance the light that may be displayed is ‘a blue or red light’ (cl 124(7)(a)).   One would normally read ‘or’ as a disjunct, ie a blue or a red light, not a blue and a red light, but clearly practice is to have both.

A ‘Red Cross vehicle, a mines rescue or other rescue vehicle or an emergency vehicle within the meaning of the Road Rules 2014…’ (other than vehicles listed in cl 124(7)(a) which includes an ambulance) are only to display a red light (cl 124(7(b)). An emergency vehicle within the meaning of the Road Rules 2014 (NSW) is a vehicle driven by an emergency worker which includes a vehicle driven by a ‘person (or a person belong to a class of persons) approved by the Authority’.

Even if the vehicles are not an ‘ambulance’ and even if St John volunteers are not appointed as ‘emergency workers’, the RMS may issue an exemption from any of the provisions of the Vehicle Standards (cl 10).  It follows that if there is a specific authority issued by RMS, St John may fit flashing lights and/or a siren in accordance with that authority or exemption.

So where does that leave St John (NSW)?

1. If St John (NSW) vehicles are registered as an ‘ambulance’ then you can have flashing headlights and red/blue flashing lights. They cannot have a siren.
2. If the vehicles are not registered or somehow endorsed by RMS as an ‘ambulance’ (and assuming St John doesn’t want to get an infringement or defect notice and then go to court to argue that they are in fact an ambulance) then has the RMS approved St John drivers’ as ‘emergency workers’? If they have then the vehicles are ‘an emergency vehicle within the meaning of the Road Rules 2014’ and you can have red flashing lights.  They cannot have a siren.
3. If the vehicles are not an ‘ambulance’ and St John volunteers are not approved as ‘emergency workers’ St John would need an exemption issued by the RMS (cl 10) to fit flashing lights.
4. To have a siren St John would need an exemption from cl 33(2) issued by RMS (cl 10).

Relevant flow charts are below:

I suspect this correspondent wants to start a business.  He or she says

I know you have discussed various legislation and regulation that covers Private Ambulance Services, but these tend to imply a transportation service.  My question relates to a Private Paramedic Service that does not transport…..

An example would be Expedition Medicine.

Groups that undertake expeditions in to remote or difficult areas might want to employ the services of a trained Paramedic who can provide emergency pre-hospital care.  This wouldn’t necessarily include transport, it would most likely involve life saving procedures and/or invasive procedures such as IV access for fluid therapy and of course appropriate drugs.

Repatriation would most likely be left to the appropriate government agency, for example a state ambulance service, but in remote areas this may be delayed.

My question is how can this operate?  Is there legislative provision, in any state, for such a service to be set up by a private company or individual.  How can authority be gained to administer medical procedures or drugs that a Paramedic would normally be trained in, without the usual authority that is gained by employment through an ambulance service?

Putting aside, for one minute, the use of drugs.

If you are in WA or the NT go for it.  There is no legislation.

If you are in South Australia, you cannot operate an ambulance service without a license (Health Care Act 2008 (SA) s 60).  But an ambulance service, in that State, is ‘service of transporting by the use of an ambulance a person to a hospital or other place to receive medical treatment or from a hospital or other place at which the person has received medical treatment’.  If my correspondent does not intend to transport persons the he or she is not providing an ambulance service and s 60 is not applicable.

In SA a person cannot be described as a ‘paramedic’ unless the person holds the prescribed qualifications (Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) Sch 2, cl 120A and Health Practitioner Regulation National Law (South Australia) Regulations 2010 (SA) r 11A).

In Queensland ‘A person … is not to directly or indirectly imply that the person provides or participates in providing ambulance transport without the approval of the Minister and except in accordance with such conditions (if any) as the Minister may impose’ (Ambulance Service Act 1991 (Qld) s 43).   My correspondent is not intending to provide ambulance transport so there would be no offence contrary to s 43.

In Victoria it is an offence to claim to have any relationship with or be part of Ambulance Victoria or to use the word ‘ambulance’ or ‘ambulance service’ (Ambulance Services Act 1986 (Vic) s 39).  It would be easy for my correspondent to avoid using ‘Ambulance’ in any business title and ensure that there is no suggested link with Ambulance Victoria.

In New South Wales the Health Services Act 1997 (NSW) s 67E says:

(1) A person must not:

(a) directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, or

(b) conduct for fee or reward any operations similar to the operations carried on by the Health Secretary under this Chapter,

without the consent of the Health Secretary and except in accordance with such conditions (if any) as the Health Secretary may from time to time impose.

My correspondent is not proposing to provide ambulance transport so s 67E(1)(a) does not apply but it is arguable that s 67E(1)(b) does as the Ambulance Service of NSW will provide on site emergency medical care if requested and paid to do so.

In any event a person cannot use the title ‘paramedic’ in New South Wales unless he or she holds the prescribed qualifications or is an authorized employee of NSW Ambulance (Health Services Act 1997 (NSW) s 67ZDA; see also What are the prescribed qualifications for a paramedic in NSW? (January 20, 2016).

In Tasmania, the Ambulance Service Act 1982 (Tas) s 37 says:

A person shall not provide ambulance services similar to the services provided by the Commissioner under this Act without the written consent of the Commissioner and except in accordance with such conditions (if any) as the Commissioner may from time to time impose in relation to the provision of ambulance services by that person.

Ambulance Services are ‘the work of rendering out-of-hospital clinical care to, and the conveyance of, persons suffering from illness or injury’ and it certainly sounds like that is what my correspondent intends to do.

It is an offence to use the title ‘paramedic’ in Tasmania unless a person is an employee of Ambulance Tasmania and holds the appropriate qualification or is otherwise approved under the regulations (Ambulance Service Act 1982 (Tas) s 3AB).

In the ACT it is unlawful to provide ambulance services without permission (Emergencies Act 2004 (ACT) s 63).   Ambulance services are ‘the provision of medical treatment and pre-hospital patient care, and includes the transport of a patient by ambulance or medical rescue aircraft’ (s 60).  The use of the word ‘includes’ shows that transport is not an essential part of ambulance services, that is transport is part of ambulance services, they are ‘included’ in the definition.  Even so the provision of pre-hospital patient care without transport is sufficient to meet the definition.

Conclusion so far

• You can operate as a private emergency health care provider:
  • In WA and NT;
  • In Queensland and South Australia provided you are not providing ‘transport’;
  • In Victoria provided you do not use the word ‘ambulance’ or claim any affiliation with Ambulance Victoria;
  • In NSW provided you are not providing services ‘similar to the operations carried on by the Health Secretary’ that is by New South Wales Ambulance.
• You cannot provide ambulance services, without permission, in Tasmania or the ACT.
• You cannot use the title ‘paramedic’ unless you hold the prescribed qualifications in South Australia, Tasmania and New South Wales.

Drugs

As I’ve noted earlier paramedicine is a largely unregulated field and there is no law to stop a person providing ‘life saving procedures and/or invasive procedures such as IV access for fluid therapy…’ provided they know what they are doing.  The key issue is drugs.  It is unlawful in every state to use, carry or administer scheduled drugs.  The key drugs in emergency medicine may be listed in schedules 2, 3, 4 or 8 of the Poisons standard.

Each jurisdiction has a process to allow authorities to be granted to relevant people or organisations to allow them to use scheduled drugs in accordance with their training (see for example, Poisons and Therapeutic Goods Regulation 2008 (NSW) Appendix C).

So if my correspondent wants to use ‘appropriate drugs’ he or she would need to contact the relevant Health Department and determine what they require in terms of training, clinical control and security and apply for the relevant authority to possess and administer the drugs that were ‘appropriate’.

Paramedic registration

Think how much easier it would be if paramedics were registered?  As part of their registration they could have the authority to carry ‘appropriate drugs’ so anyone who wanted to provide this sort of service need only employ a ‘registered paramedic’ and it would be clear what drugs they could use and carry.

It would be clear to any client what service they could provide as they could call themselves a ‘paramedic’ and the client would know that only registered paramedics could use that title (unlike the situation now in WA, NT, Victoria, Queensland and the ACT where anyone can call themselves ‘a paramedic’ or Tasmania where only employees of the Ambulance Service can use the title).

As my correspondent has noted; many of these issues have been raised previously.  See for example:

• Use of artificial airway by a sports volunteer March 14, 2016
• Carrying scheduled drugs interstate January 28, 2016
• Alternative ambulance providers in WA January 24, 2016
• What are the prescribed qualifications for a paramedic in NSW? January 20, 2016
• “Stereosonic 2015: Paramedic company gags staff from talking to police after woman dies” December 1, 2015
• The use of scheduled drugs by volunteer Ambulance Officers in Tasmania. November 16, 2015
• Carrying and using Methoxyflurane and other scheduled drugs in NSW October 3, 2015
• Protecting the title of paramedic in NSW June 3, 2015
• Victorian state registration of paramedics November 4, 2014
• Protecting the title of Paramedic (South Australia) October 2, 2014
• What is a paramedic’s ‘authority to practice’? August 19, 2014
• St John (NSW) and Schedule 2 drugs April 1, 2014
• Legislative compliance for WA Paramedics – what legislation? February 12, 2014
• Ambulance Service Amendment Act 2013 (Tas) January 24, 2014

See also my submission to the Senate Inquiry into The establishment of a national registration system for Australian paramedics to improve and ensure patient and community safety.

That is not quite the subject of the article that my colleague Luke Dam has brought to my attention ( Julie Hedjes, ‘Emerald and Cockatoo CFA volunteers abused by motorists at crash scene roadblocks’, Leader, 21 March 2016) but I think it is the interesting point for me to comment on.

The gist of the story is the bad behaviour of motorists

‘CFA volunteers are being abused and in some cases, have their lives endangered by impatient drivers angry about roads being blocked during emergencies… one driver went through the roadblock, only to find that the road was indeed blocked and he was then stopped by police who were also at the rescue’.

But what to do about them?  The obvious answer is to charge people who ignore the CFA advice that the road is closed.  But can that be done?  An interesting anomaly in lots of emergency service legislation is that the emergency services are given the power to close a road, but there is no offence created if a driver ignores them.

That is not the case for Victoria SES.  In Victoria, the State Emergency Service may close a road at a ‘traffic emergency’ – that is an emergency arising from a transport accident or flood or storm.  But they may only close the road if there are no police present and the senior ‘authorised emergency worker’ believes it is necessary to direct traffic; or the most senior police in attendance asks to SES to direct traffic.  It is an offence to fail to comply with the directions given by an ‘authorised emergency worker’ (Victoria State Emergency Service Act 2005 (Vic) s 40).  The maximum penalty is a fine of 2 penalty units.  A penalty unit is $151.67 so the maximum fine is $303.34.

But this story is about the CFA?  The CFA can also close a road ‘for the purpose of protecting life, property or the environment, or if … smoke from a fire impairs visibility on any  road  to such an extent that the safety of any persons using the  road  is endangered…’ (Country Fire Authority Act 1958 (Vic) ss 30(f), 44A).   There is however no offence provided for failing to comply with directions given under these sections.  There is an offence of obstructing, hindering or interfering with a CFA officer performing a duty under the Act (s 107) and the CFA can provide road rescue services (s 97B) so that could be a relevant offence but it is certainly not as clear as the provisions in the SES Act.

So why have the power if it’s not enforceable?  An agency like the CFA needs a road closing power because it is generally an offence to obstruct traffic or close a road.  A person has a right to travel along a road (Road Management Act 2004 (Vic) s 8) so if an agency like the CFA wants to deny someone that right, they need lawful authority to do so (s 8(5)).    Sections such as s 30(f) and 44A of the CFA Act are required to ensure the CFA is not, itself, breaking the law but it does not follow it is an offence to ignore their direction.

It is an offence to fail to comply with a reasonable traffic direction issued by a police officer (Road Safety Act 1986 (Vic) ss 59 and 64A).

So drivers are driving past CFA road blocks.  They may be committing general driving offences such as negligent or dangerous driving depending on the circumstances.  If they actually hit someone you can be sure that some offence has been committed.  What appears to be a continuing anomaly, except where the road block is being operated by Victoria SES, is that there is no actual offence of failing to recognise that a road is closed just because the CFA says so.

A correspondent has brought to my attention that the ACT legislature has passed the Health Legislation Amendment Act 2015 (ACT).  One effect of this Act is to amend the Civil Law (Wrongs) Act 2002 (ACT) to provide good Samaritan protection for those who administer ‘naloxone, honestly and without recklessness, to a person apparently suffering from an overdose of an opioid drug for the purpose of resuscitating the person’.

Before the amendment the Act said (at s 5):

(1) A good samaritan does not incur personal civil liability for an act done or omission made honestly and without recklessness in assisting, or giving advice about the assistance to be given to, a person who is apparently—

(a) injured or at risk of being injured; or

(b) in need of emergency medical assistance.

(2) However, the protection does not apply if—

(a) the liability falls within the ambit of a scheme of compulsory third-party motor vehicle insurance; or

(b) the good samaritan’s capacity to exercise appropriate care and skill was, at the relevant time, significantly impaired by a recreational drug.

(3) In this section:
good samaritan means—

(a) a person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently—

(i) injured or at risk of being injured; or

(ii) in need of emergency medical assistance; or

(b) a medically qualified person who, acting without expectation of payment or other consideration, gives advice by telephone or another form of telecommunication about the treatment of a person who is apparently—

(i) injured or at risk of being injured; or

(ii) in need of emergency medical assistance.

medically qualified—a person is medically qualified if the person—

(a) is a doctor; or

(b) has professional qualifications in a field of health care that are recognised under an Act; or

(c) works, or has worked, as a member of the ambulance service or in another paramedical capacity.

The amendment adds a new subsection 3 which says:

Despite subsection (2) (b), if a good samaritan administers the drug known as naloxone, honestly and without recklessness, to a person apparently suffering from an overdose of an opioid drug for the purpose of resuscitating the person, the protection under subsection (1) applies even if the good samaritan’s capacity to exercise appropriate care and skill was, at the time of administering the drug, impaired by a recreational drug.

(The definition section is then renumbered as sub-section 4).

Recreational drug means ‘a drug consumed voluntarily for non-medicinal purposes, and includes alcohol’ (Civil Law Wrongs Act 2002 (ACT) s 2).

Having drawn the change to my attention, my correspondent says ‘I look forward to your opinion’; which I’m happy to share.

The first thing to note is that the new sub-section (3) doesn’t imply that a person who administered ‘naloxone, honestly and without recklessness, to a person apparently suffering from an overdose’ would not have enjoyed good Samaritan protection even without the amendment.   A sober person could have used naloxone and relied on s 5(1).

What’s interesting is the provision that says a person who uses naloxone enjoys good Samaritan protection even if their ‘capacity to exercise appropriate care and skill was, at the time of administering the drug, impaired by a recreational drug’.  What that means is that exclusion contained in s 5(2)(b) does not apply.

What’s my opinion on that change?  That’s all well and good, it is likely that people who are with someone who is suffering an opiod overdose may well have taken the same drug so they may be affected and if they need protection to take steps to save their friends life, all well and good.

My opinion is that s 5(2)(b) is a complete rubbish section and should be removed.  Its presence defeats the purpose of the Act.  Remember that there are no reported cases of anyone being sued for rendering emergency first aid – that’s no one, ever – see The risk of liability for performing emergency CPR is overstated – even in the USA (October 7, 2015).

Legally, the good Samaritan provisions are not necessary.  As the Ipp Review on the Law of Negligence reported (Final Report (Commonwealth of Australia, 2002), [7.21]-[7.24]; emphasis added):

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

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

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

So if there was no legal problem to be solved why was the legislation introduced? Answer, to solve a perception problem – that is if people had ‘a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations’ and that made them unwilling to come forward, enacting good Samaritan legislation might remove that anxiety and therefore encourage people to act.  No doubt a good and sufficient motivation.

But why add s 5(2)(b) when that would be when the Act is really needed.  Imagine an off duty paramedic out with a few mates and someone collapses or is injured right near them.  That is where you have someone with expert skills who, if stone cold sober, would step up and perhaps save a life (or at least give the person their best shot).   They would be protected by the good Samaritan law even though no such protection was required.  But now they’ve had a drink or two  – a perfectly lawful thing to do.  When you’re out drinking that is when you are likely to come across accidents and injuries but now that paramedic loses the good Samaritan protection but surely that is when we want him or her to step up and do their best and that is when they need protection.  They’re honestly trying to help but may not be performing at their normal level, but if ‘“Any Attempt at Resuscitation is Better Than No Attempt” (Australian Resuscitation Council http://resus.org.au/) they should be encouraged to act – ‘don’t worry we know you may not be performing at your best but anything you do is better than nothing and you won’t be held to the same professional standard as you would be if you were at work’.   As it is anyone who can help is actively discouraged from helping.  And let’s face it, we’d all rather die than risk being treated by someone who’s consumed alcohol or drugs!

And why does the ACT remove that clause when administering naloxone but no other treatment? The opioid user who administers naloxone enjoys the protection but if he or she fails to also put the person in the stable side position or performs rubbish CPR they don’t have that protection because there the treatment may be negligent (albeit in good faith) but s 5(2)(b) applies.

Finally a provision denying protection to those affected by drugs or alcohol does not apply in Victoria (Wrongs Act 1958 (Vic) s 31B) or Queensland (Law Reform Act 1995 (Qld) s 16).

Conclusion

My opinion is that the good Samaritan legislation was introduced to resolve a perception problem not a legal problem.  Having enacted good Samaritan legislation however, every jurisdiction other than Victoria and Queensland have moved to make the legislation ineffective when it might actually be needed that is when a person who could actually help knows they’re not performing as they might at work.   It is then that people should be reassured that if they do their best to help they won’t be liable because doing something is better than doing nothing.

Do I think the new provisions in s 3 of the ACT Act are a good idea?  Yes, but the section doesn’t go far enough.  If an opioid user needs to control the life threatening haemorrhage, or do CPR or otherwise treat their ‘mate’ they, like everyone, should enjoy the good Samaritan immunity because reassuring people that they won’t be liable for honestly doing their best to help in an emergency and before the emergency services get there, is the very point of the Act.