This question comes from a protective service officer who says:

As far as I am aware, protective service officers of the AFP cannot claim exemption from the road rules using 305 or 306, even though they may attend emergency situations or needed to attend urgently.

My question is can protective services officers use lights and sirens to attend a job whilst abiding by all road rules? That is; keeping to speed limit, not running reds, just utilising the lights and sirens as a means to warn other road users out of the way? Would this be legislated or an organisation directive to do or not to do so?

Also what is the legality for protective service officer vehicles and red and blue lights? Looking at the NSW vehicle standards it says police, NSW Fire and Rescue, ambulance, SES, RMS emergency vehicles can have fitted red and blue lights. Nothing about Australian federal police vehicles or specifically vehicles operated by protective service officers. It does in the section regarding sirens state that Australian federal police vehicles may be fitted with a siren, as well as mentioning police, ambos etc.

The AFP work nationwide but given my correspondent has referred to the NSW Vehicle Standards, I’ll answer using NSW law.

The Australian Federal Police force is established by the Australian Federal Police Act 1979 (Cth).  The Australian Federal Police consists of the Commissioner, the Deputy Commissioner, AFP employees, special members and special protective service officers (s 6).  A special protective service officer is ‘a person appointed under section 40EC’ (s 4).   Section 40EC says:

The Commissioner may … appoint a person as a special protective service officer of the Australian Federal Police to assist in performing the protective service functions of the Australian Federal Police.

The ‘protective service functions of the Australian Federal Police’ are defined by the Minister (s 8A).  A special protective service officer is an AFP appointee which is a generic term intended to mean all the staff of the AFP so sworn police officers, protective service officers and special members.   A member of the Australian Federal Police is an AFP employee who has been declared to be a member of the AFP (s 4).  The implications of all that is that the AFP consists of special protective service officers, special members and other AFP employees.  Only those AFP employees who have been declared to be ‘members of the AFP’ are police officers.   What I infer is that a ‘special protective service officer’, although an AFP appointee is not a member of the AFP ie he or she is not a police officer.

Now to the road rules; remember that rules provide that the driver of an emergency vehicle is exempt from the road rules (rule 306) as are drivers of police vehicles (rule 305).   As my correspondent has noted, rule 306 applies to vehicles driven by an emergency worker in the course of his or her duties as an emergency worker – an emergency worker is

(a) a member of the Ambulance Service or the ambulance service of another State or Territory, in the course of providing transport in an emergency associated with the provision of aid to sick or injured persons, or

(b) a member of a fire or rescue service operated by a NSW Government agency, a member of the State Emergency Service or a member of a fire brigade (however referred to) or rescue service of the Commonwealth or another State or territory, providing transport in the course of an emergency, or

(b1) a member of Airservices Australia providing transport in the course of a fire or rescue emergency, or

(c) a person (or a person belong to a class of persons) approved by the Authority.  (Rule 4 and Dictionary).

Clearly the AFP does not fall within those definitions.

Rule 305 says:

(1) A provision of these Rules does not apply to the driver of a police vehicle 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) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm.

Police may benefit from this rule even if they are not displaying a red/blue light or sounding a siren and that is reasonable in the circumstances (Rule 305(2)).

A police vehicle is ‘any vehicle driven by a person who is: (a) a police officer, and (b) driving the vehicle in the course of his or her duties as a police officer’.  A police officer is ‘a member of the NSW Police Force who is a police officer within the meaning of the Police Act 1990’ (Rule 4 and Dictionary).    One would assume that a member of the AFP is not a member of the NSW police however, the Police Act 1990 (NSW) provides that members of the AFP may be appointed as recognised law enforcement officers.  This may be done either individually or as a class.  An audit report on police at Australia’s airports says ‘AFP officers in NSW have been sworn in as Recognised Law Enforcement Officers (RLEOs) under NSW legislation’ (ANAO Audit Report No.23 2013–14, Policing at Australian International Airports, p 44, [2.12]).

A recognised law enforcement officer ‘may exercise all the functions (including powers, immunities, liabilities and responsibilities) that a police officer of the rank of constable duly appointed under this Act has and may exercise under any law of the State (including the common law and this Act)’ (Police Act 1990 (NSW) s 207E(1)).  Further ‘a provision of any Act or statutory instrument applies to a recognised law enforcement officer in the same way as it applies to a police officer in his or her capacity as a police officer’ (s 207E(3)).  It follows that even though AFP officers are not members of the NSW Police, the road rules will apply to them as if he or she was a police officer; so yes police officers with the AFP can rely on rule 305.

But Protective Service Officers are not police officers – so that provision won’t help.   It appears therefore that ‘protective service officers of the AFP cannot claim exemption from the road rules using 305 or 306, even though they may attend emergency situations or needed to attend urgently’ but there is one more argument.  A special protective service officer has:

(a)  any powers and duties that are expressly conferred or imposed on special protective service officers under a provision of this Act or any other Act; and (b)  such of the powers and duties conferred or imposed on protective service officers as are specified in his or her instrument of appointment ( Australian Federal Police Act 1979 (Cth) s 40ED).

Whilst I very much doubt that the Commissioner has given special protective service officers the power to drive without regard to NSW road rules in the instrument of appointment, he or she may have been given police powers that are sufficiently generic such as ‘all the powers and duties of a police officer’ or the like.

Without going into the details of what might be, the Australian Constitution provides that if there is an inconsistency between a State law and a Commonwealth law, the Commonwealth law prevails (Australian Constitution s 109).   If the Commissioner has given some relevant power in the instrument of appointment, that could override any inconsistent state law.  I am unable to verify if that is the case but I do have to say I suspect that it is unlikely.  So AFP Special protective service officers can benefit from s 305 if the Commissioner of NSW Police has appointed them as recognised law enforcement officers or there is a valid Commonwealth law, or power in his or her instrument of appointment that allows them to do so.

The next question is ‘can protective services officers use lights and sirens to attend a job whilst abiding by all road rules?’  The answer has to be ‘no’.  The point of lights and siren’s is to warn other drivers and there are obligations upon other driver’s to give way to emergency service and police vehicles (Rule 79).   Further it is a defence to stop, where it would otherwise be unlawful to stop, to comply with another rule (rule 165) so a driver who pulls over and stops to let a police vehicle with lights and sirens on pass, commits no offence.   In short if you have lights/siren on other vehicles are required to make way for you.  It would lead to confusion if, for example, you stopped at a red light with lights/siren on, other vehicles stopped to give way, but you stayed stopped at the intersection.  Driving with lights and sirens on does nto give you permission to drive recklessly or dangerously but it would increase the danger if people made way for you but you then did not act on that courtesy as you can’t break the road rules.

If the vehicle is not a police or emergency services vehicle, (which it’s not if it’s not being driven by an emergency worker or police officer, even if it’s a marked police care) then it is an offence to ‘use a device to make a sound like the sound of a siren’ (Rule 224-1), and a siren makes a sound like a siren!

As for fitting lights and sirens to AFP vehicles; the Road Transport (Vehicle Registration) Regulation 2007 (NSW) says that a vehicle must not ‘be fitted with a device that can make a sound like the sound of a siren’ unless, amongst others, it is a police vehicle or an Australian Protective Service vehicle’ (Schedule 2, clause 33).   That is the only mention of Australian Protective Services in the Regulation.

There remains the general catch all- an emergency worker includes ‘a person (or a person belong to a class of persons) approved by the Authority’ as an emergency worker (Road Rules 2008 (NSW) r 4 and Dictionary, definition of Emergency worker); a vehicle may be fitted with flashing blue/red lights if they are ‘approved by the Authority’ (Road Transport (Vehicle Registration) Regulation 2007 (NSW) Schedule 2, clause 124).

Conclusions

Let me return to the questions:

As far as I am aware, protective service officers of the AFP cannot claim exemption from the road rules using 305 or 306, even though they may attend emergency situations or needed to attend urgently.

They could rely on clause 305 if they have been appointed as a ‘recognised law enforcement officer’ by the Commissioner of the NSW Police.  This appears unlikely and is more relevant for members of the AFP (as opposed to AFP appointees).    They could rely on clause 306 if they have been approved as ‘emergency workers’ by the NSW Road and Maritime Services.

They may be exempt the NSW Road Rules if there is a valid Commonwealth law or there is a power in their instrument of appointment that is inconsistent with the NSW rule. That too would seem unlikely.

My question is can protective services officers use lights and sirens to attend a job whilst abiding by all road rules? That is; keeping to speed limit, not running reds, just utilising the lights and sirens as a means to warn other road users out of the way? Would this be legislated or an organisation directive to do or not to do so? 

No; either your authorised to use the equipment or you are not.  This would be dangerous and illegal to operate red and blue lights or a siren on a vehicle that is not an emergency vehicle or a police vehicle and they only have that character when they are driven by an emergency worker or a police officer in the course of his or her duties in an emergency.  Subject to the discussion above special protective service officers are neither unless the appropriate appointments have been made, or authorities issues.

Also what is the legality for protective service officer vehicles and red and blue lights? Looking at the NSW vehicle standards it says police, NSW Fire and Rescue, ambulance, SES, RMS emergency vehicles can have fitted red and blue lights. Nothing about Australian federal police vehicles or specifically vehicles operated by protective service officers. It does in the section regarding sirens state that Australian federal police vehicles may be fitted with a siren, as well as mentioning police, ambos etc.

A police vehicle includes an AFP vehicle if AFP members have been appointed as recognised law enforcement officers.  It does appear that Protective Service vehicles can be fitted with a siren which is odd if there is no power to use it; but inconsistency in law is not unknown.  I would expect that relevant authorities have been granted by the RMS but to check that, this question should be directed to the AFP’s legal office.

A question from West Australia:

I have been working in the mines for the last 2 years. Have recently changed sites and now on a site with quite an old ambulance. This troop carrier still has the long bench seat (side facing seats) with lap type seat belts. In a recent team meeting the 4 medics were asked by our supervisor on feedback on our equipment. The ambulance received the greatest amount of comment.

My question is what is the legality of side facing seats in ambulances? A couple of the other medics and I have spoken after this meeting and we have all heard that side facing seats are now illegal and against Australian Standards. I have done a bit of a web search and see a lot of talk about new proposed laws for years but nothing from a reliable source. I can also assume the rumor mill starts something and the facts get changed. If there are new laws is that only apply to new vehicles. How would this also apply to WHS legislation if the changes to remove side-facing seats in new vehicles was as a result of increased injury.

Surprisingly the vehicle standards say nothing about the direction of seats (see Road Traffic (Vehicle Standards) Regulations 2002 (WA) and Road Traffic (Vehicle Standards) Rules 2002 (WA)) – though it seems obvious that the driver’s seat should face the front.   The only relevant rule appears to be the rule which says “A seat for a driver or passenger in a vehicle must be securely attached to the vehicle” (Road Traffic (Vehicle Standards) Rules 2002 (WA) rule 26).

The Road Traffic Code 2000 (WA) (that incorporates the national road rules) has some more to say. Regulation 234 says that a child under 6 months must be in a ‘rearward facing child restraint’.  A child over 6 months but under 4 may be in a forward or rearward facing child restraint and, necessarily, not in one that is on a side facing seat.  There are no other references as to the direction of car seating, so I can see nothing to suggest that side facing seats are illegal.  If the design rules do change, the changes apply to vehicles registered, or equipment fitted, after the changes (Road Traffic (Vehicle Standards) Rules 2002 (WA) rules 13 and 14).

The Occupational Safety and Health Act 1984 (WA) says ‘An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees ) are not exposed to hazards’ (s 19).  Despite its mandatory tone it’s not possible to ensure that there are no hazards, so the obligation is to ensure a hazard free environment ‘so far as is practicable’.  What is practicable means

…  reasonably practicable having regard, where the context permits, to

(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring; and

(b) the state of knowledge about —

(i) the injury or harm to health referred to in paragraph (a); and

(ii) the risk of that injury or harm to health occurring; and

(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health; and

(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii);

In Kirk v Industrial Relations Commission & WorkCover Authority of New South Wales [2010] HCA 1 the High Court considered section 15 of the Occupational Health and Safety Act 1983 (NSW) (now repealed). That section said ‘Every employer shall ensure the health, safety and welfare at work of all the employer’s employees’.   The Court (French CJ, Gummow, Hayne, Crennan, Kiefel And Bell JJ) said

‘it is necessary for an employer to identify risks present in the workplace and to address them, in order to fulfil the obligations imposed by ss 15 and 16. It is also necessary for the prosecutor to identify the measures which should have been taken. If a risk was or is present, the question is – what action on the part of the employer was or is required to address it?

In other words, an offence is not established just because there is a risk or just because an injury occurs, the prosecution must also prove there was something that could be practically done to ameliorate the risk.

So are side facing seats illegal?  They are not illegal under the vehicle standards rules.  Do they breach OHS laws – no but they might if a risk assessment concluded in all the circumstances, taking into account where and how the ambulance is to be used, they posed a greater risk to the occupants than other types of seats and ‘the availability, suitability, and cost’ of alternatives. Clearly there are alternatives in the form of newer, better designed ambulances or retrofitting the interior of the ‘old ambulance’.  Whether those costs are warranted depends on the assessment of ‘the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring’.  A very low risk of a minor injury may not warrant replacing the ambulance fleet, a very high risk of a fatal injury probably does.

I am a Senior Deputy Captain with the NSW RFS. In the RFS in order to go to callouts a member must successfully complete the bush firefighter (BF) course. As the name suggests this course teaches bush and grass fire fighting skills. There is a separate course which teaches village firefighting skills (VF) which is often done until about a year after BF and teaches skills relating to village firefighting incidents such as motor vehicle accidents, structure fires and car fires.

As I mentioned within the RFS members are able to start attending incidents once they have completed BF, regardless of what the incident is. This means that it is not unusual, particularly within village type brigades such as mine to have crew at village type incidents who have not completed the VF training course.  The relevant NSW RFS service standard  (6.1.2) does specify that the minimum qualification required to “Fight a village type fire (structure/vehicle)” is village firefighter but it is normal practice (and district staff are certainly aware that it happens) within all RFS areas I know of for members to attend village type incidents even if they are not village qualified. If only village qualified members were sent then there are cases where brigades may not be able to send a crew.

This then leads to a few questions:

1. As an officer should I be stopping non VF qualified members from attending village type incidents?
2. Is there any liability on myself, a non VF qualified member or the brigade either from a WHS perspective or more generally if a non VF qualified member gets injured/killed at a village type fire?
3. Is there any liability if a member of the public or their property is injured / damaged as a result of the actions of a non VF qualified member at a village type incident?

The answers to these questions will, as if often the case, turn on the risk assessment.  In the normal way with legal analysis we can start with the ‘rules’ and then apply them to the facts.  The first relevant rules is Service Standard 6.1.2.  For mainstream fire fighting roles, the Service Standard says, in Appendix 1, that in order to:

•          ‘Fight a village type fire (structure/vehicle)’ one needs to be qualified as a Village Firefighter (VF).
•          Lead a crew ‘fighting a village type fire’ you need a qualification as ‘Crew Leader Village (CLV)’.
•          Fight a village fire using an interior attack, one needs qualifications as a Breathing Apparatus Operator (BAO).

These ‘requirements do not apply in rural remote brigades’ that is ‘farm based brigades’.  I infer that my correspondent is not from a ‘rural remote brigade’.   Further:

Using a risk management approach, a District Manager may waive any of the requirements for volunteer qualifications in their area of jurisdiction, provided they are working to achieve compliance within a reasonable time and are satisfied that current operations can be conducted safely.  (Service Standard 6.12, [2.4]).

I will assume that no such waiver has been made.

Next we need to consider the Work Health and Safety Act 2011 (NSW) which says that person conducting a business or undertaking (the PCBU, in this case the Rural Fire Service) has to ‘ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person …’ (s 19).  As is now well known, ‘workers’ includes volunteers (s 7).   What reasonably practicable means is:

… that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about:

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. (s 18).

Although not a binding precedent, a Scottish Sheriff (the equivalent of our Coroner) in a report on the Death of Alison Hume (see ‘Legal confusion leads to unnecessary death’ 8 December 2011) was critical of the Strathclyde Fire and Rescue service for rigidly adhering to a policy directive without stopping to think what was the actual risk and importantly how severe was the risk compared to the objective to be achieved.   There is always a risk to fire fighters but that doesn’t mean we don’t let fire fighters fight fires, the benefit of fighting fires warrants some risk but steps must be taken to minimise but not eliminate all risks.

Finally let’s remember the rule, referred to often in this blog, about the fire brigades’ duty of care.  In Capital and Counties v Hampshire Council [1997] QB 2004 the UK court ruled that fire brigades are not established for individual benefit but for community benefit and they do not owe a duty of care to individuals.  In that case the court (Lord Justice Stuart-Smith; Lord Justice Potter and, the appropriately named, Lord Justice Judge) said

In our judgment the fire brigade are not under a common law duty to answer the call for help and are not under a duty to take care to do so. If therefore they fail to turn up or fail to turn up in time because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable.

If they do owe a duty it is a duty not to make the situation worse, not necessarily to make it better (see any number of posts on this blog at http://emergencylaw.wordpress.com/?s=capital+and+counties).

If they are the relevant rules let us try to apply them to the facts as given.   The situation is that there is a fire in the ‘village’ and the RFS have been called.  The members are only qualified to BF.  (I would expect that there may be some qualified to VF but that’s not in the facts as given so I will assume that in fact none are qualified to VF).   Presumably there is a neighbouring brigade that may be able to come, and depending on where the village is NSW Fire and Rescue may also be dispatched but I will assume that their response times will be sufficiently long that waiting for them is not a real option.

Remember that fire brigades are established for the community benefit and what the community requires is that the village is not razed; the loss of a single building will be bad for the building owner and may be quite devastating for the village if it is a key piece of infrastructure (the pub or the shop) but losing that will not be as bad as losing the entire village or shopping strip.   The RFS has received the call and it is the function of the Rural Fire Service to provide rural fire services which includes protecting people, property and infrastructure from damage by fire (Rural Fires Act 1997 (NSW) s 9).  As the local brigade you have two options: go or don’t go.

If you don’t go, the risk to the community is self evident.   There won’t necessarily be any ‘liablity’ if you don’t go, there is no duty of care to individuals, it is not clear but the balance of authority would say that the obligations set out in s 9 do not give a person a right to sue if you don’t go (Bennett and Wood Ltd v Orange City Council; Board of Fire Commissioners (Third Party) (1967) 67 SR(NSW) 426).  If there is liability it would fall on the RFS, not individual members as it is the RFS (if anyone) that is required to respond, not individuals – volunteers can always not volunteer.   But as noted, the risk is self evident and no doubt volunteer fire fighters volunteer to support and protect their community.

The alternative is to go.  What’s the risk, so far nothing more than the risk of responding to any fire. The members get in the appliance and they go and arrive at the fire scene.  Now the options are more complex: what do you do when you get there?    Now is the time for risk assessment – if your there for the community benefit the objective has to be to contain the fire.  An urban brigade, or an RFS brigade, staffed with VF and BAO qualified fire fighters may see their measure of success as containing the fire to the room of origin (see Productivity Commission Report on Government Services 2014 (Commonwealth of Australia, 2014) Volume D, Chapter 9, page 9.33) but that is not a reasonable expectation here.  Here containing the fire to the building of origin is more realistic.

I’m not a fire fighter but I can imagine there are a number of strategies that could be deployed which involve fighting the fire from the street.  There is no need to actually enter the building.  It could be that fire fighting resources are in fact deployed to simply wet down neighbouring buildings and deal with spot fires and allow the burning building to burn.

Again risk assessment is the key and to again quote Mason CJ from Wyong Shire v Shirt (1980) 146 CLR 40 (at 48), an assessment of what is reasonable

… 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.

So the officer in charge has to consider the risk to firefighters, the risk to the community, what can be done to mitigate those risks and the like.

Let me return to the questions:

1.  As an officer should I be stopping non VF qualified members from attending village type incidents?

If members are allowed to attend with BF then I don’t see why.  That answer may be different if there is a specific instruction from the RFS to that effect, but you tell me that members are allowed to attend with BF and the service standard says they’re not allowed  to ‘fight’ a village type fire, but that doesn’t mean that they are not allowed to go.   And then we have a question of what does ‘fight’ a village type fire mean?  We can reasonably infer that they should not be going into the burning building – regardless of definition of ‘fight’ that’s just too risky – even if there are people in the building!

Within the RFS you must know what is taught in the VF course and what the extra skills are and the OIC/IC can determine what skills are required. If turning the water onto nearby homes is the best option that, I would think, is quite consistent with a BF skill.

2.  Is there any liability on myself, a non VF qualified member or the brigade either from a WHS perspective or more generally if a non VF qualified member gets injured/killed at a village type fire?

There is unlikely to be personal liability.  The RFS would be liable to pay compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) but that’s a no fault scheme.  Under common law the RFS would also be liable for the negligence of its volunteers  and one would argue they were negligent in not sufficiently training you on what to do – particularly given ‘district staff are certainly aware that it happens’.

By virtue of the Work Health and Safety Act 2011 (NSW) s 34, a volunteer’s duties are limited to those set out in s 28 and 29.  Section 28 says:

While at work, a worker must:

(a) take reasonable care for his or her own health and safety, and

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

(Section 29 is similar and relates to the duty to protect others at the workplace and will not be discussed here).

There may be a breach of s 28(b) if you, as the IC, directed a non-qualified fire fighter to enter the building to rescue the cat.   It may be argued that as the captain you did not ‘comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the[PCBU]’ but as we’ve noted there does not appear to be a specific instruction that BF firefighters can’t go, only that they can’t ‘fight’ a village type fire.   And an instruction not to go at all may not be a ‘reasonable instruction’ given the risk to the village and that the Brigade may be able to do something to contain the fire even if they cannot save the building that is on fire.

So short of blatant stupidity, or malicious intent, there will not be personal liability.  The RFS may be liable but as in all cases it would depend on the circumstances.   What killed or injured the fire fighter?  What was the risk assessment?  Were the factors listed in section 18 (above) considered?  When considering the risk was concern also given to the purpose to be achieved ie the need to contain the fire?

(I do know that there are specific duties on ‘officers’ under the WHS Act s 27; but a Senior Deputy Captain may be an RFS Officer but he or she is not an officer as that term is defined in the WHS Act s 247 and see also s 34 which exempts volunteers from the ‘officer’ provisions).

3.       Is there any liability if a member of the public or their property is injured damaged as a result of the actions of a non VF qualified member at a village type incident?

No.

Let me explain in more detail.   The duty of the RFS is only not to make the situation worse.  The property is on fire, what’s the fire fighter going to do to make the situation worse?    I guess they could do what one of the defendants did in Capital and Counties v Hampshire Council [1997] QB 2004 which was turn off the sprinklers before the seat of the fire had been located with the consequence that the building was lost and would have been better protected if the fire fighters had not shown up at all.

But we know that an Act done in good faith does not attract liability (Rural Fires Act 1997 (NSW) s 128) so provided the fire fighter is doing his her honest best there will be no liability (see also my post on Myer Stores Ltd v State Fire Commission [2012] TASSC 54 (24 August 2012)).

What of the claim that they didn’t do enough?  Well as noted the common law would say that the brigade’s duty is to the community not to the owner of the property; if the property was going to burn without them brigade in attendance then it doesn’t matter if it burns when they are there if they are doing things like protecting the neighbouring properties.    Finding a duty to protect the property would be inconsistent with the RFS legislation in particular s 25 which says:

(1) An officer of a rural fire brigade or group of rural fire brigades may, if persons are, or property is, endangered or likely to be endangered by a fire … (b) destroy, pull down, shore up or remove, or cause to be destroyed, pulled down, shored up or removed, any buildings or structures or parts of buildings or structures on any land,

If the only way to contain the fire was to drive a bulldozer over it, that could be done to protect the village and provided it was done in good faith would not expose the RFS to liability.  ‘A man may justify pulling down a house on fire for the safety of the neighbouring houses’ (Malverer v Spinke (1538) 73 ER 79, 81 (and yes, the reference to 1538 is correct)).  If you have the power to destroy the building you can hardly be liable for failing to save it (Board of Fire Commissioners v Rowland [1960] SR(NSW) 322).

The property owner cannot sue the RFS for not having VF qualified fire fighters.  The RFS has the resources it has, both in money terms and in terms of volunteers and cannot be sued for not responding with that which it does not have (Civil Liability Act 2002 (NSW) s 42).

‘The moral of the story is … : make sure you have insurance cover for losses occasioned by fire on your premises’ (Stannard v Gore (2012) EWCA Civ 1248, [50] (Ward LJ)).

Conclusion

The conclusion has to be, subject to any specific direction to the contrary, that you turn out and do the best you can but in doing the best you can you have to take ‘reasonable care’ for, and ensure so far as is ‘reasonably practicable’, the health and safety of everyone, the firefighters, bystanders, people in the property etc but what that means depends on all the circumstances.  You have to consider the risks, what is the most effective thing that can be done without exposing people to clearly unacceptable risks (do not let the BF firefighter actually enter the building), and do the best you can.

I don’t think the law would expect any more, or less.

This question appeared as a comment on the post ‘Alcohol and Refusing Treatment’ (3 April 2014, ) but the question warrants its own post.

 Michael, I have a curly question for you. I am a very experienced paramedic, currently working in a remote capacity in remote Western Australia. On my time off I volunteer for the local state ambulance service. I have been told in no certain terms that when I work on the volunteer ambulance that my ALS skills “magically” disappear.

In the ambulance we do have ALS equipment, but I have been told I am not allowed to use it. This is my question, where do I stand if I get a patient who needs ALS support and we are remote without any close ALS support, if the patient has a poor outcome on account of no ALS intervention , where do I stand if the relatives find out that a ALS paramedic was in the back with the patient, but did not use their skills. Can I be held liable??

My colleague Ruth Townsend and I address similar issues in  ‘Crossing the line – the law and ethics of going beyond the wire’ Response – Journal of Paramedics Australasia (forthcoming).  Pending that paper (which I believe is in the current issue) I’ll address the issues here.

The common law concept of vicarious liability says that an employer must accept the liability for the negligence of an employee (see my earlier post, ‘Qualifications v Experience’ (21 February 2014).   My correspondent tells us he is a volunteer, not an employee.  There is some doubt about whether or not an organisation is vicariously liable for the negligence of a volunteer.  I have no doubt they will be, but I have to concede there is debate (and see the discussion in my book, Emergency Law, (4th ed, 2014, Federation Press)).   Most emergency services legislation provides that volunteers are protected and often provide that if there is any liability it is to be borne by the agency (see for example, Victoria State Emergency Service Act 2005 (Vic) s 42; Health Services Act 1997 (NSW) s 67I).  In WA there is no ambulance service legislation (see my earlier post ‘Legislative compliance for WA Paramedics – what legislation?’ (12 February 2014) so there is no specific Act to look to.

In WA the Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA) is relevant.  That Act, in s 6, says ‘a volunteer does not incur civil liability for anything that the volunteer has done in good faith when doing community work.’   If the volunteer would, by the application of the ‘normal’ law be liable, then the organisation for which they are volunteering is liable (s 7).   ‘Community work’ is defined in s 3 and without going through that in detail, I think it is unquestionable that volunteering for St John (WA) would constitute doing community work for a community organisation.   Section 6(3) says the volunteer protection does not apply if, at the time, the volunteer:

… knew or ought reasonably to have known that at the relevant time he or she was acting — (i) outside the scope of the community work organised by the community organisation; or (ii) contrary to instructions given by the community organisation;

With all that background let us now consider the situation that involves my correspondent.  Someone in remote Western Australia rings triple zero for an ambulance. They are not ringing a particular paramedic; they are ringing St John.  St John despatch the ambulance with the crew that they have chosen, trained and equipped.  They turn out in their St John uniform, driving a St John vehicle.  They clearly represent St John.   The corporate entity that is St John cannot turn out except by its staff (including volunteers) so these people are clearly not turning out for their benefit, or because they have been personally asked, but because they represent – they are – St John Ambulance.

St John ambulance owes a duty of care to its patients (Kent v Griffiths [2000] EWCA Civ 25).  They have a duty to provide reasonable care taking into account all the circumstances in their operation including the reliance on volunteers and the distances that apply in WA.  In this case we assume that ‘in the ambulance there is ALS equipment, but the paramedic has been told he is not allowed to use it. The patient needs ALS support and they are remote without any close ALS support.  The patient has a poor outcome on account of no ALS intervention.’   Let’s put that picture in clearer focus – the patient needs care that the person in the back of the ambulance is competent to give, has the equipment necessary to give it, but choses not to.   If you were that person (or their family if they die) what would you do?

Let us assume you want to sue.   You have two options; sue the paramedic and/or sue the relevant ambulance service. The ambulance service owes a duty to their client and its duty is to act reasonably.  They know they are providing services in remote WA and here they have a person who needs ALS support, a person on board who knows how to give it and the necessary equipment, but they don’t because the service has told them not to. Why has the service told them not to?  Is it a proper risk assessment, where they have looked at potential risks, control measures and decided the most appropriate response was to prohibit this conduct.  Or was it some insurance concern; that the service is saying ‘don’t treat as our insurance won’t cover you’?  Whether or not they have insurance does not, however, determine whether they are legally liable.

Let us think about that – there are two risks.  One is that the ALS officer tries to administer some ALS treatment and makes a mistake (not just that there is an adverse or less than good outcome, but there is a negligent mistake that makes the situation worse).  The other risk is that the ALS officer does not administer the necessary care, care that he or she is aware the patient needs, knows how to do it and has the necessary equipment. The risk of an adverse outcome must be higher by not doing something that one knows is needed rather than by doing what one is trained and equipped to do.  Sure there could be liability if there is both negligence and an adverse outcome, but that is less likely than the adverse outcome of not giving the treatment.

(This all sounds familiar to the discussion on doctors and the duty of care – see ‘Doctors as ‘good Samaritans’ – do I have to stop?’ (23 March 2014) and the case of Lowns v Woods (1996) Aust Torts Reports 81-376.  Remember that no-one’s been sued for attempting to help, but there has been liability for not helping.)

The injured patient may also want to sue the paramedic who also owes a duty of care to his or her patient.  They knew what they patient needed, they had the necessary supplies and they didn’t do what they knew was warranted.  Why not? Because their agency had told them not to.   What is their primary duty?  To act in their patient’s best interests or to honour the agencies direction?   The paramedic may be concerned about s 6 of the Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA) and that they are acting ‘contrary to instructions’.  Now that section cannot be taken literally if it were the agency could avoid liability by instructing volunteers ‘not to be negligent’.    As with the common law of vicarious liability there would have to be consideration as to what that section actually means and when it applies.

The paramedic can see the patient and may be aware of what the possible consequences of their actions are. Whilst paramedics are not required to volunteer, having done so and having responding and having the equipment at hand a court could ask was it reasonable to withhold the treatment.  As quoted in many earlier posts, the test

… 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. (Wyong Shirt v Shirt (1980) 146 CLR 40, 48)

What is the risk to the patient of withholding the treatment v the risk of giving it?  There is no ‘expense, difficulty and inconvenience’ in giving the treatment if the operator is trained and has the equipment.  There are conflicting responsibilities in particular the responsibility to obey the services instructions but are they sufficient not to administer the treatment if that will have implications for the person’s survival or long term recovery?   A court could easily conclude that a paramedic was not acting reasonably in withholding treatment from someone that needed it, and when the paramedic could administer it, just because someone told them not to.

The paramedic may want to rely on the Volunteers etc Act which says ‘a volunteer does not incur civil liability for anything that the volunteer has done in good faith’ and argue that they acted ‘in good faith’ by following the direction not to administer needed treatment that they were competent to give and where they had the necessary equipment.  In my book I said this about ‘good faith’:

… in California … it was said, in relation to a ‘Good Samaritan’ statute, that to act in good faith was to act with “that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation” (Lowry v Mayo Newhall Hospital 64 ALR 4th 1191 (Cal 1986), 1196). The New South Wales Court of Appeal held that acting ‘bona fides’ (that is in good faith) meant that a defendant fire fighter “… did not act from any improper motive – maliciously, from personal hostility, or spite, or dishonesty” (Vaughan v Webb (1902) 2 SR(NSW) 293). In the Australian High Court,McTiernan J, when considering a statutory immunity that applied to the New South Wales Fire Brigades, said that the concept of “good faith” referred to an act that was done “without any indirect or improper motive” (Board of Fire Commissioners v Ardouin (1961) 109 CLR 105, [1961] HCA 71,115).

In summary to act in ‘good faith’ the Good Samaritan must be acting with the motive or intention to help the person in need.  The Australian Federal Court suggested however that there must be more than just honesty and no improper purpose was required, they said there must also be:

… evidence that a real attempt was made to do properly the very thing for which immunity is sought: this may involve following an established system, or set of procedures.(Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290, at 468-9.)

Acting, not in the patient’s best interests, but because of a fear of liability or, more particularly given you presumably don’t think you will be negligent, fear of lack of insurance cover, is not acting in good faith. Acting to protect your position rather than the patient is not good faith.  It was to avoid that (legitimate) self interested concern that good faith type provisions were written!   (Personal liability of the paramedic would be easier to establish if paramedics were members of a recognised, registered heath profession).

So ‘where do I stand if the relatives find out that a ALS paramedic was in the back with the patient, but did not use their skills?’  I’ll try to sum it up with a table, assuming in each case there is an adverse outcome and where the treatment is given, it is given without due care and skill:

 

The treatment is not given The treatment is given The ambulance service The ambulance service will be liable, it owes a duty to its patients and has failed to allow care to be given by a qualified person with access to the necessary equipment.  Would need to be able to show that the direction was due to a legitimate risk assessment, not to try and avoid liability or remain within the terms of an insurance contract. The ambulance service will be liable for the negligence of its volunteers.  Irrespective of the Volunteers etc Act the patient would and could argue that the service is liable, in accordance with the common law, for the negligence of its agents. The paramedic The ambulance service will be liable – Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA) s 6. 

The paramedic may also be liable.  He or she has taken on the care of the patient and his or her ALS skills cannot magically disappear. You cannot un-know what you know and you have access to the necessary equipment.   It will be a question of what is their duty (given they are not obliged to volunteer) and whether it was reasonable to follow that direction. That in turn would be affected by the patient’s condition, how badly they needed the ALS intervention and the risk of giving the intervention v the risk of not giving it. May be liable if acting contrary to instructions Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA) s 6 but that would depend on the exact terms of any instructions.

 

The biggest legal risk has to be not giving the treatment (assuming that it is of critical importance).   Allowing the treatment only exposes the ambulance service or the paramedic to risk if the treatment is negligently given.   Vicarious liability is to ensure people injured by negligence get compensation.  An employer who uses employees should not put those they injure to the further risk of looking to an employee for compensation when the employer is in a much better position to meet those expenses.  All those arguments apply with equal force in this context.  Without going through all the legal argument, I’ll go out on a limb and say in my opinion, absent gross misconduct, the ambulance service would be liable for its volunteers both if they give the treatment in question, and if they don’t.

So what of the paramedic?  Well there could be liability if they negligently administer the ALS treatment and also if they don’t.   Again the bigger risk has to be not giving treatment that you know is needed and where you have the necessary equipment at hand.  Remember too, that if paramedics want to be recognised as professionals they have to act as professionals.  To go back to my earlier question, a professional’s primary duty is to act in their patient’s best interests.

Would I just administer treatment using my ALS skills?  I would if a person’s life depended upon it or to avoid permanent or long term disability; but short of that I would approach the service and begin negotiations to ensure that they have a system in place to recognise prior learning.  If they are not prepared to do that, as a professional, one would have to rethink whether one was prepared to volunteer.  You cannot simply ‘turn off’ what you know and what you can do (see also ‘Volunteer nurses and their skills’ (12 December 2012 http://emergencylaw.wordpress.com/2012/12/12/volunteer-nurses-and-their-skills/.

Today’s correspondent writes:

I’m a paramedic within Victoria and my question relates to the capacity of a patient to refuse medical treatment and/or transport to a medical facility if intoxicated. At what point is the patient unable to refuse when the patient has consumed alcohol? How do we as paramedics decide if a patient’s intoxication is at a level that affects their competence?

A person’s right to refuse treatment does not decrease or disappear because they are intoxicated, but their capacity may.  A person has decision-making capacity if they are able to understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision (In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 169).  If they can’t do those things, for whatever reason, then they lack relevant competence and treatment that is reasonably necessary and in their best interests can be given (Re F [1990] 2 AC 1])).

In Neal v Ambulance Service of NSW [2008] NSWCA 346:

Mr Neal (the plaintiff) suffered a serious blow to the head whilst walking alone on the streets of Hamilton, near Newcastle. He was discovered by police, who called an ambulance. He rejected assistance from the ambulance officers and, being clearly inebriated, was taken into custody by the police … ([2], Basten J).

Mr Neal’s injuries were much more substantial and he:

… suffered a variety of ongoing disabilities following the assault. Some, he accepted, were caused solely by the blow to the head. However others, particularly a right-sided weakness (hemiparesis), were said to have flowed from the failure to take him to hospital when he was discovered in the street by the police. He brought proceedings in the District Court for negligence against the State (as responsible for the negligence of the police) and the Ambulance Service of New South Wales (“the Ambulance Service”)…’  ([4], Basten J).

His claim against the Ambulance Service related to their failure to advise the police that they could not examine him or treat him as he was refusing their assistance, but the police, on taking Mr Neal into custody under the Intoxicated Persons Act 1979 (NSW) (now repealed) should take him to hospital.   In the Court of Appeal Basten J (with whom Tobias JA and Handley AJA agreed) said:

The ambulance officers gave evidence that, in the circumstances, they could not examine or treat the plaintiff or take him to hospital, without his consent. They clearly did not have his consent. Although there was a case run at trial that greater efforts should have been taken to obtain his consent and carry out a more complete investigation, her Honour rejected that complaint and it was not reagitated on appeal. ([16], Basten J).

(What – “there was a case run at trial that greater efforts should have been taken to obtain his consent and carry out a more complete investigation, her Honour rejected that complaint and it was not reagitated on appeal” – means is that it was argued in the original case that the paramedics should have done more to get consent but that argument was lost, that is the trial judge found no fault in that regard, and the plaintiff/appellant did not argue, in the Court of Appeal, that this finding by the original judge was wrong).

Critically, then, no-one tried to argue that Mr Neal was not competent to refuse consent or that treatment should or could be given without his consent.  Even though he was ‘clearly inebriated’ his right, and his capacity, to refuse treatment remained.   (The Court of Appeal found there was no liability in this case because even if the paramedics had advised the police that they had been unable to examine Mr Neal but, in their view, he did need assistance and even if the police had transported him to hospital rather than the police cells, the evidence showed that Mr Neal would have also refused treatment at the hospital so the outcome would have been the same.  The court did not have to decide whether or not the paramedics had a duty to inform the police, or whether there failure was negligent, as it would not have made any difference, that is any alleged negligence was not the cause of Mr Neal’s disabilities.)

So the unhelpful answer to the first question – At what point is the patient unable to refuse when the patient has consumed alcohol? – is when their level of intoxication means that they are unable to understand the nature of the suggested treatment, weigh up the consequences of and/or communicate their decision.   That does not mean that they are making a decision that is not in their best interests; if they can understand your advice that they should go to hospital, that they have suffered an injury that needs attention, if they can in fact consider that and weigh it up against their competing desire to keep drinking, or go home, or do whatever else they want to do, and they can make that clear to you, then they retain their competence.

The second question is ‘How do we as paramedics decide if a patient’s intoxication is at a level that affects their competence?’ That is a clinical question and needs to be answered by the relevant clinicians in the Ambulance Service.  Surprisingly the Ambulance Victoria Clinical Practice Guidelines (http://www.ambulance.vic.gov.au/Paramedics/Qualified-Paramedic-Training/Clinical-Practice-Guidelines.html) do not appear to mention ‘consent’ at all.  CPG A0106 Mental Status Assessment describes ‘a systematic method used to evaluate a Pt’s mental function’ but doesn’t add any detail on what the implications of that assessment are.  The Guidelines therefore give no assistance in answering this question or how to assess capacity generally (see Steer, B. (2007) ‘Paramedics, consent and refusal – are we competent?’ Australasian Journal of Paramedicine 5(1) (http://ro.ecu.edu.au/jephc/vol5/iss1/4)).

In the absence of clinical guidance, paramedics need to apply their own judgment remembering that their duty is not to treat and save everyone, but to treat people in accordance with fundamental ethical principles which include the right of people to make their own choices.  As Steer says (p 4)

… in the face of a valid refusal, the duty of care of the paramedic is not independent of the will of the competent patient – the paramedic’s duty is not absolute, but is limited by the patient’s will and their understanding of what is in their overall best interests, medical and otherwise. Not all interests are medical in nature – ‘best’ is not just a physiological qualifier. Thus, autonomy is always a moral concept; beneficence is sometimes a medical concept. Hence paramedics attend persons, not just patients, and in Australia belong to the appropriately named Ambulance Service, not Ambulance Force…

Therefore do not assume that just because a person is intoxicated, or just because they appear to making an unwise decision, they are incompetent.  One needs to carefully consider whether the person is able to understand the nature of the suggested treatment, weigh up the consequences of and communicate their decision.  Further, if they are refusing treatment is their refusal informed and does it cover the situation that has in fact arisen? (Re T [1992] 4 All ER 649).  In Re T, Staughton LJ said (at 669)

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.

A similar dilemma may exist for paramedics who may be held to account (though as employees, they are will not be personally liable) if they impose treatment upon a person who has refused consent; or fail to treat a person when there is no valid refusal.  Facing these dilemmas and accepting that it will in many cases come down to an exercise of professional judgment is part of what it is to practice as part of a ‘profession’.  The relevant legal precedent, Neal’s case, did not doubt that an intoxicated person may refuse consent; it’s now up to you to decide if they have, and if they are competent to do so.

I am a level 3 Incident controller as well as a Regional Commander with the South Australian Country Fire service. At a recent meeting I discussed with the audience that in South Australia the Incident Controller reports to the Regional Commander. This brought about some robust conversation on the definition of “report” and whether or not the Incident Controller has delegated responsibility and or accountability for the successful completion of the incident. If he/she does then where does the Regional Commander, who has the operational responsibility and accountability for the Region, stand? What are their responsibilities/accountabilities with respect to the incident happening within their region after the Chief Officer appoints a Level 3 Incident Controller.

In South Australia, the Chief Officer of the CFS ‘… has ultimate responsibility for the operations of SACFS…’ (Fire and Emergency Services Act 2005 (SA) s 60(4)).  The Chief Officer may delegate to another member of the CFS (and others) (s 66).   The Chief Officer may establish regions (s 67), brigades (s 68) and determine the command structure within the CFS (s 70).   Further, ‘Each officer or member of SACFS must recognise the authority and obey the directions of an officer to whom that officer or member is subordinate’ (s 70(10)).

Section 96 says that in the prescribed circumstances, in short a fire or other emergency in the country and where no other agency is expected to exercise control, ‘an incident controller or, if an incident controller has not been appointed, the most senior member of SACFS in attendance, may assume control (and all members of SACFS, and all other persons present at the scene, will be subject to his or her control).’  An incident controller is ‘the person for the time being appointed to be the incident controller for the fire or other emergency in accordance with procedures determined by the Chief Officer.’

The Act provides for the appointment of Regional Officers (s 70(1)) but makes no mention of their role in operations.  The Australian fire agencies have all adopted the Australian Inter-agency Incident Management System or AIIMS which is also unhelpful on the relationship between the incident controller and the region controllers or commanders.

A critical statement in the AIIMS doctrine is ‘there is only be one Incident Controller for any incident’ (Australian Fire and Emergency Services Authorities Council (AFAC), Australian Inter-service Incident Management System (4th ed, 2013) 27 ); further ‘The ultimate responsibility for managing an incident always remains with the Incident Controller whether or not an Incident Management Team has been established’ (AIIMS p 86).   That is inconsistent with statutory provisions such as s 60(4) which says, in effect ‘The ultimate responsibility for managing an incident always remains with the’ Chief Officer.  The Incident Controller must be accountable to the Chief Officer (see also s 96(3)(a)).

In my book, Emergency Law (4th ed, 2014, Federation Press), I wrote (footnotes omitted):

 As noted above, the AIIMS manual says: “The ultimate responsibility for managing an incident always remains with the Incident Controller whether or not an Incident Management Team has been established”.   In context that is correct, whatever responsibility the incident controller has rests with that controller even though he or she has delegated some functions to others. However, in a broader context it is incorrect and can lead to confusion and poor outcomes.

During the 2009 Victorian Bushfires Royal Commission, the chief officer of the Country Fire Authority, the chief fire officer from the Department of Sustainability and Environment and the Chief Commissioner of Police were criticised for their failure to supervise their staff including the incident management teams. The Royal Commissioners said:

The Commission observed a disturbing tendency among senior fire agency person­nel – including the Chief Officers – to consistently allocate responsibility further down the chain of command, most notably to the incident control centres.

That would be consistent with the view in AIIMS that, having appointed an incident controller it was up to that controller to exercise control over the response. The Royal Commission noted, however, that:

Although the Country Fire Authority Act 1958 vests responsibility for controlling the prevention and suppression of fires in country Victoria in the Country Fire Authority as an organisation, CFA standard operating procedures make it clear that within the agency “ultimate responsibility for the suppression of fires” rests with the Chief Officer.

The right of the chief officer to control “all brigades” is set out in statute. An incident controller has no similar, statutory authority. The incident controller is appointed by the chief officer to exercise the chief officer’s powers but such a delegation does not “amount to an abrogation of responsibility or a transfer of accountability”…

It follows that absent any statutory authority, incident controllers appointed in accordance with AIIMS are subject to the direction and control of their senior officers. If they are employees, they are also expected to obey the reasonable direction of their employers…

See also my submission to the Victorian Green Paper on emergency management entitled ‘Who is in charge’, which you can download here.

That quote says ‘absent any statutory authority’ but, as noted, there is statutory authority in South Australia; that authority is in s 96.  That IC’s authority is to ‘assume control (and all members of SACFS, and all other persons present at the scene, will be subject to his or her control)’.   Does that displace the chain of command and s 70(10) ie the obligation to obey senior officers?    On one view it does, ‘all members of the SACFS … will be subject to his or her control’ but that cannot be correct.  A member of the SACFS 100 kilometres away from the fire cannot be subject to the IC’s ‘control’, nor can members at other fires nor is the Chief Officer.  The only logical reading of the section is that ‘all members of the SACFS, … present at the scene, will be subject to his or her control’.    When read in that more limited way it will not apply to the Region Commander if he or she is not ‘at the scene’ but even if he or she was, there is still s 70(10) and the obligation to obey senior officers.

A chain of command makes sense to ensure that operations are carried out effectively by imposing a check or supervision. A member who is acting as Incident Controller does not act solely on his or her own initiative.  The need to obey the Chief Officer is beyond question.  Further the IC will be expected to apply the CFS operating procedures and act in accordance with his or her training.   In effect he or she is following ‘commands’ and a superior officer would be expected to ensure that is in fact the case, so the chain of command remains.  The IC does not operate in a vacuum but within the CFS including the regional and command arrangements that the Chief Officer has put in place.

Although there is ambiguity between s 70(10) and s 96, in the absence of any direction by the Chief Officer it is my view that the provisions can work together.  The IC is in charge of operations and all members of the SACFS are subject to the ICs control but the IC remains subject to direction from his or her senior officers (assuming the Region commander outranks the IC).    That situation could be changed by the Chief Officer making alternative arrangements in the agency doctrine and the job descriptions of the Region commander and Incident controller.

The problem really arises if the agency, which is required to have an incident management system (Fire and Emergency Services Regulations 2005 (SA) r 5) , simply adopts AIIMS without tailoring it to take into account the ‘chain of command’ and making clear the answers to questions such as this one.    Without that clarity the Region commander may well seek to exercise some degree of supervision and control and the incident controller may take both s 96 and the doctrinal principle of ‘only one controller’ to believe that he or she is not accountable to the Region commander. That tension is evident in today’s question.  A better approach is that if the Region commander is of the view that he or she needs to give direction to the IC, he or she should take on the role of IC and that is the position I argued for in my submission to the Victorian Green Paper.

In short the law does not provide the answer to the question ‘What are [Region commander's] responsibilities/accountabilities with respect to the incident happening within their region after the Chief Officer appoints a Level 3 Incident Controller’?  What the law does say is that it is up to the Chief Officer to determine the chain of command and the procedures for appointing an incident controller.  If there is ambiguity in those provisions then it is not the law but the agency’s own procedures and doctrines that need to be adjusted to clarify the ambiguity. The question needs to be directed, not to me, but to the Chief Officer.

This question from a a volunteer Advanced Responder with St John Ambulance Australia (NSW):

We recently had a very interesting discussion around the medications we are allowed to administer, depending on our qualifications.

At a national level, the policy for the administration of medications are set by the ‘First Aid Services Medication Procedures – March 2013′

The document starts off stating:

Introduction

Increasingly, the use of medications is becoming a routine component in delivery of first aid and health care provided by St John for the community. The use of medications in any health service, ambulance provider or health-related organisation (including St John) is subject to authorised availability and State and Territory legislation and regulation.

The First Aid Services Medication Procedures (as amended) contains information relating to the administration of approved medications as clinically indicated and where available.

This document contains procedures to be followed by St John members when administering medications. These procedures are for use by all St John members with appropriate training and certification.

Authority / Governance

The Medical Advisory Panel (MAP) is responsible for authorising and routinely reviewing the availability and use of medications by St John clinical members. For the purpose of this document, a clinical member refers to a St John First Aider, First Responder, Advanced Responder or health professional (using these procedures at one of the previous clinical levels outside of the credentialing process).

Changes should be suggested by State/Territory Professional Officers to the Chief Professional Officer.

It goes on to state:

Availability/Authority

The purchase, storage, handling, transport and administration of these medications are strictly subject to State or Territory legislation and regulation. This usually occurs in the form of a Health Services Permit or Drugs and Poisons Licence. The availability of these medications in States and Territories will vary; this can be due to drugs and poisons licences, legislative requirements or State and Territory policy.

For the administration of Panadol Elixir, the document states:

Child under 7 years

Do not administer paracetamol tablets — Advanced Responders may administer elixir as per instructions on bottle, dispense using a sterile 10ml syringe.

Now recently we were told that in NSW, we are not permitted to administer Panadol Elixir under any circumstances.

When I asked whether there is a specific guideline or policy that specifically states this, I was informed that there was not. I was however told that, because the medication (Panadol Elixir) was not on the approved St John Ambulance order form, it is generally accepted that you are not able to administer it. My argument was that an order form does not constitute a policy or guideline, and therefore St John (NSW) would have no legal grounds to take any action against a member that carried/administered Panadol Elixir, specifically since it clearly states that an Advanced Responder is allowed to.

I am wondering what the correct legal stance on this is?

That’s a question that I cannot give a definitive answer to as it depends on the corporate structure of St John and the relationship between the National and the State branches.  It also depends on St John’s internal rules about the authority of officers to give directions and the commitment of members to comply with them.   I make no comment on any of those matters.

My answer is limited to the law in NSW.  As noted ‘The purchase, storage, handling, transport and administration of these medications are strictly subject to State or Territory legislation and regulation’.  In this case the relevant state law is the Poisons and Therapeutic Goods Act 1966 (NSW).   That Act provides for the NSW Poisons list that puts poisons into one of eight schedules.  Panadol elixir is in Schedule 2 (see NSW Ministry of Health, Poisons List 2013  http://www.health.nsw.gov.au/pharmaceutical/Documents/poisons-list-alpha.pdf, accessed 1 April 2014).

Schedule 2 is for ‘Substances which are dangerous to life if misused or carelessly handled, but which should be available to the public for therapeutic use or other purposes without undue restriction’ (Poisons and Therapeutic Goods Act 1966 (NSW) s 8).    It is an offence to supply a schedule 2 poison without an appropriate authority.  The maximum penalty is a fine of $1650 or imprisonment for 6 months, or both (Poisons and Therapeutic Goods Act 1966 (NSW) s 10; Poisons and Therapeutic Goods Regulation 2008 (NSW) reg 17).  Both the Act and the Regulation (in particular Appendix C to the Regulation) set out various exemptions and authorities that allow doctors, nurses, optometrists and others to carry and use scheduled poisons.  St John first aiders are not mentioned in any of these exemptions.  Notwithstanding this, the Director-General of Health may issue authorities to allow people to supply various drugs (reg 170).   Presumably the Director-General of Health has issued authorities to St John that allows St John to, in turn, authorise members who have done the relevant training to carry and use various scheduled drugs.

Does that authority extend to Panadol elixir, a schedule 2 drug?  I can’t answer that without seeing the authority but what must be noted, as my correspondent has already pointed out, is that the State authority takes priority over the national policy. So the national policy may say that Advanced Responders may issue Panadol elixir but that must be if, and only if, the authority of the Director-General of Health allows NSW St John members to supply that Schedule 2 poison.  I am unable to say whether it does, or does not.

It follows that I cannot answer the question but I can set out a flow chart on how to answer it – see Answering the question about Panadol elixir.

Another query re emergency lighting on private vehicles, this time from a doctor in NSW who says:

The majority of emergency calls are to private hospitals (where I am not a paid employee). I wonder if I fit the definition of an ‘emergency worker’ and can fit (say) red-white flashing LED lights which would operate when the vehicle is moving. From the RTA…. may fit a red light when…. “Other emergency vehicles not referenced above that are driven by an emergency worker in the course of their duties, where an ‘emergency worker’ is a person (or one of a class of persons) approved by the RTA.”

There are a lot of doctors responding to emergencies on any given day. Unfortunately the general public doesn’t always understand the need for what may appear to be aggressive driving, with a certain element reacting in a dangerous manner.

It is undoubted that others will not ‘understand the need for what may appear to be aggressive driving’ when they would have no way of knowing who is driving the vehicle or why.    It has to be remembered that whatever the emergency, it does not justify putting the lives of other road users at risk and if the responder has an accident then their ability to assist in the emergency is defeated.   Hence the need for emergency vehicles to have warning devices but also the need to drive, at all times with due care.

One also has to query how much of an emergency is it if it’s occurring in a hospital?  Whilst the doctor’s presence may be essential, there should already be health professionals on site, so what is gained by ‘aggressive driving’?    The first legal lesson is that absence any emergency warning devices (red/blue lights and/or siren) doctors proceeding to a hospital should not be engaging in aggressive driving; it only puts others, unnecessarily, at risk and is not justified by law.

So can they fit warning devices?  As we have noted before an emergency vehicle is a vehicle driven by an emergency worker in the course of their duties related to an emergency (Road Rules 2008 (NSW) Dictionary, definition of ‘emergency vehicle’).  (What is an emergency, for these purposes, is not defined so for fire brigades/police/ ambulance services it is really a matter for their own internal processes to determine when members may proceed on ‘urgent duty’.)  An emergency worker is

(a) a member of the Ambulance Service or the ambulance service of another State or Territory, in the course of providing transport in an emergency associated with the provision of aid to sick or injured persons, or

(b) a member of a fire or rescue service operated by a NSW Government agency, a member of the State Emergency Service or a member of a fire brigade (however referred to) or rescue service of the Commonwealth or another State or territory, providing transport in the course of an emergency, or

(b1) a member of Airservices Australia providing transport in the course of a fire or rescue emergency, or

(c) a person (or a person belong to a class of persons) approved by the Authority. (Road Rules 2008 (NSW) Dictionary, definition of ‘emergency worker’).

A doctor, therefore, is not an emergency worker unless the Roads and Maritime Authority has approved them, either  personally or as a class as emergency workers.  That is the approval could be given to an individual doctor or a class of doctors eg ‘all registered medical practitioners who have completed an approved driving training course’ or the like.

As for fitting emergency lights, without going through clause 124 of the relevant vehicle standards (that are set out as Schedule 2 to the Road Transport (Vehicle Registration) Regulation 2007 (NSW)) in detail, they say in effect that if the vehicle is not operated by the recognised emergency services it can be fitted with flashing warning lights if approved by the authority (see also the Roads and Traffic Authority ‘Vehicle Standards Information #8, Flashing Lights and Sirens, 24 November 2010 (http://www.rms.nsw.gov.au/registration/downloads/vsi/vsi_08_flashing_lights_and_sirens_rev_4_1__nov_2010.pdf)).

So the answer is that a doctor does not fit the definition of an emergency worker unless he or she has approval from the Roads and Maritime Services (formerly the Roads and Traffic Authority) and can also fit emergency warning devices if so approved.    I would expect however, that the RMS would never give such approval or authority and certainly not to allow a doctor to proceed to an emergency at a hospital.    The answer may be different if the doctor is a specialist in emergency trauma medicine and who’s duties require him or her to respond as part of a counter disaster team, but even then you would expect that they would respond to an appropriate ‘base’ and collect there a marked and approved emergency vehicle rather than respond in their private car.

Today a question from a Victorian paramedic who says:

I regularly hear on the radio now many of my junior colleagues requesting police to gain access to houses where there is a reasonable suspicion of a person inside who is unwell and unable to open the locked door. Often this is following a crew arriving after a call where neighbours or bystanders have seen a person on the floor through a window or similar but cannot gain access due to locks. Whenever I have been confronted with this situation in the past (32 years as a paramedic) I have called for police to attend and assist with ongoing security however I have gained access myself in the first instance… I am very mindful of gaining access promptly with minimal damage; unlike film and TV we don’t simply smash a window or kick in a door; there are many options.

My question in simple terms is, if a paramedic crew attend a location where there is a genuine and reasonable belief, either from information obtained during a call (i.e. a suicide/overdose with the call location confirmed) or on attendance a person is sighted unmoving on the floor, that a life is in danger what defence or exemption from trespass or criminal damage etc would that crew have if they were to force entry into the location either causing damage, or even if no damage is caused?

There is absolutely no doubt that a paramedic with a ‘genuine and reasonable belief … that a life is in danger’ is lawfully justified in forcing entry. The case law is extensive so I will touch on only some of them. Most of the discussion, below, comes from chapter 3 of my book, Emergency Law (4th ed, 2014, Federation Press).

The highest Australian authority is Kuru v New South Wales (2008) 236 CLR 1. This case involved police who had attended in response to a report of domestic violence. They were invited to come in and investigate but refused to leave when asked to do so and having satisfied themselves that there was no domestic violence offence occurring, or had occurred. In the High Court of Australia, Gleeson CJ, Gummow, Kirby and Hayne JJ said (at [40]).

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. There being no evidence of danger to life or property, it was not suggested that this was such a case.

The principle that would justify such action is the principle of necessity. In Proudman v Allan [1954] SASR 336, the South Australian Supreme Court summed up the application of the principle in cases where a person was taking action to save another’s property. It was said (at p 340):

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

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

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

In New Zealand it was said:

A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm. (Dehn v Attorney General [1988] 2 NZLR 564, 580 (Tipping J)).

Necessity will justify almost any property damage in order to save life. The cutting up of the car, the entry onto property and the destruction of property can all be justified where that conduct is necessary to save another’s life.

The law still requires that any action taken under the doctrine must be reasonable, so that if the rescuer acts in a way that is not reasonable in the circumstances, they may be liable in negligence (Beckingham v Port Jackson and Manly Steamship Co (1957) SR(NSW) 403). This explains the decision in Vaughan v Webb (1902) 2 SR(NSW) 293 where a Superintendent of fire brigades was found to be liable for the damage done when a wall that had been made dangerous by fire was pulled down. Although the Superintendent was justified in pulling down the wall, it was found to be both possible and reasonable to have done so in a manner that did not damage the neighbour’s property. (It was a result of that case that fire brigade and other emergency service statutes now have provision to provide a defence for acts done in ‘good faith’). Necessity therefore justifies much that would otherwise be a tort due to interference with another’s property, but the doctrine requires that the conduct be reasonable in the circumstances.

In some jurisdictions the power to enter in an emergency has been put into statute. In New South Wales:

A police officer may enter premises if the police officer believes on reasonable grounds that:… (b) a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person. (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 9).

In Queensland, an authorised ambulance officer (that is authorised by the Commissioner of the Queensland Ambulance Service) ‘may take any reasonable measures— (a) to protect persons from any danger or potential danger associated with an emergency situation …’ including ‘enter any premises…’ and ‘destroy (wholly or partially) or damage any premises…’ (Ambulance Service Act 1991 (Qld) ss 37 and 38).

When the Ambulance Service Amendment Act 2013 (Tas) comes into force on 1 July 2014 (see Ambulance Service Amendment Act 2013 (Tas)) ambulance officers will be given specific power to enter premises. The new s14A will say:

(1) An officer of the Ambulance Service may enter any land, premises or vehicle if the officer has reasonable grounds for believing that a person in or on the land, premises or vehicle requires urgent ambulance services.
(2) An officer of the Ambulance Service authorised to enter land, premises or a vehicle under subsection (1) –
(a) must, before entering the land, premises or vehicle, produce identification as such an officer; and
(b) may use such force as is reasonably necessary for the officer and his or her equipment to have safe entry to the land, premises or vehicle; and
(c) may take with him or her such other person as the officer considers necessary to effect the purpose for which entry is made.
(3) Subsection (2)(a) does not apply if the officer of the Ambulance Service is dressed in a uniform bearing the authorised insignia of the Ambulance Service.

Even without similar provisions, ambulance officers in Victoria (and other states and territories) may still rely on the common law explained above. If a paramedic has reasonable grounds to believe that there is an incapacitated person behind locked doors, they are justified in taking reasonable action to enter the premises.  Calling the police, in the absence of specific statutory power being vested in the police, is simply calling for another person to act as a witness and to confirm that the decision, and actions, are reasonable.  That may be a case of acting to protect one’s own interests rather than the interests of the person in need of assistance and does not represent the professional ideal.  As paramedics move to professionalism, they need to be prepared to back their own judgment.  If they have good grounds to believe someone needs their assistance, whether it’s from information received or they can actually see the person, the law does prioritise the saving of human life and would authorise action in those circumstances.

The case of Grills v Leighton Contractors Pty Ltd (No 2) [2013] NSWSC 1951 (20 December 2013) was brought to my attention by a professional colleague who thought it would be of interest to readers of this blog given what it says about the duty of police officers when proceeding on urgent duty. I will get to that, but in fact I think readers of this blog will be more interested in what the case says about the attitude of insurers to injured workers, and even more interested in what it says about how we manage significant events in NSW. If this is risk and emergency management at its best, I’d hate to see it at its worst.

The facts:
The Vice President of the United States was visiting Australia in February 2006. A motorcade was to take him too and from Sydney airport via the Eastern distributor. The distributor was to be closed in that no vehicles other than those involved in the motorcade were to be on it. I shall return to that issue.

On 22 February, when the Vice President arrived, everything when according to plan (to the extent there was a plan). Three boomgates, that blocked off access to the Eastern Distributor were closed, the Vice Presidential motorcade passed through and all was fine. Three days later, on 25 February, the VP was to return and the procedure was to be as it had been three days before. Police officers were stationed at the access roads and the boomgates lowered. Two motorcycle police officers were meant to do a final sweep of the route just prior to the motorcade departing. One of those officers was held up on other duties and the time of departure had been moved forward so it was up to one officer to ride the route in both directions. That officer was Senior Constable Grills.

Senior Constable Grills set off at high speed, that is proceeding on ‘urgent duty’. As he travelled along the Eastern Distributor he saw signs indicating the road was closed and there were red crosses, rather than green ticks, in the lane indicator lines, all of which are there to show drivers the road is closed. He understood that to mean, as it had been three days earlier, that the road was closed to civilian traffic, but it would seem obvious that the road was in fact open as a motorcade was about to pass through it. In fact a control room operator employed by the road operator, Leighton, had lowered a boom gate across the road, effectively closing the road to all traffic. Senior Constable Grills did not know that, as he proceeded he collided with the barrier and was seriously injured, so seriously that he was ultimately retired from the police force on medical grounds.

The real issue
This was a fight between insurance companies. Leighton said it was all the fault of the State (ie the police) as they were in charge of the operation. The police said it was the fault of Leighton as they operated the control room and closed the boom gate. All vehicles, including police vehicles, are registered and carry third party insurance. The third party insurer, QBE said the cause of the work was poor work standards not the use of the motorcycle so it should be the workers compensation insurer not the CTP insurer that should pay. And everyone said, in any event, it was S/C Grills fault for riding too fast and not keeping a proper lookout.

The real problem
My reading of the case was the real problem was not the conduct of S/C Grills but the whole operation. I don’t usually editorialise on cases, but this one is hard to believe. Here was the Vice President of the United States travelling through Sydney and no-one seemed to know what the plan was.

The operator at Leighton’s said he was told to close the road and he said he understood that meant to, literally, close the road, even though that had not been done three days before and even though it was intended that the road was to be used by the motorcade. The Inspector, running the show denied having that conversation with the operator. It appears that the only communication he had with Leighton’s at all was sometime before the event. One can imagine that, at that time, there was discussion about ‘closing the road’ but that meant closing it to civilian traffic, not to all traffic.

A police officer was stationed in the Leighton’s control room as a liaison officer, but the control room operator did not know why she was there, and it was not her job to direct him. So he said he was going to close the boomgate, he didn’t ask her if that was OK and she wasn’t in a position to know what he was meant to do in any event.

Why didn’t someone follow the plan? It appears there was none, or at least none in writing. The police officers, including S/C Grills were all given written instructions but no written plan was developed with Leighton. Notwithstanding they had carried out the operation three days before and there was evidence from the Roads and Traffic Authority that they recorded that the road itself was not to be closed, no-one thought to look back over the records of that operation and see what they had done before or were meant to be doing this time.

One can see the confusion. The operator is told the road is to be closed. The police mean ‘closed to civilian traffic’ but he took them to mean ‘closed to everyone’. No-one at Leighton gave him instructions as to what he was to do, the police gave some verbal instruction to someone some time before the event, but not to their liaison officer and none of it was recorded in writing. The Leighton’s operator did not know why the liaison officer was there and no-one had regard to what they’d done just three days before.

I think that’s all that needs to be said.

Law Enforcement (Powers and Responsibilites) Act 2002 (NSW) s 186
Leighton’s attempted to make an interesting argument regarding this section. It says:

(1) A police officer may:
(a) close any road or road related area to traffic during any temporary obstruction or danger to traffic or for any temporary purpose, and
(b) prevent the traffic of any vehicles, persons or animals in or on any road or road related area closed to traffic under paragraph (a) or under the authority of any other Act.
(2) A person must not, without reasonable excuse, fail or refuse to comply with any direction of a police officer given in pursuance of a power conferred by this section

They argued that as they were complying with s 186 they could not be responsible for the consequences. In legal terms their duty to comply with s 186 meant they had no duty of care to S/C Grills.

That is an interesting argument and would be relevant to others in the emergency services. For example if a police officer directed a member of the RFS to close a road there could be no duty to other road users that would require them to pass. Equally if the road was closed at some point where it was dangerous the RFS could not be liable if it was the police that had given them the direction that the road be closed there.

An interesting argument but it got nowhere because, notwithstanding the accident happened in 2006 and the case was heard in 2013, Leighton’s didn’t ‘plead’ this defence until the second day of the trial. The court rules say that each party has to explain the case it’s going to make well before the trial and they didn’t. Further, as the judge found, no direction was given under this section so the argument was irrelevant.

The resolution
At the end of the day the judge found that it was a workers compensation, not a traffic accident case (letting QBE off the hook) and that the State was liable for 53% and Leighton’s for 47% of S/C Grills’ damages.

Contributory negligence
There was also the issue of whether or not S/C Grills contributed to his own injuries due to the speed at which he was riding and his failure to observe the boom gate which everyone agreed (given the light, angle of approach etc) was every hard to see, but he was doing a sweep of the route so presumably was meant to be looking for things that would impede the motorcade.

Strangely enough it ‘was put to Mr Grills in cross-examination… that a police officer must obey all road rules, including the speed limit which ordinarily applied to the Distributor’ ([88]). I say that is strange as that is a question of law, not of fact. The law says the contrary; in this blog I’ve referred to clause 306 of the Road Rules 2008 (NSW) which relates to the driver’s of emergency vehicles (fire appliances, ambulances, SES vehicles). Clause 305 is in the same terms and applies to police.

The judge simply repeated clause 305 to conclude that ‘it is not always the case that a police officer must obey all road rules’ (emphasis added).

The speed limit on the Distributor was 80km/h. It was alleged that S/C Grills was travelling at 140 km/h but this was rejected. The judge found {at [197]} ‘his top speed was closer to 110 or perhaps 115 kph’. This, in the judge’s opinion was not unreasonable given the urgent nature of his duty and the expectation that he was travelling on a road that was free of other traffic.

Even though he did have an obligation to take care. As the judge said at [198] and [201]:

Even though he was on urgent duty … he was still obliged to keep a proper lookout, while engaged in that duty, as he accepted… Mr Grills was required to look not only behind him and to the sides of the route he was travelling, but also ahead, where it was possible, even if unlikely, that there might be something obstructing the roadway, which it was his task to find. That being so, he had to take reasonable care to ensure that he was sufficiently aware of what was ahead of him, to be able to react to and deal with such an eventuality, if it arose, either by stopping or swerving to avoid that obstruction.

Leighton and NSW argued that he should be held to have contributed 75% to his own injuries. The judge found that his contributory negligence was 15% [212].

Legal lesson
The legal lessons from this case, being the decision of a single judge, are limited. They are, at best:

1) ‘it is not always the case that a police officer [or emergency worker] must obey all road rules’ but
2) ‘Even though … on urgent duty … [a driver is] still obliged to keep a proper lookout’

Neither of those findings are new or controversial. They are clearly part of the law and have been for many years.

The EM lesson
The lesson for emergency management is surely also not new or controversial. It’s about the need for communication between agencies and not assuming that what you’ve said has been understood. The ambiguity between closing the road to civilian traffic and closing the road to everyone was part of the problem. But failing to have a plan that has been negotiated between the agencies (NSW Police, RTA, the Australian Federal Police, the Prime Minister’s department, the Australian Defence Force, Leightons, the ambulance service (what if there had been an incident involving the VP on the road, could an ambulance get in), putting that plan in writing, and, ideally, practising it, simply beggars belief, as does having a liaison officer without clear instructions as to what her role was. Failing to ensure all of that was done was a failure by the State that was managing the visit. But how could the operator think his job was to physically close the road that the VP was to travel along?

Following on from the discussion on ‘Nurses as good Samaritans’(22 March 2014) I’ve received this comes to me from a emergency physician in Western Australia and he says:

I am practicing emergency physician in [WA],

Just wondering whether you would be so kind to clarify under the Health Practitioner Act 2010 would folks be potentially prosecuted for not assisting at a medical emergency when off duty but when the practitioner is not impaired in anyway to help and there is no danger to do so (and in which states would this apply)

I guess under APHRA code one is always liable to be ticked off, is that correct?

Very interested in outcome of Poor Dr Dekker

I’ve discussed Dr Dekker’s case in my earlier post ‘Improper professional conduct when a doctor fails to render assistance at a motor vehicle accident’ (28 November 2013 ) and I won’t repeat here what is said there and in particular about the various reasons given as to why she didn’t attend.

We also need to clarify an issue of terminology. My correspondent referted to a person being ‘potentially prosecuted’. As a lawyer I use the term ‘prosecuted’ to refer to a criminal prosecution, not a civil action for damages or an action for professional discipline. As noted in my earlier post, it is a criminal offence for anyone involved in an accident not to render assistance and there is an offence of callously failing to provide assistance in the Northern Territory. This criminal offences are not unique to doctors or health professionals, they apply to everyone.

There is nothing under the Health Practitioner Regulation National Law (WA) Act 2010 (WA) that would create a criminal offence for a health practitioner who fails to render assistance; but I infer that is now what is actually being asked. What the issue here is any legal consequences such as professional discipline or civil liability.

Today there is a national scheme health practitioner legislation. This scheme requires each State and Territory to pass a law based on, or incorporating the Health Practitioner Regulation National Law Act 2009 (Qld). In Western Australia the relevant Act is the Health Practitioner Regulation National Law (WA) Act 2010 (WA).

These Acts set out procedures to discipline health professionals who may be guilty of unsatisfactory professional performance or professional misconduct. Unsatisfactory professional performance ‘ means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’; ‘Professional misconduct’ includes unsatisfactory professional ‘that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience’ (Schedule 1, s 5).

In Medical Board Of Australia v Dekker [2013] WASAT 182 the tribunal said

Because saving human life and healing sick and injured people is a core purpose and ethic of the medical profession, and because members of the profession have the knowledge and skills to do so, the failure by a medical practitioner to make an assessment and render assistance when he or she is aware that a motor vehicle accident has or may have occurred in their vicinity and that people have or may have been injured, when the practitioner is physically able to do so, would, notwithstanding that the practitioner reports the matter immediately to police or other emergency services, reasonably be regarded as improper by medical practitioners of good repute and competency, and there is a sufficiently close link or nexus with the profession of medicine.

The tribunal was making a decision under the Medical Act 1894 (WA) now repealed, but the Tribunal’s reasoning was that failing to stop and at least make an assessment of the person’s needs was conduct that would be regarded as ‘improper by professional colleagues of good repute and competency.’

The Australian Medical Board’s ‘Good medical practice: a code of conduct for doctors in Australia’ says:

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

That confirms that doctors are expected to assist in an emergency but does point out that there are many factors to take into account. My correspondent has, however, posited that a doctor ‘is not impaired in anyway to help and there is no danger to do so’.

Whilst the language between the 1894 and the 2010 Acts is different, it is not a long bow to draw that failing to assist or at least look to see if one can assist would be conduct that is less than what could be ‘reasonably expected of a registered health practitioner’ and therefore unsatisfactory professional conduct.

In terms of civil liability, the case of Lowns v Woods (1996) Aust Torts Reports 81-376 is well known. Critically in that case the doctor was at his surgery not yet engaged in seeing patients but at work. My correspondent has asked about ‘not assisting a medical emergency off duty when the practitioner is not impaired in anyway to help and there is no danger to do so’.

Here the person is not at work so that critical issue is different, but we are asked to assume the practitioner is not impaired and there is no danger and we might assume that there are no conflicting duties (eg the care of children) that would stop the practitioner coming to assist. Is there a common law duty in those cases? It may depend upon whether or not the doctor is recognised as a doctor and asked to assist, so the doctor may be at a child’s football game and other parents know that he or she is a doctor so ask. That was also a critical issue in Lowns v Woods but I have argued elsewhere that this should not be a critical issue, if there is a duty it must be because the person knows that another needs their assistance, not the way in which they come to know that (see my book Emergency Law (4th ed, Federation Press, 2013), chapter 2).

There is a good argument that there should be no duty as there is traditionally no duty to rescue. In Stuart v Kirkland-Veenstra (2009) 237 CLR 215, Gummow, Hayne and Heydon J said ‘there is no general duty to rescue. In this respect, the common law differs sharply from civil law’ ([88]); ‘So expressed the duty would be a particular species of a general duty to rescue. The common law of Australia has not recognised, and should not now recognise, such a general duty of care’ [99]; and ‘The passer-by can see there is danger; the passer-by can almost always do something that would reduce the risk of harm. Yet there is no general duty to rescue’ [116]. Crennan and Kiefel JJ said ‘The common law does not recognise a duty to rescue another person’ [124].

The status of Lowns v Woods is unclear given this decision by the High Court of Australia, however in Electro Optics v NSW [2012] ACTSC 184 (the case arising from the 2003 Canberra fires) Higgins CJ relied on Lowns v Woods when he said [at 311]:

… whilst it would not be just or reasonable to impose a general duty upon persons to rescue another in distress, a distinction may be observed in the role of those who, by profession, training or statutory role assume and hold out a preparedness to respond to those in distress. For example, police, lifeguards, medical practitioners and, relevantly, fire fighters.

But he wasn’t talking about members of the fire brigades and other voluntary services at all times. The issue in that case was very much about the fire brigades as they were responding to a fire, not off duty fire fighters; but whether he would exclude them or not is not explored as that was not the issue before him.

Lowns v Woods is a unique case that depended on concessions made by the doctor, that he, and any doctor, would have gone if asked and that he would have made a difference if he had attended. In all the circumstances it was easy for the court, when the trial judge preferred the evidence of the girl who said she asked the doctor to the doctor’s claim that it never happened, to find that there was a duty. That precedent can still apply in those circumstances but may not when the facts are changed, when the doctor is not at work, is engaged seeing other patients etc.

A doctor who is aware that there has been an accident or someone is in need of medical care, in circumstances where there is no one else who can assist (eg the ambulance are not on scene and there’s no other agency ‘taking control’ of the situation), where the doctor is not impaired and the situation poses no danger and there are no conflicting duties or obligations, could be found to be under a duty to attend. A trial judge in NSW is bound by Lowns v Woods (the decision of the NSW Supreme Court, Court of Appeal); a judge in another state would have more freedom to find that Lowns v Woods is inconsistent with the High Court decision in Stuart v Kirkland-Veenstra and therefore reject Lowns v Woods and find no duty to assist.

So will a doctor be liable for ‘not assisting a medical emergency off duty when the practitioner is not impaired in anyway to help and there is no danger to do so…’ The answer is that we don’t know. There are legal authorities pointing in both directions. I think the weight of authority is ‘no, there is no duty to come to the aid of others’ but I would think it could constitute unsatisfactory professional conduct.