Today’s correspondent sent me a letter from the NSW RFS and addressed to their local council. They say:

In a recent subdivision which was required to comply with Planning for Bushfire Protection 2006, my understanding is a refuge was created by the following requirement included in the first page of the letter of the RFS to [the] Council of 3 March 2017 (copy attached, last sentence):

“At subdivision certificate stage, ongoing vegetation management will be required with lots 1 & 10 to reduce the impact of bushfire on the proposed public access road”

It would appear that a section of the public road is a fire refuge for firefighters and occupants of the subdivision.  

I have emailed [the] Council asking them whether they intend to signpost the refuge but they have not replied.  I would appreciate your opinion as to whether it is usual to have a public road as a fire refuge and whether [the] Council has any obligation to signpost the refuge.

I have not reproduced the letter nor named the council to maintain anonymity. The relevant paragraph is quoted above.

I cannot read the letter as my correspondent has read it. The concept of a ‘refuge’ does not appear in the Rural Fires Act 1997 (NSW). The Act refers to a ‘neighbourhood safer place’ (see Part 3A).  There are processes to establish a neighbourhood safer place but nothing in the material provided that suggests that this is what is occurring. The letter says “ongoing vegetation management will be required with lots 1 & 10 to reduce the impact of bushfire on the proposed public access road”.  I don’t understand how a requirement to manage the vegetation to reduce the impact of bushfire on the road is anything other than a requirement to manage the vegetation to reduce the impact of bushfire on the road, so that the road can continue to be used as a road during a bushfire. Read any post fire reviews (and take for example the 2009 Black Saturday Royal Commission or the coroner’s inquest into the 2005 Eyre Peninsula (SA) fire you) to understand the risk to people from fire impacted roads.

There is nothing to suggest the road is intended as a refuge or a neighbourhood safer space. Reducing the impact of a bushfire on a road does not make the road a refuge, it makes it a means of access. That interpretation makes the questions is ‘usual to have a public road as a fire refuge[?]’ and ‘[Does the] Council ha[ve] any obligation to signpost the refuge[?]’ irrelevant. It’s a road, not a fire refuge.

Today’s correspondent has two questions regarding the Fire Rescue Victoria Act 1958 (Vic). The:

… first question relates to section 32B of the FRV Act 1958. Most specifically at (2) which says:

On an alarm of fire being received by a unit, those members of the unit specified by Fire Rescue Victoria must, with the appliances and equipment specified by Fire Rescue Victoria, proceed with all practical speed to the scene of the alarm of fire.

I appreciate that you have previously covered the intent of this section with relation to ‘speed’ of response however my question is of a different nature. I occasionally hear units receiving notification of an ‘alarm of fire’ while they are not in their station. Sometimes, these units will detour from a direct route to the scene of the incident to retrieve keys held for the premises being attended. As these keys are held at the invitation of the owners/occupiers, and are certainly not available for all addresses attended, I would not expect them to be classified as ‘appliances and equipment specified by Fire Rescue Victoria’. Could a delay in response to obtain keys, held at a fire station, be considered a breach of the Act? It would be fair to say that each primary appliance of the service carries appropriate equipment for gaining entry to a property in the setting of an emergency without the need for keys to be utilised. This delay could potentially lead to a delay in action being taken to save life and/or property, what I take to be the primary intent of this section of the Act.

My second question is in relation to emergency driving. Who is ultimately responsible for the utilisation of emergency warning systems (displaying a blue or red flashing light / sounding an alarm)? Recent conversations that I am aware of suggest that some people within the organisation form the view that it is the officer in charge (OIC) of the appliance who is responsible for the activation of the emergency warning systems and not the driver. It would be my understanding that it is the driver who elects to enact Rule 306 of the Road Safety Road Rules 2017 (to subsequently ignore another provision of the rules) and would be the individual facing any charges which may arise from a driving incident which occurred whilst enacting this provision. I believe that there is some confusion that has developed between who determines the response code of an emergency vehicle (the OIC under FRV policy) and who is responsible for controlling the emergency warning systems when driving under emergency conditions. Your legal insight into this would be most appreciated.

Question One

Section 32B is not a section that comes with a penalty or legal consequences. It is a direction to the Commissioner as to what the objective of the service is. There is no penalty attached nor is it a clause that gives a right to sue – see Bennet and Wood v Orange City Council (1967) 67 SR(NSW) 426. In that case the court held that section 28 of the Fire Brigades Act 1909 (NSW) (equivalent to s 32B of the Victorian Act] gave rise to no private right of action, that is it was not intended that anyone could sue for failing to comply with the section – the headnote (a summary but not a part of the court’s reasons) says that the effect of the case was to hold that section 28 was ‘merely descriptive of the obligations of the Board…’ (p 426).

Further the cases have held that the Fire Brigades do not owe a duty of care. As the UK Court of Appeal said in Capital and Counties v Hampshire Council [1997] QB 2004:

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.

(See also UK case on liability of statutory authorities (June 7, 2019)).

If that is true in Australia (and I think it is see Liability for fire – a review of earlier posts (January 8, 2016)) then even if there is a delay going to get the keys there is no liability. But let us assume, for the sake of the argument there is a relevant duty then the issue is how long is the delay and what are the reasons for it. If they brigade take an extra 24 hours to get there, then one might say there is a breach. But not if the delay is a minute. And somewhere between the 1 minute and the 24 hours is the critical line, but where that is would depend on all the circumstances.

Further I would think the key can be part of the ‘equipment specified by Fire Rescue Victoria’. That list does not say it has to be equipment supplied by Fire and Rescue Victoria. So if the response protocols are to divert and get the keys that is taking the ‘equipment specified’.

Conclusion One

I do not think a delay in response to obtain keys, held at a fire station, would be considered a breach of the Act.

Question Two

If the question means ‘who is responsible for pressing the button that turns on the beacon and sirens?’ then it really doesn’t matter. It might make sense to leave it to the passenger to change the siren tones so the driver can concentrate on the driving. But I don’t think that is what is being asked. It’s not turning the siren on, or off, that is important but the driving.

The driver is responsible for the safety of the vehicle. As I said (in what I thought was quite a clever statement) at a Rural Fire Service Association conference, the driver’s primary, if not only job, is to not crash the appliance. The passenger, or crew leader or anyone else might turn on the siren, but it’s up to the driver to decide whether or not to proceed and what is a safe speed to proceed. And if the driver says ‘turn that off, it’s annoying or distracting me, or I cannot go anywhere’ then whoever has control of the switch should turn it off. And indeed, in the event of a collision it is the driver who will face any criminal consequences (but not civil liability).

Conclusion Two

If the comment it ‘is the officer in charge (OIC) of the appliance who is responsible for the activation of the emergency warning systems and not the driver’ refers to the idea that the driver should not have to think about that (and once the beacons are on the only real issues is changing the siren tone) then fair enough it’s someone else’s job.

But if we’re talking about whether those devices should be one at all then it has to be the driver’s call. The driver of course is subject to the procedures of the organisation that define in what circumstances the use of the warning devices is permitted, but it is always up to the driver to decide what is warranted and safe in the circumstances. But if the driver says ‘were stuck in traffic, turn those off’ or ‘I’m not going through this intersection as I don’t have a clear view’ then it has to be the driver’s call. The driver is responsible for the safe operation of the vehicle.

Today’s correspondent asks the following questions:

Are Ambulances “Commercial Vehicles” in WA?

They do carry passengers/patients on demand and for reward (Worksafe WA). Though St John is Not For Profit, some businesses are for profit such as Patient Transfer Vehicles.

The GVM of a Mark V1 Mercedes Benz Sprinter is approximately 3.9t.

If they are commercial vehicles, does it go to say that in WA ambulance drivers/ Paramedics are commercial drivers?

Where would that leave Volunteer Ambulance Officers who work for different business and then go and volunteer after a days work?

Or do both have exemptions?

Western Australia’s Department of Mines, Industry Regulation and Safety publishes a fact sheet on ‘Driving Commercial Vehicles’. That sheet says that ‘commercial vehicle’ means a:

* passenger transport vehicle, which means a vehicle used or intended to be used in providing a passenger transport service (carry passengers for hire or reward, including on-demand, tourism and regular passenger transport services)

* school bus, (equipped to carry more than 8 adults, principally transport children)

* mobile plant with Gross Vehicle Mass (GVM) over 4.5 tonnes (self-propelled or integrated) or

* any other motor vehicle with a GVM over 4.5 tonnes used or intended to be used for the carriage of goods for hire or reward.

Clearly dot points 2, 3 and 4 are not relevant. What about dot point 1? This is an example of where you do not rely on what the regulator says is the law, you look to the law. In making this publication and the Code of Practice: Fatigue Management for Commercial Vehicle Drivers 2019 (State of Western Australia (Department of Mines, Industry Regulation and Safety) the regulator is trying to explain the law – to write the law in plain English and to set out how they interpret and will apply the law. But if you want to know the law, go to the Act or Regulation. In this case the relevant law is found in the Occupational Safety and Health Regulations 1996 (WA).

Part 3 of the Regulations deals with specific workplace requirements.  Division 10 of Part 3 deals with driving commercial vehicles. The definition in r 3.130 says:

commercial vehicle means —

(a)        a passenger transport vehicle as defined in the Transport (Road Passenger Services) Act 2018 section 4(1); or

(b)       a school bus within the meaning of the Road Traffic (Vehicles) Regulations 2014 regulation 226; or

(c)        any mobile plant or motor vehicle with a GVM over 4.5 tonnes that is designed to carry, or is carrying, a large integrated item of equipment; or

(d)       any other motor vehicle with a GVM over 4.5 tonnes used or intended to be used for the carriage of goods for hire or reward;

We can see that paragraphs (b), (c) and (d) are reflected in dot points 2, 3 and 4 of the definition in the fact sheet. Paragraph (a) is reflected in dot point 1 but is more specific. In the fact sheet the Department is trying to explain what is a passenger transport vehicle and they do that by reference to the type of use (“carry passengers for hire or reward, including on-demand, tourism and regular passenger transport services”) but not by specific reference to the Transport (Road Passenger Services) Act 2018 but it is that specific reference that is important.

The Transport (Road Passenger Services) Act 2018 says that a passenger transport vehicle is a ‘a vehicle used or intended to be used in providing a passenger transport service’. A ‘passenger transport service’ is

(a)        an on-demand passenger transport service; or

(b)       a regular passenger transport service; or

(c)        a tourism passenger transport service; or

(d)       a prescribed passenger transport service;

An ambulance service is clearly not (b) nor (c). Ambulance services are not prescribed (ie listed in the regulations) as a ‘prescribed passenger transport service’ (Transport (Road Passenger Services) Regulations 2020 (WA) r 8). An ambulance service is also not an ‘on demand’ passenger transport service that is a service where, inter alia ‘in which the passenger or hirer determines or substantially determines the locations for the beginning and end of the journey and the time of travel’. That is certainly true for emergency ambulance services, less clear for non-emergency patient transport services.

My first conclusion is therefore that ambulances are not “Commercial Vehicles” in WA. If that is the case, I do not need to answer any of the other questions.

But if I’m wrong it does not mean that the drivers are commercial drivers. A commercial driver is

… a person who drives a commercial vehicle in the course of work and whose work time —

(a)        is more than 60 hours per week; or

(b)       for more than once per week — is more than 10 hours in any 24 hour period; or

(c)        for more than once per week — includes the period from midnight to 5 a.m.;

The work time is not just the rostered time, but the actual time driving and associate duties (r 3.130 and the the Code of Practice: Fatigue Management for Commercial Vehicle Drivers 2019).

This means that even if employed paramedics did fall within the definition, volunteers will not as they are not at ‘work’ and Western Australia has not yet adopted the model Work Health and Safety Act, it stills has an Occupational Safety and Health Act that focuses on employees and employers.

Of course that does not mean that the employer of a paramedic is not required to have a fatigue management policy. Such a policy would still be necessary to meet their general  obligations under the Occupational Safety and Health Act

Conclusion

In my view an ambulance is not a commercial vehicle in WA.

Today’s correspondent has:

… a question regarding what a paramedic can do when “Off duty.”…

In acknowledging that with AHPRA registration comes greater responsibility in that one is always a paramedic now and not just when “on duty with the employer” like we used to be, I refer to a previous blog of yours regarding a medical practitioner being sued for not attending to a fitting member of the public next door just prior to the start time at his surgery, and being found neglectful in his duty of care as a result. Would it go without saying therefore then that we as paramedics are always obligated to provide paramedical care whether on or off duty, and across Australia?

If that is the case, would it be reasonable then, in order to provide comparable paramedic care (in line with the community expectation of paramedic) at an accident … to carry my own purchased paramedic equipment and consumables in my own small kit to use in such a scenario, provided of course I acted within what is reasonably expected to be that of a paramedic with my skills, experience and training?

Do you see any complications in this at all? I have always carried a bare minimum of items in the family car for my own family members so I could at least decompress a TP, stop bleeding and/or put up fluids, remove a foreign body or deal with an anaphylaxis, and accept the risk, one I would take for a family member, but broadening that to the obligations on the public of a registered paramedic and any possible recourse? Considering too that some paramedics may go over the top and have more elaborate kits/set ups, where is the limit?

First, there is no general duty to rescue ie to come to the aid of a stranger. The exception is in the Northern Territory where it is a criminal offence for

Any person who, being able to provide rescue, resuscitation, medical treatment, first aid or succour of any kind to a person urgently in need of it and whose life may be endangered if it is not provided,

to “callously” fail to provide that care (Criminal Code (NT) s 155 and see NT police officer gaoled for failing to render assistance (October 31, 2016)).

The case of “a medical practitioner being sued for not attending to a fitting member of the public” was Woods v Lowns (1995) 36 NSWLR 344; affirmed on appeal in Lowns v Woods (1996) Aust Torts Reports 81-376). Dr Lowns was at his place of practice ready willing and able to see patients. He was not ‘off duty’.  Further that case did turn on particular provisions of the Medical Practice Act 1938 (NSW) now repealed. The case also relied on various admissions made by Dr Dekker. That case did not hold that a doctor had a duty to provide medical care.

In Dekker v Medical Board of Australia [2014] WASCA 216 the Supreme Court of Western Australia set aside a finding that Dr Dekker had been guilty of professional misconduct when she failed to stop at a motor vehicle accident but instead drove to a nearby police station to report the accident and summon assistance. The State Administrative Tribunal had found that a doctor did have a duty to stop at a car accident. The Supreme Court said:

The duty, as formulated, arises without regard to the mental state of the doctor, the circumstances in which the doctor is, or may be, aware that a motor vehicle accident has occurred in his or her vicinity, and the circumstances of the accident. The duty as formulated would apply, for example, to a medical practitioner who lacked mental capacity or, for example, was affected by alcohol (eg, a doctor who has been drinking and takes a cab on the way home at the end of a long social evening). The duty would apply even if there were other emergency services on their way or already in attendance. It would apply irrespective of whether the doctor has other medical commitments (eg, if the doctor were on his or her way to perform an urgent operation). It would also apply irrespective of other, non-medical, commitments that the doctor may have (eg, a doctor on the way to a court to give evidence in answer to a subpoena). The duty as formulated would also require performance irrespective of the location of the accident. Thus, it would apply equally in a remote location in the bush where there is no town and no ready access to police or other emergency services, as in a city where the occupants of the vehicle or passers-by may be readily in a position to contact police or ambulance services. It would also require the doctor to attend where, in the circumstances in which the doctor is made aware of the accident or possible accident, it would appear that any injury would be minor.

Given the myriad and unforeseeable circumstances that can arise it is not possible for a general obligation to exist (see Further legal ruling affecting ‘Doctors as ‘good Samaritans’ – do I have to stop?’ (January 3, 2015)). We can safely say, for the same reasons set out by the Supreme Court, that paramedics are NOT always obligated to provide paramedical care [when] … off duty, and across Australia”.  Whether a duty to assist would depend on all the circumstances eg are they in the Northern Territory? Were they involved in the accident? What other competing demands are there? What did they know? How vulnerable was the person in need? How close are other services? Who else is on the scene? What equipment do they have?

In simple terms, there is no duty to go the aid of a stranger whether you’re a paramedic or not. Of course the answer is not the same if paramedics are on duty – see Failure to attend by NSW Police and Ambulance (December 18, 2013) and High risk industrial action by NSW paramedics (June 7, 2021).

Even if there is no duty to attend, paramedics may choose to assist. And like anyone paramedics can carry a first aid kit. And they can put into that kit anything they want to provided that it is not legally regulated. They can use any equipment that they have in their possession, where they are competent to do so.  A paramedic can ‘carry [their] own purchased paramedic equipment and consumables in [their] own small kit to use in such a scenario, provided of course I acted within what is reasonably expected to be that of a paramedic with my skills, experience and training’.

The limit is what is regulated and what is regulated is scheduled drugs. This has been a regular topic, in most jurisdictions the authority to possess, supply and administer scheduled drugs is given to employers who then authorise their paramedic employees. Generally an off duty paramedic does not have the authority to carry drugs, this is unlike medical practitioners who can make their own choices about the registered drugs they wish to carry in their ‘doctor’s bag’ – see Drugs in the (volunteer) doctor’s bag (WA) (July 7, 2021) and Paramedic’s authority to carry and use drugs (May 25, 2021) and generally all the posts that appear here: https://emergencylaw.wordpress.com/?s=drugs. Like anyone, a paramedic cannot carry scheduled drugs without lawful authority and generally speaking, registration as a paramedic is not (yet) sufficient authority.

Today’s question is again about the Mental Health Act 2007 (NSW) ss 20 and 22.  My correspondent says:

I have the following question which affected not only members of the NSW Ambulance Service, but also members of the NSW Police Force, of which I am a member.  The situation is as follows;

Members of the NSW Police Force attended the home of a person, who was believed to be having a Mental Health episode.  The person did not meet the requirements ascribed within Section 22 of the Mental Health Act (NSW) and as such, Ambulance Officers were called to attend.  NSW Ambulance Officers attended and exercised their authority under Section 20 of the Mental Health Act (NSW).  The threshold necessary to exercise authority in accordance with Section 20 is lower than that required under Section 22, hence the request for Ambulance assistance.

Attending Ambulance Officers believed that Section 20 had been met and as a result, the person was subsequently conveyed from the scene (with a NSW Police Officer inside the Ambulance to ensure the safety of the Ambulance Officers), to the nearest hospital.  At the hospital, an undertaking was given by the Hospital, that security officers for the Hospital would remain with the conveyed person, until they had been seen by a Registrar, in respect to their ailment.  This was due to an extremely heavy workload suffered by Ambulance Officer this particular day.  Once in the custody of Hospital Security, NSW Police also departed the scene.

At the hospital, Security initially attended and then departed for a short time.  The patient was not restrained to the bed and as a consequence, they left their bed and ran from the hospital.  When security returned, they notified the Registrar for Accident and Emergency.  The Registrar in turn contacted the Ambulance with a view to having them return to the persons house and re-convey them from their residence to the hospital.

 Ambulance Management were consulted and believed that their powers had been fully exercised when they conveyed the person (against their will) to the hospital and consequently left that person with the Security Officers.  NSW Police were requested to return the person, but considering that the person previously didn’t meet the threshold for Section 22 and that nothing had significantly changed, Police could not exercise any power to return the person to hospital.

My question is, when is the power, vested in Section 20 and 22, fully exercised?  Ordinarily, it would be when the patient has been tended to by a Doctor and a diagnosis made in respect to the patients mental affliction (either admitted to hospital or released because the affliction has abated).  When this happens, the Hospital can issue an authority to return the person to hospital to continue treatment, however in this situation, the patient has left the hospital prior to examination by a Doctor?

The relevant sections are:

20 DETENTION ON INFORMATION OF AMBULANCE OFFICER

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

And

22 DETENTION AFTER APPREHENSION BY POLICE

(1) A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that–

(a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and

(b) it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.

Both sections have been the subject of many posts on this blog – see https://emergencylaw.wordpress.com/?s=mental+health+s+20

It seems to me the answer to this question is reasonably strait forward and there appears to be three possibilities.

1. Detention on the request of an authorised medical officer

Ambulance officers were satisfied that the criteria for s 20 applied and they took the patient to a hospital that I presume was also a ‘declared mental health facility’. The patient has been delivered to the care of that facility and that is their job done. The mental health facility may decide to detain the person (s 18).  If the mental health facility has taken steps to detain the person and the person has left the facility, then an authorised medical officer can authorise a police officer to apprehend the person and bring them back.

2. Detention on a mental health certificate

If the patient had been examined by a medical practitioner and the practitioner is ‘of the opinion that the person is a mentally ill person or a mentally disordered person’ then the medical practitioner can complete a ‘mental health certificate’ (s 19). Police and/or ambulance officers could detain the person on the basis of that certificate, but the facts as described tell us that the person had not been examined by a doctor so that section cannot apply.

3. Re-detention by ambulance or police

If the person was not formally ‘detained’ by the mental health facility, then they are entitled to leave.  In this case if the ambulance crew do return to the patient’s home and if the patient is there then the paramedics would again have to decide whether the criteria for action under s 20 were then met. If they are not, even if they were before, there would be no justification to ‘take’ the person to the facility without their consent.  Equally police would have no power to take the person into custody unless satisfied that the criteria set out in s 22 then applied.

This came as a comment on an earlier post – Paying for ambulance services (October 4, 2014):

We are in dispute with St John Ambulance service in WA (SJA) regarding an ambulance bill that we received for ambulance attendance at a skating rink where my wife had fallen over and hit her head momentarily passing out. The management called an ambulance despite my wife stating that she was OK and just needed to sit off and recover with a “cup of tea”. When the ambulance arrived the officers assessed my wife and agreed that transport to hospital was not needed. A subsequent bill for $541 took us by surprise as my wife had clearly communicated that she did not consider the call out necessary.

I note that a very similar circumstance of “Treatment without Transport” was investigated by the Victorian Ombudsman in 2019 (ref https://www.ombudsman.vic.gov.au/our-impact/investigation-reports/investigation-of-a-complaint-about-ambulance-victoria/#full-report). The outcome resulted in Ambulance Victoria making significant changes to the way they manage and charge for “Treatment without Transport” cases.

This action by SJA grates as being unfair and unjust. To me the action offends consumer principles of consent and fairness as identified and highlighted in the Victorian Ombudsman investigation. The WA Ombudsman will not similarly investigate in WA because SJA is a private organisation and thus outside their jurisdiction. 

I do not know of the law or authority that enables SJA to levy such charges in WA when the action offends basic consumer principles.

For a discussion on the Ombudsman’s report into Ambulance Victoria see Ombudsman investigates Ambulance Victoria’s practice of charging for non-transport services (June 13, 2019).  In a comment to that post I said:

I don’t actually understand how St John (WA) can charge like other ambulance services. As I’ve noted in earlier posts in jurisdictions other than WA and NT the authority to render a fee to a person who did not request the service and was not advised, in advance, is found in legislation. In the absence of legislation in WA (and NT) it has to be standard commercial principles. One can charge for a service provided but in particular for cases where there is no transport and just some ‘on scene’ assessment I would have thought St John (WA) would or should have great difficulty in enforcing their claim for payment.

It may be that jurisdictional ambulance services are not operating in trade and commerce, but St John (WA) must be as they provide the emergency service ambulance under a fee-paying agreement with the government of Western Australia.  There is no ambulance serviced legislation to justify or authorise their fees nor can I see any relevant provision in the Health Services Act 2016 (WA). Neither St John (WA) nor the WA Health Department give any authority for the payment of fees where these have not been consented to in advance.

One might argue that in this case the patient accepted the service, but one can imagine there is a power imbalance. People don’t want to be rude to paramedics and it’s probably easier to say ‘sure do what you need to do to satisfy yourself’ if you don’t realise that a fee is going to be charged.

My correspondent says ‘I do not know of the law or authority that enables SJA to levy such charges in WA’ and to be honest neither do I.  This is not a place for legal advice so my correspondent would be advised to see a Perth lawyer but the basic principle is that if St John (WA) want to pursue the debt they need to prove that it is owed.  If my correspondent (or someone in a similar position) wants to test it, let them commence proceedings and then raise these very arguments and see what authority they rely on.

Today’s

… question relates to the upcoming changes to Victorian rules re first aid.

What will define when a doctor who is already able to practice under their registration will need to be approved under the new rules and how will this affect nurses who provide “nurse services” for example on a film set or event even though it is really a first aid service.

Likewise how will it affect a registered Paramedic in the same situation 

The Non-Emergency Patient Transport and First Aid Services Act 2003 (Vic) will say (when the changes made by the Non-Emergency Patient Transport Amendment Bill 2021 (Vic) come into force):

A person must not operate a first aid service unless that person holds a first aid service licence

A first aid service will be ‘a service of offering or providing first aid in exchange for payment’.  First aid will mean ‘aid of a medical nature provided to a person experiencing sudden illness or injury’.  A first aid service provider will need to apply for a licence. The Non-Emergency Patient Transport and First Aid Services (First Aid Services) Regulations 2021- Exposure Draft says that there will be three classes of services –

(a) basic first aid service;

(b) intermediate first aid service;

(c) advanced first aid service.

There are prescribed levels of experience for people who are to be employed by a first aid service provider, including standards for enrolled nurses, registered nurses, paramedics and medical practitioners.

An advanced first aid service will be

… a service that provides the first aid services to patients … who have—

(a) acute trauma injuries; or

(b) spinal injuries; or

(c) life-threatening injuries or illness; or

(d) life-threatening drug overdoses.

One might imagine that an ‘advanced first aid service’ will be staffed by registered health professionals.

What follows is that paramedics, nurses and doctors who are providing ‘a service of offering or providing aid of a medical nature provided to a person experiencing sudden illness or injury, in exchange for payment’ will need to hold a first aid licence.

There are exemptions from the need for a licence. Specifically the Act will provide that the following people are not providing a first aid service ‘an individual who provides first aid in the course of their work at a hospital, medical clinic or allied health service’ and ‘a medical clinic or allied health service’.  A doctor staffing a clinic, or a local public hospital emergency department does not require a first aid licence if they are providing medical care to ‘a person experiencing sudden illness or injury’.

There could, no doubt, be disagreement over whether a medical practitioner is providing a first aid service or staffing a medical clinic that happens to be ‘on site’ of an event. Those matters will have to be determined by the Department and ultimately by a court. But given the regulations to give effect to the scheme are currently open for consultation, it is also open for those who think they may be affected by the new scheme to make submissions to clarify how to distinguish between a ‘medical clinic’ and a ‘first aid service’. 

Conclusion

It is the clear intention that the new licensing scheme for first aid service providers will apply even where the clinicians are registered health professionals – doctors, nurses and paramedics.

Today’s correspondent says:

Given that you have declared your imminent retirement from blogging, I too have a question to put to you:

I am a doctor and volunteer with an emergency service in WA. From time to time I find myself in a situations where I would like to be able to provide additional medication to what is provided for volunteers in my organisation, These medications might include S4 and S8 drugs, e.g. ondansetron or morphine.

Putting aside questions about scope of practice and organisational policy, as I feel that you have covered this well in the past (e.g. Doctor as volunteer Life Saver and scope of practice), and assume that the organisation itself does not hold these drugs for my use (which I assume would not pose an issue, but might not be practical to meet the whims of a single doctor). I’m interested to know if I am legally allowed to purchase, carry, and administer these medications in my personal capacity as a doctor.

I read your reply to a similar question from a doctor in Victoria (Doctors carrying drugs in Victoria), but I’m curious if these matters vary state-to-state and particularly in WA, or are uniform across the nation. I’ve seen some references to “doctor’s bag” in WA Department of Health guidelines around schedule drug storage, but these talk about the bag being “left at the surgery” and seem targeted at GPs doing home visits.

Section 25 of the Medicines and Poisons Act 2014 (WA) says:

(1)       A health professional acting in the lawful practice of his or her profession is authorised to administer, possess, prescribe, supply or use a medicine if —

(a)        the health professional is a member of a class of health professional prescribed by the regulations; and

(b)       the medicine is prescribed by the regulations as one that may be administered, possessed, prescribed, supplied or used by a member of that class of health professional; and

(c)        the administration, possession, prescription, supply or use of the medicine is in accordance with the regulations.

(2)       Regulations referred to in subsection (1) may make provision in relation to the circumstances and manner in which, and the conditions on which, a member of a prescribed class of health professional may administer, possess, prescribe, supply or use a medicine.

Medical practitioners are a relevant class of health professional (Medicines and Poisons Regulation 2016 (WA) r 50) and they are authorised administer, possess, prescribe or supply any schedule 4 or 8 drug and supply any schedule 2 or 3 drug (r 51).

It follows that as a registered medical practitioner you are entitled to ‘administer, possess, prescribe, supply or use’ any schedule 4 or 8 medicine if that is relevant to your practice. It is up to you to decide what is your practice and to ensure that you have the necessary skills and knowledge to safely prescribe those drugs. It would also be up to you to make sure you comply with the other regulatory requirements such as the Medicines and Poisons Regulation 2016 (WA) Part 11 (with respect to sch 8 drugs) and the relevant laws on storage and security for restricted drugs.

As for the ‘doctor’s bag’ I’m not sure what guidelines you are referring to but I see for example that ‘Australian Prescriber’ has a page on the doctor’s bag – see https://www.nps.org.au/australian-prescriber/articles/drugs-for-the-doctors-bag-3 but that is a guide to assist doctors to decide what to carry, not any regulatory provision. They say

The choice of drugs depends on several factors including the practice location, conditions likely to be met, the shelf-life and climatic vulnerability of the various drugs (e.g. antibiotics, vaccines), and the design and size of the bag.

A WA Department of Health flyer on ‘Dispensing prescriptions’ says:

Pharmacists may also supply prescription medicines to an authorised health practitioner, in quantities reasonable for that purpose (such as doctors bag supplies), on receipt of a valid requisition to supply.

These references reinforce my conclusion that it’s ‘your call’ what drugs you carry taking into account what is your practice (and “[p]utting aside questions about scope of practice and organisational policy” and issues of your own professional indemnity insurance as opposed to the organisations insurance policy).

Today’s correspondent wants to:

… ask [a question] as registration is quite new for the paramedic profession. There is a lot of debate about the expectation of paramedic graduates who have not yet obtained a position with a state service and are working in the private sector as a paramedic. What is your best advice for graduate paramedics when it comes to their scope of practice and the legal issues of paramedic care in the prehospital setting. Especially when employers employ them as qualified paramedics and give them a drug kit and all the equipment and send them out on jobs (sometimes as a single officer). This is something I am seeing more and more with fewer and fewer state services employing graduate paramedics. This is something that would be of great benefit to hundreds of graduate paramedics around the country.

As I noted before a paramedic’s authority to practice comes from their  registration – not their employer – see What it means to be a professional paramedic (May 15, 2021). As professionals graduate paramedics need to define their own scope of practice, subject to any limitations in their registration. It stands to reason that if they have restricted or limited registration eg that they must practice under supervision for a certain number of hours or they like, then they must do that. But if there are no limitations, then the paramedic has to consider if they have the skills and training to perform the tasks they are being asked to do.  If they do not have the skills or experience they have to talk to their employer and undertake further training to get those skills – that is part of the paramedic’s CPD obligations. A paramedic has to identify what professional development they need in order to provide good care to their patients – see Paramedicine Board Identifying your CPD learning goals (December 2019).

In short the ‘expectation of paramedic graduates who have not yet obtained a position with a state service and are working in the private sector as a paramedic’ is that they will provide good paramedic care as defined by the Paramedicine Board’s Code of Conduct and the standards expected by the profession.  That is the expectation of any paramedic, regardless of who their employer is.

For further discussion see:

• Revisiting conflict between a paramedic’s skills and an employer’s duty statement (April 26, 2021);
• What it means to be a professional paramedic (May 15, 2021); and
• What it means to be a professional paramedic – part 2 (June 6, 2021).

Today’s correspondent says:

Michael, congratulations on the new role but shattered to hear the blog will close.  As you suggested best get the final questions in quick, so I will.

S 128(1) of the Rural Fires Act (NSW) provides an immunity “if the matter or thing was done in good faith”.  What determines “good faith”?  What are the practical applications or considerations of “good faith” for Brigade field officers and other decision makers?

Many thanks, in anticipation.

The most significant case on ‘good faith’ in the contact of the Rural Fires Act is the decision by the ACT Court of Appeal in West v NSW [2014] ACTCA 45 (the 2003 Canberra fires case). That case that s 128 is a defence.  There is a maxim in law ‘who asserts must prove’. Because s 128 creates a defence it is up to the defendant to assert that the actions of those involved were done ‘in good faith’.  That does not mean the defendant has to call each person involved in any decision and ask ‘what were you thinking?’  Rather ‘what matters is what is disclosed by the evidence’ (Katzmann J at [596]). Her Honour said (at [635]):

“In my opinion, for the purposes of s 128 a thing may be done (or omitted to be done) negligently but in good faith. Good faith may be made out where the relevant person does or fails to do something honestly, in good conscience, and for no improper or ulterior purpose, even if he or she acted or omitted to act negligently.”

Jago J said (at [509]) ‘The requirement of good faith requires a real attempt to discharge the required function and more than “honest ineptitude”’. 

The reference to ‘honest ineptitude’ is a reference to the decision in Mid Density Developments Pty Limited v Rockdale Municipal Council [1993] FCA 408. In that case the plaintiff had requested information about flood risk to their property. A council officer advised that the property was not subject to any flood risk. The council officer (at [21]): ‘said that when he completed the answers to the certificates in question in this litigation, he referred to no files or other compendia of data. He relied upon his general knowledge. This led him to the firm conclusion that no property in Henderson Street was subject to flooding.’  This was despite two studies held by council that did indicate the property could be subject to flooding and which the officer did not read or refer to. Council sought to rely on a defence of ‘good faith’ set out in the Local Government Act. The trial judge (at [24]):

… found that the statutory concept of “good faith” in the performance of the functions in question, included two criteria. The first was that the act be done bona fide and not maliciously or to achieve an ulterior purpose. The second was that there be “a genuine attempt to perform the function correctly, that is to say that the function should not be performed without caring whether or not it be properly performed”.

Gummow, Hill, Drummond Jj , sitting as the Full Federal Court said (at [27])

“Good faith” in some contexts identifies an actual state of mind, irrespective of the quality or character of its inducing causes; something will be done or omitted in good faith if the party was honest, albeit careless… On the other hand, “good faith” may require that exercise of caution and diligence to be expected of an honest person of ordinary prudence…

In setting aside, the trial judge’s finding that the council officer had acted in good faith, their Honours said (at [34]):

The statutory concept of “good faith” with which the legislation in this case is concerned calls for more than  honest ineptitude . There must be a real attempt by the authority to answer the request for information at least by recourse to the materials available to the authority. In this case there was a failure to meet that standard.

Conclusion

Taking that back to the RFS good faith will require that the decision or action was done ‘where the relevant person does or fails to do something honestly, in good conscience, and for no improper or ulterior purpose’. But honest ineptitude may not be sufficient so if for example the decision maker made a decision without any actual thought that may not be good faith. For example, a fire fighter may ask the crew leader ‘do you think we’ve done enough here? is the fire out?’ and the crew leader answers ‘sure, let’s go home’ without at least considering what’s been done or looking to see if there was any evidence to suggest that the fire has not been extinguished, that may not be ‘good faith’. But conducting an inspection and concluding that it’s all good will be a decision made in good faith, even if it’s wrong and even if it’s negligently wrong (see also Verdict against landowners for RFS managed controlled burn set aside (April 9, 2021); see also Bennett and Wood Ltd v Orange City Council; Board of Fire Commissioners (Third Party) (1967) 67 SR(NSW) 426).

Yesterday I announced that this blog would close; but I also said “This blog will close with effect on 31 July 2021- If you’ve got a burning question (no pun intended) – ask it now”. So this is the first of those burning questions. Today’s correspondent said:

I recently attended a case in which a corrections inmate had self-harmed by putting a foreign object into their abdomen. Our local hospital is usually our go to with patients that are also inmates at a corrections facility. In this particular case the patient refused transport to this particular hospital. The patient then stated he would be happy to be transported as long as it was to a different facility which was an extra 10-minute drive away.

My question is regarding the autonomy rights of inmates. It is my understanding they have normal autonomy and therefore can refuse to be transported or treated by paramedics. Can the patient although refuse transport to one facility but accept treatment to another?

If this is the case, is it providing appropriate care to do so? Or is that an organisation issue for the company that provides the ambulance services.

Of course, given that this was self-harm there was also the argument of the Mental Health Act and its input. I feel that it was safer to take this patient to the hospital 10 minutes further away, keeping him calm and compliant, rather than having to provide sedation to facilitate transport to the closer facility against their will. I understand this is contrary to your previously stated opinions on the NSW MH Act. I would love to hear your thoughts on this case.

I infer given the reference to the “NSW MH Act” that we’re talking NSW.

First prisoners, at least prisoners under sentence (as opposed to prisoners on remand awaiting trial) lose autonomy rights. Section 73 of the Crimes (Administration of Sentences) Act 1999 (NSW) says:

A medical practitioner (whether that practitioner is a medical officer or not) may carry out medical treatment on an inmate without the inmate’s consent if the Chief Executive Officer, Justice Health is of the opinion, having taken into account the cultural background and religious views of the inmate, that it is necessary to do so in order to save the inmate’s life or to prevent serious damage to the inmate’s health.

Of course a paramedic is not a medical practitioner, they are a paramedic practitioner, so the exact application of the section would be unclear. In any event my correspondent does not say that gaol authorities were trying to give consent on the patient’s behalf so we can ‘park’ s 73 as simply an provision of interest.

As for the Mental Health Act, I will again put aside the discussion about whether the NSW Act allows paramedics to transport a person who is mentally ill but still competent to consent but who refuses consent (see Accepting that involuntary treatment is an option under s 20 of the Mental Health Act 2007 (NSW) (November 25, 2020)).  This question raises the issue of whether the patient is mentally ill or mentally disordered. To be mentally ill the patient has to have:

… a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms–

(a)        delusions,

(b)       hallucinations,

(c)        serious disorder of thought form,

(d)       a severe disturbance of mood,

(e)        sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d).

Now I’m not a clinician but the mere fact that the prisoner self-harmed does not, it seems to me, necessarily mean any of those conditions are met and so the person is not prima facie a mentally ill person (s 4 definition of ‘mental illness’ and s 14 definition of ‘mentally ill person’).

To be mentally disordered a person must (s 15) demonstrate:

… behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary–

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

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

Self-harming in prison may not be irrational. It may be, for example a rational way to get out of one situation and into a safer place. Given the patient was able to articulate where he wanted to go etc it doesn’t sound like he was irrational at the time. To repeat I’m not a clinician but on what we’ve been told I cannot infer that the patient was mentally disordered either at the time he inflicted the wound or when approached by paramedics.. 

Section 20 of the Mental Health Act allows an ambulance officer to take a person to a mental health facility for treatment if they are mentally ill or mentally disordered. The aim here was to take him to a facility for treatment of his abdominal injury, not for a mental illness. Further on the story given it’s not clear he was either mentally ill or mentally disordered.  I cannot see that s 20 has any application to play.

We then get to the question – can a patient refuse consent if transport is to hospital A; but consent if the proposal is transport to hospital B? The answer to that question has to be ‘yes’ but does that impose an obligation upon paramedics to transport the patient to hospital B?  The answer to that question has to be a qualified ‘no’ – see Patient’s demands do not create a duty to treat (April 11, 2020) and Refusing transport to a particular hospital (June 21, 2019).

I say ‘qualified’ because there may be circumstances where it is appropriate to argue for and accede to the patient’s wishes.  In the post A difference between respecting autonomy and doing whatever someone wants you to do (January 12, 2021) I said:

… Here in the Australian Capital Territory (the ACT) there are two hospitals with public emergency departments, Canberra Hospital on the south side (ie south of Lake Burley Griffin) and Calvary Hospital on the north side. Paramedics may be treating a person on the south side so Canberra Hospital would be the ‘normal’ destination – if you like the ‘policy’ destination; but the patient may live on the north side and prefer to go to Calvary as that is closer to home and family and therefore their social support. A paramedic may want to advocate for their patient’s choice – talk to co-ord and ask -even argue – to take the patient to Calvary. That would show respect for patient autonomy and other ethical principles may also come to play. In particular the principle of ‘beneficence’ that is it would actually benefit the patient to go to Calvary. But there may be circumstances where it would not benefit the patient. The extra time that it would take may be critical given their condition so the principle of non-maleficence (ie do no harm) says take the person to the Canberra hospital. It may be a busy night and tying up an emergency ambulance by the longer drive to Calvary and then to return to the south side may reduce the service to others so the principle of ‘justice’ would say go to Canberra.  The point is that the patient’s wishes are not the only factor to be considered. The patient can refuse to go to Canberra, can ask to go to Calvary, but cannot insist to go to Calvary even though ACT Ambulance regularly transport patients to both hospitals.

Take a more extreme example, the patient may, for similar reasons, say that they actually want to go to the Royal Prince Alfred Hospital (RPAH) in Sydney.  And even if that would be of some benefit to the patient the ACT Ambulance Service could well say ‘that is not an option’; no matter how much the patient wants it and no matter how much it would advance their autonomy to be taken to the RPAH, ACTAS does not transport emergency patients from Canberra to Sydney just because the patient wants to go there.

Let us consider another example. This time the patient agrees to go to the nearest hospital but says ‘but there’s a social function I promised to go to and it’s very important to me, so I’ll go there first and then go to the hospital’. Respect for patient autonomy means the paramedics cannot override the patient’s choice – they can give advice on why that is a bad choice, but they cannot compel the person to come with them. But they can refuse if the person says ‘can you give me a lift to the social function and stay with me to make sure I’m ok, and then drive me to hospital?’ They can refuse as that would be facilitating the poor choice but equally because that is not a service we offer. A doctor can respect a patient’s choice to smoke, but they do not have to condone it or buy them cigarettes.

Conclusion

To return to the question:

Can the patient although refuse transport to one facility but accept treatment to another?

Yes of course but that does not impose an obligation to transport the patient to the other hospital, but a professional paramedic, having regard to the demands of the profession to provide client centred care and thinking about the best interests of the patient may decide that they are much better off taking the extra 10 minutes to go to the hospital the patient wants to. But in other circumstances, eg where the ‘other’ hospital is one hour away, or one day away, may well say ‘that is not an option’.  It all depends on the circumstances including the clinical need, the demand on services and company policy. It may well be, taking all the circumstances into account, ‘appropriate care’ to agree ‘to take this patient to the hospital 10 minutes further away, keeping him calm and compliant’ and making it more likely he will consent to the care he needs.  Making those calls is what it means to be a professional paramedic.

The fact that the person is a prisoner is in the circumstances described, irrelevant.

This blog began with the first post – Ambulance Service v Neal on January 29, 2009. Between then and 1 July 2021 there have been 1477 posts and approximately 4400 comments. 1.2 million people have visited the WordPress site. That does not count the number of people who access the blog via Facebook and LinkedIn.

The blog began when I was an academic at the School of Law at the University of New England, Armidale NSW. I started the blog partly to learn how to blog, partly to ‘claim the space’ as an expert in the field and largely to share my research. Doing academic work is fine but the normal metric of success is publication in peer reviewed journals. Unfortunately, most of those journals are not ‘open access’ (but that is changing) so people can (or could) only read them if they had paid subscriptions or library access.

Writing journal articles that only other academics can access has its place, but in this field it seemed irrelevant. I wanted to communicate with those that had to live with and apply the law. I wanted to understand how the law affected practitioners and I wanted to provide a resource to help those in the emergency services, people who – given my service with St John Ambulance (NSW) and (ACT), NSW Ambulance and NSW SES – I regard as colleagues.

 The blog continued with my move to the Australian National University in 2010 and then with my departure from the University sector at the end of 2019 (see The end of an era at the Australian National University (August 18, 2019)).

So why end now? First, after 12 years, whilst many people are finding the blog or coming to the sector and so asking questions that are new to them, I find myself answering the same questions and you can see that by how often, when I answer a question, I refer back to earlier posts (and no, you cannot put red/blue lights on your private car).  The blog takes a lot of time. I not only need to keep up to date and write posts, I need to keep an eye on and where appropriate respond to comments. Most are respectful and seek to contribute to the discussion even where there is disagreement. Some are not. Some people think it’s OK to abuse someone who has a different view to their own. Just because someone writes something that does not confirm your pre-conceived idea, or does not suit your convenience, it does not follow that the author is corrupt or writing for an ulterior motive. The abuse I’ve coped is not much compared to many, but it takes its toll.

But the main reason the blog will end is because the great privilege of being an academic is the freedom to write what one thinks. To consider an issue – whether it’s a question, a new piece of legislation or a court case – and write my opinion on the answer or the impact of the law change. An academic is not beholden to anyone, including their employer, to take a particular line. It is a privilege enjoyed by few. I hope I have exercised it carefully but without ‘fear or favour’. (So, for everyone who has tried to find some hidden motive when I’ve written something they did not like, the answer to the question ‘why did you write this?’ has always been ‘because that is my opinion’).  As I said, the privilege to write whatever one thinks is a privilege enjoyed by few. It is not a privilege open to a public servant (see for example Comcare v Banerji [2019] HCA 23). In August this year I will be joining a government department that operates in an area related to this blog. That will limit my power, and time, to comment and if I cannot comment on the operations of the department or the government I will work for, I should not comment on any.

In anticipation of ending this project, let me thank everyone who has contributed to the blog – everyone who has asked a question or written a comment, added material or corrected my errors. And let me thank everyone who serves or has served in the emergency services and the emergency management community more broadly, the volunteers and staff who are the first responders up to and including the Commissioners and Chief Officers who have always appeared to appreciate that there was a place where their staff and volunteers could get an independent opinion. I have no idea whether they have approved of what I’ve written (except in the few cases where my blog post has caused an official response and the odd change in policy) but they have always expressed an appreciation for the effort.

And let me also thank colleagues in the research community: all the friends – staff and students – I met at the late, great Australian Emergency Management Institute at Mt Macedon Victoria; everyone at the Bushfires and then the Bushfire and Natural Hazards CRC including the agency ‘end users’ who not only guided the research but became friends, and my friends and colleagues at UNE and at ANU.

This blog will close with effect on 31 July 2021- If you’ve got a burning question (no pun intended) – ask it now.

And for those that have asked, yes the blog will remain as an archive on this wordpress site until WordPress gets sick of it. It is also archived at fixed dates by the National Library on the Library’s Trove database.

Today’s question is a new one. My correspondent is

… wondering about the legalities of using lock picks as a paramedic to gain entry to patients houses? Obviously if it’s time critical you’d break in more quickly, but for someone who you know just needs an assist lift, for example, shouldn’t need to replace a door or window that gets broken if there are other options. I’ve been able to find out about the laws around carrying them and needing to have a legal justification (just purchased, on the way to a competition etc) but not about the use outside of competitions or being a locksmith. Thank you!

I’ll take it as a given that we accept paramedics and others can force entry to a house to assist a person where that is reasonable in all the circumstances – see The doctrine of necessity – Explained (January 31, 2017).

An online book on the laws of lockpicking (https://www.pickpals.com.au/wp-content/uploads/2018/08/pickpals-ebook.pdf) says:

There is no federal (Australia wide) law that sets out the situations in which it may be illegal to possess and use lock picking tools. The relevant law varies from state to state

They then proceed to outline the law in each state. My correspondent does not identify their state, so I’ll assume it’s NSW. The PickPals book says

In the state of New South Wales, a person may be found guilty of an offence if they have in their possession, without a lawful excuse, any tool that is capable of being used to break into a premises, vehicle or a safe (section 114(1)(b) of the Crimes Act 1900 (NSW)). The offence is one of ‘strict liability’ which means that a person in possession of such tools does not have to have an intention to break into a premises, vehicle or safe. The fact that the tools are in the person’s possession without a lawful excuse is sufficient and constitutes an infringement of the law.

Section 114(1)(b) of the Crimes Act 1900 (NSW) says:

(1) Any person who–

(a)        …

(b)       has in his or her possession, without lawful excuse, any implement of housebreaking or safebreaking, or any implement capable of being used to enter or drive or enter and drive a conveyance,

(c)        …

(d)       …

shall be liable to imprisonment for seven years.

(It should be noted that the defence requires a ‘lawful excuse’ not a ‘reasonable excuse’ (compare that to the Summary Offences Act 1988 (NSW) s 11C which makes it an offence to be in possession of a knife in a public place without ‘reasonable excuse’. That section also lists some things that constitute a ‘reasonable excuse’ including ‘the lawful pursuit of the person’s occupation, education or training’ and ‘participation in a lawful entertainment, recreation or sport’.  There is no such list in the Crimes Act relating to lock picks.)

I think there would be no doubt that being a licenced locksmith (Security Industry Act 1997 (NSW) s 12(1)(c)) would be a ‘lawful excuse’.

I can find three NSW cases ‘lock pick’ has been used (R v Salameh [2016] NSWSC 930; See v R [2017] NSWCCA 165 and Wilson v Commissioner of Police [2018] NSWCATAD 274). Salameh’s case and See’s case are not about lawful excuse and are of no assistance. Wilson was an appeal against a firearms prohibition order. The details are not important save that at one point Mr Wilson had been charged with being in possession of a lock pick. At [18] The Tribunal said:

The Magistrate found … that the Applicant he had been in possession of the lock-picking equipment for some time, had used the equipment in his previous employment and had developed an interest, and practised at home. It was also accepted that the Applicant had used the lock-picks on the fox trap which he had set earlier. As a result, the Magistrate found that the Applicant had established a lawful basis for being in possession of the lock-picking equipment and dismissed the charge in relation to housebreaking equipment.

Now there is no law that says ‘lock picks’ may be lawfully used because you have an interest or set fox traps, nor is there a law that says you cannot use them. The real question is not ‘is there a law’ but is the court satisfied that whatever use you intend to make of them, that is lawful?

At the end of the day whether a person has a lawful excuse depends on the arguments. The police find you in possession of the lock picks and ask ‘why are you carrying these?’ You answer, ‘I’m a paramedic and use them to gain entry when required as it does less damage than breaking in’ and you produce your ID to prove that indeed you are a paramedic. We take it as read that forcing entry is at times lawful.  The police may accept that.  If they don’t they issue an infringement notice and put the matter before the court.  You appear before the Magistrate and make the same argument.  The Magistrate will either accept it or not. If the Magistrate does not you are convicted, so then you appeal to the Supreme Court and then to the Court of Criminal Appeal and then we get a precedent on whether or not that constitutes a ‘lawful excuse’.

Conclusion

One cannot say definitively but my view would be that given that paramedics at times do have to force entry into a home, having equipment to do that – ie to do something you may lawful do – would constitute a ‘lawful excuse’ for s 114(1)(b) of the Crimes Act. But you will never find that written down and it does not appear the question has been asked at NSW Supreme Court level. So you carry the items and if push comes to shove you hope the police agree with that this is a ‘lawful excuse’.

Today’s question is a

… query about section 33B of the Rural Fires Act [1997 (NSW)] and its application to Investigation of fires. As a fire investigator I have responsibilities under the Rural Fires Act and have a need to better understand my powers of access.

The Act (s 33B) says:

33B POWER TO ENTER LAND UP TO 24 HOURS AFTER FIRE

(1)        The Commissioner may enter and inspect any land for the purposes of investigating the cause or origin of any fire that has occurred on that land or any adjacent land, but only for a period of up to 24 hours after the fire has been put out.

(2)        The power conferred on the Commissioner under subsection (1) may be exercised with or without the consent of the owner or occupier of the land concerned.

(3)        This section does not authorise the Commissioner to enter any part of land used only for residential purposes without the authority of a search warrant under section 33C or the consent of the owner or occupier of the land concerned.

(4)        In this section and in section 33C,
“land” includes any building on the land.

The application of 33B(1)  & 33B (2) is easily understood but the questions that arise are

(A)       If you have a property that is a larger lot (acreage) with a residence, do I have access as an authorised officer to investigate under 33B (1). It would seem that 33B (3) cancels 33B (1).

(B)       If I have a structure fire on a residential lot and there is no visible flame or smouldering would a court consider the fire to have been put out and therefore a warrant would be required to investigate if owner refused access? Or would the investigation be part of the fire suppression activities if the investigator was a the scene prior to the fire being extinguished?

(C)       If a fire has occurred, brigades have attended, extinguished the fire and departed; would the fire be considered out by a court.

(D)       As in (C) above, if the job is left as patrol status within the RFS reporting system, does this extend the 24 hour access?

I ask these questions as [my] opinion is that 33B (1) takes precedence over 33B (3).

(E)        Then how does the following section interact with section 33B

23 POWER TO ENTER PREMISES

An officer of a rural fire brigade or group of rural fire brigades may enter any premises for the purpose of exercising any function conferred or imposed on the officer by or under this Act.

Premises is defined in the Dictionary as:

“premises includes any building of any description or any part of a building and any land whether built on or not but does not include any building on, or land forming part of, managed lands.”

Does this section overrule 33B (3)?

Question (A)

The concept of land includes anything built on and affixed to the land. That is also reflected in the definition of premises, quote above. It follows that the concept of land includes any building. ‘[P]art of land used only for residential purposes’ is the home.  As Lord Denning said (Southam v Smout [1964] 1 QB 308 at 320)

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

Conclusion (A)

I would understand the reference in s 33B(3) to ‘any part of land used only for residential purposes’ has to mean the home, not any part of a property where there is a house located somewhere on the property. If there is ‘a property that is a larger lot (acreage) with a residence’ the authorised officer has power to enter onto the land, but not into the home, to investigate under 33B (1).

Question (B)

The answer to question (B) is actually a question for my correspondent to answer. No doubt fire fighters have an understanding of when fire fighting is complete and the fire is extinguished. I think of the issue of the smouldering tree stump (see Verdict against landowners for RFS managed controlled burn set aside (April 9, 2021). Just because ‘there is no visible flame or smouldering’ it must be that there may still be firefighting activities to undertake but it is not for me to answer that. The issue for a court would be to understand what is really going on. If the IC or the investigator thinks the fire is out, then the fire is out. If they don’t then it isn’t but merely ‘pretending’ that it’s not out to allow the investigator to enter on a ‘pretence’ of fire fighting will not be accepted.

Conclusion (B)

The issue is not who says what but what the facts show is actually happening. If you are entering to engage in firefighting you don’t need a warrant; if you are entering to investigate you do. A court will be interested in what is really going on and what people believed or intended, not simply what someone says or records.

Question (C)

If the fire brigades have left, then they must believe the fire is out. It has to be the case that ‘If a fire has occurred, brigades have attended, extinguished the fire and departed’ then the fire was extinguished. Any other conclusion would be perverse.

Question (D)

The answer is really the same as (B); it depends on what is actually going on. If you’re a fire investigator and you are part of the ‘patrol’ and you have reason to think there is a fire restarting and go into to extinguish the fire then you are firefighting. If you think ‘here’s the chance to sneak in’ then you are trying to subvert the need for a warrant and that will be frowned upon. The issue is what you really think and intend, not what a form says.  It is really up to the RFS to say what the RFS means or understands by ‘when is a fire considered extinguished’.

Question (E)

I do not think ‘[s] 33B (1) takes precedence over [s] 33B (3).’  If it did s 33B(3) would have no work to do. Section 33B says you can enter onto land but s 33B(3) says ‘but not the landowner/occupier’s home’.  There is a rule of statutory interpretation that a specific provision overrules a general provision (see ‘Lex specialis’).  The power to enter land (s 33B(1)) is a general provision whereas s 33B(3) is a specific provision about entering a home.

Further it is a general rule of statutory interpretation that an Act should not be read as curtailing fundamental rights and freedoms without express language. It is a fundamental rule that one’s private property is sacrosanct – we’ve all heard that ‘a man’s home is his castle’ – that maxim is based on ancient law. In Seyman’s Case (1603) 77 Eng. Rep. 194 where Sir Edward Coke said ‘That the house of everyone is to him as his castle and fortress’.  The quote from Lord Denning, above, can be traced back to 1763. Interpreting s 33B(1) as being subject to s 33B(3) would also be consistent with that principle.

For the same reasons I would read the general power (s 22) as subject so specific provisions in s 33B and in particular s 33B(3). That means that ‘An officer … may enter any premises for the purpose of exercising any function conferred or imposed on the officer by or under this Act’ but if they are planning to enter someone’s home for the purpose of ‘investigating the cause or origin of any fire that has occurred on that land’ within the last 24 hours, then they need to obtain a warrant.

Conclusion

It is my opinion that a person who is in reality setting out to investigate a fire may enter onto the land in the 24 hours after the fire is extinguished, (s 33B(1)) but that does not include the person’s home (s 33B(3)) unless they have a warrant. Claiming to be entering the land to fight a fire won’t allow entry if that is a pretence intended to avoid the need for a warrant. The power to enter land (s 33B(1)) or premises (s 22) has to be read subject to s 33B(3) or else s 33B(3) has no work to do.

A correspondent has

… a few questions …[about] the recent announcement by the Health Services Union that on the 10th of June their members will not respond to non priority 1 jobs for a 24 hour period. Given this is likely the first time this level of industrial action has been taken by paramedics since paramedics were covered under the national registration scheme, there are a few questions which have been raised:

1. Would this action potentially meet the threshold of a violation of the paramedic code of conduct?

2. Has AHPRA ever (to your knowledge) found a health professional liable for participating in industrial action?

I’ll answer the questions in reverse order.

Question 2

I note again that it is not AHPRA (the Australian Health Practitioner Regulation Agency) that determines what is or is not unsatisfactory professional conduct – see What it means to be a professional paramedic – part 2 (June 6, 2021). AHPRA does maintain a database to provide some access do disciplinary decisions against registered practitioners (see https://www.ahpra.gov.au/Publications/Tribunal-decisions.aspx and https://www.ahpra.gov.au/Publications/Panel-decisions.aspx). From what little information there is, there is nothing to suggest a Panel, Court or Tribunal has been called upon to consider whether action that forms part of industrial action can also constitute unsatisfactory professional conduct.

The answer to question 2 is therefore no, to be best of my knowledge, no professional practice panel, Tribunal or Court has found a health professional acted contrary to the expectations of the profession for participating in industrial action. But, it should be noted, they have also not found that industrial action excused what might otherwise have been unprofessional conduct. The matter has simply never arisen.

Question 1

The details of the proposed industrial action are set out on the HSU website – see Paramedic and Control Centre Officer Industrial Action June 10 (2 June 2021). This says ‘Industrial Action means we will ban all responses except 1A, 1B, & 1C emergencies…’ That means striking paramedics will not respond to priority 2 emergencies.  As a commentator on the HSU facebook page says:

I definitely support the need for industrial action, but I have concerns about this. There have been a number of times I’ve gone to a job that was far more serious than the description would suggest…You just don’t know what you are going to get until you are there. I’m really torn about this.

The risk is that a paramedic crew will be tasked with a task below priority 1 and decline to attend. The patient’s condition deteriorates so the priority is changed, and the crew now arrive. Let us (to tug the emotions but also to draw an analogy with Woods v Lowns, discussed below) assume the patient is a child and suffers irreparable harm that may have been avoided with earlier attendance. What would you say to the paramedics who were available when it was a priority 1 job but, although tasked and available when it was priority 2, refused to come?  You might say, as Patrick Wood’s grandmother said ‘this will not be the last you will hear from me’ (Woods v Lowns, (1995) 36 NSWLR 344 at 348).

In answering a question about failure of NSW ambulance paramedics to attend when called upon, I concluded that there would be a strong argument that they could be liable in negligence – see Failure to attend by NSW Police and Ambulance (December 18, 2013). My opinion has not changed.

Lowns v Woods involved a doctor who was at his surgery, ready to see patients but not yet engaged in any patient care. A young child knocked on his door and asked him to come and attend to her brother who was having a seizure nearby. The doctor refused. The doctor was found to have owed a duty of care to the patient even though there was no pre-existing doctor/patient relationship. Critical to that case was that Dr Lowns was at his surgery ready to see patients but not yet engaged seeing patients. He knew the patient was nearby because he was summoned by the patient’s young sister who had run to the surgery. The Court found that the special nature of being a doctor – the status and privileges that affords – meant that in the unique circumstances of that case Dr Lowns owed a duty to attend young Patrick Woods.  Patrick suffered permanent brain damage and received $3m in damages from Dr Lowns (Woods v Lowns, (1995) 36 NSWLR 344; affirmed on appeal in Lowns v Woods (1996) Aust Torts Reports 81-376).

That case did depend on the terms of the Medical Practice Act 1938 (NSW) now repealed. Today there are 15 registered health professions, including paramedics. On the other hand the Health Practitioner Regulation National Law does not specifically say that failure to assist in an emergency is ‘professional misconduct’. But the principles are not a world apart. Today paramedics, like doctors, go through extensive training and public expense (albeit students now pay a much higher percentage of the cost of their training). They are in a position of trust and are uniquely positioned to provide emergency care. That is the very essence of being a paramedic at least one employed by NSW Ambulance. If they are assigned a less than priority 1 case, they are being tasked to a job so they know that they are an appropriate response until taking into account physical proximity and clinical skill level.  They are not then talking about an abstract patient but a real person who has called for ambulance assistance.

At the time of writing that earlier post, paramedics were not registered health professionals. Now they are. There may not be a specific section saying that failure to attend in an emergency is professional misconduct, but there are obligations on paramedics imposed by the law and by the Paramedicine Board’s Code of Conduct.

In NSW ‘unsatisfactory professional conduct’ (Health Practitioner Regulation National Law (NSW) s 139B) includes:

(a)        Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner’s profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience….

(l)         Any other improper or unethical conduct relating to the practice or purported practice of the practitioner’s profession.

The Paramedicine Board has published an Interim Code of Conduct (June 2018, ‘the Code’) that defines the professional expectation of paramedics. Relevantly the Code says:

Prima facie taking the proposed industrial action and refusing to attend to cases priorities below 1C would be a breach of the Code. A breach of the code would be an example of ‘improper or unethical conduct relating to the practice or purported practice of the practitioner’s profession’ and could therefore constitute ‘unsatisfactory professional conduct’ with resultant implications for a paramedic’s registration.

Paramedics by providing pre-hospital care and perhaps diversion contribute to ‘the effectiveness and efficacy of the healthcare system’ Interim Code of Conduct (June 2018) p. 5) and that contribution will be lost by the removal of services. By refusing to respond to any category 2 task, paramedics are not ‘applying the key principles of risk minimisation and management to practice’ nor are they acting in the best interests of the patient (p 5).  By having a blanket refusal to attend (noting that one cannot actually know until you get there the true nature of the patient’s condition) paramedics will not have ‘Care of the patient or client is the primary concern’ (p. 7). In fact, their decision will be influenced by a conflict of interest by allowing their relationship with the Ambulance Service of NSW and the HSU to influence their care (or refusal to care) for a patient. The employer/employee relationship is ‘not relevant to the therapeutic relationship’ between paramedic and patient. The proposed withdrawal of services would appear to be an example of allowing ‘the personal views of a practitioner’ to ‘affect the care of a patient or client adversely’ (p. 8). If there is a conflict of interest (in this case between the wages demand and patient care) the paramedic’s obligation is to ‘resolve this conflict in the best interests of the patient or client’ (p. 18).

Good practice in emergency care ‘involves offering assistance in an emergency that takes account of … other options…’ (p. 9). If all NSW Ambulance paramedics refuse to attend category 2 cases that limits ‘other options’ for people who may be seriously ill or having what is for them, a crisis. Some people may be able to make other arrangements for care, but some will not.

The reason this industrial action may work is indeed because some callers will not get ambulance assistance. That may be an example of an ‘expression of personal beliefs to patients or clients in ways that exploit their vulnerability or that are likely to cause them distress’ (p. 18). It is there very vulnerability and/or distress that it is hoped will persuade the NSW government to make a more generous offer.  The discomfort of the patients is a means to an end and exploiting their vulnerability is unethical.

On the other hand, the Code says ‘The focus of this code is on good practice and professional behaviour. It is not intended as a mechanism to address disputes between professional colleagues…’ (p. 6). Arguably if NSW Ambulance decided to make a complaint that a paramedic was guilty of ‘unsatisfactory professional conduct’ on the basis that participating in the IA was an example of ‘improper or unethical conduct relating to the practice or purported practice of the practitioner’s profession’, the relevant Panel or Tribunal may consider that it is being used to resolve an industrial dispute and this is not an appropriate use of the resources or the Code. The situation would not be so clear if a patient, or worse the family of a patient who dies, makes a similar complaint.

Another way to look at it is to ask what would anyone’s attitude be to a paramedic who refused to attend a priority 2 case in any other circumstances. I think it would be beyond question that such conduct would be considered reprehensible and a breach of trust between paramedics, patient’s and the community. That it is done as part of an industrial action makes no difference to the patient.  Refusing to do things that an employer directs – eg failing to fill out billing information – may be employment misconduct but is protected by the strength of collective strength. But here the part of the community affected are the vulnerable. I see that in an interview on 2GB HSU NSW secretary Gerard Hayes was asked:

Jim Wilson: Are you worried this … will put lives at risk?

Gerard Hayes: We are.

Paramedics knowingly putting ‘lives at risk’ for their own interest must be acting contrary to the concepts of good paramedic practice.

I do think the situation would be different if the claim was, say, for more resources. If the argument was ‘paramedics are overworked and that is impacting upon their health and safety and the safety of patients; to address that we will only attend priority 1 cases because that way we can focus on those most in need. That will allow us to provide proper care, complete case reports etc for the benefit of the patient. And we’ll work to rule so we’ll take our meal breaks and go home on time’. If that were the case one could argue that is a patient centred decision – the aim is to improve patient care for the most serious and protect paramedics which also improves patient care.  And that sort of industrial action delivers the result – if refusing to clear for a priority 2 job allows paramedics to provide proper care to a priority 1 patient or paramedic’s get their breaks and get home so they can perform better when they come back to work then patient and paramedic care is improved directly by the action. But the claim here is for a pay rise. The demands may be meritorious, but this action won’t deliver a pay rise in the same way insisting on meal breaks delivers a break; or insisting on going home on time increases your time at home. In those cases too, when asked ‘why didn’t you attend?’ a paramedic could honestly answer ‘because I was busy with another patient’ or ‘I had to go home because we need breaks to refresh to be able to come back tomorrow’. In Woods v Lowns and in Kent v Griffiths the Doctor and the London Ambulance Service respectively were liable when they failed to attend without good reason. The pay claims may be meritorious but I don’t think ‘we don’t get paid enough’ or ‘we want to bring pressure on the government’ would constitute sufficient good reason to refuse to attend to a particular patient.

It is my view that paramedics who refuse to attend cases, and in particular paramedics who do not attend a case when it is less than priority 1 but do when it is reassessed would face a very real risk. The patient, or the patient’s family – the equivalent of the family of Patrick Woods – would be well within their rights to make a complaint of unsatisfactory professional conduct and I would suggest may also want to bring a civil claim against those paramedics. Those proceedings may or may not succeed, everything depends on the particular facts, but it could make a paramedic’s life hell for the next few years.

Conclusion

The question I was asked was ‘Would this action potentially meet the threshold of a violation of the paramedic code of conduct?’ My view is that absolutely it ‘could’ meet that threshold. I would suggest that paramedics who refuse to attend priority 2 cases but are at work and ready to respond to priority 1 cases could be putting their registration and livelihood at risk. The fact that they are undertaking industrial action supported by the HSU does not change their obligations as paramedics to put their patient’s interests first.

None of this is to suggest for a moment that their grievances are not justified and that industrial action may be the only way to bring the NSW government to the table; but this industrial action will knowingly put lives. And the lives at risk will not be abstract, theoretical lives, but at the time decision not to respond is made they will be known, identifiable people. Perhaps no-one will make a complaint, but it will only take one and one or two paramedics may find themselves in a world of pain.

This post is a follow up to my post What it means to be a professional paramedic (May 15, 2021):

… but this time the perspective is more from the paramedic employers in the relatively new world of Paramedic registration in Australia.

Given the defined responsibilities expected by AHPRA for the registered paramedic and the continuing growth of the private sector, what do you see as the responsibilities of the employer towards the registered paramedic and the community in terms of training, education, recertification, CPG’s and clinical governance?

I note in your response on 15 May you stated that;

“An authority to practice issued by an employer is not required by the Health Practitioner Regulation National Law. It is an employer’s risk management process and part of defining what the paramedic is employed to do. It is not a legal requirement for practice; it is a legal requirement for practice with that employer. A paramedic’s right to practice comes with their registration.”

Would you be able to expand on this further possibly and detail what you think could be the potential repercussions were an ambulance jurisdiction or private company to view their registered paramedic employees as totally independent practitioners now and responsible for their own upkeep i.e. training, procedures, education and governance while also trying to keep abreast of advancements in process and treatment modalities within paramedicine as often detailed by ILCOR, ARC, ITIM, CEC etc?

Basically I guess what I am trying to articulate is, can a paramedic employer responsibly say to their employed paramedic; “All that is all up to you now because you’re registered”…………?

I do ask people to distinguish between AHPRA and the Paramedicine and other professional boards. AHPRA is the secretariat, they assist the Boards. It is the Boards that publish codes, guidelines etc. It is the Boards that register health professionals. What is expected by registered paramedics is set by the law, the Paramedicine Board and relevant Tribunals and Panels, but not by AHPRA. With that aside, let me get to the gist of the question.

Can a paramedic employer responsibly say to their employed paramedic; “All that is all up to you now because you’re registered”…………?

Some employers could, some could not. We have to think of paramedics working beyond the jurisdictional ambulance services. Jurisdictional ambulance services could not responsibly say to their employed paramedic; “All that is all up to you now because you’re registered’ because they employ a lot of paramedics to provide services to the public. They are responsible for the conduct of the paramedics, and they have a duty to ensure that the patient’s receive good quality care. This duty is non-delegable so the ambulance service will have breached its duty to its patients if a paramedic is negligent. As Kirby J said in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

In my opinion authorities who run a hospital [or an ambulance service], be they local authorities, government boards, or any other corporation, are in law under the selfsame duty as the humblest doctor [or paramedic]; whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment. The hospital authorities cannot, of course, do it by themselves: they have no ears to listen through the stethoscope, and no hands to hold the surgeon’s knife. They must do it by the staff which they employ

The ambulance service owes a duty of care to its patients, and it meets that duty by employing paramedics and others. It also then has a duty to ensure that those paramedics are providing appropriate care and that carries a duty to set standards, give training as to what they expect etc. and attempt to ensure that the care delivered is comparable regardless of which employee arrives on scene.

But for paramedics making sure their CPD is relevant to their practice is a matter for them. An employer may want to make sure that they assist paramedics to meet that commitment because they need the paramedics to complete CPD and it will help them retain the workforce. I note for example that the ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021 provides (at [104.1]) that medical specialists get an allowance of $18550 pa for medical education expenses as well as leave in order to complete ongoing medical education. The employer is not saying – getting CPD is a whole lot of your business, but neither are they taking responsibility for providing that CPD. What CPD the doctor does is a matter for the doctor. No reason a paramedic employer could not take the same approach. In fact if an employer said to paramedics – you will do this CPD – that may not be sufficient for registration purposes if the paramedic cannot say how and why the CPD was relevant – ‘I did a course or diving injuries because my employer told me to, and they told me to because it was the cheapest CPD they could find even though it has no relation to the work we do’ would probably not ‘cut it’ when seeking renewal of one’s registration.

And some employers (in particular private providers) are trying to engage paramedics as private contractors. If that is legitimate rather than sham contracting then indeed paramedics will be responsible for all of their own training, CPD and meeting whatever requirements are imposed by their local Department of Health for any drugs authority.  That is where paramedics who are independent contractors need to make sure those costs are included in their charge out rate.

But not all employers are or will be ambulance services. Imagine a company that operates a large heavy industry site. They know that they need to provide first and emergency services (Work Health and Safety Act 2011 and Regulations) so they employ a paramedic to take charge of their emergency medical response arrangements. That employer won’t know anything about paramedic practice so could quite responsibly say to the paramedic employee ‘it’s up to you to manage all the things you need to do to maintain your currency and ensure that our employees get best quality care – that is what I’m paying you to do’.  The employer would have to meet the costs so, perhaps like the ACT public service (above) would provide an allowance or a budget for that to happen, but it would be reasonably be a matter that the employer leaves to the paramedic.

Conclusion

The world of paramedic registration means that paramedics are independent practitioners. It opens a world of possibilities as paramedics make choices of where and how they want to practice. It follows that indeed some paramedic employers, or contractors, could ‘responsibly say to their employed [or contracted] paramedic; “All that is all up to you now because you’re registered”.  Whether that’s reasonable or responsible will depend on the nature of the employer and the bargaining ability of paramedics (individually or collectively) to obtain working conditions that they want – that either allow them to take that responsibility or, if they prefer, to ensure the employer takes that responsibility.

Today’s correspondent has been exposed to yet another first aid myth. They say:

I have first aid training and a certification for this and recently completed/refreshed my Advanced Resuscitation qualifications and during the course it was discussed that if you identify yourself as a first aider you are obligated to provide first aid to the casualty.

First does my first aid qualification have an expiry date? Some first aid provider say yes also I have been told by one provider that the first aid qualification does not expire but it is a good idea to refresh your knowledge to keep up to date with changes.

Putting aside the moral issues, if a first aid qualification does expire and I identify myself as having knowledge of first aid am I obligated to perform first aid?

First aid certificates have a three-year expiry, but what does that mean? Fundamentally it’s a workplace requirement – if you are going to get paid to be a first aid officer you need a current first aid certificate. The Safe Work Australia First aid in the workplace: Code of Practice (July 2019) p. 17says:

First aiders should attend training on a regular basis to refresh their first aid knowledge and skills and to confirm their competence to provide first aid. Refresher training in CPR should be carried out annually and first aid qualifications should be renewed every three years.

But this statement and a purported expiry date has no relevance at all when it comes to applying first aid in an emergency eg at a car accident. If you see someone who needs first aid you can offer your assistance whether you finished a first aid certificate last week, last decade or never.

The myth

It is at best a myth to say ‘if you identify yourself as a first aider you are obligated to provide first aid to the casualty’ if the casualty is a stranger. What is confusing about the statement is why would someone identify themselves as a first aider if they did not intend to offer first aid? Putting aside the odd suggestion the mere fact that a person has a first aid cerficate does not give rise to a duty to a duty to treat. First, there is no duty to come to the aid of a stranger. Even a doctor does not have a general duty to render assistance – see Further legal ruling affecting ‘Doctors as ‘good Samaritans’ – do I have to stop?’ (January 3, 2015), so you can say ‘yes I have a first aid certificate, but I’m not prepared to stop’. Second there may be good reasons not to render first aid, eg it’s too dangerous.

If you are a first aider at a workplace you will have a duty to provide first aid, whether you ‘identify yourself as a first aider’, or not – see A duty to provide first aid to work colleagues (December 21, 2016).

But without relevant circumstances between the first aider and the patient the possession of a first aid certificate does not give rise to a duty to render first aid. And the instructor is at best repeating a myth, at worst simply making stuff up.

Conclusion

1.         A first aid certificate does expire but that is really only relevant in a work context.

2.         If you identify yourself as having knowledge of first aid that, on its own, does not give rise to an obligation to perform first aid.

Today’s correspondent writes about a review by the NSW RFS into claims of misconduct.  Attached to the email sent to me was a broadcast email from the Commissioner that you can see here . My correspondent says:

Recently the NSW RFS announced that they would appoint the law firm of Clayton UTZ to undertake an independent review process relating to previous claims of serious conduct matters. The process will enable members to seek a review of serious matter/s they reported in the past three years, where the member doesn’t believe that the appropriate process was followed, or that the outcome wasn’t appropriate.

I have a couple of Questions

1:  Isn’t there a conflict interest here. Dose the RFS use the services of Clayton UTZ in other matters and as such Clayton Utz would not want to Bite the hand that feeds them so to speak in handing down a finding of that the RFS got it wrong.  

2:If Clayton UTZ find that the RFS “got it wrong” will the RFS “Put it right”. There doesn’t seem to be a clear and precise statement from the RFS commissioner to that effect.

3: What assurances should a volunteer, who is thinking of using the Clayton Utz option, look for to know they will be given a fair hearing.

I have also obtained a statement outlining the scheme – see .

speak_up_information_sheet1Download

 I don’t see an essential conflict of interest. The mere fact Clayton Utz has acted for the RFS in earlier matters will be irrelevant unless those very matters are the subject of the review. Clayton Utz are not being asked to advocate for the volunteers or argue the volunteers cause to the RFS. If you think that is their role, then you will be disappointed and may think that evidence of a conflict but as I say that’s not their task. Clayton Utz will come to their own view on whether the ‘appropriate process was followed’ or the ‘action taken / penalty imposed was appropriate’.  They may agree with the volunteer’s claim; they may not but unless you think they’re dishonest I cannot see any reason to think that would be compromised by having acted for the RFS in other matters, or that the RFS expects them to find every argument to say that there has been no wrongdoing.  

People go to lawyers because they want independent advice, they want the lawyer’s opinion on the rights and wrongs of the situation. . Inquiring into matters and perhaps finding evidence of wrongdoing is not ‘biting the hand that feeds them’ if the RFS want to find that information. If the RFS’ instructions are to conduct a thorough and frank investigation that is because the RFS thinks it is in their interest to find that. Clayton Utz would not be acting contrary to the RFS interests to do that which the RFS are asking them to do.

That does not mean that there could be no conflict of interest. There might be a conflict if a matter that Clayton Utz has have previously advised the RFS about is the subject of the review and they hold privileged information that contradicts what they are told in the review.  There would then be a conflict if they could not apply use that information in their review. Equally there may be a conflict if for example, they gave advice that was acted upon, and they were in effect being asked to assess their own advice. So a conflict may arise, sure it is not axiomatic.  There may be a conflict if the volunteers were the client, but they are not. 

As for question 2 of course I cannot say what the RFS will do with any findings.

As for question 3 I cannot answer that either. One has to remember that a fair hearing does not always lead to a desired result. A volunteer may get a fair hearing but the review may still find that the proper process was followed and appropriate outcome delivered. If volunteers (or anyone) want an assurance that their claims and their interpretation of facts, rules and motivations will be accepted then of course they cannot get that. The best they can get, and be offered, is an impartial, independent review. If the current assurances from the Commissioner that this is what Clayton Utz is being asked to do are not sufficient, then I’m not sure what will be.

Conclusion

In summary I do think there may be a conflict if Clayton Utz have previously advised on a matter that is subject to the review, as then their own advice is being called into question. Equally there may be a conflict if they hold confidential information relevant to the review where that was obtained at an earlier time, but they are by terms of their retainer not now allowed to consider that information in the review.  But I do not think there is a conflict just because Clayton Utz have previously acted on behalf of the RFS.

Today’s question revisits the issue of a paramedic’s authority to carry and use drugs. Today’s correspondent is:

… wondering where the legal authority comes from for a paramedic to obtain, store and administer medications and how the implementation of a drug protocol exists from a medico legal point of view.

I understand this response may vary from state to state, for the purposes of this response I’m not referring to a specific state, rather whichever state you’re most familiar.

1.1 Firstly, in the context of an ordinary paramedic … where does the authority to possess, store and administer medications (S4 & S8) come from in the context of state or private paramedic practice?

1.2 Is this authority independent or is it delegated from a medical officer employed by the organisation under their ’supervision’ (If so, in this context, does the CPM [Clinical Practice Manual?] or the employers ‘ATP’ process qualify as supervision?), the business as a entity it self through their medicines/poisons licence or is authority held by the individual paramedic?

1.3 If the latter how does this contrast with prescribing of a medication?

For the second part of my question, reading the recent judgement from ‘State of Queensland v Masson [2020] HCA 28’ it makes note of the CPM at the time of the event was to provide guidance and “deviations from these guidelines will occur” as written in the CPM.

2.1 While I understand it is up to the individual employer to enforce adherence as they see fit and complications/decision can lead to civil legal ramifications (as seen with Ms. Masson), I’m curious as to if deviation with sound clinical judgement may have legal or registration consequences?

For example if a drug was given for a indication or a differing route of administration other listed in the CPM (but accepted in clinical literature and practice at the time of the event, for example Dexamethasone for nausea – Carried by many states but not indicated for such use).

2.2 Or in the eyes of the law is the CPM seen simply as a company policy with no bearing on the individual Paramedics registration unless negligence or a crime is demonstrated as a result?

2.3 Following back to the first question, if the authority to administer medications is indeed delegated by a medical officer does violation of the drug therapy portion of the CPM then mean the paramedic is practicing outside of the ‘supervision’ of the medical officer and does that then constitute possession/administration of a controlled substance without a doctors order?

(I added the numbers to the questions to make it easier to refer to the answers, below).

As my correspondent has noted a jurisdiction I’ll mostly refer to NSW. The answer is that the authority to carry drugs is set out in relevant state/territory poisons legislation. That legislation either provides an authority, or it says who can approve a person to carry drugs. What is really important to note is that a doctor, just because they are a doctor, cannot authorise someone else (paramedic or not) to possess drugs or supply and administer drugs to a person that the doctor has not consulted about. Paramedics cannot carry drugs as a doctor’s delegate – see Doctors delegating authority to carry drugs (August 20, 2014).

Let us look then at the Poisons and Therapeutic Goods Act 1966 (NSW) and the Poisons and Therapeutic Goods Regulation 2008 (NSW). Appendix C of the Regulation sets out many authorities. For example cl 11 says:

A person who is trained and authorised to administer first aid at a mine (within the meaning of the Work Health and Safety (Mines) Act 2013) is authorised to possess and use methoxyflurane and nitrous oxide if required for use in connection with the carrying out of first aid at a mine.

Their authority is found in this regulation. When they complete the training they have the authority.

With respect to ambulance officers (not paramedics) the regulation says (Appendix C, cl 7):

A person–

(a) who is employed in the Ambulance Service of NSW as an ambulance officer or as an air ambulance flight nurse, and

(b) who is approved for the time being by the Director-General for the purposes of this clause,

is authorised to possess and use any Schedule 2, 3 or 4 substance that is approved by the Director-General for use by such persons in the carrying out of emergency medical treatment.

This is more complex; the person has to be employed by the Ambulance Service of NSW so the right does not come with a qualification. It is not a right vested in paramedics per se. The person has to be approved by the DG and can only carry those drugs approved by the DG (now the Health Secretary). For the right to carry and use schedule 8 drugs see r 101(g) which is in similar terms.

The Director-General can authorise ambulance officers to carry drugs because the Act and its regulations says that he or she can. It is not automatic and it does not depend on the DG or anyone else being a ‘doctor’.

So the answer to question 1.1 is that the authority is found in the state or territory poisons or drugs legislation.

The answer to question 1.2 is ‘it depends on what that legislation says’. Paramedics do have some independent authority (see for example Poisons Regulations 2018 (Tas) r 14; Medicines and Poisons Regulations 2016 (WA) Part 7, Division 9). In most cases the authority is given to the jurisdictional ambulance service to nominate who can use drugs and what drugs. For those who are not employed by jurisdictional ambulance services, the authority depends on the terms and conditions of any licence or authority obtained by their employer. (And I have argued elsewhere that it is my view that when poisons legislation gives paramedics the right to carry drugs necessary for their practice (as it does for medical practitioners) then that will be the true final step in making paramedicine a profession – see Paramedics becoming autonomous practitioners (September 3, 2020)).

As for question 1.3, prescribing medication is where a practitioner (doctor, dentist etc) writes a script that the patient then takes to the pharmacy and the pharmacist may, on the basis of the prescription, supply the drug to the patient.  Carrying drugs in a kit, making an assessment of the patient and then supplying and perhaps administering the drug to them is not the same as writing a prescription to authorise someone who has not diagnosed the patient to issue a drug.

If we move onto the second part of the question, the decision in Queensland v Masson is discussed in my post High Court overturns finding of negligence against Queensland paramedic (August 13, 2020). Deviation from CPG’s based on ‘sound clinical judgement’ won’t have legal or registration consequences. Although that was not the issue in that case, the court did recognise:

The guidance in the CPM is posited upon the assumption that ambulance officers will exercise clinical judgment and that officers may depart from its guidelines where the departure is justified and is in the best interests of the patient.

The question for ‘registration’ (question 2.1) is whether the conduct or practice of a paramedic is below that expected by paramedic peers. What is a bigger risk is failing to deviate from a CPM where recommended treatment is not working and the paramedic has the knowledge and skills to help their patient – see Revisiting conflict between a paramedic’s skills and an employer’s duty statement (April 26, 2021).

The CPM (question 2.2) is part of the employment issue. An employee is required to obey the lawful and reasonable directions of their employer, but it does not necessarily determine good practice. As in Masson’s case, the CPM may be evidence of what can be expected from a paramedic but that does not mean that there could not be evidence to show why departure from the CPM was both indicated and reasonable. If there is a conflict between the CPM and good paramedic practice, then paramedics will be expected to exercise their professional judgement and provide patient centred, not employer centred, care – see the Paramedicine Board’s Code of Conduct.

Question 2.3 perhaps does not need an answer because ‘the authority to administer medications is [not] … delegated by a medical officer’ (with the exception of Paramedics do not practice under the supervision of a medical practitioner. They may have in the past (for those old enough to remember, think of the paramedics on squad 51 radioing Rampart Hospital for authority – Emergency (TV Show; 1972-1977)). That is not the case now. Doctors practice medicine, paramedics practice paramedicine. Paramedics are part of a separate profession with its own goals and standards – see again Paramedics becoming autonomous practitioners (September 3, 2020).

And to reiterate, doctors cannot authorise people to possess, supply or administer scheduled drugs ‘just in case’ (except in WA – Medicines and Poisons Act 2014 (WA) s 27). They can prescribe medication for a patient they have seen or consulted on, but they cannot say to someone ‘you can carry these drugs and if you decide someone needs the drugs then you can give it to them, and I’ll take responsibility’. Not only is that not permitted by law (WA excepted), it would be professional suicide for any doctor to pretend to authorise one person to treat another in the doctor’s name.

For a very large number of related posts, see:

• Doctors delegating authority to carry drugs (August 20, 2014);
• NSW Paramedics authority to carry drugs – NSW Ambulance and private providers (March 10, 2018);
• Administering drugs when paramedics are registered (October 3, 2018);
• Administering drugs when paramedics are registered – Queensland (October 17, 2018); and
• All the posts that appear here: https://emergencylaw.wordpress.com/page/2/?s=scheduled+drugs

Today’s question is from a paramedic

… looking at starting my own business teaching first aid and selling first aid kits which are specifically targeted at the marine industry.

I am looking at developing a mobile app which lists guidelines for first aid providers which would correlate with the first aid course and first aid medical kit.

My question is, what laws surround developing clinical guidelines for first aid use? Can I write them using evidence-based practice as a paramedic or do I need a doctor to endorse them something like a medical director?

If there are any other laws you think I should be concerned about for operating a first aid business please let me know.

Not surprisingly there is no specific law on these subjects. You can write a first-aid book that says whatever you think is good practice whether it’s supported by science or not – look at all the self-help and diet books in any bookshop. People who advocate crystal healing or using cow dung to ward off Covid can write a book on the subject if they want to, and some will take that book and try to apply what it says.

But if you want to be taken seriously, then any first-aid manual should be evidence-based and based on currently accepted best practice. It is not surprising to pick up any two first aid books and see that they won’t be very different. Most of the content will be based on Australian Resuscitation Guidelines and if the book is going to be used as a teaching tool to teach a nationally accredited first aid course such as HLTAID011 – Provide First Aid then the content is going to have to match that syllabus. But within whatever room there is to move then you can of course write your own. You may think there is a better way to explain a concept than other books use and you may be right.

There is no need for ‘a doctor to endorse hem something like a medical director’ – a doctor may know nothing about first aid or how to teach first aid to lay persons (and see The need for a medical director in an ambulance service (May 4, 2013; but note that post was written before paramedic registration came into force).

There are of course many ‘other laws you … should be concerned about for operating a first aid business’ – laws such as the tax laws, work health and safety laws, application of the Consumer Law (including obligations that services provided are fit for purpose and not to engage in misleading and deceptive conduct), employment law, insurance law etc but these are all beyond the scope of this blog. Anyone starting a business should have a mentor or professional team to advise them on the appropriate structures and obligations.