Today’s question comes from a correspondent who is concerned about

… the extent of coverage of occupationally acquired COVID-19 for health care workers, specifically in ambulance services and the quality of PPE available/used. Concern applies because I’m advised in SA AS PPE was not available for covering the head – glasses yes (apparently).

And does WorkCover extend to your quarantine / self isolation?

I cannot answer that question in detail as I’m not a specialist in personal injuries law.

What I can say is that the definition of injury includes disease (Return to Work Act 2014 (SA) s 4). For a disease to be compensable it must be ‘established on the balance of probabilities that it arises from employment’ (s 9).  Where it can be shown that a person acquired the disease as part of their work they will be entitled to workers compensation. Workers compensation is ‘no fault’ so the issue of PPE would not be relevant.

With respect to how one proves that the disease was contracted at work, that would depend on all the circumstances (see Compensation for contracting COVID-19 whilst volunteering – NSW SES (March 23, 2020)). There has been a trend for presumptive benefits so firefighters in particular don’t need to prove a causal connection between their firefighting and various diseases, rather if they meet the requirements regarding length and type of service, and they are diagnosed with a listed illness or cancer, they are entitled to compensation and it is ‘presumed’ that the disease was a product of their service (see for example Return to Work Act 2014 (SA) s 9(2) and schedule 3).  It may be that there should be a provision added to the effect that if a paramedic, nurse, doctor or other front-line health service worker contracts COVID-19 that will be presumed to be because of their employment without the need for evidence.

If the PPE issued is not up to scratch that may give rise to a claim in negligence against the employer but as will all negligence claims, the employers obligation is to act ‘reasonably in all the circumstances’ and those circumstances include a world where there is a shortage of PPE.  An employer has to decide whether to ask staff to bat on with less than ideal kit, or withdraw services and in doing that they also have to consider the needs of patients and the need to try to curtail the virus. If a person got sick and spent a long time in hospital, or died, a common law action may be worth it. If they get mild or no symptoms but spend two weeks in isolation with no income, a common law action would not be worth either the time or money.

Conclusion

Assuming that a person contracts COVID-19 as part of their work it would follow that their lost wages and health care costs would be met either by the employer or the employer’s insurer.  What is less clear is if someone is required to self-isolate as a precaution, but they are not actually ill and don’t actually contract the illness.   I cannot say whether workers compensation would cover lost wages in those circumstances.  My guess is that it would not as the worker has not actually acquired the disease/suffered an injury.

I have previously reported on the case of Secretary, Ministry of Health v Dawson [2019] NSWWCCPD 30 (see Are St John (NSW) volunteers deemed employees of NSW Ambulance? (July 10, 2019)). In that earlier post I said:

Ms Dawson was (or is) a volunteer with St John Ambulance Australia (NSW). Whilst setting up for a duty at the Broadmeadow Racecourse she was injured. She suffered a fracture dislocation of the ankle and was transported to John Hunter Hospital where she underwent surgery. She spent 5 nights in hospital and had further surgery. She sought compensation for her losses…

The gist of Ms Dawson’s argument was that by virtue of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) Sch 1, cl 16 she was, when volunteering for St John Ambulance NSW, a deemed employee of the Ambulance Service of NSW and entitled to workers compensation. Based on that reasoning, her solicitors directed her claim to QBE, the workers compensation insurer for the Secretary, Ministry of Health. The insurer denied liability. That decision was challenged in the NSW Workers Compensation Commission. An arbitrator agreed with Ms Dawson and found she was entitled to compensation. An appeal to the Presidential Division of the Commission was heard by Deputy President Snell who allowed the appeal but did not resolve the issue, instead referring the matter back to another arbitrator to redetermine the matter. That appeal was the subject of discussion in my earlier post.

The matter was re-heard by a different arbiter on 5 September 2019. The Arbitrator found that Ms Dawson was not a deemed employee and entered an award in favour of the Ministry of Health. This time Ms Dawson appealed the decision. The appeal was heard, and dismissed, by Deputy President Wood – Dawson v Secretary, Ministry of Health [2020] NSWWCCPD 16 (19 March 2020).

The legislation

The Workplace Injury Management and Workers Compensation Act 1998 (NSW), along with the Workers Compensation Act 1987 govern compensation for employees injured in the course of their work. This scheme is extended to people who are not employees. Some people are ‘deemed’ to be employed that is they are treated as if they are employees even though they are not. The list of deemed employees is set out in Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998.  Clause 16 of Schedule 1 says:

16 VOLUNTARY AMBULANCE WORKERS

(1)        A person who (without remuneration or reward) voluntarily and without obligation engages in any ambulance work with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation constituted by the Health Administration Act 1982 is, for the purposes of this Act, taken to be a worker employed by that Corporation.

(2)        For the purposes of assessing the compensation payable to a person to whom this clause applies, the “average weekly earnings” of the person are–

(a)        if the person was working under a contract of service immediately before engaging in the ambulance work–to be computed according to the earnings of the person under that contract of employment, or

(b)       if the person was not working under a contract of service immediately before engaging in the ambulance work–to be such amount as the Commission considers to be reasonable in the circumstances.

(3) In this clause,

“ambulance work” means work in or in connection with the rendering of first aid to, or the transport of, sick or injured persons.

Relevantly the Health Services Act 1997 (NSW), which governs NSW Ambulance, says:

67H HONORARY AMBULANCE OFFICERS

(1) The Health Secretary may appoint such persons as the Health Secretary thinks fit to be honorary ambulance officers.

Note: Honorary ambulance officers are not members of the NSW Health Service employed under Part 1 of Chapter 9.

(2)        Honorary ambulance officers–

(a)        may carry out, without remuneration, such of the functions of the Health Secretary under this Act as the Health Secretary may from time to time direct, and

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

As the note to s 67H(1) says, honorary officers are not employees so are not, prima facie, entitled to workers compensation if injured in the course of their duties.  I would suggest that cl 16 of Sch 1 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) is intended to govern those officers appointed as honorary officers with NSW Ambulance.

The Health Services Act 1997 (NSW) s 67B also says:

(1) The Health Secretary has, on behalf of the Crown, the following functions–

(a) to provide, conduct, operate and maintain ambulance services,

(b) to co-operate with or provide assistance to any person or organisation for the purposes of providing, conducting, operating and maintaining ambulance services…

The question was not, however whether NSW Health could cooperate with St John in the provision of ambulance services, but relevantly whether it did at the time and in circumstances relevant to Ms Dawson’s injury (Dawson v Secretary, Ministry of Health at [66]).

Ambulance work in cooperation with NSW Health

Ms Dawson’s argument was that St John Ambulance (NSW) did ‘ambulance work’ ‘in co-operation’ with NSW Health and NSW Ambulance and she was therefore a deemed employee.  In support of that argument she relied, at first instance, on the fact that the St John patient care record was a triplicate form and one page was delivered to attending paramedics if and when they were called to take over the care of a patient.

On appeal she sought to rely on the reference to St John Ambulance as a supporting organisation in NSW Healthplan (see Commonwealth to pay NSW to reimburse firefighters (December 29, 2019)) also demonstrated the she ‘was working in co-operation with NSW Health’ ([11]).  At [27] Deputy President Wood said ‘The HEALTHPLAN is not evidence of any arrangement with St John or co-operation between the Health Administration Corporation in respect of the first aid services St John provided at race meetings’. The application to tender the Healthplan as relevant evidence in the appeal, was rejected.

Before the arbitrator, Ms Murphy Manager of Insurance and Risk for NSW Health gave evidence ([53]-[56]) that:

(a) at no time had a St John Ambulance worker or volunteer ever been included in any workers compensation policy;

(b) St John’s vehicles were never included in the Health Administration Corporation’s vehicle declaration or the vehicle declaration for NSW Ambulance;

(c) St John had never been identified as an organisation or entity within the NSW Health Annual report;

(d) St John was not a non-government organisation that received funding from NSW Health;

(e) the Health Administration Corporation did not exercise any control over the operations of St John Ambulance;

(f) she was not aware of any affiliation between NSW Ambulance and St John Ambulance, and

(g) the Health Administration Corporation did not indemnify or give approval or instruction to St John about attending events.

Ms Murphy said that the appellant’s work as a volunteer with St John was solely at the direction of St John and was not with the consent of or under the authority or supervision of Health Administration Corporation. Ms Murphy added that the Health Administration Corporation would have no knowledge of St John’s work.

Ms Murphy stated that the pink copy of the Patient Record referred to by the appellant was St John’s internal document and was not required by NSW Health or NSW Ambulance who would each complete their own documents and patient records.

Ms Murphy denied that the appellant voluntarily attended the events with the consent or authority of the Health Administration Corporation. Ms Murphy added that there was no indication in the NSW Health annual financial report of any payment or reimbursement from NSW Health to St John.

Deputy President Wood, reviewing the Arbitrator’s decision, said (at [77]):

The Arbitrator considered that what emerged from the evidence was that St John and the Health Administration Corporation worked independently of each other in providing first aid services or treatment to a patient who had been injured at an event in which St John was providing those services up to reaching the point where their competency skills were exhausted. In the Arbitrator’s view, the fact that there may have been communications between the volunteer and the paramedic was purely coincidental and not a consequence of any planning or arrangement about how the first aid was to be administered at such events. The Arbitrator said that the ambulance work that the appellant did on the day of her injury could not have been work done together with the Health Administration Corporation.

Ms Dawson appealed.

The appeal

The question on appeal is whether the decision below was made according to law and was open on the evidence. It is not a chance to simply reargue the case. The appellant has to demonstrate that the original decision maker, in this case the arbitrator, had made a legal error.

When the matter was first before a court (rather than an arbitrator) Deputy President Snell determined (at [122]) that cl 16 ‘directs attention to the relationship between the alleged deemed worker and the Health Administration Corporation. Further the word “co-operation” meant “working or acting together or jointly.”

Ms Dawson argued that DP Snell’s comments were merely an observation not a binding determination and the second arbitrator was required to form his own view on what cooperation, in context meant. The alleged error was that the arbitrator failed to exercise his own discretion.  This was rejected at [125] where DP Wood said:

I do not accept that submission. It is apparent that in determining the meaning of the word “co-operation,” which is a finding of fact, the Deputy President embarked upon a process of statutory construction… Such an exercise is part of the functions of the Commission and is, at the Presidential level, in the nature of a judicial exercise  which is authoritative in respect of the Commission’s primary decision makers, the arbitrators. The Arbitrator applied that interpretation as he was required to do.

The second alleged error was the need to find that at the time of the injury, that is on 18 September 2015, Ms Dawson was working ‘in cooperation’ with NSW Health rather than finding that, in general St John and NSW Ambulance work together.  DP Wood said (at [128]) ‘The appellant does not explain why she considers the Arbitrator was wrong’ and (at [132]) ‘The appellant has failed to identify any error…’

The third alleged error was that the Arbitrator look for proof beyond the civil standard of ‘on the balance of probabilities’.   At [134] DP Wood said ‘The appellant’s submissions do not assist in relation to the identification of any error in the Arbitrator’s careful consideration of the evidence.’

The fourth ground of appeal was that the Arbitrator ‘erred in enlarging and including the issue of ‘injury’ with ‘co-operation …’.   According to DP Wood this ground of appeal was ‘… incomprehensible and the absence of any cogent submission to explain or support the ground is fatal.’

The fifth ground was that ‘the Arbitrator erred in failing to accept that the appellant’s “uncontested” evidence’ of cooperation. At [146] DP Wood said ‘The appellant refers to her evidence as “uncontested”. That assertion is patently incorrect.’  The evidence of the appellant was challenged by the evidence of Ms Murphy and the Arbitrator had to weigh and consider that evidence to reach a conclusion. There was no error.

The sixth ground was an allegation that s 67B of the Health Services Act (quoted above) imposed an obligation upon NSW Heath to cooperate in the provision of ambulance services and this was evidence that they did cooperate.  Of course s 67B gives a power to cooperate, but it does not impose a duty or obligation to do so.  The arbitrator is quoted (at [151] as saying:

“The fact that the respondent had power to co-operate with St John with respect to the ambulance work St John did is one thing – the issue in this case is whether the respondent actually did so with respect to the work that Ms Dawson was doing voluntarily for St John on the day she had suffered her injury…’

Again, there was no error.

The seventh ground was that the arbitrator should not have accepted or been persuaded by Ms Murphy’s evidence as she was not a paramedic and did not know how paramedics and St John volunteers interacted in the field.  At [157] DP Wood said:

The Arbitrator considered both the appellant’s evidence and that of Ms Murphy. The Arbitrator took into account the appellant’s submission that Ms Murphy’s role did not give her the capacity to provide evidence of whether the pink copy of the Patient Record was a document relied upon by the NSW Ambulance paramedics. He formed the view that Ms Murphy was familiar with the work undertaken by NSW Ambulance paramedics when attending a patient. He noted Ms Murphy’s responsibility for strategic management of the insurable risks in relation to employees and NSW Health volunteers. This included NSW Ambulance employees. He said those responsibilities would require her to have knowledge of the work that is done by those employed by NSW Health to provide ambulance services, including paramedics.

The Arbitrator also considered the submissions that the parties made about the evidence provided.  DP Wood said (at [161]):

The Arbitrator’s reasons for accepting Ms Murphy’s evidence took into account the submissions of the appellant as to Ms Murphy’s capacity to give that evidence, the plausibility of her evidence, as well as her presentation. The Arbitrator’s conclusions were open to him. … there is no basis upon which to disturb the Arbitrator’s finding and this ground of appeal fails.

The eight, and final ground, was the allegation that the arbitrator failed to recognise that the fact St John Ambulance were allowed to charge fees for ambulance services (Health Services Act 1997 (NSW) s 67E(3) and the Workers Compensation (Ambulance fees) Order 2015) demonstrated the necessary cooperation.  The Arbitrator said (quoted at [163]):

The order prescribes the maximum amount of compensation for which an employer is liable under s 60(1) to pay a worker for any cost the worker has incurred for any ambulance service as a result of an injury a worker has received arising in or out of the course of employment. It is fanciful to suggest, in my view, that the making of the order provides a basis from which an inference can be made that St John and HAC co-operate with respect to the performance of ambulance services.

Again there was no error.

All the grounds of appeal being dismissed, the Arbitrator’s determination that Ms Dawson was not a deemed employee stands.

Discussion

As noted in my earlier post it strikes me that this case must have been run by people who had, and despite earlier rulings have failed to gain, any understanding of how ambulance services are operated in Australia.

There are jurisdictional ambulance services (such as NSW Ambulance) and an increasing number of private providers including St John Ambulance.  Of course they cooperate when patients move from the care of one to another but if that level of cooperation was all that was required for the Workplace Injury Management and Workers Compensation Act 1998 (NSW) then NSW Health would be the defacto workers compensation insurer for every paramedic and first aider in NSW. Even people who just stepped up at a car accident but made notes on their observations to give to the paramedics.

Volunteers who provide ambulance work in cooperation with NSW ambulance are honorary ambulance officers, it may extend to spontaneous volunteers at an emergency or community first responders. For community first responders who are part of the NSW SES or RFS one could debate whether the appropriate basis for compensation is the Workplace Injury Management and Workers Compensation Act 1998 or the Workers Compensation (Bush Fire, Emergency And Rescue Services) Act 1987 (NSW) but not much will turn on that given it is likely to be the same insurer given that all are state agencies.

Conclusion

To suggest that a volunteer with a separate legal entity (St John) that enters into its own arrangements with event providers is somehow a deemed employee of NSW ambulance strikes me as bizarre.  St John is a provider in a market place and is responsible for its own volunteers.  As I noted in my original post:

Ms Dawson’s best route for compensation would be to direct her claim to St John Ambulance which, hopefully, has insurance to provide workers compensation type cover for injured volunteers.

I have not idea if that happened or what the outcome was.

 

 

 

Today’s correspondent wonders what my:

… take on the following would be?

On 19th March the Australian Resuscitation Council released the following statement on their website (https://resus.org.au/ accessed 26 March 2020):.

COVID-19 Impact on First Aid and Resuscitation Training

The ARC recommends that the teaching of routine first aid and resuscitation courses should be postponed until the current COVID-19 pandemic has abated and expert consensus opinion is that there is no longer an unnecessary risk involved in participating in a course.

The ARC recommends that the requirement for resuscitation training and re-certification be considered in the light of the current concerns.

The ARC will be regularly reviewing this recommendation.

Yesterday the First Aid Industry Reference Committee, as part of the SkillsIQ (the Skills Service Organisation) released the following advice to RTOs

First Aid Industry Reference Committee recommendations in regard to delivery of First Aid training impacted by the COVID-19 pandemic

Many RTOs have raised concerns about the ongoing delivery of First Aid training during COVID-19. RTOs must comply with State and Federal Health Authority directions. RTOs should perform a risk assessment, when deciding whether or not to continue to provide First Aid training, taking into account the following:

• • State, Territory and Federal Health Authorities advice (health.gov.au)
  • The Australian Resuscitation Council’s recommendations and guidelines (resus.org.au)
  • SafeWork Australia’s advice (safeworkaustralia.gov.au)
  • ASQA’s advice (asqa.gov.au).

Specific concerns have also been raised about the transmission of the virus while performing ventilations on mannikins. The potential for transmission of the virus is significantly reduced if proper infection control procedures are followed, which involves excluding anyone who shows symptoms of the virus. The Assessment Requirements are clearly stated, and the performance of compressions and breaths must be demonstrated on a mannikin in order to make a determination of competency. It cannot be a demonstration of compressions only.

A reasonable adjustment may apply where a student states they will not put their mouth on the mannikin during breaths (even with a barrier device in place), in which case the student is required to demonstrate all aspects of giving breaths (i.e. head tilt and blowing to the side of the mannikin) while not actually blowing into the mouth of the mannikin. This reasonable adjustment is to only apply at this time of the COVID-19 pandemic and only if the student requests exemption (i.e. on an exception basis only).

Further information may be found as follows:

• • The First Aid Companion Volumeon page 11 clearly states that reasonable adjustment can be made to the assessment procedures, and RTO’s should ensure that ‘the integrity of the Unit of Competency and/or qualification is upheld’.
  • In the case of ventilations used while performing CPR, the ARC guidelines found at ANZCOR Guideline 5 – Breathingare specific in the need to provide ventilations as well as the control of transmissible diseases during CPR.
  • RTOs should comply with the Australian Guidelines for the Prevention and Control of Infection in Healthcare (2019)and support the use of resuscitation barriers and other PPEs as required.

My take is that they are not inconsistent positions.  ARC says ‘don’t do first aid training at all’ and the First Aid Industry Reference Committee says ‘if you are doing first aid training this is what you have to do’.  They do say trainers have to comply with ‘State, Territory and Federal Health Authorities advice’ and given directions to limit numbers and unnecessary groups that may confirm the ARCs advice.

I don’t understand why the Committee says that only those that ask should be allowed, or ‘required to demonstrate all aspects of giving breaths (i.e. head tilt and blowing to the side of the mannikin) while not actually blowing into the mouth of the mannikin’. That would seem like a reasonable adjustment to apply to everyone.

Conclusion

The ARC are saying ‘don’t do first aid training at all’; the Committee are saying, in effect if you are going to still do training, to sign people off you need to do ‘this’. Anyone thinking of doing training would need to consider all of that –

ARC says ‘don’t do it’; federal and state directions may have specifically prohibited first aid training but they put up lots of barriers – social isolation so people can’t work together so how do I demonstrate practical skills like bandaging or stable side position? I have to consider CPR and comply with Committee’s recommendation.  Taking all that into account what’s the sensible thing to do?

I would suggest any sensible RTO would follow the ARC recommendation and stop first aid training during the current crisis.

Today’s correspondent is wondering about:

… the directive to be clean shaven due to COVID-19 for paramedics in Queensland. Does this not impinge my rights in some way, or will it be ‘you have a beard, so you are not covered by work insurance etc’?’

I have been provided with a copy of the email that says:

Under the Work Health and Safety Act 2011, the QAS has primary obligations to ensure, so far as reasonably practicable, the health and safety of our people.  As such, we must ensure that all of our employees understand the importance and responsibilities each individual has to ensure they comply at all times with organisational policies and directions that are designed to ensure staff safety.

As per the Medical Director’s Circular No.3/2020 – the minimum standard of PPE required to be worn when clinicians are attending a patient where there are suspicions of any type of infective respiratory condition are as follows: P2/N95 masks, gloves, safety glasses, and disposable long sleeve blue gowns (thumb gowns).

The effectiveness of the P2/N95 mask relies on establishing and maintaining a good seal with the wearer’s face.  Please be reminded of the ‘fit checking’ requirements of the P2/N95 mask, which must be performed each time the mask is put on.  This is to ensure that the mask is properly applied and that a good seal is achieved over the bridge of the nose and mouth and there are no gaps between the mask and face.

Facial hair, including beards, moustaches, sideburns and/or stubble, between the sealing surface of a tight-fitting facepiece and the face will stop the mask from sealing properly and has the very real potential to risk the health and safety of our workforce.  To reduce this risk, all staff are required to be clean shaven where a respirator facepiece comes in contact with the skin before wearing their respirator.  This approach is consistent with other allied front line health professionals and emergency service personnel here in Queensland, interstate and internationally.

It is acknowledged that this requirement may have an impact on the personal appearance of some QAS staff, however this decision is being taken in the best interest of ensuring the health, safety and wellbeing of all employees and patients in the current environment and must be complied with.  It is expected that all QAS employees will ensure compliance with this direction.

If an employee believes that they have an extraordinary reason whereby this direction is unable to be complied with, please email QAS.WHSState@ambulance.qld.gov.au and these circumstances will be considered in conjunction with the Medical Director.

Let me assume, for the sake of the argument, a person does have a ‘right’ to wear a beard. If that’s true then of course a directive not to wear a beard would infringe that right.  But let us look at some less controversial rights claims. The Universal Declaration on Human Rights says:

Article 13

(1) Everyone has the right to freedom of movement and residence within the borders of each state.

(2) Everyone has the right to leave any country, including his own, and to return to his country.

Article 18

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 20

(1) Everyone has the right to freedom of peaceful assembly and association…

Article 23

(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment…

Article 27

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits…

(And see also the Human Rights Act 2019 (Qld) Part 2, Division 2; and thanks to Sven Lotzvie, commentator on Facebook for bringing that Act to my attention ). That we cannot chose to leave Australia, and others cannot chose to enter, we cannot move within the borders of the ‘state’ (noting that in international law the ‘state’ is Australia, not the sub-national states, NSW, Qld etc); church services are banned an weddings and funerals limited so people are not free to practice their faith in accordance with traditional edicts, our right to assembly and association has been restricted.  People have been told they must close their business restricting their right to work and the cultural life of the community has been curtailed.  These are all infringements of our rights.

But rights are not absolute.  As the Universal Declaration says (Art 29(2)) ‘everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.’  The Human Rights Act 2019 (Qld) s 13(1) says ‘A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.’

One could have an argument that the restrictions are not required to deal with COVID-19 or are disproportionate to the threat and therefore unlawful, but given the world-wide response and the latitude that would be given to executive government, I seriously doubt that either the Supreme Court of Queensland or the High Court of Australia would uphold such an argument.

Queensland ambulance

As QAS have noted, it has obligations under the Work Health and Safety Act 2011 (Qld) to take steps to ensure the safety of its staff and of those who come into contact with staff.  These are extraordinary times so extraordinary steps are in order.  If the reasonable response is P2/N95 masks and they don’t work if the wearer has facial hair then there are two options, shave or stop working as an on-road paramedic. That a person has a right to work does not mean that another person has an obligation to employ them (if it did, unemployment would always be zero).  So a paramedic can insist on their right to wear a beard but provided the decision is not arbitrary (ie provided there are good reasons) a jurisdictional ambulance service does not have a duty to keep employing them.

It is not just a case of insurance.  People misunderstand who is insured.  A worker who is injured at work, which includes contracting a disease, is entitled to workers compensation (Workers’ Compensation and Rehabilitation Act 2003 (Qld) (and see s 32 for the definition of ‘injury’ which includes ‘a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease’).  Workers compensation is ‘no fault’ so if you get the injury, you get the compensation. The obligation to pay compensation falls to the employer (in this case, QAS) (s 46).  It is the employer, not the employee, who is insured. The employer must take out workers compensation insurance (s 48) to ensure that there are funds available to meet the employer’s obligations.

But an employer has obligations under common law, work health and safety law and common decency to try to ensure that staff are not injured and that may also reflect their insurance premium.  So no, it is not the case that ‘you have a beard, so you are not covered by work insurance’; rather it is ‘you have a beard so you are being exposed to an unreasonable risk and exposing others to an unreasonable risk’.

A right to wear a beard might justify, in some circumstances, saying ‘well that carries this risk to you and if you want to carry that risk, go for it’.  But here the risk is also to patients and rights can be curtailed to the extent that the exercise of your right poses a risk to others.

Not only does QAS have an obligation to its staff and patients, so to do the staff. As an employee a paramedic has a duty (Work Health and Safety Act 2011 (Qld) to:

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

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

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

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

Further (and thanks to Warren Kelly in the comments, below) the Work Health and Safety Regulation 2011 (Qld) r 46 says that a:

… worker must, so far as the worker is reasonably able, use or wear the equipment in accordance with any information, training or reasonable instruction by the person conducting the business or undertaking.

Assuming that the QAS directive is based on evidence and sound advice failure to follow the directive could put a paramedic in breach of all of those provisions.  That is not only a criminal offence (ss 30-34) continued disobedience would, I surmise, be sufficient grounds for dismissal.

The issue is not one of insurance but risk management. You may have a right to wear a beard but QAS is under no obligation to employ a person who, by their behaviour, poses an unreasonable risk others.

Paramedics

Registered paramedics also have duties to their patients. Having been put on notice of what PPE is required, failure to wear it, or wear it properly such that one is exposing a patient to unnecessary risk may be considered professional misconduct. A panel of professional peers might find that such conduct is ‘of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers’ (Health Practitioner Regulation National Law, definition of “unprofessional conduct”); or a responsible tribunal may find that such conduct is ‘conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience’ (Health Practitioner Regulation National Law, definition of “professional misconduct”).  A paramedic who fails to take reasonable steps to protect his or her patient may also be putting his or her registration at risk.

Conclusion

Paramedics are treating those who will be more vulnerable to COVID-19 so even if we assume that for a fit young paramedic the risk that COVID-19 will kill them is low, the risk to their patients may be much higher. Assuming that the QAS directive is based on evidence and sound advice the restriction would be a reasonable restraint ‘for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of … the general welfare in a democratic society’.

The consequence of non-compliance is not a loss of workers compensation rights but a risk to ongoing registration and employment and potential criminal penalties.

A question has been raised about NSW State Rescue Board currency requirements and whether they must be met in light of the current COVID-19 crisis.

• What happens if there is a cock up and it’s proven the member hadn’t maintained currency?’
• Should the SRB continue to enforce their policies?
• What should Units do that fail to meet currency in the current climate?

The NSW State Rescue Board Policy (4th ed, 2018) says (at [1.17]):

Currency means the process that recognises member’s skills, training and capabilities, captured via operational activity or skills maintenance, as determined by the agency.

Further (at [3.07]):

Agencies which provide accredited rescue units are required to maintain a register of personnel who comprise each unit, including the currency of qualifications.

With respect to flood rescue, the policy says (at [7.09]):

Agencies are to ensure they provide for currency training to support their flood rescue operators. Once accredited, flood rescue operators must maintain currency in their skills as follows:

1. Fit for task

i. Agencies are to determine the ‘fit for task’ components of the response arrangements for Flood Rescue as part of their risk assessment.

ii. Operators must demonstrate that they are fit for task to ensure the safety of both the rescuer and the person being rescued.

2. Skills maintenance

i. Agencies must ensure that their operators maintain competence through regular training, exercising and operational deployment.

What is apparent is that it is the agency, not the SRB that determines what constitutes currency and what is the appropriate way to ensure currency.  The correct question then, as with all training, is how can agencies manage training to ensure that members retain currency in skills to complete their tasks. There are no doubt many ways to do that and it’s not for me to tell anyone how they will manage training in these new times.

As for what happens ‘ if there is a cock up and it’s proven the member hadn’t maintained currency?’ The answer is that the question of currency, like a licence, is fairly irrelevant.  It’s illegal to drive a motor vehicle without a licence but that does not mean that an unlicensed driver does not know how to drive or is necessarily at fault in an accident.  An unlicensed driver may be very competent; a licensed driver may be dangerously incompetent. The question as to fault in the accident is ‘what happened’ not who had what ticket.  The difference between driving and rescue is that it is a criminal offence to drive without a licence so the unlicensed driver can be given an infringement notice or court attendance notice regardless of competence and fault.

Just because your certificate of currency has expired it does not mean that you are no longer competent.  First aid certificates are valid for three years and you are meant to redo CPR every year.  But if you haven’t renewed either or both it does not mean you should not, or must not, perform CPR or provide other first aid if it is required.  And given COVID-19 and social isolation, it may be harder to get the chance to renew first aid and CPR certificates in the next few months.

A person who has maintained currency up to 1 January 2020 won’t suddenly forget everything they knew if they cannot do refresher training before 1 January 2021 and it is unlikely that they won’t have operational activity and some chances to practice in that time, even if the practice looks different to what they have done before.

Conclusion

Neither the State Emergency and Rescue Management Act 1989 (NSW) nor the NSW State Rescue Board Policy set out prescribed, mandatory currency requirements.  These are set by agencies based on their own assessment. The correct question should not be about NSW State Rescue Board currency requirements but agency currency requirements. It is up to the agencies to determine how they will modify their training programs to ensure members retain skills and fitness for purpose and that’s as true for rescue as it is for everything else that agency might do (firefighting, storm response, community first responders etc).

If a unit fails to ‘meet currency’ that means they are no longer competent and/or no longer fit for purpose. They should advise the SRB accordingly and give up their accreditation.  But, by ‘fails to ‘meet currency’’ I do not mean ‘failed to attend 3 training nights in six months’. What I mean is ‘are no longer competent or fit’ eg because someone in the team contracted COVID-19 and now the entire team is in self isolation and cannot respond.

Just because the planned training regime has been thrown out of whack does not mean that members cease, overnight to be competent or fit for duty. Competence is not measured by the number of training nights attended or forms ticked off.  What agencies need to do, with respect to all aspects of their training, is make adjustments and rethink what do they need to do to be satisfied that they are able to respond to their essential tasks.  That might vary agency to agency, and unit to unit.

If there’s a ‘cock up’ the question will be, as it always is, ‘was the conduct reasonable in all the circumstances’.

POSTSCRIPT

After posting the answer above, I received the AFAC (Australian Fire and Emergency Services Authorities Council) email newsletter that reported, inter alia:

AFAC Operations Groups convene to discuss response to COVID-19

Following discussions at the recent AFAC Board meeting, all AFAC Operations Groups will meet within the next week via teleconference to share information and response mechanisms taking into account the COVID-19 pandemic. This series of meetings will also identify key risk mitigation mechanisms implemented in agencies.

Agendas will cover:

• Preparedness measures for the next three months
• Current advice to first responders:
  • operational directives
  • safety advice and precautions
  • personal protective clothing and equipment
  • single crew response
  • emergency medical response impacts
• Decontamination measures
• Round table on information, knowledge gathering and learnings
• Training
• Other strategies in place for workforce impact minimisation

It is hardly surprising that there are not yet answers to questions on what COVID-19 means for the usual business (but nothing is ‘business as usual’) of the rescue services; but clearly the agencies are ‘onto it’.

I wrote the post ‘What is a ‘national emergency’? (December 25, 2019) in response to the summer bushfire crisis.  It was my view then, and remains my view, that those fires did not constitute a ‘national emergency’.  In response to the current COVID-19 pandemic a correspondent has written, in response to that post:

I guess this issue will be raised again now that we have a pandemic. Having separate States coming up with their own response, but the public and media looking to the PM to solve it, results in a circular blame game. Is their capacity in times like this for the federal government to direct state departments?

Based on work I did for my PhD and published work (‘Responding to catastrophic natural disasters and the need for Commonwealth legislation’ (2011) 10(3) Canberra Law Review 81-102; Michael Eburn, Cameron Moore and Andrew Gissing, The Potential Role of the Commonwealth in Responding to Catastrophic Disasters (Bushfire and Natural Hazards CRC, 2019) I argue there are three situations that would meet the definition of a true national disaster.  They are:

1. A disaster is having impact on areas allocated to the Commonwealth by the Australian Constitution;
2. The disaster is so large that it overwhelms the ability of state governments to function
3. The disaster is truly national in character or impact so that it is ‘peculiarly within the capacity and resources of the Commonwealth Government’ to manage the response.

The sort of situation that is covered by (2) above is demonstrated by the impact of Cyclone Tracey on Darwin in 1974 that destroyed local administration. This event is not of that nature.  But the current crisis would, in my view, fit scenarios (1) and (3).

The Commonwealth, under s 51 of the Australian Constitution has the power to make laws with respect to:

• trade and commerce with other countries, and among the States;
• taxation; but so as not to discriminate between States or parts of States;
• borrowing money on the public credit of the Commonwealth;
• the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;
• quarantine;
• foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;
• the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;
• immigration and emigration;
• external affairs;
• the relations of the Commonwealth with the islands of the Pacific;

All of those powers (and perhaps others that have been omitted from the list, above) are relevant here. Quarantine, determining who can enter or leave the country, meeting our obligations to other nations to be part of the national response all make it clear that this event is very much a matter of direct interest to and an emergency for the Commonwealth.

Secondly the size of the event, the fact that it is not restricted to state boundaries, the need to use the military and other commonwealth assets and the impact on the national economy (see Pape v Commissioner of Taxation [2009] HCA 23) mean this is indeed a national emergency.

Unlike natural disasters (eg bushfires) the Commonwealth does have relevant legislation. The Commonwealth legislation is the Biosecurity Act 2015 (Cth).  That Act provides for the declaration of a Human Biosecurity Emergency (Chapter 8, Part 2) which gives extensive powers to the Health Minister.

There is capacity for the Commonwealth to direct the states where that is provided for in the Act and where that can be implied as part of the Commonwealth’s executive power to manage the disaster.  Section 109 says that where there is an inconsistent law the Commonwealth will prevail.

But power and how you make decisions are different matters.  We have the ‘national cabinet’ which we are told is the PM and state and territory Premiers and Chief Ministers. The states still exist and employ the doctors and nurses, run the hospitals and have their own public health laws. Believing that you could manage this event ‘by direction’ would I suggest be unwise. Working with the states and communities is the only effective way to proceed.

Conclusion

This is a national disaster and the response is being led by the national government.  The relevant disaster declaration has been made.  The states still exist, so I don’t think the Commonwealth could order the state premiers not to appear on TV nor do I think the Commonwealth can manage this event on its own.  The Commonwealth does have the power to direct the states in the areas of its constitutional responsibility.

I’m not providing an ongoing commentary on the response to COVID-19 (see No running commentary on COVID-19 (March 23, 2020)) but others are and I’ll repost blogs that come to my attention and which I think may be of interest.

The first is ‘New wide-ranging bans on indoor and outdoor gatherings and a ‘human biosecurity emergency’ written by Aaron Gadiel, a partner at Mills Oakley, Lawyers.

Today’s question comes from someone who conducts

… patient transport services within Australia, particularly NSW, however, hospitals often require interstate transfers of patients.

Unfortunately, since the current coronavirus crisis is quite fluid, hospitals we deal with, are continuing most operations as normal, and require patients to be transferred to other health care facilities.

My question/s are;

As the public information given thus far indicate restricting movements to essential travel and Essential Services (including Medical), how does this affect –

1. 1. patient transport services including moving patients for medical procedures? We currently believe this will be covered as Essential Medical travel
   2. movement of patients between Aged Care Facilities in both cases the movement would have been cleared between facilities.
   3. Interstate movement of patients, by road (ambulance) or air (Air Charter medical aircraft), particularly where a State or Territory may have closed its borders to the general public for travel, but allow Essential Travel (including Essential Services- Medical)?

In this case, I believe current arrangements will allow for patient transport movements, however, do we require a specific document from the dispatching facility, that may be presented (if requested) by authorities at the land border/airport?

I have sent these questions through to federal health since the authorities in NSW don’t really have an answer.

Just wondering on your opinion around such matters.

My opinion is twofold. First, this blog cannot give specific advice and second, I cannot comment on the details of the public health response (see No running commentary on COVID-19 (March 23, 2020)).

With respect to that first limitation – general and not specific advice –  I can say that my first general observation is that the federal government is not the appropriate place to send these questions.  It is not the Federal government that is imposing quarantine restrictions on the state borders, that is a matter for state governments, so the questions need to be send to the various state health departments.

The South Australian Health Department says

The State Government has taken unprecedented action in response to the coronavirus pandemic requiring all people entering South Australia to isolate for 14-days from their arrival.

This will apply immediately to South Australians, other Australians and other travellers, and will be supported by border control from Tuesday 24 March at 4pm.

This is an enforceable obligation applicable from 4pm on Tuesday 24 March 2020.

Exemptions will apply for essential transport including health and medical supplies, and health personnel and patients, food and commercial supply chains (i.e. the carrying of goods), health workers, near border interactions, travel of a relative/carer of a dependant individual, and for emergency services.

Given this blog attempts to speak to general principles I can say that these orders can be made South Australian Public Health Act 2011 (SA)  Part II.  It would be specific advice, based on incomplete information and unhelpful for me to say whether the service provided by my correspondent falls within the exemption described on the web page.  As I said in my earlier post there needs to be one source of truth – so ask SA (or WA, or NT, or Tasmania or Queensland) Health.  Even if I did attempt to answer the question there is no value in turning up at the border and saying ‘but Eburn said we’re ok…’ if the SA Police direct you into quarantine.

 

In March 2017 heavy flooding in the Northern Rivers area of New South Wales led to the deployment of firefighters to assist in emergency rescue work. The Fire Brigade Employees’ Union of NSW (“the Union”) alleged that the employed firefighters were eligible to be paid overtime for the entire period of their deployment. The matter was heard in the industrial courts before ending in the NSW Court of Appeal – Industrial Relations Secretary v Fire Brigade Employees’ Union of New South Wales [2020] NSWCA 46.

The issue before the court was described by Basten JA (at [1]):

In March and April 2017 firefighters from other parts of New South Wales were deployed to Lismore to assist in rescue work resulting from heavy flooding. Teams were deployed for periods of four or five days. The firefighters were paid various allowances and overtime calculated by reference to the hours they were at work, but excluding night time when they were directed to rest. The respondent union brought proceedings in the Local Court against their employer, asserting that the firefighters were entitled to be paid at overtime rates for the full period of their deployment.

The application was dismissed by the Chief Industrial Magistrate.  An appeal to the Supreme Court was allowed, finding in favour of the union. The respondent appealed to the Court of Appeal.

At [22] Basten JA said:

At the heart of the Union’s case was the proposition that the Secretary had no power to stand a firefighter down whilst on deployment away from his or her base and therefore that person was “on duty” throughout the period of absence from the base.

His Honour noted that the relevant award provided for the payment of travelling allowance, accommodation and incidental expenses when a firefighter was required to travel away from work.  At [26]-[27] he said:

These provisions are, as the Secretary submitted, inconsistent with the conclusion that any deployment away from the location to which the employee is “permanently attached” constitutes an unbroken period of “on duty” employment throughout the period of absence.

It follows that, whilst the firefighter is deployed away from his or her usual station, he or she must be paid in accordance with a usual roster, or an alternative agreed roster; overtime may be worked, at the direction or with the approval of the Secretary. It therefore follows that the Secretary has power to put an end to a particular period of duty (outside rostered hours) by standing the employee down.

Leeming JA said (at [44]):

In this Court, the respondent [the Fire Brigade Employees’ Union] maintained that there was no power to direct an employee to cease to be on duty unless and until the employee returned to his or her home station or muster-point. I do not accept that submission.

White JA said (at [110]-[111]):

The Union submitted that overtime would be payable from the time the firefighter clocked in at the muster point and returned to the muster point. But on its construction, the muster point was not a relevant point for determining when a firefighter came on duty or ceased to be on duty. On the Union’s submission the time when a firefighter came on and left duty was determined by his reporting to his station. On the Union’s case, properly analysed, a firefighter would remain on duty and be entitled to overtime for 24 hours a day, until he returned to his station. This could be days after he returned from his deployment.

Fire and Rescue NSW’s construction of the Award should be accepted. If the deployed firefighters were dismissed from duty at times during their deployment, overtime was not payable. Whether they were so dismissed from duty during their deployment was a question of fact.

Discussion

Firefighters may be away from home for several days during these deployments but even though they are away at the request of their employer and even in accommodation arranged by their employer they are not ‘on duty’ for the entire time of their deployment.  The employer (FRNSW) can stand them down, ie send them to their motel or other accommodation, and during that time they are not at work. They return to work when they return to whatever station or place they are asked to report to and the clock on their shift and their eligibility for overtime starts again at that time.

Ruth Townsend and I published a short piece to get the conversation going on legal and ethical implications of COVID-19 for paramedics in theAustralasian Journal of Paramedicine today.

https://ajp.paramedics.org/index.php/ajp/article/view/796

Further my post No running commentary on COVID-19 (March 23, 2020) I have received this question from a volunteer with NSW SES:

As a volunteer for the NSW SES, I am interested to understand if as a volunteer we are responded to an incident and during attendance become infected by COVID-19. The assumption would be that all who attended followed all the appropriate protocols put in place by the relevant agencies.

I understand many of us attend our employment or emergency service tasks and sometimes get the flu, this has just become an accepted part of life, however COVID-19 has the potential significant health consequences, potentially death. If a worker follows all current protocols, does that remove all liability from their agency in the event they become infected?

As someone who is generally unfamiliar with the law, I feel it may be hard to provide strong evidence for the claim that a person became sick whilst attending an emergency incident. Do you feel the current systems and protections in place within NSW or Australia are suited to cater for these potential outcomes in the favour of staff/volunteers?

A volunteer with NSW SES who suffers an injury or illness as a result of their volunteering is entitled to compensation as if they were an employee entitled to workers compensation (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW)).  Under that Act and the Workers Compensation Act 1987 (NSW) s 4, ‘injury’ includes ‘a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease’.

One might imagine it may not be that hard to prove a link between volunteering and COVID-19.  If for example a crew was engaged in road crash rescue and the patient was transported to hospital, it was identified that they had a fever (not the usual response to a trauma) so was tested and found to be COVID-19 positive then there would be contact tracing. That would hopefully lead back to the rescuers and if one of them was COVID-19 positive and developing symptoms after the accident that may be sufficient to establish that was the cause of the infection.

But we are all at risk and could all catch it anywhere (hence all the recommendations).  If one could not establish the source of infection, then the entitlement under the Act would not apply. But that of course is true of everyone.  Anyone who is still going to work may contact COVID-19 in circumstances where they would not have had they stayed at home.  If the only place they are going is work then that may show that is the source of their contagion, but if they go to the shops, interact with others (including family) etc then there may be other sources.

I’m not sure ‘the current systems and protections in place within NSW or Australia are suited to cater for these potential outcomes in the favour of staff/volunteers’ for any organisation.  Most people who have to isolate for 14 days will need to rely on their own resources, their leave entitlements and/or the generosity of their employer or the Federal Government. That’s true no matter what their occupation or volunteer status.

The ‘business as usual’ legal response is not well-suited to this pandemic for anyone.  How people will be provided for if they have to isolate for 14 days, or worse, is a constantly evolving process and no doubt varies with employer or agency, but if you can trace exposure to an emergency response, the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) will apply.

Australia is facing its greatest emergency in the last 100 or so years but on this blog there is no running commentary on the legal issues involved in the response.  That is true and there are several reasons for this:

1. This blog, Australian Emergency Law has always focussed on the ‘traditional’ natural disasters – fire, flood, storm, accidents – and the response by the red/blue light emergency services – the SESs, fire and ambulance services. Whilst the current COVID-19 emergency has many things in common with those emergencies and does trigger some of the same legislation (a public health emergency can also be an emergency for the purposes of emergency management legislation), public health, and public health law, is its own area of speciality.  I do not claim to be an expert in public health law.
2. The sheer pace of events makes regular blogging by one part time person impossible. The pace of events in December/January was hard enough, I simply cannot keep up with hourly changes in response and arrangements.
3. In the past I have had the privilege of blogging with the objectivity of distance. I have commented on disasters as an observer. Like everyone else, today I am a participant and that brings its own demands that sit higher than writing a blog.
4. The law is fairly irrelevant. If the government health advice is stay 1.5m apart its more important to do that, than worry about whether that is advice or enforceable.  Commentary on the law can wait until after the event is over.
5. There should be one source of truth. If you want to know how edicts and limitations apply to you, go to the Department of Health website in your state or territory or health.gov.au for the answer.
6. Having said all that, I am willing to consider questions about the COVID-19 response and implications for the emergency services, the normal subject of this blog.

The coronavirus pandemic has pushed the summer’s bushfires off the news, but even so the various inquiries continue.  The Commonwealth’s Royal Commission
into National Natural Disaster Arrangements has been established and is inviting submissions. Submissions will close on Friday, 3 April 2020.

The Royal Commission’s website is here: https://naturaldisaster.royalcommission.gov.au/

Bill Madden’s WordPress is reporting that:

Dominic Villa SC has helpfully established a website to collect COVID-19 related legal  resources. It has limited content at this point but will include Commonwealth, NSW and international materials.

You can access the collection here: http://covid-19law.simplesite.com/

Today’s question is about the release of prisoners – see Thalia Anthony ‘Why releasing some prisoners is essential to stop the spread of coronavirus’ The Conversation, March 18, 2020. This question comes from the Northern Territory and my correspondent has been

… wondering what the legal mechanism is for release in an emergency. I see the power to give people directions to leave premises / locations under the NT Emergency Management Act.

I also see – from searching below, that there is something called ‘executive release’ of prisoners in the UK. I haven’t found info about the source of that power.

I wonder if you happen to have any pointers…?

I am given links to reports from the UK:

Prisoners ‘may’ be released if COVID-19 breaks out in jails SkyNews, March 15 2020 ‘Steve Gillan, head of the Prison Officers Association, says previous governments have actioned “executive release of prisoners” in the past.’

The USA:

Alene Tchekmedyian, Paige St. John, Matt Hamilton ‘L.A. County releasing some inmates from jail to combat coronavirus’ Los Angeles Times, March 16, 2020.

Marco Lucas, ‘Ohio Jail Eyeing Possible Release Of Hundreds Of Inmates Due To COVID-19’ International Business Times, March 16, 2020.

And Iran

‘Iran releases 54,000 prisoners temporarily to limit coronavirus spread’ SBS News, 4 March 2020.

In the Northern Territory the relevant legislation is the Public and Environmental Health Act 2011 (NT). That Act provides for emergency powers during a declared public health emergency. The Chief Health Officer (CHO) may (s 52):

(1) … may take the actions (including giving oral or written directions) the CHO considers necessary, appropriate or desirable to alleviate the public health emergency stated in the declaration.

(2) The actions the CHO may take include any of the following: …

(d) evacuating persons from an area or a particular place…

(3) The directions the CHO may give include directions requiring any of the following:…

(b) a stated person to remain in, or move to or from, a stated area or place immediately or within a stated period…

Further, s 53(2):

An authorised officer assisting the CHO may use the force that is necessary and reasonable to do any of the following: …

(b) prevent entry into or close off an area or place;

(c) remove a person from an area or place…

Prima facie that would look like a power to order the evacuation of a gaol. They could not direct a prisoner to leave the gaol as he or she would not be able to leave the prison (if you can just walk out of prison, it really is minimum security). Presumably however the CHO could direct the prison authorities to evacuate prisoners from a gaol and an authorised officer could (save that prisons are designed to resist forced entry) enter the prison to remove person and to close off the prison.

Putting aside the logistic issue that prisons are designed to stop people coming in, or going out there are other issues. Ordering the evacuation of a prison is not the same as ordering the prisoner’s release. A prisoner under sentence would still be under sentence so could, consistent with such an order, be moved to another place of incarceration. I cannot see that the CHO has the power to order that prisoners are released even if he or she can order that a particular prison be closed.

When a judge sentences a person to a period of imprisonment, the management of that prisoner is a matter for the prison service administration. The judge does not determine where or how the prisoner serves his or her sentence. For example, in the Correctional Services Act 2014 (NT) s 38 says ‘The Commissioner [of Correctional Services] is to determine at which custodial correctional facility a prisoner is to be held’.

The Commissioner cannot simply decide to end the sentence of a prisoner but he or she can (s 109):

(1) … authorise a prisoner to be absent from a custodial correctional facility by issuing to the prisoner one of the following (a leave permit):

(a) a general leave permit;

(b) an interstate custodial leave permit;

(c) a foreign legal matters leave permit;

(d) an administrative home detention permit.

(2) A leave permit authorises the prisoner to be absent from a custodial correctional facility in accordance with the terms and conditions of the permit.

Section 118 says:

The Commissioner may issue a permit (a general leave permit) to a prisoner that authorises the prisoner to be temporarily absent from a custodial correctional facility for a purpose the Commissioner considers appropriate.

A general leave permit remains in force (s 110) for ‘a period the Commissioner considers appropriate having regard to the purposes for which the permit is issued.’ Whilst on leave a prisoner must (s 111):

(a) … must obey all reasonable directions of the Commissioner, a correctional officer or a probation and parole officer;

(b) the prisoner must not commit an offence;

(c)any conditions prescribed by regulation;

(d) any conditions specified in the permit

That is not called ‘executive release’ but that is what it is. Governments are divided between the legislative, judicial and executive branch. The legislative branch is the parliament, in this case the Parliament of the Northern Territory. The judicial branch is the judges and the courts. The executive branch is the government departments and public service. The Commissioner of Correctional Services is part of the executive government.

The Parliament may make a law saying some conduct is criminal. The executive government (police and DPP) may allege that a person has committed the crime. The person (the accused) may deny that. It is a court, the judicial arm of government that determines whether or not the executive has proved the case beyond reasonable doubt and determines the sentence. If the sentence is one of imprisonment the prisoner is placed into the custody of the Commissioner (s 8) ie the executive government.

A prisoner must be released on the expiration of his or her sentence (s 61) or could be released on judicial order (eg by a court of appeal setting aside their conviction or sentence). If they are released by the Commissioner it must follow that this is executive release, it is release on the decision of the executive government applying the law made by the legislature.

In context the Chief Health Officer could order the evacuation of a prison if that was necessary to manage the public health risk, but that would not compel the Commissioner to release the prisoner. The Commissioner could transfer them to another prison or make other arrangements for their custody.  The Commissioner could also choose to grant the prisoner leave; if they are on leave, they remain under sentence.

One would imagine it would never come to the CHO ordering the Commissioner to do anything. One hopes that with an all of government response the CHO and the Commissioner would talk and the Commissioner would take the CHO’s advice and if that meant giving leave to some prisoners to reduce the gaol population that would be within the Commissioner’s powers under the Correctional Services Act 2014 (NT)

 

 

 

 

Colleagues at the Australian National University are conducting a research project that ‘aims to explore paramedics’ perceptions of the law, and the extent to which paramedics feel empowered to make critical decisions in the field, including the decision not to transport a patient to hospital.’

If you are a registered paramedic and would like to contribute to this study, go to https://paramedicperceptionsoflaw.wordpress.com/ for more details, or download the Participant Information Sheet.

As the Participant Information Sheet says:

Legislation or policy governing paramedic practice cannot and will not change overnight. By understanding your perceptions of the law and how these perceptions influence your decision making, it may be possible to identify key changes to or clarifications of the law so that it better supports paramedics’ clinical practice.

If you want to make at least a possible contribution to relevant law reform, I urge you to consider taking part in this research.

Disclaimer- This project is being conducted by a student at the ANU College of Law under the supervision of the College Dean, Professor Sally Wheeler.  I am an Honorary Associate Professor at the College but I am not involved in the project and get no benefit from your choice to participate, or not. I promote the project here as a service to the researcher and the College.

Today’s correspondent has:

… been wondering lately, should the pandemic reach Italian proportions or worse, what emergency powers do current national and state legislation allow the state governments to invoke? Could they for instance establish a curfew, could they assume control of private ambulance services (WA), could they cancel annual leave of private ambulance service employees etc?

This blog is about Australian Emergency Law but that has been limited to ‘natural’ disasters (fire, flood, storm etc) and responders to those emergencies.  Public Health law uses similar language but it is a different area of expertise. Further given there is relevant public health law in every jurisdiction, including the Commonwealth (Biosecurity Act 2015 (Cth)) I cannot give a single answer for all states.

With those limitations I can try to answer the question. In Western Australia, the relevant law is the Public Health Act 2016 (WA). The Act provides for a ‘serious public health incident’ and a ‘public health emergency’.  I don’t think there has (yet) been a declared public health emergency in WA it is likely that such a declaration will be made given that those sorts of declarations have been made in Victoria, South Australia and the ACT.  During a public health emergency in WA, an emergency officer may

(s 180)—

• direct or, by direction, prohibit, the movement of persons, animals and vehicles within, into, out of or around the emergency area or any part of the emergency area; or
• direct the evacuation and removal of persons, animals and vehicles from the emergency area or any part of the emergency area; or
• close any road, access route or area of water in or leading to the emergency area.

(s 181) ‘… use a vehicle in any place and in any circumstance despite any provision of any written law that requires …’

(s 182) ‘… take control of, or make use of, any premises or property…’

(s 183) ‘take control of, or make use of, any vaccine or drug’

(s 184) ‘direct a person to do all or any of these —

(a) to remain in an area specified by the officer for any period specified by the officer;

(b) to remain quarantined from other persons for any period, and in any reasonable manner, specified by the officer;

(c) to undergo medical observation, medical examination or medical treatment or to be vaccinated, as specified by the officer;

(d) to undergo decontamination procedures within any reasonable period, and in any reasonable manner, specified by the officer.

Presumably s 184(a) could be a curfew as people could be directed to stay at home during given hours.

Notwithstanding my comment, above, regarding ‘natural’ disasters versus public health emergency, s 164 says:

(1) Nothing in this Part [dealing with public health emergencies] prevents the making of an emergency situation declaration or a state of emergency declaration under the Emergency Management Act 2005.

(2) The making of a declaration referred to in subsection (1) does not prevent the making of a public health state of emergency declaration under this Part.

(3) Nothing in this Part limits the operation of the Emergency Management Act 2005 section 8(1).

In other words, the event that constitutes a public health emergency can also constitute an emergency under the Emergency Management Act 2005 and vice-versa.  If a declaration is made under the Emergency Management Act 2005 (WA) then all the emergency powers under that Act are also available.

The critical question is ‘could they assume control of private ambulance services (WA), could they cancel annual leave of private ambulance service employees’.  I don’t see any specific power to that effect; there are powers to give directions to a public authority (ss 4 and 166) but I do not think St John Ambulance Australia (WA) would fall within that definition. Directing employees of St John would, in my view, be outside the powers listed in s 184.

The question of leave is clearly an industrial issue. The Fair Work Act 2009 (Cth) s 88 says ‘Paid annual leave may be taken for a period agreed between an employee and his or her employer.’ What rights an employer has to cancel previously agreed annual leave given the emergency would depend on the terms of employment and industrial law that is beyond my expertise.

St John Ambulance (WA) is a contractor to the WA government to provide ambulance services and is required to undertake ‘major incident planning and preparedness’ (Services Agreement Between State of Western Australia and St John Ambulance Western Australia Limited cl 4).  

Conclusion

I cannot see that there is any specific power to ‘assume control of private ambulance services (WA) [or]… cancel annual leave of private ambulance service employees.’  However in a public health emergency I would imagine that private ambulance providers generally, and St John Ambulance (WA) in particular, will respond to requests from the government to be part of the public health response.  As employers, and without being an expert in industrial law, then I imagine that the services as employers could move to cancel pre-approved annual leave to respond to the emergency.

Responding to emergencies is part of what state ambulance services are established, and in WA, St John Ambulance (WA) agrees, to do.  I cannot see that the government would need to ‘take control’ of St John (WA) but that St John (WA) would willingly play its role in the emergency response.

I have previously reported on the dismissal of Mr Costello from Queensland Ambulance (see Dismissal of Queensland paramedic for unlawful drug use on duty confirmed (June 29, 2019).  This decision has now be reversed by the Industrial Court in Costello v State of Queensland (Department of Health, Queensland Ambulance Service) [2020] ICQ 003 (and I thank qas005597 for flagging that this decision was forthcoming).

The court set out the facts as follows:

1. On 2 June 2016, Jay Costello was employed by Queensland Ambulance Service as an Advanced Care Paramedic. He and two other officers were called out to assist an elderly woman who had fallen and broken her shoulder. In order to help her deal with the pain, she was administered a Penthrox inhaler, which is a non-opioid, pain relief inhaler commonly used in trauma settings. It is often called a Penthrox “whistle”.
2. The injured woman was admitted to hospital. Sometime after that, Mr Costello went to the toilet. He was gone for some time. His colleagues looked for him and found him in a stall, sitting on a toilet with his pants up and holding a Penthrox whistle. His colleagues both reported that the room smelt strongly of methoxyflurane, which is the major constituent of the Penthrox whistle. He was observed to have bloodshot eyes and seemed emotional. A nurse reported that she saw him stumble out of the toilet and observed that his eyes were bloodshot and he seemed quite upset. The Penthrox whistle was disposed of and Mr Costello was admitted to the hospital overnight for observation. A blood sample was taken but there was no evidence that it was ever tested.
3. On the following day, Mr Costello was suspended while a formal investigation process took place … His employment was later terminated on 31 October 2016.
4. Mr Costello sought reinstatement but was unsuccessful and now appeals that decision.

Grounds of appeal

The notice of appeal contains numerous grounds but, at the hearing, only three were pressed. They are:

(a)        That the Deputy President erred in law by finding, contrary to the evidence, that the appellant had been provided with transcripts of the investigator’s interviews at the time he was asked to show cause.

(b)       The Deputy President erred by finding, contrary to the evidence, that there was “no readily available” blood test that could have been undertaken at the relevant time to establish if methoxyflurane was present in the appellant’s blood.

(c)        The Deputy President failed to give weight to a direction in the respondent’s Drug Management Code of Practice concerning the rehabilitation options available for officers suspected of substance misuse.

Ground (a)

In the first hearing Deputy President Bloomfield took comfort from the fact that ‘Mr Costello was provided with a copy of Mr Berry’s report, as well as the transcripts of all the interviews he conducted, at the time he was asked to show cause why disciplinary action should not be taken against him…’ and he did not raise matters raised by one witness, Mr Young, or make submissions on why those were relevant or what the Tribunal should make of those comments. It was accepted that this was an error (at [8]) ‘Mr Costello was not provided with those transcripts.’  It is not clear why he was not given those transcripts or how the Deputy President was led into error.

Regardless of how the error occurred, Martin J said (at [19] and [22]):

Where there is material (that is in the possession of the employer and is not the subject of legal professional privilege) that could be read in a way that might assist an employee going through a disciplinary process and that is not provided to that employee, then it cannot be said an opportunity has been given to respond to the “allegation about the conduct, capacity or performance”…

The finding made by the Deputy President was not supported by any evidence and, thus, was an error of law. Further, the Deputy President placed weight on the fact that Mr Costello had not raised “the matter of Mr Young’s comments, or anything which should be made of them …”.

Ground (b)

At [23] Martin J said:

This ground concerns the submission that the respondent failed to undertake or arrange any test to determine whether there was methoxyflurane present in Mr Costello’s system on the night of the incident. Mr Hammond, the then-Assistant Commissioner of the QAS, agreed in his evidence that if a test for the presence of methoxyflurane was available, fairness would dictate that an officer suspected of drug abuse or misuse be given that test.

The Deputy President found (at [26]) that ‘there was no readily available test which could have been requested’ to establish whether or not there was methoxyflurane in Mr Costello’s body. According to Martin J (at )27]) that conclusion ‘was one which was able to be inferred from the evidence provided to the Commission’ so there was no error.

Ground (c)

At [28]-[29] Martin J said:

The applicable drug management code of practice provides that officers suspected of substance misuse “… may be referred for drug rehabilitation which will be managed by their LASN [Local Ambulance Service Network] Manager (facilitated by the LASN Organisational Health Adviser or equivalent role) with medical input from the Director, Clinical Quality and Patient Safety and Executor Director, Medical Services when required.”

The ground of appeal here is that the Commission failed to give weight to the possibility of such a direction..

Martin J agreed that in the Industrial Relations Commission the Deputy President should have considered whether QAS should have considered a rehabilitative approach.  He said (at [33] ‘This [rehabilitative approach] was an issue which should have been taken into account when considering the fairness of the dismissal. The failure to consider that constitutes an error.’

Outcome

Martin J (at [34]) ‘The appellant has succeeded in two of the three grounds advanced by him and the appeal is allowed’ but that did not resolve the matter.  Mr Costello wanted an order that the matter be sent back to the Industrial Relations Commission with an order that they redetermine the matter.

The Court did not make a final order resolving the matter, rather His Honour invited the parties to make further submissions on what should be the final resolution.  I will keep an eye out to see if the Court reports the final outcome of the matter- of course the parties may come to an agreement on the outcome and there may be no further judicial decision.

Conclusion

The Industrial Court was not deciding whether or not Mr Costello should have been dismissed, rather it was considering whether the Deputy President in the Industrial Relations Commissions had acted as required by law.

The finding was that the hearing in the Commission miscarried in part because the Deputy President believed that Mr Costello had received all the material collected by QAS. The Deputy President found that the original decision maker had not made an error because he did not address, and was not asked to address, matter in a statement by Mr Young. In the court it was conceded that Mr Costello had not received that material. That Mr Costello had not received that material meant that he had not had a proper chance to respond to the allegations. In short there was an error both at the initial level in not giving this material to Mr Costello and then an error on review when the Commission’s finding that the decision maker did not have to consider the material was made because of the erroneous belief that Mr Costello had received that material and had not addressed it in his submissions.

The other error was that the Commission, when considering whether the dismissal was unfair, should have given thought to whether QAS, in accordance with its own policy, should have considered taking a rehabilitative rather than punitive response.

What happens to Mr Costello and his career with QAS giving these findings remains to be determined.

 

 

I was asked a question

… relating to the ongoing COVID pandemic:

There have been reports that the UK are looking to call up recently retired doctors to return to medical practice to assist with the COVID response. There are also some reports that Departments of Health in Australia are contacting medical schools to discuss using students to expand the medical workforce beyond the usual student role. Can you discuss the implications of these sorts of responses in the context of professional registration and the National Law in Australia?

When I asked for more details of what my correspondent had in mind, I was told:

implications of the National Law for surge workforce responses and people in those responses. Does the national law allow retired doctors to return to service in an expeditious way? If students are going to be used in the workforce above the usual degree how does that cause any issues if they are or seen to be acting as doctors?

By ‘acting as’ I mean not that these students would claim to be doctors, but that usually a student doctor would ask a patient if they can be involved in that patient’s care, and patients can say ‘no’ and see a doctor instead. In the situation where students are made a temporary part of the workforce there may be less of a choice for patients to not engage with students. I hope I’ve made a sensible distinction.

If you think it’s interesting, I’d also be interested to hear your thoughts on what this would mean in terms of liability for anybody participating in a surge workforce – I assume that the state would take on the liability vicariously as part of the act of engaging with retired and/or student doctors to do such work?

Personally, I cannot see any significant issue. The Health Practitioner Regulation National law means people who are not registered cannot use the title ‘Medical Practitioner’; it’s not about ‘scope of practice’.  Asking medical students or retired practitioners to expand the workforce is not contrary to the law provided they are not described as ‘medical practitioners’.

To identify other issues, we would need much more detail about what these people are going to do.  They can be used to expand the workforce but that doesn’t mean working as independent practitioners. It can just mean having people in the area who know how to work in the sector so can be readily incorporated into the workforce and trusted to do whatever they are competent to do (and that will be different depending on how long ago they retired, where they are up to in their studies etc etc).  A hospital/health service may want to expand its workforce by calling on retired doctors and/or medical students, or retired nurses and/or nursing students, or volunteers (eg St John Ambulance volunteers) or volunteers off the street and training them. All of that does require risk assessment, in effect benefit v risk both to the patient and the person incorporated into the workforce, but it doesn’t raise issues under the Health Practitioner Regulation National Law provided they are not using protected titles, ie those who are doctors and nurses are distinguished from those who are not.

It may be that ‘usually a student doctor would ask a patient if they can be involved in that patient’s care, and patients can say ‘no’’ but these are not usual times or measures.  When you go to hospital you don’t get to nominate who will be your carers, you don’t get to say I want an RN not an EN etc.  You go to hospital for care, the hospital decides how that care is given.

As for liability, the hospital is responsible to ensure that you receive ‘reasonable care’ and any failure is a failure by the hospital, so the hospital is liable for everyone incorporated into the workforce, from doctor (Albrighton v RPA [1980] 2 NSWLR 542; Ellis v Wallsend District Hospital (1989 17 NSWLR 553) to volunteer in the canteen (Hollis v Vabu Pty Ltd [2001] HCA 44).

A paramedic asks:

Can a non-QAS Paramedic administer flu vaccine to patients in Queensland via standing order of his/her company’s Medical Director?

It would seem that most vaccines are listed in Schedule 4 of the Poisons Standard, that is they are prescription only medicine.  For example, the following vaccines are all listed in schedule 4: cholera, dengue, GnRH, haemophilus influenzae, hepatitis a and b, human papillomavirus, influenza and coryza, Japanese encephalitis, measles, meningococcal and meningococcal group b, mumps, pneumococcal, poliomyelitis, rabies, rubella, triple antigen, typhoid and varicella.

The legislative regime

Queensland Health says ‘Under the Health (Drugs and Poisons) Regulation 1996 only certain medical professionals are able to administer vaccines.’

QAS paramedics are given authority to obtain, possess and administer scheduled drugs (rr 66, 174 and 174A and appendix 2A).  Without going into details of the qualifications required for the drugs, the listed drugs are: amiodarone, atropine, benztropine, box jellyfish antivenom, ceftriaxone, clopidogrel, enoxaparin, frusemide, haloperidol, heparin, hydrocortisone, ketamine, lignocaine, methoxyflurane, metoclopramide, midazolam, morphine, naloxone, nitrous oxide, promethazine, reteplase, salbutamol and tenecteplase.  I’m not a pharmacologist but I don’t think any of those drugs are immunisation drugs.  It follows that QAS paramedics are in no different position to any other registered paramedic so the answer here will apply to all paramedics whether they are employed by QAS or not.

Regulation 163 says:

To the extent necessary for conducting an immunisation program, an environmental health officer employed by a local government in the program is authorised to possess a vaccine for human use.

Regulation 175(4) says:

To the extent necessary to practise nursing under an immunisation program, an immunisation program nurse is authorised to—

(a) obtain a vaccine or other restricted drug; or

(b) administer a vaccine or other restricted drug under the immunisation program nurse DTP.

There is no similar regulation for paramedics, QAS employees or not.

For the purposes of the Health (Drugs and Poisons) Regulation 1996 (Qld) schedule 4 drugs are called ‘restricted drugs’ (Appendix 9). Medical practitioners are authorised to obtain, possess, administer, dispense or prescribe or supply a restricted drug to ‘the extent necessary to practise medicine’ and where the doctor is of the view that the drug is needed as for a ‘therapeutic use as part of [a] person’s medical treatment’ (r 161(1)).  Further, a doctor (r 161(1)(d)) may ‘give someone who may administer or supply a restricted drug an oral or written instruction to administer or supply the drug’. A written instruction can include ‘a standing order signed by a doctor or nurse practitioner and on which the date of the order is shown’.

No endorsement or authority is needed (r 183) (1) ‘to deliver a restricted drug to a person for whom it has been dispensed’ or is endorsement required to

… help another person (an “assisted person”) to take a restricted drug that has been supplied for the assisted person as a dispensed medicine, if—

(a) the assisted person asks for the carer’s help to take the dispensed medicine; and

(b) the carer helps the assisted person to take the dispensed medicine under the directions on the label attached to the dispensed medicine’s container.

Discussion

What I don’t understand is this concept of a ‘standing order’ as if a doctor is entitled to authorise other people to possess, supply or administer a drug; in effect a belief that a doctor can delegate his or her authority under r 161 (relating to s4 drugs) to someone else; they cannot – see Doctors delegating authority to carry drugs (August 20, 2014).

Whilst ‘standing order’ is not defined, a doctor cannot authorise a person to possess a s4 drug ‘just in case’ nor can he or she authorise a person to administer the drug to someone that the delegated person (not the doctor) thinks should have it. Without examining the patient, or at least engaging in a consultation even if via phone or videoconference, the doctor cannot determine whether the drug is necessary for the care of that patient.

A doctor can examine a patient, determine that they need a drug and then give a standing order eg a doctor working in a care facility may determine that the nursing staff should administer a prescribed drug every 4 hours and give a standing order for that ongoing care.  That is not the same however of saying in some general sense – I authorise you to carry a vaccine (or any other drug) and if you find a patient that you diagnose, you can then give them the drug.

A service provider may have an endorsement (Health (Drugs and Poisons) Regulation 1996 (Qld) Part 5) to possess, supply and administer scheduled drugs and the authority may be in terms that it extends to anyone approved by the entity’s medical director. The power to delegate is then found in that endorsement, not some general power of doctors to authorise other people to carry drugs. Whether that endorsement extends to vaccinations would depend on the terms of the endorsement.

Application

Can a non-QAS Paramedic administer flu vaccine to patients in Queensland via standing order of his/her company’s Medical Director?

They can if the doctor has examined the patient, determined that the person needs the vaccine ‘for a therapeutic use as part of the person’s medical treatment’ and has prescribed the medication. He or she can then authorise the paramedic to administer that medication and if the vaccine is required say in more than one dose over time, the doctor could give a standing order to authorise all those doses to be administered.

Can a doctor authorise a paramedic (QAS employee or not) to obtain vaccines and give them to patients that the doctor has not seen? No, and even if it were not illegal it would be foolish to authorise people to deliver medication to someone the doctor has not had a chance to consult with, or about.

Whether employees of a company can run a vaccination program with the approval of the company’s medical director would depend not on the fact that the medical director is a doctor, but on the terms of any endorsement issued under Part 5 of the Health (Drugs And Poisons) Regulation 1996 (Qld).