Today I’m asked about:

… the use of prescription cannabis products for healthcare workers in Victoria generally, and for Paramedics specifically.

I’ve spoken with the prescribing doctor and been clear about what I do for a living so she’s suggested dried flower products for evening use because of the rapid onset, distribution, metabolism and excretion. The doctor is hoping this will work for PTSD, depression, insomnia and chronic pain when everything else I’ve tried has been unsuccessful.

Interested in your perspective of the medico-legal situation considering its recent availability and public image.

Medicinal cannabis ‘is pharmaceutical-grade and regulated in Australia with labelled levels of THC and CBD’ that is available upon prescription (see https://www.healthdirect.gov.au/medicinal-cannabis).   

A paramedic must notify the Paramedicine Board if another paramedic is practising their profession ‘whilst intoxicated by alcohol or drugs’ (Health Practitioner Regulation National Law (Victoria) s 140).  Whether one would describe a person as intoxicated or not, if a person is affected by medicinal cannabis, as with any prescription drug, they must be conscious of any side effects and consider whether it affects their ability to work.   A person who practices paramedicine whilst impaired by the effect of drugs, even prescribed drugs, may be guilty of unsatisfactory professional performance, unprofessional conduct and in most extreme cases, professional misconduct.

With respect to driving it is an offence to drive a motor vehicle whilst ‘impaired by a drug’ (Road Safety Act 1986 (Vic) s 49(1)(ba)) or whilst there is any detectable delta-9-tetrahydrocannabinol (THC) in their blood or oral fluid (Road Safety Act 1986 (V(c) ss 49(1)(bb) and 3 definition of ‘prescribed concentration of drugs’ and definition of ‘prescribed illicit drug’).

It can be a defence (s 49(3B)) to an allegation of driving whilst impaired if the defendant

(a) … did not know and could not reasonably have known that the … the prescription drug, … would impair driving if consumed or used in accordance with advice given to him or her by a registered medical practitioner, a dentist or a pharmacist in relation to the drug or combination of drugs; and

(b) …  consumed or used that drug … in accordance with that advice.

It would be difficult to make that argument where the drug includes THC, and the HealthDirect patient information warns agsinst driving whilst taking medicinal cannabis.

That the drug has been prescribed is no defence to the offence of driving with the prescribed concentration of a drug (noting that the prescribed concentration is any detectable amount of THC).

Conclusion

Taking prescribed cannabis should not be a barrier to practice as a health professional provided that, whilst practicing, the practitioner is not impaired or ‘intoxicated’ by the drug.

Taking prescribed cannabis would however be a problem for paramedics, or any one who drives for work, as driving with any detectable amount of THC is an offence, even if the drug has been prescribed.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

Today I’m asked ‘How do I get a workers compensation for injury incurred while fighting a fire with Queensland rural fire brigade?’

The State Emergency Service Act 2024 (Qld) s 20 says that the Commissioner of police must enter into a contract of insurance to provide workers compensation insurance for SES volunteers.  The Workers Compensation and Rehabilitation Act 2003 (Qld) s 13B then provides that WorkCover may enter into a relevant contract with the Commissioner to ensure that SES volunteers are covered. Similar obligations are imposed by the Marine Rescue Queensland Act 2024 (Qld) s 15 and the Disaster Management Act 2003 (Qld) s 142. The Workers Compensation and Rehabilitation Act 2003 (Qld) ss 12 and 13A allow WorkCover to offer insurance to meet those obligations. .

Similar to ss 12, 13A and 13B, the Workers Compensation and Rehabilitation Act 2003 (Qld) s 14 says:

(1)            WorkCover may enter into a contract of insurance for this subdivision with the authority responsible for management of a rural fire brigade under the Fire Services Act 1990.

(2)           The contract may cover a member of the rural fire brigade.

(3)           A person covered by the contract is entitled to compensation for injury sustained only while performing duties, including being trained, as a member of the rural fire brigade.

(4)           However, a person covered by the contract is also entitled to compensation if the person is a specified volunteer firefighter who sustains an injury that is a specified disease.

The ‘the authority responsible for management of a rural fire brigade’ is the Commissioner (Fire Services Act 1990 (Qld) ss 5 and 7A).  There is however no equivalent provision in the Fire Services Act 1990 (Qld) that says the Commissioner or ‘the authority responsible for management of a rural fire brigade’ must take out workers compensation type insurance for volunteer firefighters.

This does seem to be a ‘hangover’ from before the amendments to Queensland’s fire and emergency service legislation (see Review of Queensland emergency services legislation (September 7, 2024)).   Prior to the amendments, the Commissioner’s role with respect to Rural Fire Brigades was limited to being ‘responsible for the efficiency of rural fire brigades and may provide training and other assistance to them’ (Fire and Emergency Services Act 1990 (Qld) s 85 (now repealed).   Arguably Rural Fire Brigades where themselves responsible for their own management and the legislature did not, for whatever reason, want to impose an obligation to insure members.

Now the Commissioner is to ‘manage’ the fire services (which includes the Rural Fire Service Queensland (ss 7A(1)(a) and 8).   It would be better, now, if the Workers Compensation and Rehabilitation Act 2003 (Qld) s 14(1) mirrored the provision relating to the SES and said:

WorkCover may enter into a contract of insurance for this subdivision with the commissioner of the Queensland Fire Services in the commissioner’s capacity as having responsibility for the management of the Rural Fire Service Queensland under the Fire Services Act 1990 (Qld).

It would also be better if the Fire Services Act 1990 (Qld) had a section, based on the State Emergency Service Act 2024 (Qld) s 20, that said:

(1) The commissioner must enter into a contract of insurance with WorkCover or another entity to insure Rural Fire Service Queensland volunteers.

(2) The contract of insurance must cover a Rural Fire Service Queensland volunteer while the person is—

(a) performing a function relating to the Queensland Rural Fire Service in their capacity as a Rural Fire Service member; or

(b) involved in another activity, including training, related to the carrying out of a function of the Queensland Rural Fire Servcie or disaster operations under the Disaster Management Act 2003

(3) In this section—

“WorkCover” means WorkCover Queensland established under the Workers’ Compensation and Rehabilitation Act 2003.

As the law stands WorkCover may enter into an insurance contract to provide workers compensation for Queensland’s rural fire fighters but there is no statutory obligation on the Commissioner (or anyone) to take out that insurance.  I’m sure as a matter of good practice they have done so but it would be better if that obligation was explicit. 

Conclusion

As it stands then the answer to the question ‘How do I get a workers compensation for injury incurred while fighting a fire with Queensland rural fire brigade?’, assuming my correspondent is a registered member of the brigade (s 135), appears to be contact the Brigade or failing that the Queensland Fire Department or WorkCover Queensland, for access to workers compensation claim forms and make an application in the same way that they would if they were an employee.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent raises questions about State Rescue Board policy and the problem of diminish and aging volunteers.  They say their NSW SES:

… Unit has a decreasing number of members due to the general decline in volunteers and has struggled to recruit members for some years. The unit has also relied upon an aging membership for daytime availability Mon-Fri with the daytime cohort ranging in age from 65-74 years of age in varying classifications of fitness. [Half of these members] … have been unable to undertake the minimum hours of training as required and have self-selected to be “support rescue workers” and not actual on-tool rescue operators.

Most weekdays we will have one competent and fit operator with one or two “support rescue workers” however technically that means we have ONE rescue operator and NOT two which is required to staff a rescue unit.

We have read the State Rescue Board Policy as to the minimum requirements for 2 x SRB operators and formed an opinion that if we did not have two trained, accredited and competent operators that we would need to go offline.

We sought direction from SES paid staff as to the legal status of both the support rescue workers and the other Rescue Operators and the process to notify the Police RCO that we were offline as we did not have TWO qualified operators.

The unit leadership were advised verbally by paid staff that “there is no longer a strict interpretation of the SRB Policy due to the numbers of available volunteers.”  Further that a unit would not be taken offline by the ZORO or DZC and a decision would be made by the State Operations Centre if and when a Rescue call came in as to the appropriate SES unit to respond”

The concern that we have is that if we don’t have the required number of competent operators we should be marked as offline and another unit (neighbouring units are VRA, FRNSW and RFS) would be automatically responded thus reducing the response time to an entrapped patient.

We have also been advised that SES are not obliged to notify the RCO if we are under strength, have a delayed response or are unable to maintain 24Hour cover and are now confused as to our reading of the SRB Policy contradicts what our paid staff are telling us.

Can you please outline the requirements for manning, numbers of technically competent rescue operators required and also the process to be followed for the support rescue workers and if people who have not undertaken the required hands-on rescue skills maintenance and/or are unable to meet the requirements of the rescue role can be classified as an accredited rescue operator.

The problem is that I have no more information that my correspondent. I can read the State Rescue Policy but if the State Rescue Board (SRB) and the NSW State Emergency Service have come to some ‘understanding’ then I cannot comment on that. On the other hand I believe that regulators, and everyone, should ‘say what they mean and mean what they say’. By that I mean we should be able to accept that the published State Rescue Policy says what the SRB expects to happen and if they have made alternative arrangements they should be in the policy. What does the policy say?

The State Rescue Policy (4th edition, 5 July 2021) says at [1.53] under the heading ‘Rescue Crews – land’:

The minimum crew required to respond to a rescue incident is two qualified and current operators. Trainees may attend to conduct on the job training in addition to the two qualified rescue operators but must be supervised by a qualified and currently competent rescue operator not actively involved in the rescue.

The term ‘qualified’ is not specifically defined but Attachment H sets out the Competencies required for General Land Rescue so presumably a person is qualified if they have those competencies.

What it is to be ‘current’ is also not defined. Paragraph [7.02] says:

It is the responsibility of each agency which provides accredited rescue units, to ensure that their rescue operators are trained in accordance with the SRB Policy and their skills are kept current.

Currency means ‘the process that recognises member’s skills, training and capabilities, captured via operational activity or skills maintenance, as determined by the agency’ ([1.17]).  If the SES has set standards for currency (and as noted, these are determined by the agency, not the SRB so are not in the Rescue Policy) and the members have not been able to meet those standards then one can infer that they are not ‘current’.  A rescue unit must consist of ‘competent and current rescue operators’ ([1.33]).  The concept of ‘support rescue worker’ is not in the State Rescue Policy.

Paragraph [3.12] say:

All rescue operators are to be 18 years of age or older and of sufficient physical and mental fitness to undertake the full range of tasks likely to be required as a result of accreditation.

The Policy is clear, ‘The minimum crew required to respond to a rescue incident is two qualified and current operators’.  If a unit cannot put together that team, and one current operator and to ‘support rescue workers’ does not fit that definition, then they do not meet the minimum standards to provide a rescue response.

If SES staff say “there is no longer a strict interpretation of the SRB Policy due to the numbers of available volunteers” it begs the question of whether it is the SES, or the SRB that ‘no longer have a strict interpretation’.  If it’s the SES then they should comply with the policy and if it’s the SRB they should change the policy so that it says what they mean, and if they don’t change the policy they should insist that it is applied on its terms as it says what they mean.

Paragraph [2.10] says:

When an accredited rescue unit (GLR, RCR, VR, or FR) becomes temporarily unavailable for tasking, the responsible agency must immediately notify the NSW Police Force ROG RCO and submit the Rescue Unit Unavailable/Available notification form. The Rescue Unit Unavailable/Available notification form is available on the Emergency NSW website.

I note that this says the agency (ie the SES) must ‘immediately’ report when a rescue unit is not available. On the other hand we’re told that the unit can sometimes put a crew together so one might infer that if a call is received the critical question is ‘are they available now?’   That is how certain is the unit that they are unable to put a crew together.  If the accredited and current operators have said that they are not available then the unit knows they are ‘temporarily unavailable’.  But if it is simply an expectation that sufficient accredited and current operators won’t be available but they haven’t explicitly said that, then one might reasonably argue that you don’t know you cannot put the crew together until the call is received.

The State Emergency and Rescue Management Act 1989 (NSW) s 47 says that the ‘principal function of the State Rescue Board is to ensure the maintenance of efficient and effective rescue services throughout the State’. The Board is to develop policies to achieve that goal (s 48) and the decisions of the Board are to be implemented by agencies the operate accredited rescue units (s 49). It follows that the SES is required to give effect to the Boards decisions that are reflected in the State Rescue Policy.

So my correspondent is correct at least based on what I have been told and that is ‘the SRB Policy contradicts what [I’m told the ] … paid staff are telling us’.  And it is the SRB Policy that should prevail. 

Conclusion

The NSW State Rescue Policy says that the minimum crew for a land rescue unit is two qualified and competent rescue operators. Qualified means they have the competencies outlined in Attachment H and current means they have met the requirements for currency as established by the organisation, in this case the NSW SES.  They have to be ‘of sufficient physical and mental fitness to undertake the full range of tasks likely to be required as a result of accreditation’.

If a unit cannot put together a crew that meets those requirements the agency, should advise the police that the unit is temporarily unavailable.   If they know, in advance, they will not have a crew available then that information should be provided. If they don’t know until the call out is received, then police should be advised as soon as it is realised that the crew will not be available.

The concept of ‘support rescue worker’ is not in the SRB policy.  Either people are accredited, current and fit for duty or they are not.  If people think they are unfit for duties, particularly in a volunteer organisation, then it is up to them to let the unit controller and up the chain of command that they are no longer available to volunteer as a rescue operator.

If a unit is regularly unable to put together a crew, it is likely to lose its accreditation as a rescue unit but it is important for police and the community to know that they can call on accredited units and accredited units will be able to respond.

That is what the SRB Policy says. The SES is not at liberty to unilaterally decide that ‘there is no longer a strict interpretation of the SRB Policy’ (s 49).  If the SES and the SRB have come to different arrangements they should be made public or the policy changed. 

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

I have previously reported on health and safety representatives within the emergency services (in particular a member from Fire Rescue NSW and another from the NSW Rural Fire Service) serving provisional improvement notices on their service and some of the law that applies to them, see:

• FRNSW Health and Safety representative does not need employer’s permission to do their work(July 2, 2024); and
• More on the WHS Act and the NSW RFS(July 13, 2024).

Today we turn to Victoria and a dispute between Ambulance Victoria and one of its health and safety representatives in Jongebloed v Victorian Workcover Authority (Review and Regulation) [2024] VCAT 978.  Mr Jongebloed is a paramedic and a designated health and safety representative (HSR) for Ambulance Victoria’s work group based in Woodend.  On 15 October 2023 he issued a ‘Provisional Improvement Notice’ (PIN) to Ambulance Victoria (AV) over the ambulance service’s alleged failure to ‘to act on misrouting of 000 calls in border towns for 13 months placing members of the public at risk of harm or death’ ([1]).  The issue was brought to Mr Jongebloed’s attention by a colleague in the Ballarat State Emergency Control Centre and followed attempts to work with AV on the issue and a complaint to WorkSafe Victoria ([2]).

Following the issue of the PIN, AV applied to WorkSafe for a review. WorkSafe cancelled the PIN and an internal review confirmed that decision ([4]). Mr Jongebloed applied to the Victorian Civil and Administrative Tribunal (VCAT) for an external review of the WorkSafe decision ([5]) and WorkSafe sought to have that application struck out on the basis that it was ‘…misconceived or lacking in substance’ ([8] and [10]).  It was this application that was determined in this judgment.

AV argued that the application should be dismissed because the issue, involving the misrouting of 000 calls, had been resolved. Senior Member Tang said (at [15]-[17]):

… it does not necessarily follow that, because the Misrouting Issue giving rise to the PIN has been resolved, the I[nternal] R[eview] Decision to cancel the PIN is the correct or preferable decision when assessed today.

In this regard, [the Act] … permits a PIN to be issued for a past contravention ‘in circumstances that make it likely that the contravention will continue or be repeated’.

It is possible that, after hearing evidence from the parties, the Tribunal would conclude that there is still work to be done by Ambulance Victoria and that the PIN should be affirmed, whether in its original form or with modifications.

AV also argued that Mr Jongebloed was not from the appropriate workgroup that is the issue should be dealt with by an HSR in the Control Centre or by a paramedic on the border.  Section 59 of the Occupational Health and Safety Act 2004 (Vic) (‘the Act’) says that an HSR may only exercise his or her powers with respect to their own workgroup unless:

…

(b) a member of another designated work group asks for the representative’s assistance—

and it is not feasible for the representative to refer the matter to a health and safety representative for the other designated work group.

A member from the Control Centre had asked for Mr Jongebloed’s assistance.  Whilst Mr Jongebloed’s written evidence did not address the question of whether or not it was feasible for him to have referred the matter to an HSR in the Control Centre Workgroup ‘that is a matter that he may be able to establish in due course’ ([18])  It would therefore be in appropriate to strike out his application to review the decision to set aside the PIN rather than let the matter proceed to a full hearing where that issue can be determined on the evidence available at that time.

The Tribunal said, at [19], that the real issue was whether Mr Jongebloed could issue a PIN where the alleged risk to health and safety was not a risk to fellow employees but to members of the public. Section 23(1) of the Act says:

An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.

The problem is that s 60 says that an HSR can issue a PIN if they believe that a person is contravening, or has contravened, ‘a provision of this Act or the regulations’.  That is an unconstrained power; but s 59 says that an HSR may only exercise his or her powers ‘only in respect of matters that affect, or may affect, members of’ their own designated work group or members of another work group in circumstances described in s 59(b) and discussed, above.  There is also a power to act for the benefit of members in another work group in response to ‘an ‘immediate risk to health or safety that affects or may affect a member of another designated work group’, but not for an immediate risk to the health or safety of the public’ ([25] and s 59(a)].

Mr Jongebloed argued that one of the purposes of the Act was to protect members of the public and it was consistent with that purpose to allow him to issue a PIN in a ‘unique situation’ where the alleged failure by AV was putting members of the public at risk ([11(b)]).

The Tribunal held that the power to issue a PIN did not extend to s 23. AN HSR is appointed to protect the interests of fellow employees ([28]) and there are different provisions dealing with the identification of and managing risks to the public and people other than employees ([29] to [35]).

Senior Member Tang held that Mr Jongebloed, or any HSR, could not issue a PIN to deal with an issue that was alleged to be a breach of s 23 that is was exposing people other than employees to a risk to health and safety.  Because of that Mr Jongebloed’s application to review the decision by WorkSafe to set aside the PIN was ‘‘undoubtedly hopeless’ and ‘bound to fail’’ ([38]) and his application was dismissed.

Discussion

Victoria is the only state not to have adopted the model Work Health and Safety laws and continues to operate with the Occupational Health and Safety Act 2004 (Vic). The Model Work Health and Safety Act imposes obligations on a person conducting a business or undertaking with respect to ‘workers’ rather than employees (s 19(1)) but workers are still distinguished from ‘other persons’ (s 19(2)).  The Model Act at s 90 is in similar terms to s 60 of the Victorian Act, that is it allows an HSR to issue a PIN where they believe a person is contravening or has contravened a provision of the Act.  The Model Act, s 69 (like the Occupational Health and Safety Act 2004 (Vic) s 59) says:

(1) A health and safety representative for a work group may exercise powers and perform functions under this Act only in relation to matters that affect, or may affect, workers in that group.

(2) Subsection (1) does not apply if:

(a) there is a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard that affects or may affect a member of another work group; or

(b) a member of another work group asks for the representative’s assistance,

and the health and safety representative (and any deputy health and safety representative) for that other work group is found, after reasonable inquiry, to be unavailable.

What follows is that even though Victoria has not adopted the Model Act the reasoning here is likely to apply in those jurisdictions that have adopted the Model Act, that is an HSR cannot issue a PIN to require the PCBU to take steps to deal with a situation that poses a risk to ‘other persons’ (as opposed to ‘workers’) who are put at risk by ‘the conduct of the business or undertaking’ (s 19(2)).

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent writes with a question regarding new response arrangements for the NSW RFS.  They say:

Recently, the NSWRFS has adopted a change of how emergency response is conducted and how resources are mobilised for incidents.

Now, Rural Fire Districts are expected to feed what are referred to as business rules within the Computer Aided Dispatch (CAD) software that the RFS has implemented. This could mean that, for example:

A car fire requires 1x Breathing Apparatus unit and 1x Heavy Tanker, making the response 2 appliances. This provides some level of automation that is approved at the district level and allows operators working out of the Sydney based control centre (OCC) some level of autonomy with making dispatch decisions that are “endorsed” (for lack of a better word) by the local district.

One could reasonably interpret this as the district manager has authorised the response of these 2 resources, regardless of what they are and where they come from, subject to the computer aided decision that the operator has made – as some sort of standing authority.

Brigades are directly paged for this, for example:

CFDELTA1A – Smoke in vicinity – 123 Mona Vale Rd Surry Hills

CFFOXTR1A – Smoke in vicinity – 123 Mona Vale Rd Surry Hills

2 appliances asked for, 1 from either brigade.

Now that we have the background out of the way, since the RFS has implemented this, brigades that have conventionally established their own response rules (ie: send 2 tankers to an MVA, send X resources to a bush fire etc) are now somewhat overwritten by this automation that occurs.

Back to the example above, a third resource, CFFOXTR1B starts responding to the incident because surplus members that didn’t make it to the station in time to man CFFOXTR1A have decided they would like to attend as well. Where does their authority to do this come from, if they haven’t been directly requested? Noting there is an Officer as per the Act on board.

I understand the Duty Officer can provide that authority in the instance there is no Incident Controller identified, but would it be correct in saying that the appliance CFFOXTR1B in this scenario has begun responding without authority?

Brigades used in this example are obviously fictional but represent a common occurrence amongst brigades in the NSWRFS. The basis of this question is that risk v reward must come into consideration whereby 3 heavy trucks are using Rule 306 for an unconfirmed smell of smoke in the vicinity of the given address.

It is important to remember that the Rural Fire Service is a single service under the command of the Commissioner.  It is not multiple fire services coming together for some benefits of centralisation (as was the history of rural or bush fire services). It is therefore up to the Commissioner, via his or her delegates, to put in place the systems for RFS response.  The RFS needs to know what units are responding to an incident so they know what resources are engaged and what ones are not. 

If brigades self-respond they create several risks including one more emergency vehicle proceeding under lights and sirens when it’s not needed. Rule 306 of the Australian Road Rules provides an exemption from the other road rules when it is reasonable to grant that exemption. It would beg the question of why it would be reasonable for a unit that had not been responded to go to the event, let along travel under lights and sirens. If the prescribed response is two units and two units have gone, a third unit that contains ‘surplus members that didn’t make it to the station in time’ don’t need to ‘respond’ to the incident.

And if they haven’t been dispatched, or checked with the coordination team to get the ok to proceed, one would question whether they are proceeding on RFS business or are on a ‘frolic of their own’.   That might mean when police are thinking about issuing a ticket they will be advised that this appliance was not on a legitimate response in which case the ticket will issue.  And members might have problems with compensation claims in the event of an accident as they were not on endorsed brigade activities.

And if that crew go then where is the crew to form a backup if requried, or to respond to the next incident, or to form the relief shift?

To use an analogy, if Fire and Rescue NSW dispatched an appliance from a fire station, one would expect the crew on the other appliance based at that same station would not also respond because they thought it was a good idea or they had missed out on the call.  If NSW Ambulance dispatched in intensive care ambulance crew to a job, one would not expect the other paramedic crew to also go.

Conclusion

I think the answer is clear.  If the RFS has dispatched crews that meet the response determined by the applicable policy, any other crew that decides to turn out is responding without authority.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s question comes from a volunteer with the NSW RFS.  Although it involves the RFS it is more an industrial law issue rather than a matter of emergency law but I’ll have a go.

My correspondent says:

Alcohol and drug screening

Recently at the RFS 2024 State Championships the RFS issued documentation they stated, ‘PLEASE NOTE: random breath testing will be conducted during competition times on both Saturday and Sunday’.

 To the best of my knowledge the NSW RFS does not have a Drug & Alcohol Screening Policy or Protocols in place. However, information relating to the use of drugs and alcohol can be found in the RFS Code of Conduct which covers the usual expectations as one might expect. Additionally, the RFS Training Academy has similar information contained within the State Training Academy Handbook.

 No RFS document provides any structure into alcohol and drug screen, nor has the RFS consulted with either paid or voluntary members about the introduction of any screening process.

 The only reference material that I can locate is the Alcohol and Other Drugs in the Workplace; Guide to developing a Workplace Alcohol & Other Drugs Policy Guide 2006 created by WorkCover NSW (WorkSafe NSW).

 Can you provide any comment in regard to the legal governance about Alcohol and Drug Screening in the workplace with regards to the employers’ obligations and what protections are in place for workers?

Monitoring Staff via CCTV Security

Of late there has been several incidents of RFS members staying overnight at the RFS Training Academy being pulled aside by academy staff and spoken to about returning to the academy late at night after attending venues that serve alcohol off site.

 Yet again the RFS has little documentation that provides guidance about the use of CCTV, the storage and accessing of imagery captured and the use of imagery in regard to disciplinary matters.

 What I can find is:

RFS State Training Academy Handbook; Section 15 – Security which states, ‘CCTV recordings may be used to review security breaches or behavioural matters. Information will only be released on written approval from the Director Training & Doctrine and a record of the request is to be retained on a registered file’.

Service Standard 1.1.14 Personal Information & Privacy; Legitimate use of recordings and surveillance

2.31. The recording of conversations and images is covered by several statutes and must be treated with the utmost privacy and integrity. They shall be replayed or made available only in the following situations:

a. investigation of alleged untimely or inadequate responses to fire or other incidents

b. written inquiries from the NSW Police Force, ICAC, Coroner or other investigating body

c. for the conduct of internal RFS investigations

d. training purposes when prior to recording, consent has been obtained from all parties featured in the audio or video recordings, or

e. as required by law.

 Whilst it does not refer to CCTV footage SS1.1.14 also reads

2.32. Voice recordings and transcripts of voice recordings obtained through communication systems used by the RFS shall not be used for RFS disciplinary procedures without the express written permission of the Commissioner, Executive Director People and Strategy or Director Performance and Conduct.

 It is highly likely that the staff accessing the surveillance footage are doing so without the necessary delegation (or approval) that being Manager level as per SS 1.1.14 Privacy Officer 

2.19 The designated RFS Privacy Officer is the Manager Legal.

 The Workplace Surveillance Act 2005, provides some guidance but does not appear to cover such a situation

 Section 18 Restrictions on use and disclosure of surveillance records—notified surveillance

An employer who carries out or causes to be carried out the surveillance of an employee of the employer while the employee is at work for the employer, not being covert surveillance, must ensure that any surveillance record made as a result of that surveillance is not used or disclosed unless that use, or disclosure is—

(a)  use or disclosure for a legitimate purpose related to the employment of employees of the employer or the legitimate business activities or functions of the employer, or

(b)  disclosure to a member or officer of a law enforcement agency for use in connection with the detection, investigation, or prosecution of an offence, or

(c)  use or disclosure for a purpose that is directly or indirectly related to the taking of civil or criminal proceedings, or

(d)  use or disclosure that is reasonably believed to be necessary to avert an imminent threat of serious violence to persons or of substantial damage to property.

 Can you provide any comment in regard to the legal governance with regards to the employers’ obligations when undertaking notified surveillance and what protections are in place for workers, especially when the worker is off duty but residing in RFS accommodations?

1.  Alcohol and Drug Screening

I don’t think one could go past the WorkSafe publication Alcohol and Other Drugs in the Workplace; Guide to developing a Workplace Alcohol & Other Drugs Policy Guide 2006 (WorkSafe NSW).  As that guide says:

The decision to use alcohol and other drug testing should be made in consultation with employees, OHS representatives and union representatives. Agreement may be sought where a risk assessment has identified that there are risks involved in undertaking certain activities whilst under the influence of alcohol and other drugs. privacy, confidentiality and the legal position of employees and management also need to be considered.

However, WorkCover recommends that alcohol and other drug testing only be implemented as part of a comprehensive alcohol and other drug program with appropriate safeguards, clear policy and procedures, and provision of education and counselling. If utilised, testing should act as a deterrent, not a mechanism to ‘catch people out’.

To compel employees to undergo drug testing it would need to be a ‘reasonable’ direction, considering the risk.  Compliance, or not, with the consultation requirements in the Work Health and Safety Act 2011 (NSW) would go some way to determining whether a direction to submit to a drug test was ‘reasonable’.

As for participants in competitions, it could be a condition of entry to the competition that participants agree to be tested. 

Where drug testing did take place there would need to be policies and procedures in place to ensure the integrity of samples and the chain of possession prior to testing to ensure that tests are not incorrectly identified or tested. There would also need to be adequate privacy protection to ensure that results were only known by those with a need to know.  There would also need to be policies and procedures on how the information will be used so people can give informed consent to the process for example a person who understands that the result may be revealed to police may decide not to submit even if it means they lose their job or cannot take part in a competition.

2. Monitoring Staff via CCTV Security

The relevant law here will be the Surveillance Devices Act 2007 (NSW) and the Workplace Surveillance Act 2005 (NSW).

The Surveillance Devices Act 2007 (NSW) s 8 provides that is an offence to install or use ‘optical surveillance devices [that is ‘any device capable of being used to record visually or observe an activity’] without consent’.  The relevant consent, however, has to come from the building owner, not the people being observed.

The Workplace Surveillance Act 2005 (NSW) s 11 says:

Camera surveillance of an employee must not be carried out unless-

(a) cameras used for the surveillance (or camera casings or other equipment that would generally indicate the presence of a camera) are clearly visible in the place where the surveillance is taking place, and

(b) signs notifying people that they may be under surveillance in that place are clearly visible at each entrance to that place.

Section 18 has been set out by my correspondent, above.

The difficulty in the context of the RFS is that, presumably surveillance at the academy is picking up both employees and non-employees (volunteers). I would however expect the RFS to treat its volunteers as it would its employees so any restrictions or limitations on what it can do with respect to its employees should be applied to its volunteers.

If that’s correct, then I don’t see why the provisions of s 18 and the limits it imposes would not apply to the RFS.  Of course, I cannot comment on whether the RFS is complying with the Act or its own standing orders, policies and procedures.

As for a person who is residing at the academy but on downtime, the Act says at s 16 says:

An employer must not carry out, or cause to be carried out, surveillance of an employee of the employer using a work surveillance device when the employee is not at work for the employer unless the surveillance is computer surveillance of the use by the employee of equipment or resources provided by or at the expense of the employer.

The question then is whether a person at the academy is ‘at work’ even during their down time.  Section 5 says:

For the purposes of this Act, an employee is “at work” for an employer when the employee is-

(a) at a workplace of the employer (or a related corporation of the employer) whether or not the employee is actually performing work at the time,

An employee who is at the academy is still at work when they are ‘off duty but residing in RFS accommodation’.  As argued above volunteers are not employees but if the RFS can continue to have video surveillance of their employees there is no reason to think they cannot also have it for their volunteers. 

Conclusion

Drug and alcohol testing should be adopted after consultation under the Work Health and Safety Act 2011 (NSW) and in accordance with the WorkSafe publication Alcohol and Other Drugs in the Workplace; Guide to developing a Workplace Alcohol & Other Drugs Policy Guide 2006 (WorkSafe NSW).

With respect to video surveillance the relevant laws are the Surveillance Devices Act 2007 (NSW) and the Workplace Surveillance Act 2005 (NSW) and the RFS’ own policies and Service Standards.  I cannot comment on how well the RFS has complied with those requirements but given the information provided it would appear that the RFS is permitted to conduct the surveillance described.  My correspondent has largely answered their own question about ‘the legal governance with regards to the employers’ obligations when undertaking notified surveillance’.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent, a paramedic from Queensland, has:

… a question regarding the treatment of a minor against a parent’s wishes.

Example: You have a child who is not competent to make their own decision, who is critical and could die or sustain life long injuries if they are not treated with “x” medication or “x” procedure.

The parents state they do not want either completed even after explaining the situation and consequences.

Do you have a legal right to treat the patient against their wishes?

Fundamentally the answer is ‘no’. 

Legislation in all jurisdictions allows some treatment to be given to children in the face of parental objection. In some states that is limited to blood transfusions, in others it extends to all medical treatment.   The Transplantation and Anatomy Act 1979 (Qld) s 20 allows medical practitioners to provide blood transfusions to children even if the parents have refused that procedure. One can see that is a very limited exception to the otherwise general rule that parents are the ones best positioned to consent to, or refuse consent to medical care.  

In Department of Health & Community Services v JWB & SMB (“Marion’s Case”) [1992] HCA 15 the Hight Court had to consider the limits on a parent’s capacity to give consent to medical care.  Although that case about consent it must follow that the principles also apply to a refusal of consent. The significant limit on a parent’s capacity was the child’s ‘best interests’.   At [26]-[27] Mason CJ, Dawson, Toohey and Gaudron JJ said (emphasis added):

… the overriding criterion to be applied in the exercise of parental authority on behalf of a child is the welfare of the child objectively assessed. That these two principles become, for all practical purposes, one is a recognition that ordinarily a parent of a child who is not capable of giving informed consent is in the best position to act in the best interests of the child. Implicit in parental consent is understood to be the determination of what is best for the welfare of the child.

In arguing that there are kinds of intervention which are excluded from the scope of parental power, the Commonwealth submitted that the power does not extend to, for example, the right to have a child’s foot cut off so that he or she could earn money begging, and it is clear that a parent has no right to take the life of a child. But these examples may be met with the proposition that such things are forbidden because it is inconceivable that they are in the best interests of the child. Even if, theoretically, begging could constitute a financially rewarding occupation, there is a presumption that other interests of the child must prevail. Thus, the overriding criterion of the child’s best interests is itself a limit on parental power.

That case was about whether the parents of Marion could authorise her sterilisation.  Because of the important and permanent nature of the surgery, the court determined that it was beyond the powers of the parents to give that consent, rather the Family Court had to be approached for an independent assessment of the child’s best interests.  Without going into the details, I believe that it is no longer the case that the Family Court must be approached, but the principle remains: the parent’s decision must be motivated by the child’s best interests. It can also be seen that where there is a dispute it is not for the medical, or in our case paramedical practitioners, to impose their view of the child’s best interests. Where there is a genuine dispute it is a court that can determine what treatment is warranted in the child’s best interests.

A ‘child in need of protection’ is a child who (Child Protection Act 1990 (Qld ) s 10):

(a) has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm; and

(b) does not have a parent able and willing to protect the child from the harm.

Where a child is in need of harm there are provisions to allow the state to intervene and if necessary, take the child into custody and authorise their medical care (ss 18(7) and 97). The fact that these provisions exist imply that the Parliament has thought about the issue, decided on a response and that response does not include allowing paramedics to impose their idea of the child’s best interests on the parents.

Next is the question of whether the parents are competent to make the decision?  If the child has a diagnosed illness and the parents have made an informed decision, even if it is a decision that others disagree with, that should be honoured. If the matter is a sudden emergency there has to be consideration of whether in the circumstances the parents are able to hear and take on board the information they are being given and weigh that in their decision making process (see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)).  If they are then they can refuse consent but if they are not able to do that, if they are not competent, then their decision is not binding.

The Ambulance Service Act 1991 (Qld) s 38 says

An authorised officer, in providing ambulance services, may take any reasonable measures—

(a) to protect persons from any danger or potential danger associated with an emergency situation…

There are then a list of powers that may be exercised but none of them would allow a paramedic to override a patient’s choice because they thought the patient, or in this case the patient’s parent, was making a bad choice or had a different view of the patient’s ‘best interests’.   What is reasonable in this context has to be providing care in accordance with the law and the paramedic’s Code of Conduct all of which require consent prior to treatment and recognise that it is a child’s parents that are best placed to decide what care is wanted and what is in the child’s best interests.

The best action guide is in the Child Protection Act 1990 (Qld). That allows that a child of ‘immediate risk of harm’ can be taken into custody by an authorised officer or police officer (s 18) and that officer can authorise medical treatment (s 18(7)). It follows that in the example given, and depending on the urgency of the matter, a paramedic would be best advised to make a notification of a child at risk of harm (s 13A) or call for police backup in the hope that the police may take action.

If the situation is really one of urgent life or death decision making in circumstances where the child does not have a diagnosed illness where they are expected to die then I turn to my own book – Australian Emergency Law (Federation Press, 4th ed, 2013) p 59 – where I said:

Ultimately, for rescuers other than medical practitioners and perhaps members of professional ambulance services, the question of what to do in the face of a sick or injured child and a refusal by the child’s parents will be legally (and actually) very difficult. The law would appear to say that if the parents are not acting in the best interests of the child, then their apparent objections may be ignored. This may, of course, come to a conflict between the parents’ honest belief as to what is in the child’s best interests and the rescuers’ equally honest, but conflicting belief. In these cases, the severity of the injuries will help determine the matter. A decision by a parent that they do not want the rescuer to bandage their child’s sprained ankle can probably be honoured. A decision by a parent that they do not want their child to be resuscitated after being struck by a car can probably be ignored. Between these two extremes lie a number of possibilities that will require the rescuer to consider how strongly they believe that some treatment should be given and what the consequences to the child will be if that treatment is not given.

There will, in these cases, also be extra legal considerations, in particular whether it is in fact possible to administer treatment in the face of parental objections. It will not be possible to treat a child whose parent has physically picked it up and carried it away. On the other hand, it may be possible to treat a child at a car accident where bystanders or police may be able to assist in restraining the distraught parent from intervening. In these cases, it is not the law, but tact, professionalism and a reassuring manner that will allow treatment to proceed.

If the matter were to come to court it is probable that the courts would find that, provided the treatment was necessary to save the child’s life or prevent serious long term harm, then it may be legally given even though the child’s parents objected.

Conclusion

If a paramedic really believes that the child is going to die without immediate intervention and the parent’s decision is not in the best interests, then, to use a familiar proverb, it may be ‘better to ask forgiveness than permission’  recognising that forgiveness may not be forthcoming. In those circumstances the paramedic has to back themselves and have confidence in their assessment of the situation.  Where the matter is not an immediate issue of life or death, then seeking help from the family’s medical practitioner, the police or the  under the Child Protection Act 1990 (Qld) would be a more appropriate step.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

FTD v NSW Ambulance [2024] NSWCATAD 283 contains some lessons for supervisors of student paramedics, and for people who want to conduct their own litigation.  This case before the NSW Civil and Administrative Tribunal (NCAT) was brought by FTD, a paramedic student, who failed her last clinical placement with NSW Ambulance. 

The case was brought alleging breaches of the Privacy and Personal Information Protection Act 1998 (NSW) (‘PIPPA’).  It did however go down many sidetracks despite the Tribunal’s efforts to keep the application focused on the matters raised by the applicant and within the jurisdiction of the Tribunal. The judgment runs for 178 pages and 344 numbered paragraphs so it’s very long.  Much of the judgement is spend discussing the conduct of FTD in the litigation and whether she, and her non-legally qualified agent, had complied with the Tribunals orders, whether they had put on relevant evidence and whether Senior Member Riordan could work out what it was that FTD alleged. 

The applicant also spent much of the case questioning her preceptor on the preceptor’s skills and ability to assess students. The Tribunal determined that this was not relevant as the Tribunal was being asked to determine whether there had been a breach of PIPPA not to rule on the procedures in place to assign preceptors or the arrangements between UTAS and the Ambulance Service for student assessment or who, ultimately, determined whether a student had met the requirements for their degree. NCAT does not have a jurisdiction to resolve all issues, it has jurisdiction under relevant Acts and an applicant has to understand what remedies they are asking for and bring evidence relevant to that issue only.  As Member Riordan said (at [54]):

… I understand that the applicant feels aggrieved this was the assessment that she was given and she disagrees with it and she wants to challenge it. She is welcome to challenge it, but not in this venue under the guise of a privacy dispute.

The lesson perhaps is to confirm that the person who represents themselves (or asks a non-lawyer for help) ‘has a fool for a client’ (https://quoteinvestigator.com/2019/07/30/lawyer/).

The case against the ambulance service

The opening statement from the lawyer for the ambulance service (at [38]) identified the relevant facts. On the last day of her last clinical placement, FTD presented her paramedic preceptor with a form from the University of Tasmania (UTAS) that was to be completed at the end of the clinical placement.  The student had filled in the parts she was required to complete and handed the from to her supervisor and asked her to fill out the form. The paramedic preceptor completed the form but was uncomfortable about that as she had not previously seen the form, was being asked to complete it in the presence of the student and did not have time to reflect on her responses. When the student, FTD, left the room, the preceptor took photos of the forms using her personal mobile phone but then sent them to her own ambulance service email address.  There she added file notes to the photographed form and changed her assessment from ‘met expectations’ to ‘below expectations’.  She sent those file notes to UTAS and, as a result, FTD failed her final assessment.

FTD made applications for the release of information held by NSW Ambulance about her preceptor’s reports and also made allegations that the conduct of her preceptor, and the ambulance service was a breach of PIPPA.  Counsel for the ambulance service summed up the allegations:

In the first proceedings, there’s a submission that the respondent breaches the PPIPA by failing to provide the applicant with access to her personal information without excessive delay or expense. And the claim that the respondent holds further information arises if the application has not undertaken reasonable searches for that information. The respondent, of course takes the contrary position.

In the second proceedings, the applicant submits that the respondent breached the PPIPA in relation to the alleged collection using disclosure of her personal information at the conclusion of her clinical placement. The respondent submits it did not do so. The respondent’s position is, it simply must be able to deal with information regarding the performance of a student on a clinical placement, including by collecting it, using it and disclosing it to the student’s University in the fashion which has occurred.

It was alleged that the ambulance service breached s 14 of PIPPA.  Section 14 says:

A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

This report will not detail the allegations regarding how long it took for the ambulance service to locate and provide copies of emails etc as that is not of direct relevance to the paramedic preceptors. 

The applicant argued that the preceptor’s act of taking the photo of the report, and then sending it to UTAS was an example of the unlawful collection of and then distribution of the student’s personal information contrary to ss 8, 9 and 10 of PIPPA. Those sections say:

8   Collection of personal information for lawful purposes

(1)  A public sector agency must not collect personal information unless—

(a)  the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and

(b)  the collection of the information is reasonably necessary for that purpose.

(2)  A public sector agency must not collect personal information by any unlawful means.

9   Collection of personal information directly from individual

A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless—

(a)  the individual has authorised collection of the information from someone else, or

(b)  in the case of information relating to a person who is under the age of 16 years—the information has been provided by a parent or guardian of the person.

10   Requirements when collecting personal information

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following—

(a)  the fact that the information is being collected,

(b)  the purposes for which the information is being collected,

(c)  the intended recipients of the information,

(d)  whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided,

(e)  the existence of any right of access to, and correction of, the information,

(f)  the name and address of the agency that is collecting the information and the agency that is to hold the information.

FTD’s argument was that the form that had to be submitted to UTAS was her form. She took the form to her preceptor to complete and then she, FTD would deliver it to the University . There was no power or agreement between UTAS and the ambulance service where the ambulance service would send any documents directly to the University.  If the preceptor wanted to add anything it was incumbent upon her to send that to FTD, not to the university (see [41]).  The applicant alleged that photographing the form and attaching the photograph to the notes sent to UTAS represented an unlawful collection and distribution of personal information, even though UTAS had the form that had been photographed as FTD had submitted that form as part of her final assessment. 

In [153] the applicant gave evidence that she did not think the preceptor and the right to make a copy of the assessment form that she was required to complete and sign without the student’s permission.

Another allegation was a breach of s 16 which says:

A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

The issue that the applicant wanted to argue wat that the assessment that FTD’s performance was ‘below expectations’ was not accurate and that by releasing that report to UTAS, the service had not taken ‘such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading’.  That is of course a difficult argument to make when the information was the opinion of the preceptor, an opinion which she stood by in her evidence.

There was also an allegation that providing a file note to UTAS that included photos of the assessment form the ambulance serviced breached s 18 which says:

A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless—

(a)  the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b)  the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c)  the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

Outcome

The tribunal rejected all of the applicant’s claims.  The Tribunal held that PIPPA does not apply ‘to the internal movement of personal information about an individual’ so taking photos of the documents and sending them to her work email address did not constitute collecting personal information about the applicant.  At [313] the Tribunal said it was satisfied that the paramedic preceptor did not collect personal information.

She recorded handwritten comments about the applicant’s performance on the evaluation form and retained a copy of those comments by photographing them. This did not constitute a collection of the applicant’s personal information.

Section 8 requires any personal information is collected for a lawful purpose. At [318] the Tribunal said:

In this matter, the purpose of relating comments, including concerns, about the applicant’s performance during the clinical placement to the applicant’s university, is a lawful purpose as it is not forbidden by law. Further, it was closely related to the respondent’s function of administering student clinical placements.

As for s 10 the Tribunal said (at [321]:

I also accept … that the evaluation form was collected directly from the applicant and that it took reasonable steps to make the applicant aware of the matters in s 10 of the PPIPA. In this matter, the applicant was aware that her personal information contained in the evaluation form was being collected by the respondent because she gave her preceptor the document to complete.

There was no breach of s 16 because disclosing the information to UTAS was not a ‘use’ by the ambulance service.  At [330] the Tribunal said ‘There is no evidence that the respondent made any use of the information … other than disclosing those documents to UTAS, which is not a use in the relevant sense’.  In any event s 16 does not require ‘that the agency must, in every circumstance, ask a person to corroborate the accuracy of information that it holds about the person before the information it used’ rather it must take reasonable steps to ensure the matters set out in the section.   In this case the information shared with UTAS was the preceptor’s opinion which is necessarily subjective but in this case were honestly held.

Finally with respect to s 18 ‘The essence of disclosure under s 18 is making known to a person information that the person to whom the disclosure is made did not previously know’ ([339]) but of course UTAS already knew the personal information that was contained in the evaluation form that was in the photos taken by the preceptor because that form had been delivered to UTAS by the student.

The Tribunal found no breach of PIPPA.

Discussion

The result is consistent, in my opinion, with common sense.  Of course, a person such as the preceptor can make a copy of a document where they are asked to record their opinion and sign off on the document.  And a preceptor has to be able to reflect on their assessment and if, on reflection, decide that their initial assessment was incorrect then they can adjust that assessment.  The implications for patient safety if that were not the case are obvious.  Whilst it would have been preferrable if the preceptor ‘had included her genuine concerns about (FTD’s) performance in the original evaluation form’ ([240]) that did not mean there was a breach of PIPPA. As the Tribunal said at [243]:

… it should not have come as a surprise that [the preceptor] … did not take the preferable course about expressing her genuine concerns in the original evaluation form. She did not have the opportunity to do so, nor should it come as a surprise that when she had the opportunity to reflect in an environment where she felt comfortable to do so, she had second thoughts about her evaluation of (FTD). Second thoughts are sometimes better than first thoughts.

The case reflects some of my own experience as a university academic. If some students put as much effort into their assessment as they did in trying to challenge the outcome of their assessment, they may do much better in their courses.

As for preceptors the lesson is to insist on having time and time away from the student to complete any evaluation and to be confident in one’s assessment.  It is not a breach of PIPPA to keep a copy of forms you are asked to complete or to communicate your honest opinion to the relevant assessors.  And if, on reflection, you think your original assessment was not accurate you can and for patient safety I suggest must, take steps to correct that assessment.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

In Health Care Complaints Commission v GJU [2024] NSWCATOD 160 the NSW Civil and Administrative Tribunal made orders disqualifying a former paramedic from seeking further registration for at least 5 years.  The paramedic (who cannot be named both to protect them and their mental health and the victim of their offending) had been convicted of sexual touching, stealing and breach of an apprehended violence order.

The offender was appointed to assist the family of another paramedic who had died. In May 2022, whilst at work, the paramedic received a call from Person A, the daughter of the deceased paramedic. The outcome was that the paramedic left a trainee at the hospital and took the ambulance to collect Person A from a party as she was heavily intoxicated.  Whilst driving her home, the paramedic stopped the ambulance and got into the back with Person A who was ‘upset, crying and hyperventilating’ ([69]). Then (at [70]-[73]):

Person A had a mixture of saliva and mucus on her face and top. The practitioner said words to the effect of: “You’ve got stuff all over you”. The practitioner also allegedly noted that Person A’s top was covered in glitter.

[The practitioner] then used a ready wipe to wipe across Person A’s breasts. The Commission asserts that the practitioner did this as a pretext to touch her breasts in a sexual fashion, because there was no other reason to remove glitter from her top.

The practitioner wiped across the top of Person A’s breasts, under her collarbone and then her chest. He continued to wipe under her bra, touching her breasts, with the wipe in his hand. He also wiped material from her inner thigh…

He then wiped Person A’s forehead and said: “You have got something on your forehead” before kissing her on the lips.

Person A made immediate complaints to friends and was taken to hospital where further complaints were made to nursing staff and ultimately to police.

The next day, the paramedic, aware that their conduct was to be reported to police, attended the ambulance station and stole several ampules of scheduled drugs including morphine, fentanyl and ketamine [91] with the stated intention of ending their own life [95].  They were located by police and taken to hospital for mental health treatment and assessment ([100]).

Both the paramedic and NSW Ambulance made relevant notifications to AHPRA. The paramedic was suspended from work ([105]-[106]).  In June 2022 the paramedic was in court when an apprehended violence order was made directing them to stay away from and not contact Person A.    17 days later they telephoned Person A to apologise even though making this phone call was a breach of the Apprehended Violence Order.  The paramedic was again arrested and it appears spent three months in gaol ([167]). In February 2023 the matters came before the court and the paramedic entered pleas of guilty. They were sentenced to 12 months imprisonment for the sexual touching and breach of the AVO. The sentence was to be served by way of Intensive Corrections Order rather than full time custody ([113]). 

In May 2024 the Health Care Complaints Commission brought the matter before the NSW Civil and Administrative Tribunal (NCAT) seeking protective orders on the basis that ‘the circumstances of the offences render the practitioner unfit in the public interest to practice paramedicine’ ([115]).  The practitioner did not take part in the proceedings noting that they were no longer registered and would not seek further registration but asking the tribunal to continue orders that prohibited publication of their identity ([21]-[49]).  The Tribunal said (at [118]-[123] references omitted):

Whether the practitioner is unfit to practice must be assessed wholistically. The Tribunal must consider matters such as the practitioner’s motivation, insight, and attempts at remediation.

The Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession, and, more broadly, the protection of the community.

The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by maintaining standards and, where appropriate, cancelling the registration of practitioners who are not fit to practice.

Denouncing such contact also serves as a deterrent to the individual concerned and to the general body of practitioners and maintains public confidence by signalling that those whose conduct does not meet requisite standard will not be permitted to practice.

In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards.

The adverse consequences for a practitioner may require that an order should be made which is no more restrictive than necessary for the proper protection of the community. However, it is unavoidable that protective orders may be incidentally punitive. Any assertion that the practitioner’s character has been reformed requires clear proof.

The Tribunal continued (at [150]-[154]):

The issue we must determine is whether the circumstances of the offences for which the practitioner was convicted render him unfit in the public interest to practice his profession.

We agree with the sentencing Magistrate. The practitioner knew that Person A was vulnerable. He was in a position of trust, which he egregiously betrayed.

We also find that the practitioner’s actions when he stole restricted medication and falsified the records, represents a very serious breach of his duty to the public as a paramedic.

Finally, the fact that the practitioner breached the APVO, only 17 days after it was issued, for whatever reason, is consistent with a lack of respect for the law and Person A.

For those reasons, we find that the circumstances of the offences for which the practitioner was convicted render him unfit in the public interest to practice his profession.

The Health Care Complaints Commission sought a four-year disqualification. That was not challenged by the paramedic and so that was the order that was made ([163].

Notwithstanding the paramedic’s financial dire straits caused by the loss of employment and the costs incurred in the legal proceedings (in particular the criminal proceedings as the paramedic did not appear at the NCAT hearing) the paramedic was ordered to pay the Commission’s costs.

Discussion

Originally there were two charges of assault and two charges of sexual touching but these were negotiated to the one count of sexual touching that the paramedic entered a plea of guilty to. There must have been some dispute about what happened, but at the end of the day the paramedic did admit to the offences.

Sexual misconduct by paramedics can lead to a loss of registration. This case was particularly egregious as the admitted conduct occurred in an ambulance, whilst the paramedic was on duty and the victim was a child and a child of the paramedic’s deceased friend where the paramedic had been appointed to assist the family in the time of their grief.

This conduct has no doubt had devastating impacts for the vulnerable young woman involved and also for the paramedic and his family who have lost the paramedic’s standing in the community, their income and their expectation of the later years of their working life and retirement (see [167]).

As Pink Floyd sang (‘One Slip’):

A momentary lapse of reason
That binds a life for life …

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

A Queensland paramedic writes to discuss end of life directions.  I’m told:

When attending a patient as a paramedic, particularly ones who are sick or approaching end of life, I almost always ask if they have either a Statement of Choices, Advanced Health Directive or an Advanced Resuscitation Plan. If they don’t, I ask them what their wishes are if things were to suddenly go down hill. In recent training and with our Clinical Practice Manual update, there is a section that outlines the different documentation and whether they are a legal document, or as a guide to discussion (link – https://www.ambulance.qld.gov.au/__data/assets/pdf_file/0024/219084/CPG_Palliative-care.pdf ).

My question is, if the patient has capacity and competence at the time of my assessment, and they state that they do not wish for any life sustaining measures should they go into cardiac arrest (yet they don’t have any of the documentation as mentioned above), do I, or do I not, resuscitate?

The fundamental principle, plain and incontestable, is that every person’s body is inviolate’ (Collins v Wilcock [1984] 3 All ER 374, p. 378). A person has the absolute right to determine what medical treatment they receive or don’t. At common law a person can communicate their wishes in any way that is likely to be effective, including by carrying a card in their wallet that says ‘no blood transfusions’ (Malette v Shulman (1990) 67 DLR (4th) 321 discussed in all the posts found here – https://emergencylaw.wordpress.com/?s=malette)

Legislation that provides for advanced care directives or the like is simply providing a form to allow people to express their wishes in a way that is recognised by health professionals but, except in South Australia where there is no equivalent provision, the legislation does not limit a person’s right to communicate their wishes in any way they want; that is the common law right to refuse treatment is maintained. The Powers of Attorney Act 1998 (Qld) s 39 says:

This Act does not affect common law recognition of instructions about health care given by an adult that are not given in an advance health directive.

(See also Medical Treatment (Health Directions) Act 2006 (ACT) s 6; Advance Personal Planning Act 2013 (NT) s 89; Medical Treatment Planning and Decisions Act 2016 (Vic) s 10; Guardianship and Administration Act 1990 (WA) s 110ZB). In NSW and Tasmania there is no legislation about advance care plans, so it is the common law that applies).

The Clinical Practice Guideline on Palliative Care that I have been referred to, above, says (emphasis in original):

Patient’s wishes

The ambulance clinician must also ascertain the patient’s wishes with respect to ambulance treatment and transport.

If the patient can communicate effectively and has the requisite decision-making capacity to make decisions regarding treatment and transport, consult directly with the patient and obtain the patient’s consent before any treatment and/or transport is provided.

Those principles apply at all times, not just with patients in palliative care.

There are issues of competence and informed refusal to be considered but if the patient is sick and are familiar about their disease and its expected progression, or are terminally ill and perhaps going to palliative care there would be no reason to doubt that they understand their circumstances and know what they want and the implications of what they are saying.  Our dignity is most enhanced, and issues of respecting patient autonomy most relevant when the decisions have serious consequences.  There is no point respecting a patient’s wishes when it doesn’t matter but refusing to do so when it does. 

The statement in the CPG (referred to above) that a ‘Statement of Choices’ document is not a ‘legal document’ makes no sense to me.  It may not be provided for in legislation but that does not mean it does not have effect.  In Malette v Shulman (1990) 67 DLR (4th) 321 both Dr Shulman and then the court had to consider the effect of a card indicating that Ms Malette did not want a blood transfusion.  The judge, Robins JA said

I do not agree … that the Jehovah’s Witness card can be no more than a meaningless piece of paper. … the instructions in the Jehovah’s Witness card imposed a valid restriction on the emergency treatment that could be provided to Mrs. Malette and precluded blood transfusions. … [She had] chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes, that she does not consent to blood transfusion…

A statement of choices may not be referenced in legislation but neither is it a ‘meaningless piece of paper’. To the extent it communicates a patient’s wishes it needs to be respected.

Conclusion

Glossing over issues of determining the patient’s capacity and the extent to which their stated wishes reflect an understanding of their current condition, in simple terms if a patient has capacity and competence to make a decision and they do so with understanding of the consequences then their wishes should be respected if the very circumstances that were being discussed, in this example cardiac arrest, occurs.  If you’re not going to honour their decision there’s not point asking.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent reports that an

.. RFS tanker rolled while being driven by a RFS State Mitigation team member. Thankfully he only suffered a broken collar bone.

My question is that the tanker has no number plates and is being used under the exemption of being used for a bona fide brigade activity. The tanker doesn’t have a brigade name on it only the Zone name. So isn’t this incorrect as it’s not aligned to a brigade and should have number plates on it? And how does it sit with the RFS using the exemption for rego when being used by staff in their work duties.

The Road Transport (Vehicle Registration) Regulation 2017 (NSW) sch 1 lists ‘Vehicles that are not subject to registration provisions’.   Clause 12 says (emphasis added):

12 Vehicles used to fight rural fires

The registration provisions do not apply to any registrable vehicle that is used on a road or road related area if the vehicle–

(a) is attached to a rural fire brigade formed under the Rural Fires Act 1997 and has painted on it, or securely affixed to it, a sign clearly identifying the rural fire brigade to which it is attached, and

(b) is used to convey persons or equipment to or from the work of preventing, mitigating or suppressing fires in rural fire districts (including clearing fire breaks or removing inflammable material), and

(c) is travelling on the road or road related area for the purpose referred to in paragraph (b) or any of the following purposes–

(i) to attend a fire, incident or other emergency in accordance with the Rural Fires Act 1997,

(ii) to assist other emergency services organisations (within the meaning of the State Emergency and Rescue Management Act 1989) at incidents and at emergencies under the control of those organisations,

(iii) to convey persons or equipment for the purpose of training those persons in relation to any of the purposes referred to in this paragraph,

(iv) for a purpose necessary or incidental to the service or repair of the vehicle,

(v) to perform any other functions of the NSW Rural Fire Service that the Commissioner of the NSW Rural Fire Service or a fire control officer within the meaning of the Rural Fires Act 1997 may approve for the purposes of the exemption.

There is nothing in the exemption that says it only applies to volunteers. The registration exemption applies, where it applies, regardless of whether the driver is a volunteer or not.  

Further the mitigation team are presumably using the vehicle ‘to convey persons or equipment to or from the work of preventing [or], mitigating … fires in rural fire districts (including clearing fire breaks or removing inflammable material)’.  Even if they are not if they are using the vehicle to perform functions approved by the Commissioner for that purpose then the exemption can apply.    The exemption does not refer to ‘bona fide’ brigade activities.

The critical issue is cl 12(a) that is the vehicle must be ‘attached to a rural fire brigade formed under the Rural Fires Act 1997 and has painted on it, or securely affixed to it, a sign clearly identifying the rural fire brigade to which it is attached’.   We’re told that the ‘tanker doesn’t have a brigade name on it only the Zone name’.    Prima facie that takes it outside the exemption.

Conclusion

To be exempt from registration a vehicle must be ‘attached to a rural fire brigade formed under the Rural Fires Act 1997 and has painted on it, or securely affixed to it, a sign clearly identifying the rural fire brigade to which it is attached’.   It would appear that a vehicle that is attached to the RFS State Mitigation team and that ‘doesn’t have a brigade name on it only the Zone name’ does to meet those requirements.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

I have previously reported on the case of Mark Roche – see Suspended QAS paramedic wins right to continue to be paid pending the outcome of criminal charges (December 3, 2023). His case has again returned to the Industrial Relations Commission in Roche v State of Queensland (Queensland Ambulance Service) (No. 2) [2024] QIRC 230 (17 September 2024).

The Public Sector Act 2022 (Qld) s 101(1) says:

A public sector employee’s chief executive may, by notice, suspend the employee from duty if the chief executive reasonably believes—

(a)            the employee is liable to discipline under a disciplinary law; or

(b)           the proper and efficient management of the entity might be prejudiced if the employee is not suspended.

Mr Roche had been suspended when QAS were advised he was facing a criminal charge.  Later the Health Ombudsman (OHO) suspended his registration. QAS moved to change his suspension from suspension with pay to suspension without pay. In the first hearing (reported in my first post), Mr Roche was successful in his argument that QAS could not move to suspend him without pay because the notice of suspension said he had been suspended under s 101(1)(b) of the Public Sector Act 2022 (Qld).  Section 101(4) makes clear that suspension without pay was only possible if the suspension was under s 101(1)(a).

Having lost the case QAS issued a new notice of suspension, this time relying on s 101(1)(a).   The dates in the judgment appear to be wrong. Making inferences from the discussion it appears that QAS reported that they were changing the basis of Mr Roche’s suspension from s 101(1)(b) to s 101(1)(a) on 19 December 2023 (in the judgement at [5] it says 19 December 2024).  On 7 March 2024 (in the judgment at [6] it says 2023) QAS wrote to Mr Roche inviting him to show cause why his suspension should not be converted to suspension without pay.  Mr Roche responded on 28 March 2024 (but reported as 2023 at [6]).   On 11 April 2024 Mr Roche’s suspension was converted to suspension without pay.   Mr Roche sought to appeal against both the decision to change the clause under which he was suspended (the December 2023 decision) and the decision to convert his suspension to suspension without pay.

Mr Roche argued that he was not given notice of the intention to change the basis upon which he was suspended nor to make submissions with respect to that decision and that this was an impermissible denial of natural justice (see [11]).  Further he argued (at [13]):

… that the presumption of innocence precluded the chief executive from reasonably believing that the Appellant was liable to discipline. In summary, the argument is that if the Appellant is presumed to be innocent until proven guilty, and he is not yet proven guilty, then there is no way the chief executive could have formed a reasonable belief as to wrongdoing of such a degree that rendered the Appellant liable to discipline.

There are strict time limits in industrial law.  Mr Roche’s appeal to the Tribunal was lodged on 1 May 2024 and claimed to be an appeal against the 11 April 2024 decision to suspend him without pay.  If he had wanted to appeal the decision, made in December 2023 to change the grounds of suspension from s 101(1)(b) to s 101(1)(a) that appeal was out of time ([22]).  There were insufficient grounds to allow an extension of time to allow the late filing of an appeal.   In any event the Commission accepted

…  the Respondent’s submissions that the Appellant’s case has poor prospects. The Respondent has afforded the Appellant more than enough time, information and opportunities to understand and respond to the allegations against him. The Respondent has also been clear that it was suspending the Appellant because it believed he was liable to discipline under a disciplinary law. It is clear to me that the Respondent afforded the Appellant procedural fairness.

As for the question of whether the Chief Executive could believe that Mr Roche ‘is liable to discipline’ whilst criminal charges are still pending, the Commission said (at [33]-[34]):

I am therefore of the view that “liable” should be construed broadly within the context of section 101(1)(a) of the PS Act…. Sections 101 and 91 provide for suspension occurring before any findings are made, or indeed any substantial investigation has occurred.

In the present case, I conclude that the power to suspend under section 101(1)(a) was enlivened once the relevant chief executive formed a reasonable belief that, if the allegations were proven, then the chief executive would be satisfied that the Appellant engaged in misconduct. As the definition of liable in this context permits mere allegations to create liability, there need not be a finding of any wrongdoing at that point for an employee to be “liable” to discipline. All that is needed is a reasonable belief that there are allegations that exposed the Appellant to discipline under a disciplinary law… That does not mean, in the case of criminal charges, that the relevant employee must be convicted before they are liable to being disciplined. Such an employee may still be disciplined even if a criminal charge results in an acquittal. A failure by the Crown to overcome the high burden of proving beyond reasonable doubt still leaves open the conclusion by an employer that misconduct occurred on the balance of probabilities. That state of being liable to discipline continues from the time of the alleged acts up to point where a finding of wrongdoing has been made, and beyond.

And at [35]:

In the circumstances, it is not hard to see how the chief executive of the Respondent could form a reasonable belief that the Appellant was exposed to discipline for engaging in inappropriate or improper conduct in a private capacity that reflected seriously and adversely on the employing entity. The Appellant had been charged with serious offences … and had been deregistered by the OHO as a consequence of the charges. In those circumstances, it was reasonable for the chief executive to form the belief that an event had occurred in the form of a genuine allegation of wrongdoing, which exposed the Appellant to legal consequences, and that the Appellant was therefore liable to discipline under a disciplinary law.

The Commission determined that it could not review the decision of December 2023 as any appeal was out of time. As for the decision of April 2024 to convert his suspension to suspension without pay the Commissioner said (at [51]):

… The nature of the criminal charges and the Queensland Police Service’s reasonable suspicion self-evidently invites a fair and reasonable conclusion that the Appellant was liable to discipline. It was also open to the decision-maker to find that the prolonged prosecution of criminal charges that had no clear end date in sight was preventing the discipline process from progressing. It was relevant to consider that AHPRA had deregistered the Appellant, which rendered him unable to practice paramedicine or perform non-clinical work. It was also open to decision-maker to find that it was an inappropriate use of public money to continue the paid suspension in the circumstances because it may undermine public confidence in the Respondent. It was also relevant to consider that the Appellant would be entitled to backpay if the discipline process did not lead to dismissal and, conversely, that the Respondent could not recover the cost of a suspension on pay if dismissal were the outcome. Each consideration and finding was fair and reasonable on my assessment. So too the overall conclusion deciding to suspend the Appellant without pay. I therefore find the Decision to be fair and reasonable.

Conclusion

Mr Roche’s appeal was dismissed and the decision to continue his suspension without pay was confirmed.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

This is not a place for legal advice and today’s correspondent raises questions that, I’m told are to be shortly determined in a Local Court.  The gist of the issue is that the defendant has been charged with entering inclosed lands contrary to the Inclosed Lands Act Protection Act 1901 (NSW).  Section 4(1) of that Act says:

Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty …

Without going into the details of the allegation and rephrasing the question slightly, I’m asked if it there would be a ‘lawful excuse’ to enter the inclosed lands ‘to try and make contact with a statutory authority who is in control of an area which may include some private property/inclosed lands during an ‘emergency’?’

My correspondent goes on:

What is clear however is that trespassing laws make it difficult for neighbours (or even authorities) to check on certain aspects of a fire (which they might believe is being handled negligently or is a nuisance) if they cannot communicate with the statutory authority/fire controllers in the area of the fire…
Specifically, the defendant in this case wanted to make a complaint/report an incident to the RFS on the site.

Discussion

The section is reasonably clear, it is an offence to enter ‘inclosed lands’ (noting the irregular spelling but that was how they spelt it in 1901) without the permission of the owner.  In the absence of that permission the defendant must establish, on the balance of probabilities (Evidence Act 1995 (NSW) s 142) that they had a lawful excuse.

I’m not aware of any statutory provision that would allow a person to enter inclosed lands to communicate with the Rural Fire Service (‘RFS’) and in particular, to complain to the RFS about the way they are conducting their operations.

As has been noted before there is a doctrine of necessity that is both a defence to a tort and criminal law. But when it comes to the criminal law the defence is restricted as it is not an invitation to allow people to choose what laws they will comply with (see Necessity and the protection of property (July 21, 2024)).

In Veira v Cook [2021] NSWCA 302 at [41] Meagher J said:

There is no support in any of the Australian or English authorities for the necessity defence extending to excuse criminal conduct undertaken otherwise than in response to an imminent threat of death or serious injury, either to the accused or to someone else. That is because the defence exists only where the circumstances are such as to overwhelmingly impel disobedience to the law.

In my post, above, I make the argument why I think Meagher J’s broad conclusion is wrong, that is there is support in the authorities for the defence in circumstances where is less than ‘an imminent threat of death or serious injury, either to the accused or to someone else’ and that the defence can be, and has been used to take action simply to protect property.  But my dissent from Meagher J’s broad opinion is not relevant here as here there is no suggestion of any action by the defendant either in response to an imminent threat of death or to protect property.

I would have no doubt that if necessity can justify actions such as a prison escape it would also justify, in the right circumstances, a person entering their neighbours inclosed lands to either escape a fire or to attempt to extinguish a fire.   It might be a defence, taking into account the issues of immediacy and proportionality, to enter the land to tell the RFS commander that there is someone trapped or otherwise at risk of the fire and in immediate need of assistance.  However, in R v Rogers (1996) 86 A Crim R 542 (quoted in my earlier post), Gleeson CJ said:

The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.

A defendant may not be happy with the way the RFS is conducting its operations and may consider that they know better and want to complain but one has to ask whether that is either immediately necessary nor a proportionate response to warrant acting contrary to law.  One imagines that making ‘a complaint’ is not a matter of urgency nor is it ‘proportionate’ to break the law to let the RFS commander know your opinion. No doubt the commander is busy, and they are not required to check with everyone who may have an opinion before making a decision. The structure of the RFS and the incident management system does not anticipate decision making by democratic consultation in the face of a bushfire.  If a person had a complaint that could be communicated by phone to a regional command facility.   

Conclusion

The doctrine of necessity may justify entering inclosed lands to communicate with the RFS where that was in response to an immediate need and the action was proportionate to that need.  It might be justified by a person escaping a fire or needing to communicate an urgent threat to life. But there are other ways to communicate with the RFS, given that the local commanders are busy fighting a fire. One is to use a telephone to ring the Incident Coordination Centre to make a complaint, or triple zero to report an immediate threat to life. 

Where there are alternatives, it is not open to people to ‘choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law’.  People are not free to break the law on the basis that they believe their actions ‘serves some value higher than that implicit in the law which is disobeyed’.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

In United Firefighters’ Union of Australia v Fire Rescue Victoria [2024] FWC 2197 (23 August 2024) (Wilson C) the UFU sought orders to require Fire Rescue Victoria (FRV) to pay an allowance to firefighters who had to use their own mobile phones to use multi-factor authentication (‘MFA’) to access the FRV IT system.

The issue arose after FRV was subject to a cyber-attack in December 2022.  It was decided to introduce MFA to make their system more secure.  To use MFA employees had to either receive a text message or have the Microsoft Authenticator App.  If they did not have a FRV issued phone then they needed to use their own personal phone for this purpose.  There were options for people who did not want to use their own phone. Authentication could be via a pre-registered land line phone but only one employee could be registered for a particular number ([17]) so that could not work for firefighters on a station. There were tokens that could be issued that would generate a security passcode ([24]) but there were, initially, few of these available.

The Fair Work Commission determined that it only had jurisdiction to determine whether firefighters should be paid an allowance to use their own phones for the purposes of MFA going forward. It could not impose a retrospective allowance ([50]).

Effectively the requirement, if there was a requirement, to use a personal device had been overtaken by events. At [93]-[95] the Commission said:

Whereas it could be said that at some stage in the past the practicality of the circumstance might have been that any particular employee needed to use their personal mobile phone in order to undertake MFA authentication, that need is no longer the case. The evidence is that, by March 2024, FRV had approximately 5000 physical tokens, of which approximately 3650 had been distributed to staff. A further 1000 had been allocated but not distributed…

… more than enough tokens are available throughout FRV and so, to the extent that any person wants FRV to provide them with the tools to authenticate, a token is available for such purpose. Because of that, I am unable to find that FRV employees are suffering “any imposition, detriment or disadvantage” over the requirement for multi-factor authentication.

Finally, at [100] Commissioner Wilson said (emphasis in original):

I am unable to find employees are required to use their personal mobile phones in the course of their employment. While employees may use their phones in this way, it is not required. Accordingly, there is no justification to answer in the affirmative those parts of the questions for determination which would seek the creation or payment of an allowance or compensatory payment.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s question comes from a Victorian paramedic who asks:

As a health professional (acknowledging this may not confer any specific powers over a member of the public) in charge of the care of a person (my patient) where the person (my patient) is both

(a) temporarily not competent to provide consent due to current intoxication / drug effect, AND

(b) Is in possession of a ‘drug’ ‘on their person’.

I might reasonably conclude that the substance represents an ongoing threat to the patient (or public health risk to the community) as the patient appears to currently be very unwell related to being intoxicated by these drugs and the substance appears to be a recreational drug and was found on the person.

 Would I be permitted to:

(1) Remove the substance from the patient’s possession without explicit verbal consent of the patient?

(2) Place that substance in a secure / lockable container and surrender that substance to a person who holds a specific Drugs & Poisons License / permit, for the purposes of holding and disposing of scheduled medications under Controlled Substances (DPCS) Act?

(3) Additionally, If this person operated a drug checking service, would they be able to test this substance under the conditions above?

First thing: the question says ‘I might reasonably conclude that …’  I’m going to accept that is correct and not look at whether that conclusion is or is not reasonable in the circumstances. I will, for the sake of the argument, accept that it is.  Now to try and find some law.

Theft

The Crimes Act 1958 (Vic) s 72(1) says:

A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.

Even property that it is illegal to possess, such as drugs, can be stolen (Anic v R (1993) 68 A Crim R 313).  By taking the drugs and handing them over for disposal the intention is to deprive the patient of the drugs.  Theft does not require that the person takes the property for their own use, only that they take it and use it (eg by handing it over for destruction) in a way that is inconsistent with the rights of the person from whom they took the thing.  The issue here would not be about whether the paramedic appropriated (or took) the property with the intention of permanently depriving the owner, but whether the conduct was ‘dishonest’.

Section 73(2) says:

A person’s appropriation of property belonging to another is not to be regarded as dishonest—

(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or

(b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or

(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

I assume (b) and (c) do not apply in the circumstances described. The Criminal Charge Book is published by the Judicial College of Victoria and is the handbook judges use when directing juries. It says (at [7.5.67]):

Dishonesty has a special meaning when used in Division 2 of the Crimes Act 1958. It means that the accused acted without any claim of legal right …

This is different to the test in other jurisdictions including the Commonwealth (see [7.5.68]) and New South Wales.  The Crimes Act 1900 (NSW) s 4B says:

“dishonest” means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

By those standards one might expect the community to think that a paramedic who takes, for the purposes of their destruction, prohibited drugs is not acting ‘dishonestly’ but that is not the test in Victoria.  In Victoria the paramedic has to believe they have a legal right to take the items in question: ‘The term “dishonestly” in s 72(1) has no residual meaning beyond this statutory definition’ that is the meaning of a belief in a legal entitlement to take the property (Criminal Charge Book, [7.1.70]).

In the circumstances described, therefore, the paramedic would, prima facie, be liable for the theft of the drugs unless he or she can show that they believed they had a legal right to take them as they did.   It does not matter whether they are right, that is whether they had a legal right, the question is did they believe they had a legal right (Criminal Charge Book [7.1.74]).

One then has to look to see if one can find a relevant law.  As my correspondent has noted, being a health professional does not give any special powers or rights in the circumstances.

Citizen’s arrest

There is a power to perform a citizen’s arrest (Crimes Act 1958 (Vic) s 458 and the power to arrest would imply a power to search and seize items (Clarke v Bailey (1933) 33 SR(NSW) 303).  However, on the facts given it does not appear the paramedic wants to arrest their patient and in any event and without explaining them in detail, the further grounds to justify an arrest set out in s 458 (eg to prevent further crimes, to ensure the accused’s attendance at court etc) are not made out.  If the person is unwell and not competent, they can be taken to hospital for medical care and there is plenty of time for police to arrest them if they want to.  A citizen’s arrest and with it, any implied power to search and seize the items is not raised by these facts.  Even if it was it would require the paramedic to hand the suspected drugs to police, not to a person authorised to destroy them.

Drugs law

The Drugs, Poisons and Controlled Substances Act 1981 (Vic) provides for the powers of authorised officers, which includes all police officers (s 4, definition of ‘authorised officer’).   Where an authorised officer seizes any ‘poison or controlled substance’ he or she must give notice to the person ‘apparently in charge’ of the goods seized.  Ultimately, if the seizure is confirmed, the items ‘become the property of the Crown and may be destroyed or disposed of as the Minister directs’. 

It is important to bear in mind some fundamental principles of the criminal law including the presumption of innocence. The paramedic may find what he or she believes to be prohibited drugs but it does not mean that they are, or that the person does not themselves have some legal authority to possess them.   The Crimes Act and the Drugs, Poisons and Controlled Substances Act have processes in place for items to be seized, and their legality tested, before they are destroyed.

Discussion

A paramedic treating a patient is entitled to collect their property and take that into safekeeping where the patient is unable to do so themselves.  One does not need specific legal authority to do that as the paramedic is in no way taking the property contrary to the patient’s rights. 

If the paramedic finds what he or she believes ‘to be a recreational drug’ it does not follow that it is, or that it is a prohibited or restricted drug, or that the person’s possession of that drug is unlawful. Even if one might believe all those things as a matter of common sense, the law requires proof beyond reasonable doubt. 

If police were involved, they would have to seize the drugs, maintain their integrity as evidence, have the drugs tested, put the matter before the court and if the court is satisfied the court could order their destruction or that they are forfeit to the Minister for destruction. The law does not allow for the sort of ‘self-help’ remedy anticipated in the question.

It follows that the only person the paramedic could and should hand the suspected drugs to is a police officer, having regard to the implications that may have for the patient and the standing of the paramedic profession (see Paramedics and Patient Confidentiality number 2 (July 23, 2015)).

Conclusion

The question asked me to assume a paramedic found an item that he or she reasonably suspected was a ‘recreational drug’ and the cause of their current patient’s illness. Can they:

1. Remove the substance from the patient’s possession without explicit verbal consent of the patient?  Yes, but only for the purpose of securing their property, in the same way you could take possession of their wallet or bag.
2. Place that substance in a secure / lockable container and surrender that substance to a person who holds a specific Drugs & Poisons License / permit, for the purposes of holding and disposing of scheduled medications under Controlled Substances (DPCS) Act? No, if the goods are to be forfeit and destroyed procedures under the Crimes Act and the Drugs, Poisons and Controlled Substances Act 1981 (Vic) would need to be followed. Hand the items to police.
3. Additionally, If this person operated a drug checking service, would they be able to test this substance under the conditions above?  I haven’t addressed this as it would in part depend on the terms that such a service operated. I imagine they’d want the owner’s consent and that’s not you. It might be justified if you needed to know what was in the drugs to treat the patient but even then you know that the drugs on their person are not the drugs they took.  You might assume they took drugs from the same source but you cannot know that. 

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s question comes from a member of the NSW RFS and may reflect concerns about the approach of iCare to claims by RFS members (see Gaps in NSW RFS volunteer workers compensation (August 28, 2024).  The question is:

When responding to the station in your private vehicle after being paged to a grass fire and you hit a kangaroo are you covered by the RFS for the damages to your vehicle or do you have to foot the bill for it?

The Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) talks about a ‘relevant journey’ that is (s 9(1))

(a) … a journey between the place of abode or place of employment of the fire fighter, or place from which the fire fighter was called, and a bush fire, and

(b) it is made exclusively and genuinely for the purpose of engaging in fighting a bush fire.

Section 12(2) says:

(2) Compensation is payable under this Part in respect of the destruction of, damage to or loss of– …

(c) any vehicle used for the conveyance of a fire fighter on a relevant journey in relation to a bush fire and owned by or in the possession or custody of the fire fighter,

The issue will therefore be whether travelling to the station, rather than to the scene of the fire, is part of ‘a journey between the … place from which the fire fighter was called, and a bush fire’?  On one argument it is a journey to the station, not the fire. On the other hand, the journey is the complete journey from the ‘place from which the firefighter was called’ to the fire and the fact that the journey is via the fire station and involves getting out of the private vehicle into the fire appliance doesn’t change the fact that it is all one journey.

Section 13(4) says, however, that ‘Compensation is not payable under section 12 if the owner is entitled to adequate reimbursement under any policy of insurance or from any other source’.

Discussion

As we have seen from the earlier post the issue may be decided by someone in the insurance office (if it ever gets there, depending on the value of the claim it may be dealt with ‘in house’), but I would anticipate that the view would be that making the way to the shed to don PPE and respond on the appliance is all part of the journey from the place where the person was called to the fire and was undertaken ‘exclusively and genuinely for the purpose of engaging in fighting a bush fire’.

A correspondent on the Facebook page of this blog posted this which is reported to be from the RFS and is a response to the issue raised in my earlier post.  The RFS announced:

FROM RFS 10.9.2024

RFS iCare Insurance Update

Recently, the RFS was made aware of an issue raised by the VFFA regarding the interpretation of legislation concerning insurance coverage for volunteers attending meetings.

A decision by iCare relating to a specific incident highlighted a perceived gap in the legislation. This interpretation differed from how the legislation had been previously applied, prompting the RFS to seek clarification from iCare.

We are pleased to inform you that late last week iCare confirmed that claim made by the member will be honoured. This outcome follows multiple discussions with iCare, during which the RFS provided additional information and emphasised the importance of key activities undertaken by volunteers that are essential and critical to the operation of our Service.

We want to clarify that, in addition to operational activities, our members are covered for brigade and district meetings, training sessions, open days and community engagement activities.

iCare and the RFS will be reviewing the legislation to ensure that it explicitly covers all RFS activities.

The safety of our members remains our top priority and we will continue to advocate for the best outcomes for everyone involved.

Even if there could be a debate about where a ‘relevant journey’ starts and finishes, one would hope with a similar attitude from the RFS, iCare as the relevant insurer would have no difficulty finding that travelling from home or work to the fire via the fire shed is a ‘relevant journey’ and that compensation for damage to a fire fighter’s vehicle would be covered.

However, s 13(4) is clear that the intention is that the owner will look to their own insurance first.  It follows that if the vehicle is comprehensively insured the driver would be required to claim on their own policy.  iCare may be persuaded to pay the value of any excess on the basis that it is necessary to give ‘adequate’ compensation. 

(On a personal note, as a member of the NSW SES I came off a motorcycle when making my way to the shed as part of a road crash rescue call out. I did receive compensation under this scheme but to be honest I cannot recall if it was for the full amount of the repairs or just my insurance excess).

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Mark Frost is an ALS paramedic employed by Ambulance Victoria. In August 2021 he was subject to complaints of workplace bullying or harassment. The allegations involved Mr Frost’s conduct toward an Ambulance Community Officer (‘ACO’). ACO’s are ‘non-paramedic casual employees drawn from the local community who are trained in emergency response and register their availability for set periods of time to attend as required’ ([20]).  The allegations were investigated by an external investigator who found two allegations partially substantiated, two fully substantiated and one not substantiated. 

In July 2022 Mr Frost was asked to show cause why AV should not impose disciplinary sanctions in particular record a first and final warning, require him to undergo further education and transfer him to another station, 350 kms away.  One can imagine that a move to a station 350 kms away requires the paramedic to move house, not an easy task when one has established relationships, emotional and financial investment in one’s home and if the paramedic has a partner with a job and local commitments and children at school.   We were not given the details of Mr Frost’s personal life, but he argued that this action was not reasonable nor justified by the inquiries findings.

A dispute was lodged and ended up in the Fair Work Commission as Mr Mark Frost v Ambulance Victoria [2024] FWC 2237.  It was accepted by all parties that the terms of the Ambulance Victoria Enterprise Agreement 2020 meant that the transfer could only occur in ‘instances of serious misconduct that meets the definition of workplace bullying and or harassment’. There was a dispute over whether the conduct that the investigator found established met that definition ([13]).

The Commission rejected the argument. Commissioner Connolly said that serious misconduct is to be judged objectively and does not depend on ‘wilful’ conduct by the worker.  He said (at [121]-[123]):

What is relevant in this matter is that AV had received an independently prepared report that included a substantiated finding Mr Frost had engaged in conduct that amounted to bullying, amongst other things.

On this basis alone, I am satisfied the Respondent was entitled to considered Mr Frost had engaged in serious misconduct and move to consider the appropriate disciplinary sanction for this conduct, including transfer.

To suggest that bullying, objectively viewed, does not amount to serious misconduct is implausible in my view.

Having determined that the threshold had been met, it was open to AV, as part of its disciplinary measures and to remove ‘Mr Frost from the complainants against him … minimising the risk of Mr Frost engaging in the same or similar conduct again and imposing an appropriate disciplinary sanction to allow Mr Frost to return to his substantive duties. At the time, the only available location that met this criteria outside of the … Region was’ 350kms away. 

Given that AV had the authority to transfer Mr Frost an issue arose as to whether he could appeal that decision. Clause 37 of the enterprise agreement says:

Resource Allocation

37.1        Resources will be allocated to meet service demand.  Employees will be required to perform all work they are competent to perform and accept the requirement for flexibility in relation to work arrangements and mobility between work locations to meet the Employer’s operational and service delivery requirements.

37.2        Where an individual employee has a grievance about a transfer in work location is unreasonable having regard to the employee’s personal and family circumstances and the requirement for excessive travel to attend work, that employee has access to the procedure in clause 11.

Mr Forst argued that cl 37.2 allowed him to rely on the dispute resolution procedures set out in cl 11. The Commission determined that the Agreement only allowed an employee to rely on the dispute resolution clauses if he or she was transferred on the basis of resource allocation but not where the transfer was the result of a disciplinary decision ([126]-[132]).  The Commission, therefore, had no jurisdiction to review the decision by AV.

Although the Commission could not review the decision to transfer Mr Frost to a station so far from his home, it did appear, during the proceedings that it was no longer the case that this station was no longer the only appropriate station to meet the needs of separating Mr Frost from the complainants.  At [96] Commissioner Connolly said that AV:

… have provided a list of further alternative transfer locations. Bearing in mind Mr Frost’s submissions, I consider it appropriate the parties consider working together to identify other alternative locations for Mr Frost to work from to allow him to return to full duties as soon as practically possible once his authority to practice has been completed.

Conclusion

In the discussion we are given only limited detail of the allegations (see [25]) and of Mr Frost’s personal circumstances.   What we can take from the case is:

• Substantiated allegations of bullying and harassment are always likely to fall into the category of serious misconduct.
• Where serious misconduct is established, AV has the power, under the enterprise agreement, to transfer an employee to another station as part of its disciplinary processes.
• Whist an employee has a right to engage the dispute resolution procedures set out in the Ambulance Victoria Enterprise Agreement where AV seeks to transfer them to meet resource allocation demands, that right is not available where the decision to transfer is made as part of a disciplinary outcome.

Whether AV and Mr Frost can come to an agreement with respect to a transfer to a station closer to home will be a matter for them. If not Mr Frost will have to decide whether to accept the transfer and move, commute 350kms to work or, presumably, end his career with AV.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent is a medical student from WA who poses this hypothetical

“A young female patient (15F) gave a history to me that included reference to sexual interaction with an older male teenager (18F). After telling her story, she expressly asked me not to disclose that fact to my supervisor, an older male practitioner. A fundamental pillar of patient care is confidentiality, the principle being that no information should be shared or disclosed without the patient’s consent. As a student, is my first priority to honour the patient’s wishes and keep her secret, or respect my position as a student under supervision and disclose the full history to my supervisor?”

They say:

Now, my first instinct on hearing this question was to say that the student had a duty to tell the supervisor. When patients provide information to a health service, they do so in anticipation of the information being used to provide them with care. Doctors and other health practitioners provide care; students are only granted access to this information so they can walk in tandem with the supervising practitioner and see how the information was used to inform the care provided. As the student was acting as an agent of the health service when he received the information, it would be expected that now that the information had been collected by the health service, it is appropriate that the treating practitioner of that health service had access to the same information.

However, while my initial answer appears clear in principle, I could not find any reliable legal basis for maintaining that argument. A student is not under any contract of service to the health service which would mandate sharing of information. Practitioners within a health service are not entitled to access information about patients they are not treating, or otherwise without the patient’s consent. The question also has to be asked whether the information is critical to the patient’s care – the student may consider that the information is unlikely to change the practitioner’s treatment, and so honour the patient’s decision to withhold it as being in their best interests. However, the practitioner may feel that the information would significantly alter their treatment, including their decision to take a further history and possibly make a mandatory report to child protection authorities.

At the end of the day, I think I would support the student in giving a detailed report to his supervisor, saying “the patient asked me not to tell you this, but…” however I am not confident on the legal basis of this position.

How would you approach such a question?

Let me start by saying that I hope I’m not being asked to address an assessment question.

The fundamental concern here is that the patient is 15 disclosing a sexual relationship with an 18 year old – ie that she is the victim (regardless of her consent) of a criminal offence (Criminal Code (WA) s 321).  And I think the analysis is right, even though the student is not under a contract with the health service, he or she is told that information presumably as part of the patient’s health care (hence the reference to a ‘history’).    

A doctor (but not a medical student) is required to report any belief held on reasonable grounds that a child (ie a person under the age of 18) has been the subject of sexual abuse (Children and Community Services Act 2004 (WA) ss 3 (definition of ‘child’ and 124B). 

Western Australia does not yet have specific privacy laws but the Australian Privacy Principles still give some guidance. It is not a breach of privacy to disclose private information where that disclosure is ‘required or authorised by or under an Australian law’ (such as the Children and Community Services Act 2004 (WA) (Privacy Principle 6.2(b)). Disclosure is also permitted where the entity making the disclosure ‘reasonably believes that the collection, use or disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of any individual…’ (and one might think an ongoing sexual relationship between an 18yo and a 15yo is such a threat) (Privacy Act 1988 (Cth) s 16A).   As noted, however, those laws do not yet apply to a health service in WA (Legal Aid Western Australia, Privacy and Freedom of Information (30 January 2024)).

On more general principles I agree that a person who gives a ‘history’ in a medical setting knows that the information is being given for the purposes of providing health care. Further if they know they are speaking to a student they would understand that the student has to pass that information on because they are clearly not going to be making the health care decisions for the person. For either the patient, or the community, to expect a student to bear the burden of keeping that information confidential rather than accepting they will share it with a supervisor in order to get guidance and to learn would be to misunderstand what it means to be a student. 

I agree there is no clear legal basis for an answer here. It is about drawing on general principles of both privacy and, given the history disclosed the duty on treating health practitioners to infer that the student would not be in breach of ethical or legal principles if they made a disclosure to their supervisor.  Ideally however the student would first approach the patient to try and gain their consent to the disclosure and, if that was not forthcoming, to advise the patient that they have to disclose the information provided.

Now this question is out of scope for this blog being not ‘emergency’ related per se, but I publish this answer in any event as it will be of interest to other health students including students of paramedicine who will face the same issues.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s question revisits the thorny myth of liability for the installation of automatic defibrillators.   I have been provided with a document, purportedly from Jehovah’s Witnesses elders that says:

2. Automated External Defibrillators (AEDs) at Kingdom Halls: Bodies of elders have at times inquired about installing AEDs at Kingdom Halls. We view life as a sacred gift from Jehovah. However, due to increasing liability concerns, as well as the training and maintenance needed to legally keep these devices, AEDs should not be installed at Kingdom Halls. If there is a medical emergency, attendants should immediately call emergency services. Prompt arrival of emergency services is crucial form timely aid. While emergency services are in transit, any willing attendees who are trained in cardiopulmonary resuscitation (CPR) can assist if a cardiac event is suspected.

3. If you have an AED in your Kingdom Hall, please remove and dispose of it according to local regulations or the manufacturer’s instructions. You may contact your Local Design/Construction maintenance trainer if additional assistance is needed.

I’m asked:

Is this a reasonable request based on potential liability?

Surely their availability and saving of attendees at their meeting would be more important than potentially being sued?

The simple answer is no, this is not a reasonable request based on potential liability – see

• Liability for failing to use an AED? (February 27, 2024)
• Further fear over installing an AED (September 18, 2023)
• Fear of legal risk for installing AEDs is misplaced (September 17, 2019);
• Registering and maintaining a defibrillator (April 7, 2019)
• Liability for installing, or not, an AED in a retirement community (December 1, 2018)
• Potential liability for defective defibrillator – not as obvious as you might think (November 26, 2018)
• Choosing not to install an AED for spurious reasons (September 10, 2018).
• Legal issues when installing a defibrillator? (August 23, 2016)

There is no potential liability for installing a defibrillator.

There are no training requirements to ‘legally’ keep a defibrillator. They are meant to be used by anyone including the untrained. And if there are ‘willing attendees who are trained in cardiopulmonary resuscitation’ then they are also trained in the use of an AED.

If there are maintenance requirements to legally keep a defibrillator, they are no more onerous than the legal requirements to keep a fridge, or an urn, or a heater or any other electrical appliance. Treat it in accordance with the manufacturer’s instructions.  If it’s plugged into a power point it may need to be ‘tested and tagged’, and don’t put it in a sink of water.

If there is a medical emergency early defibrillation is part of the chain of survival

(image credit: St John Ambulance (Victoria) What is the chain of survival (2 November 2016).

The use of a defibrillator is part of the DRSABCD Action plan ideally implemented before the arrival of the emergency services.

In South Australia it will soon be compulsory to install defibrillators in any ‘designated building’ (Automated External Defibrillators (Public Access) Act 2022 (SA) ss 4 and 7). Whether that would include a facility such as a Kingdom Hall will depend on the details in any regulations that are yet to be passed.

The reaction by the elders is uninformed. They do not explain why there are ‘increasing liability concerns’ but if there are such concerns, they are misplaced.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent is

… a senior deputy in an RFS brigade. The area that we respond and to is in the middle of what Police describe as an ice epidemic. Today we had a job (illegal burn) should have been a simple job really attend extinguish depart. Not the case, from the time I stood out of the appliance we were abused and threatened. We informed resident of rules and advised we were extinguishing however he refused us entry which we explained we have right of entry. Long story short he went to pick up a bar off the ground and became very aggressive I In turn removed the crew requested police and staged down the road.

The question I have is NSW Police and NSW ambulance have access to warnings on the location they are responding to and quite often stage until other resources are available to deal with a situation. However, in the RFS we are blind to this information. If the information is available to other emergency services, is it a duty of care that RFS should have access to the same information to protect its members? What’s your thoughts?

The question that I have, and cannot answer, is where do police and ambulance get that information that it is alleged that they have? I infer (but do not know) it is from their past history, that is they have it as their own crews have reported the matter.   That is, it is their own internal information being shared among their own employees, rather than centralised information that they share but not with the RFS.

Given my correspondent’s experience I do not know if there is a system where the RFS can record that information so that if there is another call to that address, then that information can be passed onto responding crews. It might also be prudent, and reasonable to expect that if the RFS was called by police or ambulance eg if police were on scene and it was the police who observed the fire, that they would pass on any necessary warning to the RFS. 

To limit myself to the legal issue the problem is about confidentiality of information not just the information about past incidents at the address but also information that the police may want to keep confidential about investigations etc. 

If I’m correct and there is no central database where reports on emergency calls to addresses are required and which is accessible by all the emergency services, then it is impossible to imagine how the RFS could have the information that my correspondent would like to receive.

If such a database were to exist questions would arise as to:

• Who could enter data onto it?
• What type of data could be recorded?
• What has to be the level of satisfaction that the information recorded is accurate?
• How long would it be there (because people move, and grow up, so an issue 6 months, or 6 years ago may not be an issue now)
• Who could access it?
• How would it be secured?
• What steps would be in place to ensure that it did not in effect discriminate against groups on irrelevant grounds (see Questions of racial discrimination (February 17, 2023))?

Conclusion

The question I was asked was ‘If the information is available to other emergency services …  should [the RFS] have access to the same information to protect its members?’ but that begs the question of whether information, other than a services own internal records, is available to each service.  If there is no central repository of such information (and I don’t think there is but I wait to be corrected if I’m wrong) then there is no information that can be passed to the RFS other than information held by the RFS. 

Creating such a central information portal would, or should, require a great deal of careful consideration.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.