State of Tasmania v Munting [2024] TASSC 36 is a case dealing with Ambulance Tasmania and the application of the Workers Rehabilitation and Compensation Act 1988 (Tas). Section 25 of the Workers Rehabilitation and Compensation Act  says:

(1) If in any employment – 

(a) …

(b) a worker suffers an injury, which is a disease and to which his employment contributed to a substantial degree … his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act –

(1A)        Compensation is not payable under this Act in respect of a disease which is an illness of the mind or a disorder of the mind and which arises substantially from–

(a)            reasonable action taken in a reasonable manner by an employer to transfer, demote, discipline or counsel a worker or to bring about the cessation of a worker’s employment; or

(b)           a decision of an employer, based on reasonable grounds, not to award or provide a promotion, transfer or benefit in connection with a worker’s employment; or

(c)            reasonable administrative action taken in a reasonable manner by an employer in connection with a worker’s employment; or

(d)           the failure of an employer to take action of a type referred to in paragraph (a), (b) or (c) in relation to a worker in connection with the worker’s employment if there are reasonable grounds for not taking that action; or

(e)            reasonable action taken by an employer under this Act in a reasonable manner affecting a worker.

For the purpose of the Act, the term ‘disease means any ailment, disorder, defect, or morbid condition, whether of sudden or gradual development’ (s 3) and includes a mental illness or disorder.   The effect of s 25(1A) is that where a mental illness or disorder can be attributed to the reasonable actions of the employer there is no entitlement to compensation.

Mr Munting is a paramedic employed by Ambulance Tasmania.  He made an application for compensation for a ‘stress disorder’ triggered, he said by ‘the ‘… on going [sic] investigation into breach of code of conduct’([4]).   Ambulance Tasmania agreed that Mr Munting had a relevant disease so that they would be liable to pay compensation but for s 25(1A). They argued that it was up to Mr Munting to prove that s 25(1A) did not apply.   Mr Munting, on the other hand, argued that the burden was on Ambulance Tasmania to prove that s 25(1A) did apply.

The matter was resolved in Mr Munting’s favour in the Tasmanian Civil and Administrative Tribunal.  Ambulance Tasmania appealed to the Supreme Court.   They relied on s 49(2) which says:

(a)            the onus of proving an initial entitlement to a payment of compensation to a worker or the dependants of a worker lies on the worker or those dependants; and

(b)           the onus of proving that a worker is no longer entitled to the payment of compensation lies on the employer.

The ambulance service, having never accepted liability to pay compensation, argued that Mr Munting was still at the stage of ‘proving an initial entitlement to a payment of compensation’ and so the burden lay on him to show that s 25(1A) did not apply ([6]-[7]).

Chief Justice Blow disagreed. After reviewing relevant legal authorities he held (at [8]; emphasis added):

… s 25(1A) creates exceptions in relation to an employer’s liability to pay compensation; that a common law rule places the onus of proof in relation to those exceptions on the employer; and that s 49(2) should not be interpreted as requiring a worker to disprove the applicability of those exceptions.

Discussion

Workers compensation legislation in most, if not all, jurisdictions have a similar clause. They are designed to avoid the dilemma for employers where they may have to discipline workers but then have to pay them compensation because the disciplinary process is necessarily stressful particularly if it leads to outcomes such as termination or demotion. It would be perverse to dismiss a person because of poor performance and then have to pay them ongoing salary because of the reasonable processes followed.  Of course a section like s 25(1A) does not apply if the employer’s conduct is not reasonable in all the circumstances.

The effect of this decision is that s 25(1A) is not something that the applicant has to disprove as part of his or her application. Rather if the employer wishes to rely on it as an exception to their liability to pay compensation that would otherwise be payable, then it is up to the employer to prove that the relevant illness was caused by their reasonable action.  No doubt it will assist the employer if the employee in their application attributes the cause of their disease to ongoing disciplinary proceedings rather than some other cause but it still requires the employer to prove that their actions were reasonable and inordinate delays in the process or other factors may defeat their defence.

This case does not determine whether Mr Munting is entitled to compensation. That will be a decision for the Civil and Administrative Tribunal following these directions from the Supreme Court on the issue of burden of proof.

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 Health and Safety Representative (HSR) with the NSW Rural Fire Service (RFS) issued a Provisional Improvement Notice (PIN) to the RFS (Work Health and Safety Act 2011 (NSW) s 90). The RFS asked Safework NSW to review the PIN (s 100).  An inspector appointed to review the PIN may confirm the PIN, confirm the PIN with changes or cancel the PIN (s 102).  I’m told that in this case, the inspector cancelled the PIN.

The HSR then sought an internal review of the inspector’s decision (s 224). I’m told that the internal review confirmed the inspector’s decision. The HSR now seeks an external review (s 229). The external review will be conducted by the Industrial Relations Commission.

The HSR has approached the RFS asking them to pay the applicant’s legal costs.  The RFS has refused.

Work Health and Safety Act 2011 (NSW)

The HSR relies on s 70(1)(f) which says:

(1) The person conducting a business or undertaking must–…

(f) provide any resources, facilities and assistance to a health and safety representative for the work group that are reasonably necessary or prescribed by the regulations to enable the representative to exercise his or her powers or perform his or her functions under this Act,

The argument would have to be that providing funding to meet the HSR’s costs as the applicant before the Industrial Relations Commission is ‘reasonably necessary … to enable the representative to exercise his or her powers or perform his or her functions under this Act’.   Not surprisingly, the RFS has declined the request.

With respect to s 70(1)(f) however I cannot see that taking the matter for external review is ‘reasonably necessary’.  The HSR has issued a PIN that has been subject to two reviews.  One might consider that is all that is ‘reasonably’ required.  Even though the HSR is an eligible person (s 223) and is entitled to seek the external review (s 229) it does not follow that exercising every possible right is either necessary nor part of the HSR’s duties. It would be equally consistent to say that the HSR’s duties include accepting the decision of the SafeWork NSW referee.

RFS ex gratia legal assistance

The RFS has a policy on the payment of legal expenses (Service Standard 1.1.24 Assistance in Legal Matters for Members of the NSW RFS (9 May 2016)). That standard provides that the RFS will provide legal assistance in accordance with the Premiers Memorandum M1999-11 Guidelines for the Provision of ex Gratia Legal Assistance for Ministers, Public Officials and Crown Employees.  That memorandum appears to have been repealed and replaced with M2019-01–Guidelines for the Provision of Ex-Gratia Legal Assistance for Ministers, Public Officials and Crown Employees (not all that surprising given the RFS Service Standard was due for review in May 2021).  

The guidelines provide that ex-gratia assistance may be provided ‘where legal proceedings have been commenced, or are anticipated, against’ a relevant Minister, public official or employee. The guidelines refer to an employee, but the RFS clearly intend to apply to volunteers, and they too would, in any event, likely be classed as ‘public officials’. In any event the guidelines anticipate providing legal assistance to people who are the defendants in legal proceedings rather than the applicants in proceedings against the government.

Of course, if the obligation to meet the HSR’s legal costs arose under the Work Health and Safety Act, the Premier’s guidelines would be irrelevant. The guidelines themselves say

These guidelines are subject to any relevant statutes, for example, s.52 of the Independent Commission Against Corruption Act 1988 which sets out criteria for financial and legal assistance in relation to witnesses appearing before the Independent Commission Against Corruption.

If therefore s 70(1)(f) of the WHS Act required the RFS to pay the legal fees of the HSR then that would ‘override’ these guidelines (see also Arnott v SafeWork NSW and Fire and Rescue NSW [2024] NSWIRComm 1039).

The law is a self-help tool

A lesson many years in law has taught me is that it is a self-help tool. The law is available and provides many remedies, but it is up to aggrieved persons to make use of the tool. No-one is there to help. When people complain about their landlords or tenants, retailers or consumers, creditors and borrowers etc they discover that even if the law says that the other sides conduct was unlawful and there is a remedy, the person has to go to law.  Turning up to the government and saying ‘you wrote the law, you help me find a remedy’ doesn’t work. Legal aid is usually limited to criminal and family cases with very little left over for other civil type matters.

Here the issue is not the HSR seeking to vindicate a personal right or interest, rather I accept that they are pursuing what they believe is a legitimate WHS issue on behalf of the workgroup they represent but that does not mean that anyone is going to help fund that process when the Act has already provided for two reviews. The HSRs that can afford to go the Industrial Relations Commission would be those supported by their workgroup or more likely, by a trade union (see again Arnott v SafeWork NSW and Fire and Rescue NSW [2024] NSWIRComm 1039 where the applicant was supported by the Fire Brigade Employees Union).  Volunteers don’t have an industrial union and I would infer (but do not know) that the Rural Fire Service Association (the RFSA, a sponsor of this blog) is not willing or able to act for volunteers as a trade union is willing and able to act on behalf of employee members.

The WHS Act does provide some assistance. It does provide that where there is a WHS issue, a party, including an HSR, may ask ‘the regulator to appoint an inspector to attend the workplace to assist in resolving the issue’ (s 82(2)). Going down that route may be a way to get an independent interpretation of whether s 70(1)(f) would require the payment of the applicant’s legal costs in the circumstances.

Conclusion

To reiterate what I’ve said many times before, this is not the place for legal advice that is giving ‘advice to a person on their particular rights in a particular situation’ (see Law Society of NSW, Practising In NSW Under The Uniform Law: Unqualified Legal Practice).  In this situation I make no comment on the merits of the PIN or the RFS response to a request for legal assistance.  The only way to get a definitive answer here would be to consult lawyers who could look at the entire history of the matter and/or seek the assistance of an inspector (s 82). Ultimately, as Mr Arnott did, it may require getting the matter before the Industrial Relations Commission for a binding decision in the meaning of s 70(1)(f) in this context.

My conclusion, speaking generally, is that I cannot see that s 70(1)(f) would give rise to an obligation on the Person Conducting a Business or Undertaking to fund an application for external review lodged by an HSR where the issue has already been subject to a review and then an internal review.  I also cannot see that the RFS policy on providing assistance with legal costs would have any application in the situation described.  

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.

Sumner v Country Fire Authority [2024] VSC 403 (10 July 2024) (Richards J) involved a challenge to the decision by the CFA to terminate a former volunteer firefighter’s compensation.

 Mr Sumner was a Country Fire Authority (‘CFA’) volunteer from 1992 until 2016 when he left the CFA and Victoria to move interstate ([1]).  Shortly after his interstate move ([2]) he:

… began to suffer increased psychological distress, and he sought treatment from his general practitioner and a psychologist ….  He was referred to a psychiatrist … who in August 2018 diagnosed Mr Sumner to be suffering from major depression, anxiety, and post-traumatic stress disorder (PTSD).  In [the psychologist’s] … opinion, the PTSD was directly related to his work with the CFA and his repeated exposure to trauma through that work.

Mr Sumner made an application for compensation ([3]).  The CFA arranged for him to be examined by another psychiatrist who agreed with the diagnosis.  Further reports by two different psychiatrists further supported the diagnosis and the finding that Mr Sumner’s volunteering with the CFA was a significant contributor to his PTSD ([4]).

The CFA accepted the claim for compensation and paid compensation for medical costs and to replace Mr Sumner’s labour in his own work as a resort manager. They also agreed to meet the costs of an assistance dog.  Having paid compensation from 2018 to 2023 the CFA arranged for Mr Sumner to be assessed by yet another psychiatrist ([5]).

This psychiatrist, Associate Profressor Doherty, came to a very different conclusion finding that there was no such diagnosis as delayed onset PTSD, that Mr Sumner had a long-standing anxiety disorder and that his mental ill health was not related to his service with the CFA ([6]).  On the basis of that report the CFA invited Mr Sumner to show cause why they should not cease the payment of compensation ([7]).

Mr Sumner provided further medical evidence including a report from his treating doctor and a medico-legal report from another psychiatrist who was also of the opinion that Mr Sumner has PTSD caused by his volunteering with the CFA ([8]).

The CFA obtained another report from Ass. Prof. Doherty and on that basis of that report denied further liability to pay compensation ([9]).  Mr Sumner sought judicial review of that decision in the Supreme Court of Victoria. Judicial review is where the review tribunal, in this case the Court, is required to decide whether the decision maker acted according to law, not whether the decision maker made the ‘best’ decision (see [53]).

Compensation for CFA volunteers

Compensation for CFA volunteers is governed by the County Fire Authority Act 1958 (Vic) s 110(1)(f) and the regulations made under that Act. Part 6 of the Country Fire Authority Regulations 2014 (Vic) deal with compensation.  Regulation 75(1) says:

If a member, in the course of, or arising out of, performing service as a member—

(a) suffers a personal injury; or

(b) …

the member is entitled to compensation.

It is the CFA that determines whether an applicant is eligibile for compensation (r 83).  In making its decision, the CFA is required to have regard to provisions set out in the Accident Compensation Act 1985 (Vic) and/or the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

The review

In his application, Mr Sumner argued ([44])

… that the CFA fell into jurisdictional error by forming a decision in a manner that was legally unreasonable and making a legally unreasonable decision, by accepting Associate Professor Doherty’s opinion over the opinions of four other psychiatrists and accepting his premise that there is no such condition as delayed onset PTSD.

Her Honour Richards J agreed.  She held that the decision of the CFA had to be made in the context of the whole Act ([52]).   

Her Honour noted that the CFA is the ‘sole administrator’ of the scheme. The CFA must rely on medical evidence as it cannot determine the medical issues it is required to consider.  There is no provision for a merit’s review of the CFA’s decision that is no independent tribunal that can review the decision to decide if it was the best decision. In those circumstances, her Honour said, the CFA could not simply adopt the medical opinion that was most favourable to it. It had to consider all the medical evidence and ‘[w]here the medical evidence conflicts, the CFA is not free to form its own opinion, but must decide which evidence it prefers by a process of reasoning’ ([56]).

Her Honour noted (at [58]):

A secondary purpose of Pt 6, Div 1 [ie the compensation scheme] is to assist the CFA to achieve its objective of supporting ‘the effective and sustainable recruitment, development and retention of volunteer officers and members’ in order to provide a fully volunteer fire fighting service. The volunteer compensation scheme is an organisational arrangement designed to ‘encourage, maintain and strengthen the capacity’ of volunteers to provide the CFA’s services. It also supports the objectives relating to interaction between fire services, in s 2 of the CFA Act, including recognising and valuing the contribution of volunteer brigades, recognising that volunteer firefighters are vital to delivering safe and sustainable fire services, and maintaining the abilities of fire services agencies to respond to critical incidents.  All of these objectives would be more difficult to achieve if volunteers did not have the comfort of knowing that, if they are injured in the course of their service, they are entitled to compensation including their medical and like expenses.

Her Honour described the CFA’s decision to terminate compensation as ‘striking’  and ‘a complete reversal of its initial determination’ ([74]).  Its reason was not that Mr Sumner had recovered but that, in the opinion of only one of many health practitioners, he had never suffered PTSD and had never been entitled to compensation ([76]).

The Court was critical of the CFA’s reasoning. The CFA explained to Mr Sumner that they preferred Association Professor Doherty’s opinion has he had looked at more detail at Mr Sumner’s earlier medical history ([78]). But, said the court, that was not the basis for the difference of opinion.  At [80]-[81] her Honour said:

The CFA’s reasons for decision indicate that it did not recognise the real reason why Associate Professor Doherty’s opinion differed from all the other experts.  The difference of opinion had nothing to do with their respective assessments of Mr Sumner’s clinical records.  Rather, the difference rested on Associate Professor Doherty’s premise that ‘[t]here is no such condition as not having PTSD symptoms and then having them come forth years after the traumatic event’.  It was this premise that led Associate Professor Doherty to look for evidence of trauma symptoms during Mr Sumner’s service with the CFA, and informed his diagnosis of anxiety disorder rather than PTSD.

Had the CFA recognised what underpinned the difference of opinion, it could have attempted to reconcile the difference.  It did neither, with the result that there is no intelligible foundation in the CFA’s reasons for preferring Associate Professor Doherty’s opinion and its underlying premise.  In circumstances where the CFA was contemplating reversing its long-held acceptance that Mr Sumner suffered from PTSD related to his volunteer service, it was legally unreasonable for it to accept Associate Professor Doherty’s opinion in preference to all of the other expert evidence, without first attempting to reconcile it with that evidence.

And at [84]-[85]:

I have reached the conclusion that the CFA’s determination to terminate Mr Sumner’s entitlement to compensation was legally unreasonable having regard to the scope, purpose, and objects of the CFA Act and CFA Regulations, specifically Pt 6, Div 1 of the CFA Regulations. The compensation scheme is established for the benefit of volunteers, and serves the broader purpose of supporting the recruitment and retention of the volunteers who are essential for delivery of fire services in country Victoria. That context highlights the unreasonableness of the CFA’s decision. As the sole arbiter of the merits of Mr Sumner’s claim, it changed its mind about his entitlement to compensation on the basis of a single medical opinion that was contrary to all of the opinions it had previously accepted. It did so without really engaging with the reason why Associate Professor Doherty held a different opinion, and without considering whether it should accept the underlying premise of his opinion.

Another dimension of the unreasonableness of the CFA’s decision arises from the fact that the CFA administers the compensation scheme for the benefit of all volunteers, and to support the viability of the CFA as a volunteer fire service. It is a significant matter for the administration of the scheme for the CFA to deny liability for compensation for delayed onset PTSD, on a basis that may not reflect the general consensus of psychiatric opinion. If the CFA takes a consistent approach in other similar cases, its unquestioning acceptance of Associate Professor Doherty’s opinion that there is no diagnosable and recognised condition of delayed onset PTSD may have consequences for the ongoing capacity of the CFA to provide fire services in country Victoria.

The Court accepted Mr Sumner’s arguments and set aside the CFA’s decision.  That is not the end of the matter, however. The CFA could, following the directions of the court, go back and make a fresh decision that may go the same way. They would just need to make sure they truly engaged with the differences between the practitioners and the question of whether or not PTSD symptoms can first manifest years after the exposure to traumatic events.

A comparison with NSW

It is interesting to compare the compensation scheme in NSW. As Justice Richards noted, the Victorian scheme is administered by the CFA and there is no provision to review their decision other than for legal error.

The compensation scheme for volunteer firefighters in NSW is not governed by the Rural Fire Service. Rather it is provided for in the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).  The Scheme is run by an iCare’s Insurance for NSW.   The effect of the Act is to apply the Workers compensation legislation (with some differences) to volunteers.  The Scheme provides for independent process to resolve medical disputes. 

Whilst the NSW Scheme is by no means perfect, it does mean it is not the employer that is managing the scheme.  The scheme is managed by a (reasonably) independent organisation with formal provisions for dispute resolution where the worker and the insurer disagree.   If Mr Sumner’s had been in NSW, rather than having to go to the Supreme Court to set aside a decision that the CFA can remake, the matter would have gone to a medical panel which would have made a decision binding on all parties and, on hopes, a medical panel would have been better are reconciling the conflicting opinions of the doctors than the CFA.

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 relates to a perceived contradiction between two NSW Ambulance policy documents. My correspondent says:

There is ongoing confusion in NSW Ambulance regarding paramedic authority to administer medications. 

 NSW Ambulance has reiterated that Paramedics and Intensive Care Paramedics (ICPs) are not permitted to administer medications they do not have the authority to carry or administer. In the CPGs there is a pharmacology matrix (attached)

outlining authority to administer.  Furthermore, ICPs cannot request paramedics to administer ICP pharmacologies under supervision. Instead, ICPs medications must be administered by an ICP.

However, the Interfacility Medication Monitoring Module Medication Information Reference 20 document (attached), states  

“During interfacility transfer, paramedics (Clinical level P1 and above) may be required to transport patients with medications not covered by NSW Ambulance Pharmacology. This reference list provides paramedics with information about monitoring requirements and precautions with the administration of some of the more common specific medications.”

For example, only ICPs are approved to commence and maintain an adrenaline infusion ‘in the field’, yet during an interfacility transfer, per Reference 20 document paramedics are told they can manage the same infusion. For our regional and remote paramedics this could see and infusion running over 2-3 hours, with no access to ICP.

Given the conflicting messaging from NSW Ambulance, how do paramedics navigate this complex area? Would it be prudent for paramedics and ICPs to limit medication infusions during interfacility transfers to only those medications included in their approved pharmacology matrix?

The relevant law says that paramedics can possess and supply those drugs that they are authorised by the Heath Secretary to use (Poisons and Therapeutic Goods Regulation 2008 (NSW) r 101 (for Schedule 8 drugs) and Appendix C, cl 7 (for Schedule 2, 3 and 4 drugs)). 

This means that paramedics can head out on their shift with a drug box, full of schedule 2, 3, 4 and 8 drugs that they are carrying ‘just in case’. At that time there is not particular patient that they drugs are for.  When the paramedics get to a scene they need to diagnose the patient’s condition, consider what drugs are indicated, and what are contra-indicated, calculate the appropriate dose and administer the drug via the correct route. The paramedics here are exercising their discretion and judgement (Queensland v Masson [2020] HCA 28). The Pharmacology Clinical Level Index supplied (presumably) indicates the drugs that the secretary has approved for paramedics at different clinical skill levels.

Where a patient is being transferred between facilities by ambulance, then it is not the paramedic that has determined what drugs are indicated by the patient’s condition, what the relevant dose is etc.  This has all be determined by others.  Anyone can possess and assist in the administration of drugs that have been prescribed for a person under their care (Poisons and Therapeutic Goods Act 1966 (NSW) s 16(d1) (Schedule 4) and s 23 (Schedule 8)).  

Consider too the circumstances where a patient is to be transferred and the treating team advise the paramedics that the patient has received a dose of a drug that may have side effects that the paramedic needs to watch for.  In that case the drug is already ‘on board’.  There is no (legal) difference if the drug is running through an IV.

The Interfacility Medication Monitoring Module – Medication Information does imply that paramedics may be required to administer drugs but again they are not making the decision about those drugs. They are being asked to administer drugs that have been prescribed for the patient.  Consider too a familiar reality, carers have no legal authority to possess or supply drugs, but carers may have a supply of scheduled drugs eg when caring for a family during chemotherapy or palliative care, that they can and do administer in accordance with the prescriber’s instructions.

It is this situation that the supplied Interfacility Medication Monitoring Module – Medication Information relates to. It does not give paramedics the authority to possess, supply and administer the drugs as the paramedics are not doing that. Someone else has supplied and administered the drugs. The paramedics are no more in the paramedic’s possession than the patient’s clothes are. But if I’m wrong on that analysis the paramedics have the necessary authority under the Regulations cited above. 

Conclusion

Legally there is no inconsistency between the two documents.  Paramedics are allowed to carry and supply, on their own initiative, those drugs that they are authorised to carry by the health secretary.

They can transport a patient what whatever drugs are already ‘running’ and the Interfacility Medication Monitoring Module – Medication Information gives advice on the monitoring required to ensure the best health care for a patient.  A paramedic, like anyone, can possess and administer any drug that has been prescribed for the patient.

For a related post, see Transporting patients with drug infusions in situ (June 29, 2020).

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 was inspired by a news story from Victoria –  Sophie Coghill, ‘Driver’s $481 ‘lesson’ after split-second red light mistake’ Yahoo News (undated).  The tag line is ‘Desperately trying get out of the way of an emergency vehicle, the driver ran a red light. A move that came with an eye-watering penalty.’

My correspondent says “I thought this one would be good for a discussion as many emergency responders in Victoria are of the impression a driver can contravene a road regulation so as to give way or keep clear of emergency vehicles.’

On reading this question I thought ‘I’ve answered that’ and indeed I have – see Making way for emergency vehicles (May 18, 2015).  Looking at that answer made me think:

1. Some questions never get old;
2. I’ve been doing this for a long time, that’s 9 years ago! And
3. It’s amazing how I can recall what I’ve written in that time. 

Putting all that to one side, given it was 9 years ago we can revisit the answer with updated references.

… the Bundaberg police say [at https://mypolice.qld.gov.au/bundaberg/2015/03/16/myth-buster-emergency-vehicles/]

Any emergency service vehicle with emergency lights and/or sirens operating have priority right of way under ALL circumstances.

If behind you, you MUST pull over and allow the emergency vehicle room to pass. You may drive onto the wrong side of the road or drive through a red traffic light to get out of the way of an emergency vehicle if it is safe to do so.

They are not alone; the Queensland Government also says ‘You may drive onto the wrong side of the road or drive through a red traffic light to get out of the way of an emergency vehicle if it is safe to do so’ (https://www.qld.gov.au/transport/safety/rules/other/emergency-vehicles/driving-on-road (5 January 2017)).

The Western Australia Road Safety Commission, on the other hand, say ‘Don’t break the law. There’s no excuse for speeding or going through a red light’ (https://www.wa.gov.au/organisation/road-safety-commission/emergency-services-vehicles (11 June 2024)).

 The National Roads and Motorists Association (the NRMA) says (at https://www.mynrma.com.au/cars-and-driving/driver-training-and-licences/resources/what-should-i-do-when-i-hear-emergency-sirens (undated)).

‘Never run a red light

If you are waiting at a red light when you hear a siren behind you, you must not go through a red light, as it might put other road users in danger. Move to the left if you are able to. If not, it is the emergency vehicle’s responsibility to find another route through, or wait until safe to do so.’

The Australian Federal Police do not commit themselves one way or the other (https://www.police.act.gov.au/road-safety/share-road/emergency-vehicles ) neither do the police in Townsville (also in Queensland) (http://mypolice.qld.gov.au/townsville/2013/05/22/keeping-clear-of-police-and-emergency-vehicles/ ). The AFP, in a video produced to show what drivers should do say (at 22 secs) drivers should move out of the way ‘safely and legally’ but they do not give advice on what ‘legally’ means in that context.

The Australian Road Rules WA and Qld

What’s the correct answer? The Australian Road Rules are meant to be nationally consistent, but there are discrepancies so I’m going to refer to both the Queensland and West Australian versions.

The first relevant rule says that the driver of an emergency vehicle is exempt from the road rules provided they are taking reasonable care and sounding a sire or displaying a blue or red flashing light (Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld) s 306; Road Traffic Code 2000 (WA) r 281).   In neither jurisdiction does that exemption apply to everyone and for obvious reasons.  An emergency service vehicle gets the exemption in part because it is fitted with emergency warning devices and, hopefully, hi-vis markings (see https://ambulancevisibilityblog.wordpress.com/).   The siren is meant to draw people’s attention to the presence of a vehicle nearby and the lights and markings draw attention to where it is.  A person who hears a siren may be looking for an emergency vehicle and will not expect a private vehicle to move into their path.  The Queensland rule 306 and Western Australia rule 281 provide an exemption for the driver of an emergency vehicle only, and not someone trying to get out of the way of an emergency vehicle.

What is the obligation upon other road users when an emergency vehicle approaches them? In Western Australia (Road Traffic Code 2000 (WA) r 60):

(1) A driver must give way to, and make every reasonable effort to give a clear and uninterrupted passage to, every police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.

(2) This regulation applies to a driver despite any other regulation that would otherwise require the driver of a police or emergency vehicle to give way to the driver.

If the lawmakers intended that ‘This regulation overrules any other road rule’ they would say so.  For example, in Western Australia ‘Every pedestrian and driver must obey the signal by hand or the reasonable oral direction given by a police officer’ or other authorised officer (Road Traffic Code 2000 (WA) r 272(1)).  What if the police officer directs the driver to do something that is contrary to some other provision of the regulations? That is provided for in regulation 272(2) which says:

It is a defence to any prosecution notice of a breach of these regulations that the accused was, at the time of the alleged offence, acting in conformity with a signal or direction given under subregulation (1).  

This is an example where the lawmakers have determined that the obligation to obey police does ‘overrule’ the other road rules, and that is clearly stated. If the obligation to make way for emergency vehicles was to ‘overrule’ the other road rules, then some similar statement would also appear in the Road Traffic Code 2000 (WA) r 60, but it doesn’t. Regulation 60(2) does not say the obligation to make way applies regardless of any other rule eg a rule to stop at a red light. It says that it applies despite any other rule that would otherwise give the driver right of way over the emergency vehicle.

In Queensland it is different.  In Queensland the Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld) s 78 says:

(1)…

(2) If a driver is in the path of an approaching police vehicle or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm, the driver must move out of the path of the vehicle as soon as the driver can do so safely.

Penalty—

Maximum penalty—20 penalty units.

(3) This section applies to the driver despite any other section of this regulation.

The differences are substantial. The Western Australia law says the driver must make a ‘reasonable effort’.  What is reasonable depends upon all the circumstances, and must consider other relevant laws.   In WA a driver facing a red traffic light ‘shall stop as near as practicable to but before reaching the nearest appropriate traffic‑control signal and shall not proceed beyond the signal’ (Road Traffic Code 2000 (WA) r 40(1)(a))). Asking what is reasonable must take into account that the driver must not proceed beyond the signal.  It would not be reasonable to pass the red signal nor would it be reasonable to expect the driver to do so.

In Queensland the obligation upon a driver to make way for an emergency vehicle is more assertive.  In that state the driver ‘must move out of the path of the vehicle’ (emphasis added).   As in Western Australia, a Queensland driver facing a red light ‘must stop’ at various places identified in the regulation depending on the type of intersection, and must not proceed until the signal changes to ‘green or flashing yellow’ (Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld) s 56).    So now there are two conflicting provisions, the driver ‘must’ move out of the path of the emergency vehicle but must stop at the red light.   How is that conflict resolved?  As noted above r 78(3) says the obligation in Queensland applies ‘despite any other section of this regulation’,  that is in Queensland, the obligation to make way for an emergency vehicle does appear to ‘overrule’ the other road rules, and that is clearly the view of the Queensland regulators.

So what’s the correct answer?  The advice that ‘You may drive onto the wrong side of the road or drive through a red traffic light to get out of the way of an emergency vehicle if it is safe to do so’ applies in Queensland, but not in Western Australia.

Other jurisdictions

Western Australia seems to be the exception because the law is in the same terms of the Queensland law in:

• The ACT (Road Transport (Road Rules) Regulation 2017 (ACT) r 78(2) and (3));
• New South Wales (Road Rules 2014 (NSW), r 78(2) and (3));
• The Northern Territory (Traffic Regulations 1999 (NT), Schedule 3, cl 78(2) and (3));
• South Australia (Australian Road Rules (SA) r 78(2) and (3)));
• Tasmania (Road Rules 2019 (Tas) r 78(2) and (3)); and
• Victoria (Road Safety Road Rules 2017 (Vic) r 78(2) and (3)).

Discussion

Of course, it’s never that simple. The NRMA’s advice is that ‘…  you must not go through a red light, as it might put other road users in danger’ (https://www.mynrma.com.au/cars-and-driving/driver-training-and-licences/resources/what-should-i-do-when-i-hear-emergency-sirens)?  Well that’s true, but that doesn’t deal with the law which appears to say that a driver can breach another road rule if they are required to get out of the way of an emergency vehicle provided it is safe to do so.  If the NRMA thinks it is never safe then there advice is correct but as I like to say, context is everything so the circumstances in each case would need to be considered.

 If a driver does enter an intersection with a red light camera they could expect to receive a traffic infringement notice if the officer reviewing the photo doesn’t see the emergency vehicle and he or she may also take a different view on whether the driver’s actions were ‘safe’.   The driver would need to write to police asking them to withdraw the notice and if that fails, elect to take the matter to court and argue the issue before a Magistrate.  That, in turn, may require that the driver makes inquiries with the relevant emergency service to confirm that they had a vehicle proceeding at that intersection at that time and in an extreme case, the driver may want to subpoena the driver of the emergency vehicle to confirm that the actions taken were safe.    At that point one might decide it’s just easier and quicker to pay the ticket.

If a driver does enter an intersection or cross to the wrong side of the road and have an accident, then it is axiomatic that they did not do so when they could ‘do so safely’.  They could expect, at least, a traffic infringement notice.    Should someone be killed or injured they could expect to get charged with a more serious offence eg ‘Dangerous operation of a vehicle’ (Criminal Code (Qld) s 328A).  Equally if they are involved in a collision the other driver, or their insurer, would no doubt look to the driver-at-fault’s insurer with all the implications that has for the no-claim bonus and next year’s premium.  The fact that the driver was making way for an emergency vehicle will not mean the accident was not their fault, ie that they were not negligent, if they travelled through a red light or onto the wrong side of the road in a way that was not safe.

Further the exemption under r 78 only applies to offences contrary to the road rules. Other offences are set out in other legislation for example the offence of careless driving is set out in Road Safety Act 1986 (Vic) s 65.  If a police officer thinks the driver went through a traffic light to comply with r 78, but did so carelessly, they could be charged with that offence as r 78 does not give any exemption from the offences in the Act.

To return to the story that prompted this question, the story says

… the white sedan was approaching a highway intersection inMelbourne’s southeast suburb of Cheltenham when the fire engine with “lights and sirens active” sped towards it. In a split-second decision, the driver decided to turn right to move out of the emergency vehicle’s way and was caught by a red light camera overhead.

“I panicked and went through 2.2 seconds late… the second right turning lane was blocked by a stationary vehicle and I was still coming to a stop, they [the fire engine] chose my lane hence the panic and desire to follow the cars through the red,” the driver wrote on social media, explaining they had been driving at 80 km/h before slowing as they approached the traffic lights.

It may be that the police think that completing the right turn was not safe and there may have been other options eg travelling through the red light but not crossing into the path of oncoming traffic.  We cannot say whether the driver complied with r 78(2) and (3) without access to the photos, details of the road and traffic conditions at the time, and an understanding of the police officer’s reasoning as to why r (3) did not apply (assuming the officer did in fact consider r 78(3)).

Conclusion

Fundamentally the Road Rules in every jurisdiction, other than WA, allows the police to choose not to issue a ticket and be able to justify their action according to law but it does put a very large burden on the driver who, without training and without emergency warning devices, must make a quick and potentially very dangerous call.   The clause may allow, even require, a driver to enter an intersection against a red light or cross to the wrong side of the road, but they do so at their own risk.

If they do receive an infringement notice they can seek a review and if that is not successful, they could apply to have the matter determined by a magistrate.  Many would think that is not worth the cost or effort.  Further, for a definitive precedent we’d really need either the informant or the driver to take their case to the Supreme Court as an appeal against the Magistrate’s decision (depending on whether the Magistrate set aside the infringement in which case it would need to be the informant who appeals or upholds the infringement in which case it would be up to the driver to appeal).   Whether there is a case that warrants that sort of effort would depend on the facts.  One cannot know whether this most recent example has the necessary facts to warrant such a cost and effort.

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 has:

… two questions regarding paramedic continuing professional development (CPD). As you would be aware, paramedics are required to complete 30 hours of CPD per registration year which includes 8 hours of interactive development with other practitioners. 

My first question related to the term practitioners. The standard does not define the term. Is it ok to infer that as AHPRA is the Australian Health Practitioner Regulation Agency that anyone who is registered by AHPRA (and in turn, appears on the register) is a practitioner for this purpose? Or can the term be used more broadly. For example, if I undertake a Provide CPR class with other first aiders, are they practitioners and therefore this training can be counted for CPD hours?

Secondly, is a workplace under any requirement to provide ongoing training for paramedics who work there and, if they are, to what extent?

Clearly providing training is of benefit to the workplace but is it something they are required to do?

The Paramedicine Board’s Registration standard: Continuing professional development (17 May 2018) says (emphasis added):

To meet this standard, you must:

1.             complete at least 30 hours of CPD each year that:

a.             seeks to improve patient outcomes and experiences

b.             draws on the best available evidence, including well-established and accepted knowledge that is supported by research where possible, to inform good practice and decision-making

c.             contributes directly to improving your competence (performance and behaviour) and keeping you up to date in your chosen scope and setting of practice

d.             builds on your existing knowledge, and

e.             includes a minimum of eight hours CPD in an interactive setting with other practitioners.

The law is the ‘Health Practitioner’ regulation law; the only reasonable inference is that ‘other practitioners’ means other health practitioners because they are the only people regulated by the Act. If it meant ‘anyone’ eg a legal practitioner, or a first aider, then it would in effect be meaningless.  Clearly first aiders are not ‘practitioners’ for the purposes of the Health Practitioner Regulation National law any more than are ‘music practitioners’ or ‘yoga practitioners’.  The only meaningful interpretation is that ‘practitioner’ for the purpose of the standard means ‘health practitioner’.

As for the obligation of employers to provide ongoing training or CPD see What it means to be a professional paramedic – part 2 (June 6, 2021).

For related posts see:

• Continuing Professional Development (CPD) for paramedics (December 5, 2018); and
• Responsibility for paramedic skills maintenance (July 26, 2021).

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 relates to the power of Fire and Rescue NSW to close ‘streets and public places’ (Fire and Rescue NSW Act 1989 (NSW) s 14).  My correspondent says:

Recently the Fire Brigade Employees Union (FBEU) released a “Code Red” directing members to take the following action when working on roadways: Roads, or light rail lines where needed, must be closed using your appliance and or traffic cones until police or designated traffic management personnel arrive to take over. The whole message can be found here: https://fbeu.net/2024/06/21/code-red-traffic-management/ . Can you please provide comment on the legal elements relating to this direction as they apply in NSW?

I have concerns about putting a blanket direction to close roads using cones or a fire truck without firefighters first undertaking a risk assessment to ensure that the benefits of closing a road outweigh the risks of closing a road. On one hand, I support the closing of a slower-speed street for firefighter safety if firefighters are required to work within the potential path of an oncoming vehicle and the placement of a fire truck can prevent a firefighter being hit by an oncoming car, however on the other hand, if an incident is on the side of a busy highway, where the risk of firefighter impacts is lower, completely blocking the highway with a single fire truck would, in my opinion, create a far higher risk of that truck being hit, or other cars crashing into each other as they attempt to slow down from highway speed.  Transport for NSW’s Traffic Control at Worksites Manual Version 6.1 gives an indication of what could be considered reasonable to block a highway to minimise traffic colliding with workers, or other stopped vehicles. This manual, if followed requires advanced signage hundreds of meters before the road closure and a gradual speed reduction before coming to a stop (ie 110km/h down to 60km/h with speed zone ahead signage, down to stopped). No NSW Fire and Rescue truck carries advanced warning signage or adequate traffic cones to conduct this type of traffic control to safely close a road. Suppose firefighters close a highway simply because of the FBEU’s direction without assessing the risk vs benefit and this action is found to cause an accident. Would the firefighters be legally protected in any way if they can’t demonstrate that it was done to protect life or property?

Section 14 of the Fire and Rescue NSW Act 1989 (NSW) allows for the officer in charge of a fire or hazardous materials incident to close any street or public place to traffic. My interpretation of this is it is limited to “streets” Whilst I can’t find any definition within the act or other acts of what a “street” is, I would see that a “Street” is a subset of roads, and wouldn’t include roads such as highways and freeways? Does this mean that Firefighters don’t have the power to close any road other than a street? Also, as section 14 only relates to fires and hazardous materials incidents, for which Fire and Rescue NSW is the combat agency, do they have the power to close a road for operations other than fires or hazmat incidents, i.e. Assist Public, non-incident-based refilling from a hydrant etc.?

The ‘Code Red’ says, in full (emphasis in original):

As members would know, we are often forced to perform tasks beyond our primary responsibilities, including handling situations that should be done by other agencies. This includes managing traffic at incident scenes, a task for which our members have not received specific training or qualification, and for a number of years been left to us due to under resourcing of the NSW Police.

Given the above, effective immediately, all FBEU members are directed to take the following action when working on roadways:

Roads, or light rail lines where needed, must be closed using your appliance and or traffic cones until police or designated traffic management personnel arrive to take over.

This instruction remains in place until lifted by the State Secretary.

I read that the point of the directive is exactly what my correspondent has said, Fire and Rescue NSW are not trained in traffic management so cannot complete an appropriate ‘risk management’ and certainly cannot comply with any requirements for ‘advanced signage hundreds of meters before the road closure and a gradual speed reduction before coming to a stop (ie 110km/h down to 60km/h with speed zone ahead signage, down to stopped)’.  Presumably the Union has done a risk assessment and noting that fire brigade employees do not have the training or resources to set up and manage this sort of traffic management, the safest thing to do is close the road with the appliance, complete with flashing red/blue lights, and let ‘designated traffic management personnel’ come and introduce the sort of traffic measures that are being suggested.

I also not that the directive does not direct FBEU members to close roads all the time eg when attending an incident at the side of the road. The ‘Code Red’ is directed to situations where FRNSW want to or are asked to close a road.  A fire crew may decide that on the side of the road, with the appliance visible and expecting drivers to comply with the Road Rules 2017 (NSW) r 78-1 and slow down when approaching their appliance then closing the road is not ‘required’.

As I read the ‘code red’ it’s saying to FBEU employees ‘if you need to, close the road don’t try and manage traffic using a stop/slow bat or other directions. You’re not trained in that so close the road until police or traffic controllers get there to do what they are trained to do’ (assuming police are still trained to perform ‘point duty’). Put that way the direction is hardly objectionable, unless you’re the one stuck in traffic and wishing they’d just let you pass down that lane.

As for s 14 of the Fire and Rescue NSW Act it says

(1)            The officer in charge at a fire may cause any street or public place in the vicinity of a fire to be closed to traffic during the fire.

(2)            The officer in charge at a hazardous material incident may cause any street or public place in the vicinity of the site of the incident to be closed to traffic until the site has been rendered safe.

Clearly these are limited to situations of fires or hazardous material incidents. Fire and Rescue NSW do not have the power to close a road for operations other than fires or hazmat incidents’ but, as I read the Code Red it might be applied where other agencies are the combat agency eg the SES ask Fire and Rescue to help with traffic management. In that case it’s the SES relying on their powers to close the road and FBEU are saying ‘we’re not going to do traffic control, if we’re asked to manage the traffic, we’ll manage it by closing the road’ for the very reason my correspondent noted, they’re not trained or equipped to do anything else.

In terms of other ‘emergencies’ the Road Rules provide an exemption from parking restrictions for emergency vehicles (r 307) and there is also a general exemption to deal with emergencies. Rule 165 says:

It is a defence to the prosecution of a driver for an offence against a provision of this Part if–

…

(c) the driver stops at a particular place, or in a particular way, to deal with a medical or other emergency, or to assist a disabled vehicle, and the driver stops for no longer than is necessary in the circumstances…

If a firefighter stops at say an accident to assist an injured person, even though FRNSW is not the combat agency, they commit no offence by parking their appliance even if they park it across the road to stop traffic coming. 

There are many words used to describe trafficable paths – streets, roads, highways, motorways etc.  The Road Rules 2017 don’t just apply on ‘roads’ they apply on ‘roads and road related areas’ (see Road Rules 2017 (NSW) r 13). A ‘road’ is ‘an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles’. It doesn’t matter whether it’s called a street, road, circuit, drive, highway, motorway or any of the other terms used to label roads in NSW. 

The term ‘street’ does not appear to be defined anywhere. NSW ‘Movement and Place’ (https://www.movementandplace.nsw.gov.au/) talks about streets and roads. They say there are ‘four road and street environments – main roads, main streets, local streets and civic spaces’. They also say ‘Roads and streets are different’

Streets make up the greater part of the transport network, and range from quiet and calm local streets to vibrant main streets and lively civic spaces. Streets have important place qualities and significant meaning for local communities.

Roads are central to the efficient movement of people and goods across larger distances and regions. They are important for connecting cities and towns, providing social connection, access to essential services and enabling economic activity.

But these terms are adopted for the purposes of the various policies being managed by this part of the government, they are not reflected in law.  As they also say (emphasis added):

The terms ‘streets’ and ‘roads’ are often used simultaneously and interchangeably. In this guide, ‘streets’ includes civic spaces, main streets, and local streets, while ‘roads’ refers to main road environments.

That is the distinction is ‘in this guide’ not everywhere.

I would suggest for the purposes of the Fire and Rescue NSW Act no-one is going to distinguish between a ‘street’ and any of the other identifiers used on public roads. In any event the power in s 14 extends to any public place which must include a ‘public road’ (Roads Act 1993 (NSW)).

Conclusion

1. The Fire and Rescue NSW Act 1989 (NSW) s 14 allows the officer in charge at a fire or hazardous material incident to close ‘any street or public place in the vicinity of [the fire or incident] to be closed to traffic …’  That is not limited to thoroughfares named ‘street’.  It would include roads and that is made clear by ‘any public place’.
2. The officer in charge cannot order a road closed for other work purposes such as ‘refilling from a hydrant’ or pulling over to ask the driver of a broken-down car ‘are you ok?’ 
3. If there is an emergency on a road or road related area, the driver of an appliance can park anywhere provide they are taking reasonable care and it is reasonable in all the circumstances (Road Rules 2017 (NSW) rr 307 and 165).  It may well be ‘reasonable’ to park in such a way as to close the road given the employees do not have the resources or training for more effective traffic management. That would really depend on all the circumstance but may not extend to ‘refilling from a hydrant’ or pulling over to ask the driver of a broken-down car ‘are you ok?’ 
4. I don’t read the Union’s ‘code red’ of being a directive to close a road everytime a firefighter gets out of the appliance on a street or road. The directive refers to ‘managing traffic at incident scenes’ and applies when traffic management is required, which is not the case every time a firefighter is on the road. 

It is true that Fire and Rescue NSW cannot close a road whenever a firefighter is ‘working on roadways’. The issue is not are they working on a road (as that may cover many things) but is ‘traffic management’ required.  Some traffic management is achieved by Road Rule 78-1.  As I read the Code Red it’s saying ‘if it’s a choice between ‘directing traffic’ or closing the road, close the road’.   In context I cannot see that is objectionable. If it is really intended to say ‘everytime you get out of the appliance on a public street, or road, close the road’ then that would be objectionable.  But given firefighters don’t have to arrange for ‘traffic management’ everytime the get out of the appliance I don’t read it that way.  It would be up to the FBEU to say whether I am misreading their direction.

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 question is very disturbing.  I’m told that after:

… receiving critical medical treatment by [an event health service] … team at an event earlier this year. I was taken to a curtained off medical bay in a designated area of the venue.

2 photos were taken while I was unconscious with my dress hitched up to fully expose my underwear. I had ECG electrodes attached and an IV line in my arm. It is clear from the photographs that I am in a critical and very compromised position. The photographs were taken by a member of the public, a third party.

I have serious concerns about this behaviour and believe that it violates privacy laws around photography in medical centres. Photographs should obviously not be taken in these situations, but does it violate any specific legislation?

Could it be classified as ‘Upskirting’? This is based on my reading of section 41B of the Summary Offences Amendment (Upskirting) Bill 2007 (Vic)?

Summary Offences Act 1966 (Vic)

A Bill is a draft law. Once passed the provisions became part of the Summary Offences Act 1966 (Vic).  The Amendment Bill introduced Division 4A into Part 1 of the Act. These provisions deal with ‘Observation of Genital or Anal Region’. Section 41A says:

A person must not, with the aid of a device, intentionally observe another person’s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be observed.

Penalty:     3 months imprisonment.

Section 40 defines “genital or anal region” to mean ‘the person’s genital or anal region whether bare or covered by underwear’.  “Device” means a device:

… of any kind capable of being used to observe a person’s genital or anal region including—

        (a)     a mirror; and

        (b)     a tool when used to make an aperture; and

        (c)     a ladder—

but does not include spectacles, contact lenses or a similar device when used by a person with impaired sight to overcome that impairment;

A device could include a camera so a person who uses a camera to take a photo up the skirt of a person standing on a tram would commit this offence as would a person who drilled a hole in a wall to be able to see into someone’s bedroom, bathroom or changeroom in order to observe someone’s ‘anal or genital area’.

Crimes Act 1958 (Vic)

The Crimes Act 1958 (Vic) s 53R(1) creates a more relevant and specific offence. That section says:

A person (A) commits an offence if—

(a)       A intentionally produces an image depicting another person (B); and

(b)       the image is an intimate image; and

(c)       A knows that the image is, or probably is, an intimate image; and

(d)       the production of the intimate image is contrary to community standards of acceptable conduct.

An intimate image includes (s 53O) ‘an image depicting— … (c)    the genital or anal region of a person (whether bare or covered by underwear)’.

The maximum penalty for this offence is 3 years imprisonment. The Act gives examples of conduct that may, or may not constitute an offence. One example is:

A doctor taking a photo of an unconscious patient, which depicts the patient’s genital region, during an operation to assist the doctor to perform a medical procedure may not be an offence against this section because of subsection (1)(d).

Subsection 1(d) is the reference to ‘community standards of acceptable conduct’. Section 53U says:

(1)       Whether the production or distribution of an intimate image is contrary to community standards of acceptable conduct depends on the circumstances.

(2)       For the purposes of subsection (1), the circumstances include—

(a)       the nature and content of the intimate image;

(b)       the circumstances in which the intimate image is produced or distributed;

(c)       the age, intellectual capacity, vulnerability or other relevant circumstances of a person depicted in the intimate image;

(d)     the degree to which the production or distribution of the intimate image affects the privacy of a person depicted in the intimate image.

We don’t know the context, but we’re told the image is of a patient with their ‘dress hitched up to fully expose [their] underwear’.  That is an image of the person’s ‘genital or anal region’ and therefore an intimate image.  If they patient was observed by strangers who realised they could see into or access the treatment area then I for one have no doubt that taking the photo ‘is contrary to community standards of acceptable conduct’.  If it was taken by someone with permission of the treatment team, then the context would be relevant – if it was to form part of the medical record or for training then that may be acceptable as suggested by the example given in the Act.

TV crews

What’s interesting about this scenario is to consider what would have happened if paramedics arrived wearing body cameras or accompanied by a TV crew (see Revisiting reality ambulance shows (June 9, 2024)).  If they had captured the footage, they may argue that they did not ‘intentionally observe another person’s genital or anal region’ but the camera operator may have made sure to get a shot that showed the person’s state of clothing not knowing what may or may not be used in the future.  They may not commit the offence under s 53R as the protocols in place regarding the production and use of the footage may mean that is not against acceptable community standards, but they could be guilty of the lesser offence in the Summary Offences Act.  And if they are then it doesn’t matter if the footage is never used or deleted, the offence is committed when the photo is taken.  And if it’s wrong for a stranger to come in and take the photo, how is it any less wrong for a camera crew accompanying the ambulance crew?

Conclusion

One cannot give definitive advice particularly without seeing the photo and understanding the context of how it came to be taken but on what I’ve been told here, if I was the patient and upset about the photo (both its existence and that it was taken in the first place) I’d certainly report it to Victoria police regarding possible offences contrary to the Summary Offences Act 1966 (Vic) s 41A and/or the Crimes Act 1958 (Vic) s 53R.

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.

John Larter was a NSW Ambulance paramedic who rose to fame during the Covid-19 pandemic – see https://australianemergencylaw.com/?s=larter. His latest case is Larter v Health Secretary in respect of NSW Ambulance [2024] NSWIRComm 1030.  This was the outcome of his complaint of that his dismissal from NSW Ambulance was ‘unfair’.

Employment and the need for COVID vaccinations

Mr Larter was first employed by NSW Ambulance in 1996.  At the time of his dismissal, he was employed as the station officer at Tumut station. ([13]-[14]).  

The requirement for health workers to be vaccinated against Covid-19 were first introduced by public health orders made under the Public Health Act 2010 (NSW) s7.  The Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021came into effect on 29 September 2021. It was replace by Order 2 (2021) on 22 October 2021 and by Order 3 (2021) on 23 December 2021 ([18]-[25]; see also https://legislation.nsw.gov.au/information/covid19-legislation/vaccination-health-care-workers).  A determination under the Health Services Act 1997 (NSW) s 116A was made by the Health Secretary, as the legal employer of NSW Health workers. The determination had the effect of altering the conditions of employment to require a Covid-19 vaccination. It was made on 12 November 2021 ([26].

On 20 September 2021 Mr Larter’s registration as a paramedic was suspended by the Paramedicine Board. That decision is the subject of an ongoing challenge in the NSW Civil and Administrative Tribunal (‘NCAT’) ([16]).  (It should be noted that at the date of writing this report, 3 July 2024, John Edward Larter is a registered paramedic and there are no conditions on his registration, even so the issue of action taken by the Paramedicine Board remains before NCAT – see Paramedic John Larter’s appeal to NCAT – you lose some, you win some (February 9, 2023)).  

Mr Larter did not get vaccinated against COVID-19. The ‘show cause’ process began on 3 February 2022 and culminated in Mr Larter’s dismissal on 2 March 2022.  His application for relief under the unfair dismissal provisions was filed on 24 March 2022.

Following his dismissal another public health order, and a NSW Health Policy Directive confirmed the need for public health workers and NSW ambulance paramedics to be vaccinated against COVID-19 ([27]-[28]).

On 25 March 2024 after consultation between NSW Health and staff associations the requirement for COVID vaccination was withdrawn. COVID-19 vaccination is now recommended, not required ([7]).

The application

Mr Larter’s application was based on four grounds. They were ([5]):

1. The applicant was dismissed on the incorrect basis that he had contravened the Second PHO;
2. The applicant was dismissed for failing to comply with the Determination which was not a lawful and reasonable direction;
3. The dismissal was procedurally unfair; and
4. The dismissal was harsh.

Ground 1 ‘The applicant was dismissed on the incorrect basis …’

Mr Larter’s first ground was that the dismissal was unlawful. In essence he argued that he was not in breach of the public health orders (‘PHOs’), and even if he was, the Determination made by the Health Secretary was not lawfully made.

The argument with respect to breach was that the PHOs provided that a person was not to work as a health worker whilst unvaccinated. Larter’s argument that given he took leave and was suspended by the Ambulance Service he did not, whilst unvaccinated, work as a health worker and there was, therefore, not breach ([63]).

The Commission found that even if some witnesses said the ground was a breach of the PHO, it was made clear to Mr Larter in the ‘The First and Second Show Cause Letters … that it was due to his inability to work arising from the operation of the PHO’s that they were considering the termination of his employment.’  That is he was dismissed because his decision not be get vaccinated made it impossible for him to do the work he was employed to do.

Ground 2 ‘The applicant was dismissed for failing to comply with the Determination which was not a lawful and reasonable direction’

As the lawfulness of the Health Secretary’s determination the applicant made a number of submissions that are not necessary to report, but all of which were rejected. Fundamentally the Health Services Act allows the Secretary to unilaterally change the employment conditions of workers with NSW Health. Walton J in Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431 (quoted at [89] said:

This is a power that the Secretary can exercise unilaterally, which is very different to a power to contract which requires mutual assent by two parties manifested in the making of an offer by one party and its acceptance by the other. The Secretary may also be able to change the salary, wages and conditions of employment unilaterally at any time, which is also very different to a contract of employment which requires the mutual assent of the parties unless it provides otherwise.

The purpose of the power in s 116A(1) is “to ensure a high measure of consistency in a large and diverse public sector organisation”: NSW Nurses’ Association v Sydney Local Health District [2012] NSWIRComm 52 at [102] (Boland J, President). It is clear that a determination by the Secretary under this power is intended to set conditions that could cover the entire workforce or a very large cross-section of it. This only highlights how separate and distinct it is from the power to enter into contracts of employment. Under the doctrine of privity of contract, any contract can only bind the contracting parties (that is, the Crown and the relevant individual employee) and could not affect the legal rights of other employees.

The decision by the Health Secretary to make it a condition of employment was a lawful direction.

Ground 3 ‘The dismissal was procedurally unfair’

This argument alleged deficiencies in the show cause process.  The Commission found (at [115]) that there was no evidence to support a claim that the applicant did not fully understand the issues that were being considered. As for an allegation that the CEO failed to consider the material Mr Larter put in response to the show cause letter, the Commission noted (at [116]) that Mr Larter

… failed to respond to the Second Show Cause Letter and therefore on one level there was nothing to consider. Notwithstanding this, the contents of the brief to the Chief Executive provides a sufficient basis for me to find that the respondent did in any event consider the applicant’s response to the First Show Cause letter as well as the applicant’s individual circumstances.

The decision to dismiss him was not procedurally unfair.

Ground 4 ‘The dismissal was harsh’

The next consideration was whether the decision was ‘harsh’.  Commissioner O’Sullivan said (at [120]-[121]):

Almost all dismissals will occasion hardship upon an individual who has been removed from their employment, but that does not make all dismissals harsh to the level that it renders that dismissal unfair. As I found in Welch, it is a matter of weighing up all the circumstances, including the reason(s) for the dismissal as well as the impact upon on the applicant.

In this matter, the applicant found himself in the same situation as all other employees who were faced with the prospect of meeting COVID-19 vaccination requirements to maintain his employment. For his own personal reasons, which have no bearing on my consideration of his application, he chose not to. Given this, the harshness visited upon himself is partly a consequence of his own choice and thus does not render the dismissal harsh for the purposes of the IR Act.

Result

Having rejected all of Mr Larter’s grounds to argue that the dismissal was unfair, his application was dismissed.

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 been asked whether the RFS can direct an HSR not to conduct an inspection or take disciplinary action if the HSR continues with the inspection despite a direction not to.   The question raises similar issues to those discussed in Arnott v Fire and Rescue NSW (discussed in my post FRNSW Health and Safety representative does not need employer’s permission to do their work (July 2, 2024) and that case largely answers it.

The Act

Health and Safety Representatives are provided for in the WHS Act.  HSRs are elected by their workgroup (WHS Act ss 60-67 and see RFS volunteer exercising rights as a ‘worker’ (August 27, 2016)). Section 68 says:

68 POWERS AND FUNCTIONS OF HEALTH AND SAFETY REPRESENTATIVES

(1) The powers and functions of a health and safety representative for a work group are–

(a) to represent the workers in the work group in matters relating to work health and safety, and

(b) to monitor the measures taken by the person conducting the relevant business or undertaking or that person’s representative in compliance with this Act in relation to workers in the work group, and

(c) to investigate complaints from members of the work group relating to work health and safety, and

(d) to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking.

(2) In exercising a power or performing a function, the health and safety representative may–

(a) inspect the workplace or any part of the workplace at which a worker in the work group works–

(i) at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace, and

(ii) at any time, without notice, in the event of an incident, or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, and

(b) accompany an inspector during an inspection of the workplace or part of the workplace at which a worker in the work group works, and

(c) with the consent of a worker that the health and safety representative represents, be present at an interview concerning work health and safety between the worker and–

(i) an inspector, or

(ii) the person conducting the business or undertaking at that workplace or the person’s representative, and

(d) with the consent of one or more workers that the health and safety representative represents, be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and–

(i) an inspector, or

(ii) the person conducting the business or undertaking at that workplace or the person’s representative, and

(e) request the establishment of a health and safety committee, and

(f) receive information concerning the work health and safety of workers in the work group, and

(g) whenever necessary, request the assistance of any person.

Note : A health and safety representative also has a power under Division 6 of this Part to direct work to cease in certain circumstances and under Division 7 of this Part to issue provisional improvement notices.

(3) …

(4) Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity.

Critically, what s 68(2)(a) says, and Arnott v SafeWork NSW and Fire and Rescue NSW [2024] NSWIRComm 1039 confirmed, is that an HSR may have to give notice prior to an inspection, but he or she does need to get authorisation or approval to conduct that inspection.  Section 68(4) says that an HSR may do those things listed, not that they must.

Section 90 says:

(1) This section applies if a health and safety representative reasonably believes that a person–

(a) is contravening a provision of this Act, or

(b) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated.

(2) The health and safety representative may issue a provisional improvement notice requiring the person to–

(a) remedy the contravention, or

(b) prevent a likely contravention from occurring, or

(c) remedy the things or operations causing the contravention or likely contravention.

(3) However, the health and safety representative must not issue a provisional improvement notice to a person unless he or she has first consulted the person.

It is unlawful (s 104) to engage in discriminatory conduct on the basis of a person’s role as an HSR or because they ‘exercises a power or performs a function or has exercised a power or performed a function or proposes to exercise a power or perform a function as a health and safety representative …’ (s 106).  Discriminatory conduct means (s 105(1)(a)) the PCBU

(i) dismisses a worker, or

(ii) terminates a contract for services with a worker, or

(iii) puts a worker to his or her detriment in the engagement of the worker, or

(iv) alters the position of a worker to the worker’s detriment…

And remember for the purposes of the Act, the term ‘worker’ includes a volunteer (s 7).

As I said in my report on Arnott’s case:

That Act anticipates that HSRs will act on their own initiative and are not subject to the direction of their employer.   As Commissioner Muir said  ‘That the applicant had “unilaterally decided to conduct inspections”, of itself demonstrates no unreasonableness. This is the structure contemplated by the WHS Act.’  As noted above, the Parliament, through the WHS Act did not intend to create a situation where ‘the capacity of an elected HSR to perform the roles and duties assigned to them by the WHS Act subject to the discretion of their employer’.

Conclusion

Whether the RFS approves or prohibits an inspection is irrelevant.  The powers and authority of the HSR are given by the Work Health and Safety Act, not the Rural Fires Act or the WHS policy adopted by the PCBU.

There could be issues, as there were in Arnott’s case, if the PCBU wants to argue that an HSR did not comply with s 68(2)(a) (the need, in some cases, for notice before an inspection) or s 90(3) (the need to consult before issuing a PIN) but the principle remains that an HSR is elected as a workers’ representative and in that capacity they have statutory authority and protection.  They do not need the PCBU’s authority to conduct an inspection or to otherwise perform their duties. They are not subject to the PCBU’s direction as to when they exercise their powers.

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.

Arnott v SafeWork NSW and Fire and Rescue NSW [2024] NSWIRComm 1039 (28 June 2024) (Commissioner Muir) involved a dispute between Fire and Rescue NSW (‘FRNSW’) and a retained firefighter who is also a Health and Safety Representative (‘HSR’).

The applicant conducted an inspection of various fire stations in his role as a Health and Safety Representative. He said he was relying on ss 68(1)(b) and (d) of the Work Health and Safety Act 2011 (NSW) (‘the WHS Act’) which say:

(1) The powers and functions of a health and safety representative for a work group are– …

(b) to monitor the measures taken by the person conducting the relevant business or undertaking or that person’s representative in compliance with this Act in relation to workers in the work group, and …

(d) to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking.

Mr Arnott’s evidence (at [48]) was that FRNSW objected on the basis that he had not ‘consulted with Zone management’ so neither the inspections nor claims for pay or travel to conduct them would be approved.  Mr Arnott replied arguing that the Act did not require a HSR to consult prior to an inspection, they only had to give ‘reasonable notice’. As for costs, he wrote to FRNSW (at [49]) pointing out the terms of s 70(3) of the Act. That section says:

Any time that a health and safety representative spends for the purposes of exercising his or her powers or performing his or her functions under this Act must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.

Mr Arnott conducted his inspections and identified many things that he thought were in breach of the WHS Act.  He submitted time sheets for the time spent on the inspection.  FRNSW Superintendent Tyne wrote to the applicant and said (at [52])

… ‘today I have rejected all claims for 5-6 November’, and that ‘despite powers you may have invoke as a HSR under the WHS legislation you do not have FRNSW delegation to incur any hours or costs without prior approval’. He concluded with, ‘to be clear you are not approved or required to undertake any further station inspections as Todd is not available and I will not approving any claims you make related to station inspections.’

Mr Arnott then issued a Provisional Improvement Notice (a PIN) (WHS Act ss 90-102) regarding the decision of Superintendent Tyne.  The PIN alleged a breach of s 70(3) and required FRNSW to approve the pay claims and rescind directions seeking to restrict the actions of the HSR.

FRNSW sent the PIN to Worksafe under s 100. This allows the Person Conducting the Business or Undertaking (the PCBU) to seek a review of the PIN by the regulator.  Worksafe set aside the PIN.  Mr Arnott, supported by the Fire Brigades Employees Union (FBEU) applied to the Industrial Relations Commission to set aside that decision by WorkSafe.

FRNSW argument was that an HSR could not put him or herself ‘on duty’ (so to speak) at their own discretion and expect to get paid without prior approval. At [91] the Commission quoted FRNSW’s submissions as

The implications of this case are substantial. Should the PIN be set aside, Fire & Rescue will be required to pay any HSR who wishes to inspect Fire and Rescue premises on their own time. This would occur whether or not Fire & Rescue consented to or even knew about the inspection. There would be no reason why every other employer (except those subject to the Commonwealth WHS Act) would not be subject to the same obligation.

The applicant’s submission was that the power to conduct the inspection and the obligation to pay are all set out in the WHS Act and cannot be refused by FRNSW.

The Commission revoked the internal review by Safework and restored the Improvement notice thereby obligating FRNSW to pay Mr Arnott for the time spent on the workplace inspections.  Commissioner Muir said (at [120]-[125]):

The second respondent [FRNSW} advances a range of reasons in support of its case, the most important of which is that otherwise an employee will be able to set their own hours up to and including any number of hours they see fit.

There is without question force to the second respondent’s submissions that, certainly at the margins, the outcome pressed for by the applicant would result in an absurd interpretation of the WHS Act.

It would indeed be unusual if the parliament had intended that a person elected as an HSR could, without any limit, set the hours they work by invoking their roles and duties under the WHS Act.

In the Commission’s view there are a number of problems nevertheless with the case pressed by the second respondent.

Most fundamental is that the outcome pressed for by the second respondent will, in practical terms, and in particular in the circumstances of this external review, have the effect of making the capacity of an elected HSR to perform the roles and duties assigned to them by the WHS Act subject to the discretion of their employer.

Had this been the intention of the Parliament it must be expected that this would have been set out expressly in the WHS Act.

FRNSW had sought to rely on the terms of the relevant award that required an employee to seek approval (see [90]).  The Commission said (at [127]-[128]):

The Commission is not persuaded that an award of the Commission, managerial prerogative, or any other matter arising under an obligation or power established pursuant to the IR Act could, even if expressly set out, override the powers and duties vested in an HSR under the WHS Act. Such an outcome would be contrary to the purpose of the powers invested in an HSR pursuant to the WHS Act as standalone powers, independent of their employer.

The Commission concludes that nothing in the WHS Act, or any other law or instrument raised in these proceedings, would empower an employer to direct an HSR not to perform their duties including where the employer arranged for another properly elected HSR to do those duties.

The obligation in the award for prior approval could not apply to a person exercising powers under the Act. It is the WHS Act that entitles the employee to their salary, not the award even if it is the award that determines the amount of pay that the person will be entitled to receive.

AS for the argument that the issue of a PIN was inappropriate, the Commission noted:

… that s 70(3) of the WHS Act does not have a penalty attached to it for breaches of that provision. Indeed, there is no obvious mechanism in the WHS Act for any action to be taken against an employer who does not comply with that provision.

The Commission did recognise that the Act and the Commission’s decision may create a situation where an over-zealous HSR may submit claims for significant time spent. Commissioner Muir said (at [169]-[171]):

There is apparently no other mechanism for an employer, when faced with a similar situation, and where the employer genuinely believes that an HSR is exceeding their legal authority, than to simply refuse to accede to the request of the HSR.

While the Commission has concluded that this is not a case where the HSR exceeded their authority, it is not difficult, as the second respondent submits, to conceive of circumstances where an HSR will abuse their rights under the WHS Act such that substantial time is spent outside normal working hours, and considerable payment obligations are apparently incurred.

Some of this is answered through the applicant’s submissions that an HSR may only exercise the rights in question on certain preconditions. But given the Commission’s conclusions above as to the generous and beneficial ways in which the WHS Act should properly be interpreted it is again not difficult to conceive that highly motivated persons may readily exploit their rights and privileges. There does not appear to be a mechanism in the WHS Act for legal redress at the inspections stage, as opposed to merits review at the notice issuance stage.

Discussion

This case is very significant. FRNSW’s evidence was that there was, or is, a tension between the WHS Act and its obligation to manage its budget. Superintendent Unsworth’s evidence (at [85]) was ‘… that he was concerned about the proper expenditure of public money and that money given by executive government to the second respondent should be spent carefully’ and that could not be done if HSRs could determine for themselves when they would conduct inspections and demand payment. This was particularly true when FRNSW had its own WHS processes and, as in this case could ask another HSR to do the task when they were otherwise being paid.

That tension, however, is inconsistent with the WHS Act.   An HSR is exercising powers under the Act and the obligation to pay arises under that Act. That Act anticipates that HSRs will act on their own initiative and are not subject to the direction of their employer.   As Commissioner Muir said (at [145]) ‘That the applicant had “unilaterally decided to conduct inspections”, of itself demonstrates no unreasonableness. This is the structure contemplated by the WHS Act.’  As noted above, the Parliament, through the WHS Act did not intend to create a situation where ‘the capacity of an elected HSR to perform the roles and duties assigned to them by the WHS Act subject to the discretion of their employer’ ([124]).

The Commission was no doubt comforted in its decision by the nature of Mr Arnott’s evidence. The court noted that he was legally qualified and understood the terms of the Act ([150]). There was nothing to suggest that this HSR exceeded his authority or was doing anything other than what he believed was the diligent performance of his duties. This conclusion was supported by the finding that  he identified objectively serious WHS concerns ([72]).

The Commission did note that there could be an issue for an overzealous HSR and also noted that the Act provided little assistance for an employer in those circumstances other than the process FRNSW went through. But this was not the place to find an alternative solution.

Conclusion

The WHS Act provides that an HSR is entitled to be paid for the time spent performing their WHS duties. The performance of those duties may at times require notice to be given or consultation to occur, but an HSR is not subject to direction nor is approval required to perform those duties.

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 is the start of new financial year and with this start I would like my sponsors – in alphabetical order

• The Australasian College of Paramedicine;
• The Australian Paramedics Association (NSW);
• Natural Hazards Research Australia;
• The NSW Rural Fire Service Association; and
• The NSW SES Volunteers Association.

for there continued support of the blog. I would also like to welcome a new sponsor the Australian Paramedics Association (Qld) who have joined with their NSW colleagues to support the work. It is gratifying to see that both those that write to me, and the industry leaders, see this blog is a worthwile endeavour.

Below is a report outlining the output of the blog for the last 12 months

Australian Emergency Law 2023-24 ReportDownload

I would like to thank everyone who has written with a question or a comment for their contribution. I particularly value those comments that have pointed out errors or omissions or added important detail to my posts. We can all make mistakes and the idea is to have a learning tool so anything that corrects errors and helps to ensure that the information here is the best it can be is a great help.

Even so, I remain responsible for the content of the blog including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors, agencies or those asking teh question.

I look forward to continuing the blog for the next 12 months and beyond.

Michael Eburn.

Today I’m asked about the use of lights and sirens in training.  My correspondent says:

I work for the state based ambulance service in South Australia. For as long as I can remember, 20+ years, new paramedic interns employed by the service undertake a driver training program, which includes driving lights and sirens on open public roads, in city traffic etc, where they respond to real 000 emergency taskings.

When an emergency P1/2 response comes into dispatch and a Paramedic crew on duty are tasked, the driver training vehicles also attach themselves to the job, so they too can respond towards the scene lights and sirens, purely for driver training purposes.

Whilst the driver training ambulances are responding to a real emergency case, in real time, they rarely actually arrive to assist on scene, and in fact, the common practice is they will take themselves off the job as soon as they get closer, regardless of whether the actual tasked paramedic crew attending, has arrived or not (case depending, not for cardiac arrests etc). Also, when there is a crew already on scene, treating a patient etc, the training car, will continue to drive under emergency conditions towards the scene, but again, will most often never actually arrive to assist, and will discontinue the lights and sirens response one or two streets from the case address, looking for another case to attach themselves too for more practice.

My question is purely whether this practice is considered legal under the road traffic act (306) for emergency driving? Driving an ambulance under lights and sirens, but with no intention of actually getting to a scene to perform the duties of a Paramedic (emergency worker) and assist with the intended emergency?

Also, if there was a significant accident to occur, causing death or severe injury to either the Paramedics in training, or if it involved members of the public, due to a training vehicle responding lights and sirens, but no intention of getting to the case, would this have other implications?

My understanding is within our state, the SA Police practice their emergency response on closed roads, without risk to members of the public.

I have answered a similar question back in 2022 – see Road Rules exemptions and drivers in training (July 4, 2022).   In that post I conclude that:

Rule 306 cannot apply to NSW or other jurisdictions that define ‘emergency vehicle’ by reference to a response to an actual emergency.

In other jurisdictions one can argue that the rules do not apply to drivers in training. If they did, there would be nothing for r 305A of the Road Safety Road Rules 2017 (Vic) to do…

So we need to look at the road rules in South Australia that is the Australian Road Rules made under the Road Traffic Act 1961 (SA).   Rule 306 is familiar and says:

A provision of the Australian Road Rules does not apply to the driver of an emergency vehicle if—

(a)         in the circumstances—

(i)         the driver is taking reasonable care; and

(ii)         it is reasonable that the rule should not apply; and

(b)         if the vehicle is a motor vehicle that is moving—the vehicle is displaying a blue or red flashing light or sounding an alarm.

An emergency vehicle is a vehicle driven by an emergency worker in the course of his or her duties as an emergency worker.  An emergency worker includes Road Traffic (Road Rules–Ancillary And Miscellaneous Provisions) Regulations 2014 (SA) r 54(1)(c):

… persons engaged in the provision of emergency ambulance services under section 57(1) of the Health Care Act 2008 on behalf of—

(i) SA Ambulance Service Inc; or

(ii) St John Ambulance Australia South Australia Incorporated,

or any other persons engaged in the provision of emergency ambulance services under section 57(1) of that Act;

(d) persons engaged in the provision of emergency ambulance services under section 57(2)(a) of the Health Care Act 2008;

The Health Care Act 2008 (SA) distinguishes between emergency ambulance services (s 57) and non-emergency ambulance services (s 58). What makes an ambulance service an ‘emergency ambulance service’ is the section under which it’s licensed or regulated not whether there is or is not an emergency.

Unlike NSW, the definition of emergency worker in SA does not require the driver of an ambulance to be driving ‘in the course of providing transport in an emergency…’ (see Road Rules 2014 (NSW) Dictionary, definition of ‘emergency worker’). 

Rule 305A of the Road Safety Road Rules 2017 (Vic) and r 282A of the Road Traffic Code 2000 (WA) provide exemptions ‘for drivers of vehicles being used for police driver training’.  There is no exemption for ambulance officers in training and there is no equivalent of rr 305A (Vic) and 282A (WA) in South Australia.

Discussion

What follows is that an officer of an emergency ambulance service in SA is an emergency worker and therefore can enjoy the exemption under r 306 if an only if they are

1. taking reasonable care;
2. it is reasonable that the particular rule, whether relating to the speed limit, obeying traffic control devices, keeping left etc should not apply in the circumstances and
3. if the vehicle is moving, it is displaying red/blue flashing lights and/or sounding a siren.

So is driving in the circumstances described ‘reasonable’ and does it demonstrate ‘reasonable care’? I don’t think anyone would think it was reasonable to just travel under emergency conditions just for training, hence the need for special provisions in Victoria and Western Australia.   As I said in my earlier post, if s 306 did apply in training there would be no work for the Victorian and West Australian sections to do. We can see the argument: emergency driving is inherently dangerous for both the driver and other road users, because of that training is required but even so putting other road users at risk for training purposes is problematic.  The only way to get a definitive answer however, is for someone to be prosecuted and a court to rule on the argument.  Police are probably not going to enquire why an ambulance is proceeding wth lights and sirens if nothing goes wrong. If a ticket is issued and challenged a magistrate might be sympathetic to the need for training, but less sympathetic to evidence that ambulances are dispatched with no intention of actually getting to the job to give the colour of an emergency response (court’s don’t like ‘shams’).

What I can say, and with a high degree of  confidence, is that ‘if there was a significant accident to occur, causing death or severe injury to either the Paramedics in training, or if it involved members of the public, due to a training vehicle responding lights and sirens, but no intention of getting to the case’ then this would have serious implications.  In R v Wells [2017] NSWCCA 242 (discussed in the post Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017)) the court was not at all sympathetic to the use of the siren in a non-emergency situation (noting that in NSW that meant the driver was not, at that time, an emergency worker) but even so conduct that would normally go unnoticed had severe consequences when it resulted in a fatal collision. If there is an accident involving death or injury the whole matter will be investigated with more rigour than when asking to be let off a red-light camera offence or a police officer is deciding to issue a speeding ticket.   If there is a serious crash it is much more likely that the matter will end up before a court and a court will then have to consider – granted with the benefit of hindsight – whether it was reasonable to expose a person to the risk of death or injury for training purposes.  In NSW the lack of emergency meant that there was no reason to rely on an exemption and that would be the argument in SA too. 

Further, if there is an accident it is almost axiomatic that the driver was not taking reasonable care. As I’ve said before, when driving under emergency lights and sirens you can basically do what you like provided you don’t crash; once you crash all bets are off.

Conclusion

The question was is ‘this practice is considered legal under the road traffic act (306) for emergency driving’?  The law is not self-executing which means the question of whether it is legal will not be answered unless and until someone challenges the matter in court. That would require police to make an allegation that a driver wanted to defend.  That is probably unlikely when no-one gets hurt. 

If ‘there was a significant accident to occur, causing death or severe injury’ then all bets would be off and police are likely to bring serious charges and the argument that it was not reasonable to enjoy an exemption for training purposes will then have to be considered. The risk to road users means emergency driving is dangerous and road users should not be exposed to that risk simply when it’s convenient rather than necessary (R v Wells).   Further if it was believed that r 306 could be reilied on in training, there would have been no need for Victoria and Western Australia to pass special road rules to allow for such an exemption.

On balance I don’t think ‘this practice [would be] considered legal under the road traffic act (306) for emergency driving’ but it will only be tested when someone is killed or injured.

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 post is about a union response to ambulance ramping in South Australia.  A paramedic has written and says:

My union has told its members that we must refuse diagnostics being undertaken by nurses/doctors of the emergency department when we are ramped with a patient. Their rationale appears to be they have ‘legal advice’ and the members are protected as it’s also an employment directive. Further, and the key issue raised, is they feel patients may be down-triaged due to diagnostics and therefore crews may be ‘ramped’ longer and therefore community response will be affected. I believe, based upon all of the ramping reviews across the country, that early diagnostics can only help patient safety but ultimately will have no effect on access block either way, as this is a system issue.

I refuse to accept the union opinion on this and feel this will jeopardise my registration and potential employment and is clearly not in the best interests of the patients. I feel I would be breaching a number of areas of the shared Code of Conduct for Healthcare Professionals. I also feel an individual paramedic should not try to solve for system-wide issues in this manner. Keen to get your legal and ethical opinion to support South Australia Paramedics in their decision-making.

A prime example of the above is registrars wanting to undertake ‘bloods’ on septic patients. I have no issues with this. More information and diagnostics is generally good for my patients and encouraged.

This is indeed a difficult issue.  If there is a risk that ‘patients may be down-triaged due to diagnostics’ it must also be the case that patients may be ‘up-triaged’ if the diagnostics identify that the patient’s needs are a higher priority.  Equally it may lengthen the ramping time if people are taking in for a diagnostic procedure and then returned to the care of the ambulance crew, but it could also shorten ramping if it means patients can moved through the system and either onto a ward or discharge because diagnostic tests have been done, and thereby free up resources in the ED to the benefit of the next patient and crew.

The first principle of the shared code of conduct which applies to paramedics says paramedics should ‘Put patient’s first’.  That principle says (emphasis added):

Practitioners should practise safely, effectively and in partnership with patients and colleagues, using patient-centred approaches, and informed by the best available evidence to achieve the best possible patient outcomes.

Principle 5 is about good relationships with colleagues. The Code says (at [5.1]) that

Respect for colleagues and other practitioners … [requires paramedics to]

b. acknowledge and respect the contribution of all practitioners involved in the care of the patient, and

c. behave professionally and courteously toward colleagues and other practitioners at all times…’

Further [5.2] says:

Effective collaboration is a fundamental aspect of good practice and teamwork. Good patient care requires coordination between all treating practitioners. Healthcare is improved when there is mutual respect and clear, culturally safe communication, as well as an understanding of the responsibilities, capacities, constraints and ethical codes of each other’s health professions. Working in a team or collaboratively does not alter your personal accountability for professional conduct and the care you provide.

Principle 6 says ‘Practitioners have a responsibility to contribute to the effectiveness and efficiency of the healthcare system and use resources wisely.’   Application of this principle requires, amongst other things, ensuring that you ‘uphold the right of patients to gain access to the necessary level of healthcare, and, whenever possible, help them to do so’ ([6.1(b)].

Discussion

There could be conflicting views of how these principles apply in the circumstances.  On the one hand what the patient actually needs is to move from ambulance care into hospital care and one might think that allowing diagnostic procedures to be done does not ‘uphold the right of patients to gain access to the necessary level of healthcare’ so the action of the AEA and paramedics may be helping patients to get the care they need.

On the other hand, one could argue that the level of care that they need includes the diagnostic care so, given that there is no hospital bed for them paramedics assisting with diagnostics will advance the patient’s interests and may reduce their time in the ED once they are off the stretcher because treatment has already started.  It could be argued that paramedics should be advocating for nurses or others to come out and start the procedures (and see Paramedics drawing blood for patients whilst ‘ramped’ (January 4, 2023)). 

Collaboration requires ‘… an understanding of the responsibilities, capacities, constraints and ethical codes of each other’s health professions’.  Asking paramedics to look after patients whilst diagnostic procedures are undertaken, particularly if that means taking the patient in for an MRI/CT Scan/X-ray etc and then taking them out to the ambulance might be seen as demonstrating a lack of ‘understanding of the responsibilities [and]capacities’ of the paramedic.  On the other hand refusing to cooperate with those procedures may represent a failure to acknowledge the responsibilities and the capacities of the hospital staff who, through no fault of their own nor even the hospital, do not have the resources to take the patient off the stretcher and get them to the scan. 

I assume that the doctors and nurses at the hospital are also frustrated by ambulance ramping and having to work in over-loaded and under-resourced facilities so want to ‘initiate diagnostic procedures on ramped patients’ for the benefit of the patient and to speed up the process for everyone.  It does not seem appropriate (to me) to put up barriers to those staff doing the best they can in shared, difficult circumstances.

I can therefore make arguments that cut both ways.  On balance, I would take the view that having what is, in effect, a demarcation dispute – that’s not my job – is not putting the patient first nor working collaboratively with the entire health team who are all over-burdened by failures in government policy rather than failures of the hospital or its staff. 

With respect to the particular examples given, I cannot see how paramedics can do anything to stop a nurse taking blood from ramped patients. If the nurse wants to do that, and the patient’s consent to that, then it has nothing to do with the paramedics.  They don’t ‘own’ the patient and cannot dictate to the patient what they can or cannot consent to.  They could, I suppose, refuse to let the nurse into the ambulance but I would anticipate that such conduct would be contrary to any code of conduct as it is not putting the patient first.

I think taking the patient in for a scan and then bringing them back out is a different matter as it requires the paramedics to do something. Paramedics do take patients into rooms and move them on and off stretchers onto beds and scanning machines all the time.  But if we accept that it’s not ‘their job’ then they can be asked to do it and they can refuse.   Whether that’s putting the patient first, acting collaboratively with other health professionals who are also overworked, and contributing to the effectiveness of the health system is I suppose open to debate.   There may be a parallel with a patient who is in critical need of resuscitation, when paramedics bring that patient into the hospital I imagine they agree to stay as long as necessary and to help the medical and nursing staff so if it is a situation where an extra professional can assist, they would stop and do so.  Isn’t this a similar case where the hospital doesn’t have the resources to take the patient but the paramedics themselves are another health professional on scene and clearly not going anywhere. If there’ s no ED bed, and not enough ED nurses to take the patient, but the scan technician is there and could scan the patient now, aren’t the paramedics contributing the patient’s health care by taking the patient?

I ask that as a person who has been a union member everywhere I’ve worked and have worked in institutions that survive because staff take on more than they should rather than demand that the institution is properly resourced, so I recognise the dilemma.  If paramedics become an extra set of hands at the ED, then there is less pressure on the government or hospital administrators to solve the problems.  For a particular patient, waiting for care, no amount of demarcation or ‘work to rule’ is going to see a new bed or more staff appear, and the patient’s discomfort should not be used as a means to putting pressure on the hospital or government.

Conclusion

It is unclear whether the sort of action (or inaction) being pushed by the AEA would be a breach of the code of conduct or not. I can make an argument either way.  Resolution of that issue would therefore depend on a complaint being made and a relevant tribunal considering whether in all the circumstances the conduct complained off fell below the standard to be expected of a paramedic.

I think there is a clear difference between the nurse wanting to take blood and asking the paramedics to take the patient into the hospital for the scan. With respect to the nurse taking bloods there is nothing the paramedic really needs to do other than facilitate the nurses access to the patient and then get out of the way.  If the patient consents, then it’s really got nothing to do with the paramedic.  The paramedic doesn’t ‘own’ the patient until they are moved into the ED.

A paramedic is required to obey the reasonable direction of his or her employer.  If the paramedics are asked to take the patient into the hospital and then bring them out and that is not part of their job description, they are free to say ‘no’.  Whether that is good professional conduct is another matter.

The statement that ‘they have ‘legal advice’ and the members are protected as it’s also an employment directive’ would appear to relate to employment so paramedics won’t be disciplined for conduct in line with the AEA directive.  That does not say what might happen if someone were to complain of less than satisfactory professional conduct or a patient suffers an adverse outcome, and the matter is investigated in litigation or a post-action review.

For related posts (and demonstrating how long this has been an issue across Australia) see:

• Paramedics leaving patients in casualty (January 24, 2015);
• Victorian Paramedics treating patients inside the A+E (June 12, 2015);
• Treating patients whilst ambulances are ramped (December 28, 2018);
• More on treating patients during ambulance ramping in WA (January 2, 2019);
• Ambulance ramping for 15 hours! (April 27, 2019); and
• Refusing ongoing overtime when ramped (June 10, 2024).

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), 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 registered nurse and registered paramedic in Queensland’ working as an:

… RN at a small, rural and remote healthcare facility, not QAS employed. This facility has a ‘hospital-based ambulance’ whereby nurse(s) attend 000 calls in the local area as first responders.

We receive contact from the same dispatchers as QAS paramedics do and drive an older QAS owned, fully equipment ambulance vehicle. I’ve read over the act and transport regulations and my interpretation is that I am definitely considered the driver of ‘an emergency vehicle operated … on behalf of’ QAS.  Would you make the same interpretation? And should I consider myself exempt under road rule 306?

I’ve had discussion recently with peers and senior colleagues who say no way to going over speed limit under any circumstances despite the fact I’m in a vehicle that says ambulance all over it and is fully equipped with lights and sirens. Half of the time we are dispatched to code 1 emergencies, same as paramedics …

Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld)

We should all be familiar with r 306 of the National Road Rules, incorporated into the Queensland law by the Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld), says:

A provision of this regulation does not apply to the driver of an emergency vehicle if—

(a) in the circumstances—

(i) the driver is taking reasonable care; and

(ii) it is reasonable that the provision should not apply; and

(b) the vehicle is moving—the vehicle is displaying a blue or red flashing light or sounding an alarm.

We then need to define ‘emergency vehicle’.  The Dictionary is set out in schedule 5. Emergency vehicle means

… a vehicle driven by a person who is—

(a) an emergency worker; and

(b) driving the vehicle in the course of performing duties as an emergency worker.

We then need to look to the definition of  ‘emergency worker’, which is:

(a) an officer of the Queensland Ambulance Service or an ambulance service of another State; or

(b) a fire officer under the Fire and Emergency Services Act 1990 or a fire and rescue service of another State; or

(c) an officer or employee of another entity with the written permission of the commissioner.

My correspondent specifically says they are not employed by QAS. They are not therefore an emergency worker unless the Commissioner has given written permission.

So where does my correspondent get the phrase ‘an emergency vehicle operated … on behalf of’ QAS’.  That sounds like the phrase used in the Road Safety Road Rules 2017 (Vic) and discussed in the post What is a vehicle that is ‘operated by or on behalf of and under the control’ of Ambulance Victoria? (July 21, 2017) but as I have noted, that is not the language of the Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld).

Transport Operations (Road Use Management–Vehicle Standards and Safety) Regulation 2021 (Qld)

The Transport Operations (Road Use Management–Vehicle Standards and Safety) Regulation 2021 (Qld) Sch 1 incorporates the light vehicle standards into Queensland law.  That schedule says that an exempt vehicle may be fitted with flashing warning lights (cl 114(1)) and an emergency vehicle may be fitted with a siren (cl 33(2)).

For the purpose of that regulation an exempt vehicle includes an emergency vehicle (cl 114(6)).  An emergency vehicle is defined in Sch 1, cl 3 as:

… a motor vehicle—

(a) fitted with—

(i) a repeater horn or siren; or

(ii) a flashing warning light; and

(b) driven by—

(i) an officer of the Queensland Ambulance Service or an ambulance service of another State in the course of the officer’s duty; or\

(ii) an officer of the Queensland Fire and Emergency Service or a fire and emergency service, however called, of another State in the course of the officer’s duty; or

(iii) an officer or employee of another entity with the written permission of the commissioner in the course of the officer’s or employee’s duty.

That is consistent with the definition in the Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld) and does not include my correspondent who tells me they are not ‘QAS employed’.

Conclusion

My correspondent is not an employee of the Queensland ambulance service and therefore they are not an emergency worker nor is their vehicle an emergency vehicle. They have no exemption from the Queensland Road Rules and the vehicle should not be ‘fully equipped with lights and sirens’ unless the Commissioner of Police (Transport Operations (Road Use Management) Act 1995 (Qld) Sch 4) has given written permission for an employee of the ‘small, rural and remote healthcare facilty’ to drive the vehicle as an emergency vehicle.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), 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 relates to the destruction of schedule 8 drugs. My correspondent asks:

In NSW it is my impression from what I have been told by senior management and my own time reading various laws that the destruction of Schedule 8 drugs in an Aged Care facility must be done by a pharmacist and either the aged care manager or senior registered nurse onsite at the aged care facility.

Two questions I am trying to find answers to:

1. If Schedule 8 drugs are supplied from NSW and stored/secured in an Aged Care facility in Victoria (half the town is split by the border), Can this facility destroy Schedule 8 drugs without a pharmacist onsite?

2. Is it possible/Legal to send the schedule 8 drugs back to another pharmacy on the Victorian side to be destroyed?

New South Wales

The Poisons and Therapeutic Drugs Act 1966 (NSW) uses the term ‘Drugs of addiction’ to refer to drugs listed in schedule 8 of the poisons list (s 4).  Schedule 8 drugs must not be destroyed except in circumstances set out in the Poisons and Therapeutic Goods Regulation 2008 (NSW) (r 125). The regulations provide for destruction by:

• A retail pharmacist (rr 125A and 126);
• The authorised director of a public hospital (r 126A);
• A pharmacist employed in a public hospital (r 127);
• A retail pharmacist who is engaged in the supply of drugs of addiction to a private health facility, including a residential aged care facility (r 128); and
• The management company for a managed correctional centre (r 128A).

In the context of today’s question, the relevant provision is r 128. That regulation says that a ‘retail pharmacist who is engaged in the supply of … drugs of addiction’ to a residential aged care facility can destroy unwanted schedule 8 drugs provided that the destruction occurs at the facility (r 128(1))) and in the presence of the licensee responsible for the storage of the drugs (r 128(3)(a)) or the director of nursing (r 128(3)(b)).

Victoria

In Victoria, schedule 8 drugs can be destroyed by, amongst others, a ‘nurse practitioner or an authorised midwife in the presence of another person who is a registered medical practitioner, pharmacist, veterinary practitioner, dentist, nurse or registered midwife’ (Drugs, Poisons and Controlled Substances Regulations 2017 (Vic) r 115(2)(a)) or a ‘a registered medical practitioner, veterinary practitioner, dentist or pharmacist in the presence of another person who is a registered medical practitioner, pharmacist, veterinary practitioner, dentist, nurse or registered midwife’ (r 115(3)(a)).  Further ‘the unused contents of a previously sterile container containing a Schedule 8 poison … that are not required for administration to a patient’ may be destroyed ‘by a registered medical practitioner, pharmacist, veterinary practitioner, dentist, nurse or registered midwife’ (r 115(4)(a)).   In each case records prescribed by r 115 and r 108 must be completed to evidence the destruction and the people present.

Discussion

Where drugs are delivered to a Victorian facility from NSW, whether those drugs are supplied by a wholesaler or by a retail pharmacist and assuming they are legally supplied, then the law governing their destruction will be the law of Victoria.  What follows is that ‘If Schedule 8 drugs are supplied from NSW and stored/secured in an Aged Care facility in Victoria’ then the staff of that facility can destroy unwanted drugs in accordance with the Victorian regulation, and that regulation does not require that it be done in the presence of a pharmacist.  The fact that the drugs were supplied from NSW is irrelevant at this point.

It is legal to send the drugs (provided the person carrying the drugs is authorised to transport them) to a pharmacist in Victoria to destroy the drugs. As the regulation says the drugs need to be destroyed by one health practitioner in the presence of another but it does not say anything about where the destruction must take place.

Conclusion

The destruction of drugs in Victoria is governed by Victorian law. It does not matter that the drugs were supplied by a pharmacist or wholesaler in NSW.  The law in Victoria does not require that sch 8 drugs in a residential aged care facility are destroyed by a pharmacist on the site of the facility.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), 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 brings to my attention threatened action by members of Victoria’s CFA refusing to fight fires ‘around new renewable power plants and transmission lines’ as reported by the ABC – see Angus Verley ‘Volunteer firefighters say they will not fight fires around new renewables projects, transmission line’ ABC Rural (Online) 19 June 2024.

My correspondent says:

I read this with some curiosity and wonder if you’d be interested in looking at whether individual Brigades can refuse to fight fires, as an industrial or political demand? Do these volunteers have any legal ground to stand on?

These are interesting questions.

Fire services respond to risks created by others

The ABC article says:

VNI West — a transmission line that would run hundreds of kilometres through farmland in western Victoria — has triggered angry protests from farmers who say they do not want it on their land…

North-west Victorian farmer and director of Farmers for Climate Action Brett Hosking lives in the line of the VNI West transmission line project.

He said the local community feels the engagement has been “woeful” and he understands the frustration from volunteers.

“I don’t think there’s too many people in society that wouldn’t be sympathetic to these volunteers who leave their families, leave their businesses, leave their work behind, to go and fight a fire dealing with infrastructure that’s been forced on them by someone else.”

Members of the fire services are always called upon to fight fires in ‘infrastructure that’s been forced on them by someone else’.   When they go to a house fire they are fighting a fire in a house that they were not consulted on and had no input into its design or maintenance.  No doubt individual brigades are not being asked if it’s ok to install ev charging points and people are not ringing their local brigade to ask if it’s ok to install solar panels and a battery in their home. The emergency services are how society deals with the residual risk of all infrastructure planning.  As Professor Steve Dovers said (in ‘Mainstreaming disaster risk reduction, seriously?’ (2022) 37(2) Australian Journal of Emergency Management 20-23 at p. 20):

Bluntly, the job of emergency management and disaster policy is to prepare for, and then cope with, problems caused by vulnerabilities created by other policy sectors. Houses in risky locations, people in vulnerable situations and assets at risk from natural hazards are often in such circumstances because of decisions or non-decisions made in land-use planning, development approval, transport, infrastructure, housing, public health, communications and elsewhere. Those policy sectors may overlook or pay scant attention to DRR when decisions are made. Indeed, it might not be part of their mandate.

One has to infer that firefighters do not and cannot object to fighting ‘a fire dealing with infrastructure that’s been forced on them by someone else’ because if they did they would cease to be firefighters. Rather they object to fighting fires on or near this particular class of infrastructure.

Politics

The ABC article goes on to quote ‘Jason Barratt, the captain of the Traynors Lagoon Fire Brigade and spokesperson for the newly formed Firefighters Against Renewables Over Victoria’.  The article continues:

The group’s letter of demands calls for an immediate halt to “all current and proposed projects” and requests “appropriate reconsideration of alternative solutions”, which Mr Barratt said should include nuclear power generation.

The cosignatories said infrastructure such as VNI West would “greatly impact our ability to control wildfire both on ground and particularly from the air”.

Mr Barratt said transmission lines and renewable energy plants would make it more difficult to fight fires.

“We’re worried about our ability to fight fires around transmission lines and the CFA hasn’t been very good at all at giving us clear instructions on how safe it is to fight fires around them,” Mr Barratt said.

Given there has to be transmission lines from any power station, coal fired, nuclear or renewable and given that the transmission lines are all carrying electricity, regardless of where it is sourced, I for one don’t understand the issue with respect to transmission lines. The fire brigades already have to deal with transmission lines.  The article quotes a ‘Victorian government spokesperson [who] said there were “no records of a transmission line ever starting a bushfire in Victoria”.’  Powerlines are known to have started fires but these are not, presumably the high voltage transmission lines but the distribution lines running to homes and communities (see Bushfires; the price we pay for electricity (May 20, 2014)).

The Firefighters Against Renewables Over Victoria group don’t mention how CFA volunteers will feel about being asked to fight a fire at nor near a nuclear power plant.

If there is a legitimate safety concern, then it doesn’t make sense to say ‘…landowners who agreed to host transmission lines on their properties should not expect the assistance of firefighters.’ If there was a safety concern it would make sense to say ‘we won’t fire within a prescribed distance of the asset, regardless of who owns the land’ rather than we won’t fight a fire on land owned by landholders who have ‘agreed to host transmission lines on their property’ regardless of where and what is on fire and how close it is to the transmission lines. That appears to be a policy intended to punish landholders with a different view.

Mr Barratt is quoted as saying:

“At the end of the day, we are volunteers and the government is willingly putting this infrastructure in and adding risk to our community and our members and it’s unnecessary.”

Whether it’s necessary or not depends on the policy objectives. Current government policy is to reduce reliance on coal and gas generated power and increase reliance on renewable.  We are told:

This is the latest protest action by affected regional communities against planned transmission line projects being rolled out to connect planned renewable projects, which state and federal governments say are essential to meet renewable and climate change targets.    

As farmers and members of the community of course members of the CFA have a right to a view but it’s not for the CFA as such to direct government policy, but clearly this is an exercise in politics and trying to influence energy policy.

The quoted volunteers think these transmission lines are not essential, the federal and state governments think they are. Trying to push the government to a different view is clearly an exercise in politics rather than safety.

Safety

Having said that there may be particular concerns about particular issues eg battery fires, fires at solar plants etc.  If I accept, for the sake of the argument, the issue really is about safety then we can look at the legal issues.

First, Victoria has not adopted the model Work Health and Safety Act that all other states have adopted. Under the model Act the definition of worker includes a ‘volunteer’ so that volunteers are entitled to be consulted about WHS issues and are entitled to refuse to do work that they think exposes them to an unacceptable risk (Model WHS Act s 84).   Under the Occupational Health and Safety Act 2004 (Vic) s 23(1), the duty of the CFA is to ensure that ‘so far as is reasonably practicable, [Volunteers] … are not exposed to risks to their health or safety arising from the conduct of the undertaking of the [CFA]…’  There is no particular right of those volunteers to be part of the CFA’s OHS processes nor a specific right to ‘stop work’. But of course they don’t need such a right, they are volunteers, volunteers are always free to decide that today, they are not going to volunteer, or they are not going to volunteer to do a particular task.   That is the nature of being a volunteer. 

No-one could sue a volunteer for choosing not to volunteer. The obligation to provide firefighting services is an obligation of the CFA not each member. If the CFA is unable to provide firefighting services and anyone wanted to claim compensation their action would have to be against the CFA not the volunteers, though such an action would be unprecedented and unlikely to succeed – see Liability for fire – a review of earlier posts (January 8, 2016).

The situation may be different if the members did turn out, ie they were volunteering, and then did as they threaten and refused to enter the property to perform their task. If, for example, the volunteers can see that a person is trying to save their house but they do nothing but watch, then the circumstances of an identified vulnerable person where the CFA has the resoruces and statutory authority to assist but does not, may be sufficient to give rise to a relevant duty of care (see Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; Kent v Griffiths [2001] QB 36).

The CFA must walk a fine line here. If the concerns really are about safety, they need to be addressed. The ABC article says:

… CFA deputy chief officer Brett Boatman said the CFA was working with its members on issues around fighting fires near transmission lines and renewable energy plants.

“The concerns from our CFA members have been heard and we are working with them to ensure the right information is out there,” he said.

“CFA … respects our members’ rights to engage in matters relevant to their local communities.”

If it’s not truly about safety, if it’s farmers and community members who are also CFA volunteers using their standing, the reputation of the CFA and the fact that communities depend upon them, to push their own beliefs about energy policy and to fight infrastructure they don’t want in their backyard then that is a different matter. The only legal implication from that that I can see however, is that the CFA may at some time have to consider whether their actions breach any relevant Code of Conduct and reflect on their ability to remain as members of the CFA. 

If the response is really a reaction to being asked to respond to risks imposed by others it sets a dangerous precedent.  What if firefighters refused to rescue people from crashed Electric Vehicles because they weren’t consulted about their design and introduction? Or SES volunteers refuse to rescue people from flooded homes because no-one asked them if it was a reasonable place to build?  Or paramedics refuse to treat people who fall off cliffs because no-one asked them if it was a safe place to hike?

Conclusion

If there are legitimate safety concerns, then they need to be addressed and of course volunteers can refuse to do tasks that they consider are too dangerous. 

But where a group refuse to fight a fire on land owned by a landholder who ‘agreed to host transmission lines on their properties’ rather than a fire near a transmission line, and who argue that they cannot fight transmission lines from renewable plants but want governments give what they decide is ‘”appropriate reconsideration of alternative solutions” including nuclear power, then this is, in my view, a clear attempt to use the goodwill of the CFA to bring political pressure to bear on governments.

The legal risk to those volunteers, as I see it, is they may put their membership of the CFA at risk but the CFA has to tread a very fine line so as not to be perceived to be ignoring safety risks and it may be that amongst the noise there really are safety issues arising in the new technology that need to be addressed. 

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), 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 complaint process has to go through two stages, the first stage is to determine whether the conduct complained of actually happened, and if it did, was it a breach of a relevant rule or code of conduct.  If the allegations are established the next stage is to determine the appropriate sanction.

In Macann v State of Queensland (Queensland Ambulance Service) [2024] QIRC 146 Mr Macann, a Queensland Ambulance Service (‘QAS’) paramedic was the subject of three complaints relating to his treatment of a young intoxicated man.  The relevant decision maker had determined that the complaints were established but before the issue of penalty was addressed, Mr Macann appealed to the Queensland Industrial Relations Commission.  The Commission held that the findings against Mr Macann in relation to 2 out of the 3 complaints were not ‘fair and reasonable’ and they were set aside.

Allegation A

Allegation A was that ‘while attending incident [number] you acted inappropriately towards a patient, calling them a “little bitch”.’

Mr Macaan denied using the words alleged. The Commission found that the decision maker relied on statements given by the patient’s two flatmates, Mr Smith and Ms Jones, but they had been interviewed together. Ms Jones agreed her recollection of the night was ‘poor’ ([111]).  Mr Smith asked Ms Jones if Mr Macaan had used the ‘little bitch’ phrase. This was not corroboration of that claim but rather Mr Smith was prompting Ms Jones. If Mr Smith was a witness he should have been separately interviewed. The decision maker also relied upon the complaint filed by the patient’s mother but she had not been there but was reporting what she heard and her previous impressions of Mr Macaan.  At [115]-[116] Commissioner Butler said:

The evidence relied upon to find that Allegation A was substantiated was not sufficiently strong, having regard to Briginshaw.

Having regard to the foregoing, it was not fair and reasonable to find that Allegation A was substantiated.

(For a discussion on the decision in Briginshaw v Briginshaw (1938) 60 CLR 336 see The rules of evidence and a NSW RFS disciplinary panel (February 16, 2024)).

Allegation B

This allegation was that ‘the Appellant “acted inappropriately towards a patient by demonstrating little respect for the patient’s situation and medical history.”  The Commission took the view that the allegation was poorly framed and did not adequately explain to Mr Macaan what it was he was alleged to have done.  At [118] Commissioner Butler said:

The particulars were confusing. Many of the paragraphs of “particulars” of the allegation were restatements of responses that Mr Macann had previously provided, during the earlier investigation, without a clear indication of why or how those restatements were particulars of the allegation. The allegation itself is in general and broad terms. Particularising it should have shed light on, not clouded, what was being put to Mr Macann for response. Mr Macann has a right to procedural fairness including being given a proper opportunity to respond. A proper opportunity to respond requires a clear statement of the issues.

The use of the viewer

The decision maker argued that the failure to refer to the ‘The Viewer’ (see QAS paramedics accessing patient information via ‘The Viewer’ for ‘follow up’ (October 20, 2023) and Accessing ‘The Viewer’ before accessing the patient (June 5, 2024)) showed Mr Macaan was not interested in obtaining the patient’s history to make a diagnosis. The Commissioner said (at [125], [127]):

… the decision-maker found that Mr Macann failed to recognise the patient’s vulnerability despite being familiar with the patient. Mr Medlin also found that Mr Macann’s priority was not the patient and alleviating his reported pain. There is a criticism of him for failing to look at The Viewer which seems to be taken as showing Mr Macann’s priority was not the patient and alleviating his reported pain. These findings and comments appear to go to the issue of whether Mr Macann dismissed any diagnosis other than anxiety…

With respect to the use of The Viewer the Commissioner said (at [131]:

It was not clear to me whether and if so the extent to which Ambulance officers are required to check patients’ medical history via “The Viewer” while attending on a patient. The Respondent’s submissions refer to times at which the Appellant “could have” checked The Viewer but stop short of saying he was required to do so.

Mr Macaan’s submission (at [40]) was that the claim he should have looked at the Viewer:

… disregards the relevant circumstances, all of which required the Appellant’s full attention, namely that the patient:

(a) was seeking reassurance from the Appellant;

(b) was of large stature making it unsafe for the Appellant to deal with the patient on his own;

(c) was prone to unpredictable movements;

(d) wanted to be taken into his home by his housemates at the time.

In any event, the Commissioner said, it could not be fair and reasonable to rely on Mr Macaan’s failure to access the Viewer because it was never put to him that this was an issue being considered as demonstrating a lack of care, or respect for the patient ([136]).

Commissioner Butler said (at [150]-[154]):

The allegation was broadly drawn, and the particulars so confusingly written, as to fail to afford the Appellant a proper opportunity to respond.

The documentary evidence favours a finding that Mr Macann did recognise vulnerabilities on the patient’s part. It favours a finding that Mr Macann did seek to alleviate the patient’s pain by the administration of paracetamol, which coincided with the pain score dropping from 4/10 to 0/10. There is nothing on the face of the decision to indicate what evidence if any the decision-maker relied upon to make findings to the contrary.

The Respondent did not put to Mr Macann the issue of whether his failure to look at The Viewer could form part of the basis for finding Allegation B to be substantiated.

The Appellant put forward four justifications or excuses for his failure to assist the patient up from the ground, and to the stretcher. The decision-maker misapprehended one and failed to consider the other three.

Having regard to the foregoing, it was not fair and reasonable to find that Allegation B was substantiated…

Allegation C

This was an allegation that Mr Macaan ‘failed to provide adequate clinical care’ and in particular failed to apply the QAS Clinical Practice Guidelines ([156]).  The gist of the complaint was that the CPGs require that an intoxicated person should be transported unless ‘the patient be able to walk unassisted, able to maintain their own safety, and left in the care of a responsible and sober person’ ([161]).

Mr Macaan’s response wat that the patient refused transport ([164]) but this was not documented as required by the CPGs. There was no record of ‘Clinical assessment findings’ and ‘Outcome of the QAS VIRCA process (Voluntary, Informed, Relevant, Capacity and Advice)’ ([168]). The decision maker said:

… you detail the process you say you followed aligning it to the VIRCA process; however, this is not documented in eARF [report number] as required. Instead, the eARF only contains a notation of “Transport not required following paramedic assessment.” I am therefore persuaded that you did not follow the requirements of Clinical Practice Guideline – Other/QAS Non-transport in relation to this matter.

The conclusion that Mr Macaan had not followed the relevant CPG was ‘fair and reasonable’ ([169]).

Discussion

When I first read this case, I took the view that there was little value in reporting it, but a correspondent wrote and said they were ‘curious to hear/read [my]… thoughts in regards to the viewer and the appropriate use or as stated by the respondent’ in this case.

My thoughts are we can take very little from this case. This case is more about Assistant Commissioner Medlin, the decision maker, than Mr Macaan.   In this case the tribunal was not assessing whether Mr Macaan’s conduct was reasonable in the circumstances, that is the Commission was not deciding whether it was ‘ok’ to refer to a patient as a ‘little bitch’ or whether Mr Macaan should or should not have looked at the Viewer. The Commission was looking at whether Mr Medlin could be satisfied that those things had happened.

Commissioner Butler ruled that, with respect to Allegation A the evidence was insufficient to support a finding that the words alleged to have been used had been said at all.  The decision reminds decision makers to carefully consider the evidence of witnesses including their capacity to remember events and focussing on evidence that goes to the issues. As the union representing Mr Macaan said (at [39]):

… the Respondent must be held to the same level of accountability that it expected to hold the Appellant to, in that it must abide by its own procedures, and that the failure to follow procedures led to a “reduced ability to credibly test the evidence” of Ms Jones and Mr Smith.  

The Commission did not say that Mr Macaan’s conduct was not a breach of any Code of Conduct nor that it was justified by the circumstances rather they said they could not be satisfied that it ever happened.

With respect to allegation B certainly the decision maker wanted to rely on the fact that Mr Macaan did not consult the Viewer to access the patient’s history (see [124]-[125] and [131]-[136]). The Commission ruled that this was neither fair nor reasonable. QAS alleged that Mr Macaan ‘acted inappropriately towards a patient by demonstrating little respect for the patient’s situation and medical history’ but did not spell out what it was that he did, or did not do, that was ‘inappropriate’ or demonstrated ‘little respect for the patient’s situation’.   When the decision maker gave his reasons for being satisfied that the allegation was made out, he relied on the fact that Mr Macaan had not consulted the Viewer but it was never made clear to Mr Macaan that this was the, or one of the, things that showed inappropriate behaviour or ‘little respect’ and so he had not addressed it when asked to respond to the allegation.  Because he was not put on notice that this was a basis for the allegation, he was not given ‘an opportunity to be heard in relation to it’ ([136]). Because this was not part of the allegation, the decision maker could not rely on that fact as part of his reasoning.

The case tells us nothing about the use of the Viewer. The Commission was not reviewing Mr Macaan’s decision to say that his decision not to consult the Viewer was reasonable. Nor did the Commission make a ruling that consulting the Viewer could or could not be evidence of inappropriate conduct. They said that in this case the decision maker could not rely on it because it was never put to Mr Macaan that this demonstrated his lack of ‘ respect for the patient’s situation and medical history’.    Again the case is of more relevance to decision makers reinforcing the need to give a person a clear indication of what it is they are alleged to have done, or not done, that constitutes a breach of discipline.

The only decision that was ‘fair and reasonable’ was the conclusion that Mr Macaan ‘ failed to provide adequate clinical care’ because he did not transport a person seriously affected by alcohol in accordance with the relevant CPG and/or he did not properly conduct, or at least record the result of, the VIRCA process to ensure that any stated refusal of transport was voluntary and that the patient had capacity to make that decision.  It will now be up to QAS to determine the appropriate action on that complaint and that complaint alone.

Conclusion

I was asked for ‘[my]… thoughts in regards to the viewer and the appropriate use or as stated by the respondent’ in this case’.  My thoughts are the case gives no guidance on the use of the Viewer. The best that can be said is that Assistant Commissioner Medlin thought the failure to consult the Viewer indicated a lack of concern for the patient and his history, but that the Assistant Commissioner’s conclusions on the matter were neither fair nor reasonable.

What we learn from the case is that decision makers must approach their task with care. They must ensure that a person is aware of what it is they are alleged to have done, or not done, that forms the basis of any allegation, and any evidence must be carefully considered, particularly in light of the precedent in Briginshaw v Briginshaw.  A decision maker must consider any response in reply which does not mean they have to accept a respondent’s claims or arguments but they have to demonstrate that they have considered them.  This case is about the process for managing disciplinary proceedings more than it is about the use of the ‘Viewer’ or appropriate ways to speak to a patient.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), 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 asks:

In an emergency situation where you are treating an unconscious patient or one with an altered level of consciousness, is it permissible to use the patient’s phone and their fingertip or face to unlock it in order to access emergency contact details? Does this protocol differ for a first aider compared to a registered paramedic working for a jurisdictional ambulance service?

I have answered that before, see Accessing the unconscious patient’s phone (December 3, 2016). I revisit it not because I think the law is changed – ‘if you can’t communicate with the patient and your actions are reasonable and in the person’s best interests, they can be justified’ – but I think it’s worth asking whether it is actually reasonable to take the time to do this.

First, you can have no idea whether the patient will have any readily identifiable emergency contact details.  If their partner’s number is recorded under their name – Jane or Bill – you won’t be able to identify who out of the many contacts is the emergency contact.  Equally if the phone has an entry for ‘mum’ or ‘dad’ you don’t know who is the appropriate person to contact.

If the person is not able to communicate with you then you are probably more concerned with actually treating them – if they are unconscious or with an altered level of consciousness that may mean protecting them and trying to deal with the cause of their illness or injury.  Surely trying to access their phone takes away valuable resources and time.

And what are you going to do with the information.  In the various times I’ve served with ambulance services it’s never been suggested that we would be ringing relatives from the scene.  That is better left to police or hospital staff who will have more information and a quieter place from which to call or the resources to go and knock on the door. 

I would also think it would not be reasonable to access the phone to try and get medical information as you cannot have any idea what information the person may or may not have stored on their phone or how to find.  All phones are different and perhaps they decided there was a better way than that suggested by apple, or android or nokia, or google or whoever else provides the operating system on their phone.   And what do you do with that information?  If it tells you their diabetic paramedics have probably already taken a blood sugar level.   If it tells you their blood group no-one would seriously believe that but would check before giving a blood transfusion.

In short finding information would be down to ‘sheer, dumb luck’ and even if you could find it, what are you going to do with it?  The clinicians who read this blog might like to give information when it would be reasonable, but I cannot really imagine why you would want to bother taking the time trying to unlock their phone.

Does this vary whether it’s a first aider or a paramedic? Only the extent that a first aider has even less need to find the information which they may be hoping to find.  If they are treating someone who is unconscious or with an altered level of consciousness they’re going to pass the patient onto a paramedic who is, all things going to plan, hand them onto a hospital. A first aider has even less reason to look for the information that may, or may not, be on the phone than a paramedic so the threshold – that the action was ‘reasonable’- will be harder to reach.

As an aside, on my phone I have a background image on my ‘lock’ screen that says:

This phone
belongs to
Michael Eburn
If found, or in
an emergency
please ring
[Name] on
[Phone number]

That’s worked twice when I’ve left my phone somewhere and someone has rung my partner to tell them where it is, and I’ve been able to recover it.  Hopefully it will work in an emergency as that information is right there, without the need to unlock the phone.

(I wrote it on a word processor, took a screen shot and saved it as an image then loaded it on my phone and set it as my lock screen image).

Conclusion

My conclusion to my earlier post was ‘if you can’t communicate with the patient and your actions are reasonable and in the person’s best interests, they can be justified’.  I still think that is the case, but I do think it would be very hard for a first aider, and in most circumstances for a paramedic, to show that the action was ‘reasonable’.  But if it is – if in the context you can show that it was reasonable – you needed the information and you had reason to believe that information that was vital to the immediate needs of the patient was on the phone and you were going to be able to locate it (not just ‘it might be’) – then it’s probably fine.   

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), 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.

Paramedicine Board of Australia v Graham [2024] VCAT 534 (06 June 2024) involved disciplinary action for a paramedic’s drug use and his failure to seek health care for his addiction before it was detected. Mr Graham had been a paramedic since 2005. He was registered in mid-209. It was alleged that:

… that on 5 June 2020 Mr Graham engaged in professional misconduct or other relevant conduct in that he practised the profession of paramedicine while he would have been affected by methamphetamine such that his ability to perform complex tasks (such as driving and other duties) would have been impaired, and with the presence of methamphetamine, cannabis, amphetamine, codeine and delta-9-TCH-COOH (indicative of the use of cannabis) in his system (the relevant drugs).   The Board further alleges that from 30 May 2019, or from about that day, until 5 June 2020, Mr Graham engaged in professional misconduct or other relevant conduct in that he failed to manage his health.

His registration was suspended by the Paramedicine Board, acting under s 156 ‘immediate action’ in 2020. The matter came before the Victorian Civil and Administrative Tribunal for final resolution on 22 May 2024.  Before VCAT Mr Graham admitted the allegations and agreed with the Board that he should be reprimanded and have conditions imposed on his registration. The Board sought a further period of suspension which Mr Graham opposed.

The history

Mr Graham’s drug use was detected during workplace drug testing on 5 June 2020. After the results of a urine test confirmed the presence of various illicit drugs he was referred to the Paramedicine Board on 12 June 2020.  His registration was suspended on 30 June 2020 ([10]).  His employment was terminated in September 2020 ([13]).

In December 2020 Mr Graham saw Dr Phillip Crowley, a specialist in addiction medicine.  Dr Crowley diagnosed ‘Severe Methamphetamine Use Disorder, and Severe Cannabis Use Disorder’ ([14]) and recommended that Mr Graham not practice as a paramedic until he could demonstrate ‘sustained remission’ and ‘evidence of relevant treatment by his psychologist or General Practitioner’ ([16)].

In 2023 Dr Crowley again assessed Mr Graham. In his report of August 2023 (at [17]):

Dr Crowley expressed the opinion that Mr Graham no longer suffered from a substance use disorder or substance dependence diagnosis that may detrimentally affect or be likely to detrimentally affect his capacity to practise his profession.  Mr Graham had demonstrated a sustained recovery and Dr Crowley considered the risk of further substance use was low.

Mr Graham had acknowledged the risk he had caused to colleagues and patients. Had undertaken treatment and cooperated with the Board’s various processes ([19]). Mr Graham was supported with reports from his treating GP and psychologist, confirming that he had been attending treatment and returning negative drug test results ([20]-[21]).  He had been driving emergency vehicles with the CFA without incident. He provided references from supervisors from AV and the CFA who had been aware of his prior drug use ([22]-[23]).

The result at VCAT

Uncontroversially, VCAT was satisfied of the allegations and the use of illegal drugs, and the failure to manage his own health, represented professional misconduct.  The Tribunal said (at [37]-[38]):

Mr Graham’s conduct was serious.  It was connected to his practice as a paramedic.  It exposed patients, colleagues and the public to risk of serious harm.  We consider that Mr Graham’s conduct was unprofessional conduct that was substantially below the standard reasonably expected of a registered paramedic of an equivalent level of training or experience.  The conduct was professional misconduct within the meaning of paragraphs (a) of the definition.  We further consider that Mr Graham’s conduct was inconsistent with him being a fit and proper person to hold registration in the profession of paramedicine, so that it was professional misconduct within the meaning of paragraph (c).  

The Board submits – and Mr Graham agrees – that we should reprimand him and impose conditions on his registration.  It emerged during Mr Jellis’ [counsel for the Board’s]submissions that, in addition, the Board had contemplated seeking cancellation of Mr Graham’s registration but was mindful of his rehabilitation, insight and remorse.  Instead, the Board submits that we should suspend Mr Graham’s registration for the period of 12 months.  On the other hand, Mr Graham submits that in the circumstances we discuss below, including that his registration has been suspended since June 2020, we should not suspend his registration now.

VCAT agreed with the Board and imposed a further 12 months suspension even though Mr Graham had not practised since June 2020 and done all that he could to, and has effectively dealt with, his addiction issues.

At [56] the Tribunal said:

… suspension by way of immediate action has a different purpose to suspension ordered in a disciplinary proceeding… while the National Law does not expressly provide for a responsible tribunal to ‘backdate’ a suspension or give a practitioner ‘credit’ for time out of practice, a tribunal will have regard to all the relevant circumstances, which include time out of practice.

Even so the Tribunal did impose a further 12 month suspension.  They said (at [66]-[68]):

We accept Mr Jellis’ submission to the effect that a substantial period of suspension is necessary in order to serve the interests of general deterrence and to maintain public confidence in the profession of paramedicine.  We accept the submission that the seriousness of Mr Graham’s conduct and the corresponding need for specific and general deterrence are illustrated by the following matters.  As a health practitioner, Mr Graham ought to have known the risks to others of his drug taking as well as how to access treatment or help.  He put other people at risk, including patients, road users and his work colleagues.  He falsely denied the true extent of his drug use at the time workplace drug tests were administered.  Mr Graham’s conduct did not cease until it was detected.  The quantity of drugs detected in Mr Graham’s system in June 2020 was significant.  Even after his drug use was detected, Mr Graham evidently continued to use cannabis for a period of time (in 2020).  Mr Graham’s drug use was not isolated but involved numerous substances consumed over many years.

In our view, specific deterrence [ie a penalty to deter Mr Graham from further offending] is important but general deterrence [ie a penalty to communicate to others how serious this conduct is seen in order to deter others from similar conduct] is a more important consideration.

… we say in the present case that there is a critical need for general deterrence.  By our determinations, we intend to signal to the paramedicine profession that serious adverse consequences will follow conduct of the kind that Mr Graham engaged in.  It was conduct that put at risk not only patients but also members of the public and Mr Graham’s professional colleagues.  By our determinations we seek to deter others from the same conduct, in the interests of maintaining professional standards and public confidence in the profession. But we also seek to encourage other practitioners of paramedicine to do what the Code exhorts them to do if they know or suspect that they have a health condition or impairment that could adversely affect their judgement or performance or a patient’s health. They should not rely on any assessment they might make themselves of the risk they pose to patients and other persons.  They should obtain professional help and advice.

Finally at [78] they said:

Mr Graham is to be commended for everything that he has done towards his rehabilitation.  He has demonstrated insight and contrition and a determination to remain fit for a return to practise.  We have concluded that the 12-month suspension sought by the Board is necessary, without being punitive or disproportionate or such as to impact negatively on his rehabilitation.  The suspension is designed especially to serve the interest of general deterrence and to maintain proper professional standards and public confidence in the profession of paramedicine.  We do not accept the submission on behalf of Mr Graham to the effect that, especially given Mr Graham’s time out of practice, a reprimand and conditions would be sufficient for these purposes.  

Discussion

Of course I am not in the position of the Tribunal members (J Billings, Senior Member; C Jones ASM, Member and E Rankins, Member) but I find it difficult to believe that the further 12 months suspension ‘is necessary, without being punitive or disproportionate or such as to impact negatively on his rehabilitation’.  Whilst the seriousness of his conduct cannot be doubted, the evidence of Mr Graham’s rehabilitation is to be commended and should be encouraged.  Given that he has already been out of the profession for 4 years it is hard to see what a further 12 months will achieve.

The only saving is that had they not imposed the suspension he would still not be able to practice as he now needs to deal with recency of practice. At [62] we’re told that:

Mr Graham detailed the inquiries he has made about enrolling in a suitable eight-week university course, which he understands he would be eligible to undertake in order to return to practice. It is not clear, however, whether he would be able to enrol this year or in the first half of 2025. As Mr Jellis noted, the impact of a 12-month suspension would be less for Mr Graham than it would be for another person who had their ‘work bag packed’.

The outcome is intended to, and should serve as a warning to other paramedics and health care professionals not to take drugs and if you find yourself relying on them, then to be alert to that and seek professional help.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), 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.