Today’s correspondent asks about a duty of care when recruiting. I’m told the story of

Two people want to join and attend a training or maintenance night.

Person A makes a statement which person B finds that sexually in appropriate and feels uncomfortable due to what occurred.

Where is the duty of care given that they are not members?  Do we have to act and in what capacity?

Additionally, what protections are in place if there was a complaint that involved a new potential recruit making an inappropriate comment to a member.

Any service has a duty to ensure that the meeting is a safe place. This duty is a duty to workers (which includes volunteers) and to those affected by the work of the service (model Work Health and Safety Act 2011 s 19(1)).  There is also a duty to ‘take reasonable and proportionate measures to eliminate, as far as possible … sexual harassment, or harassment on the ground of sex’ (Sex Discrimination Act 1984 (Cth) s 47C and equivalent state and territory legislation).

In the circumstances there would be a duty to take the complaint seriously which would probably require taking Person A aside to ask what happened and counsel them on what is appropriate behaviour. It may terminate their application for membership there and then.

Equally if a new potential recruit made an inappropriate comment to a member the same provisions would apply. There is a duty to ensure the workplace is safe and free of sexual harassment so it would be incumbent to address the issue and, as I say, that may be the end of the potential recruit’s application for membership.

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 raises issues of employee management. They say:

Clause 45 of the Ambulance Victoria Enterprise Bargaining Agreement specifies that:

“a) Subject to clause 45.1(b), the Employer may require an employee to work reasonable overtime (including incidental and full shift overtime) at applicable overtime rates of pay.

(b) An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable.”

Subsection(c) of this clause further stipulates that:  

“In determining whether the requirement to work overtime hours is unreasonable for the purposes of 45.1(b), the following must be taken into account by the employee and the Employer:

(i) any risk to the employee’s health and safety from working the overtime including previous overtime worked;

(ii) the employee’s personal circumstances including any family responsibilities;

(iii) the needs of the workplace or enterprise including the Employer’s primary function to provide pre-hospital care and transport in an emergency setting;

(iv) the notice (if any) given by the Employer of the overtime;

(v) the notice given by the employee of his or her intention to refuse to work any required overtime;

(vi) the usual patterns of work in the industry, or the part of an industry, in which the employee works;

(vii) the nature of the employee’s role, and the employee’s level of responsibility;

Ambulance Victoria frequently uses this section of the EBA to justify dispatching ambulance crews to call outs close to the end of the paramedic’s shift, likely resulting in overtime for the paramedics. In my experience, most paramedics do not mind attending to emergency cases close to end of shift. However, once paramedics are on scene they will find that whilst these patients require transport and assessment in hospital, the patients are not critically unwell and therefore paramedics may end up ramped at hospital waiting to transfer the patient well beyond their scheduled shift end time.

My question relates to whether these paramedics would have an argument to refuse to remain with the patient whilst ramped at hospital beyond the end of their shift (especially given that under sub-section (viii) above, the paramedics will have satisfied the employer’s primary function of providing pre-hospital care and transport). Could the argument be made that it is unreasonable for AV to expect the paramedics to be forced to remain at hospital beyond their shift time ending, given the fact that the patient has now been transported to hospital and their ongoing care should be a hospital responsibility. In my mind it seems more reasonable to expect that the ongoing care (post triage) of a patient who has been transported to hospital should be the responsibility of the hospital and not the paramedics who brought them there (and as such government should be funding sufficient nursing staff and equipment to care for patients whilst they’re awaiting for transfer to the ED, rather than expecting paramedics to do this)?

Of course, it would be better if the care of patients was transferred to the hospital, but clearly that is not a problem that is easily fixed, or governments would have fixed it, nor is it a solution that ambulance Victoria can implement. Ambulance Victoria runs the ambulance service, not the hospitals.  Ambulance Victoria cannot direct hospitals what to do but could do things like have crews report to the hospital to relieve overtime crews etc.  That, of course, requires resource allocations and I cannot comment on what factors AV considers when trying to deal with what is an identified and common issue across Australian health services.  It would also be better if governments (federal and state) fully funded adequate health services, but the allocation of resources are policy, not legal issues. Governments have many competing demands and it is up to them to decide how the government’s resources are allocated.

Given then that there is ambulance ramping could a paramedic refuse to do further overtime? That would depend on ‘the needs of the workplace or enterprise including the Employer’s primary function to provide pre-hospital care and transport in an emergency setting’.  They may have transported the patient, but they are still giving ‘pre-hospital care’.  It would also depend on ‘the notice given by the employee of his or her intention to refuse to work any required overtime’.  If you contacted co-ord and said ‘I’m going home’ that would not be reasonable; but it might be if you contacted co-ord and said ‘I have a commitment I have to be somewhere by [time]’ and that gave AV time to find someone to come and take over that might be reasonable. It would also depend on how long you are asked to stay, refusing to stay 15 minutes is probably not reasonable; refusing to stay 15 hours probably is.

For further discussion see:

• Ambulance ramping for 15 hours! (April 27, 2019); and
• Paramedics leaving patients in casualty (January 24, 2015).

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 says:

I recall you doing an article some time ago about tv reality shows based around paramedics etc. I commented recently (about 6 weeks ago) on a promo socials post by SA Ambulance for a show ‘Paramedics’. I expressed the dichotomy of PR and insight to the profession but it being unethical in terms of consent.

SA Ambulance Service responded to me online and their response was typical and interesting all the same. There was a small amount of support to what I was saying and most public comments suggesting that it was all above board because consent was likely obtained before going to air.

Interestingly, a patient who was featured in the episode to which I had commented on she expressed being rather overwhelmed by the ambulance crew and film crews.

A link to the online conversation was provided- https://www.facebook.com/share/p/cnWN7HZW1yaC9ybW/?

Indeed I did do an earlier post – see How are reality ambulance shows legal? (Updated) (October 9, 2018).  I stand by my position there.  I have no doubt that consent is obtained prior to the footage going out, but I fail to see how real, informed consent can be obtained to film during any incident and particularly any incident where time is of the essence.  Let me deal with the issue in detail.

An initial assumption

My initial assumption, that I hope is uncontroversial, is that we accept that interaction with our health professional is the ultimate example of where we expect confidentiality.  The codes of conduct for all the health professions stress the obligation on health professionals to protect patient confidentiality and there is a common law duty of confidence that arises in relationships where professional confidence is expected.   The combined Code of Conduct that applies to paramedics says at [3.3]

To protect privacy and confidentiality, good practice includes that you:

a) respect the confidentiality and privacy of patients by seeking informed consent before disclosing information, including formally documenting such consent where possible

b) provide surroundings to enable private and confidential consultations and discussions, particularly when working with multiple people at the same time, or in a shared space…

Consent

Consent needs to be obtained in at least, two stages. First consent to film the interaction and second, consent to use the material.  I’m not concerned with the second stage. On the Facebook commentary a person who was filmed confirmed nothing could be used without consent and she was very satisfied with the film company’s approach. All well and good.

My concern is obtaining the footage about someone who doesn’t consent to its ultimate use, or who is unable to consent.  The Facebook commentary says ‘people who are filmed would have been asked if they are ok with being filmed. It would all be above board’ and ‘from when they were with AV it was a quick informal consent asked by the TM on arrival then the crew came in with the camera crew and producers, later on in the journey a formal consent was signed and discussed with the patient…’.

But is that ‘quick consent’ real consent? The code of conduct requires ‘informed consent before disclosing information’ (and even having a clinical conversation in front of a film crew is disclosing information about the patient to the camera operator).  The person is having a medical crisis – it may not be life threatening but it is a sufficient crisis that someone has rang 000 for an ambulance.  We can, I think safely, infer that the caller’s main concern is the patient’s health and well-being. What they want is the assistance of health care professionals.  If those professionals turn up with a camera crew and ask, ‘can we film?’ there is a fundamental power imbalance. The patient wants the assistance of the paramedics – members of Australia’s most trusted profession – many will say ‘whatever’ because they want the care.   Where is the time to ask about the television production company’s privacy policy, what’s going to happen with the recorded material, who will have access to it etc?

As for patients in a life-threatening condition they don’t have the time or in many cases the capacity to give or refuse consent.  The person responsible can generally give consent to health care (see Consent to Medical Treatment and Palliative Care Act 1995 (SA) S 14B) but we’re not talking about the delivery of health care, we’re talking about recording the delivery of health care for the benefit of the production company, so that Act cannot be applicable to that decision.   A person’s enduring attorney may be able to give that consent, but they must exercise their powers ‘as attorney with reasonable diligence to protect the interests of the donor’ (Powers of Attorney and Agency Act 1984 (SA) s 7 (emphasis added)).  Allowing a TV crew to film the delivery of the health care is not being done to advance the patient’s interests and one could argue that there is a duty on the attorney to refuse consent to protect the patient’s privacy interests.  As for other family members at the scene, I am unaware of any legal authority that would allow them to give effective permission.

(As an aside I recognise that the filming may advance a patient interest. To again quote the Facebook discussion, a person who was the subject of one of these shows said, ‘A positive to the filming was that we as the family of the injured were able to get a clearer understanding of what happened to help with the recovery process.’  And if a patient alleges negligence or other improper conduct by the treating health care professional the video may be useful evidence one way or the other.  But I feel confident saying that the motivation behind the production of these programs is not to advance the patient’s interests, it is to advance the interests of the ambulance service, the production company and the TV station that will broadcast the show.)

If I am right then there is a serious issue to be argued that any consent obtained at the scene, is ineffective.  Not a problem if the person is happy to be part of the show but what of the person who does not want their footage used?

I think that person could point to the Code of Conduct and argue that by bringing the film crew in and being actively involved in the recording the paramedic has not put the patient first (Code of Conduct Principle 1) and has not delivered ‘Respectful and culturally safe practice for all’ (Principle 3).

Surveillance devices

There is also the issue of cameras mounted in the ambulance (or in other shows, on the wall of an emergency department treating area).  I do not know if these are recording all the time or if they are turned on and off, and if so by whom.  Let us assume they are on all the time because if they are not they would miss good footage. Even the case that doesn’t look like it will be of interest to the TV audience but may become so because of something said or done in the ambulance eg the patient goes ‘downhill’ and there’s good footage of the paramedic identifying that and taking action to deal with what has become an emergency.   

The Surveillance Devices Act 2016 (SA) s 4 says:

… a person must not knowingly install, use or cause to be used, or maintain, a listening device—

(a)         to overhear, record, monitor or listen to a private conversation to which the person is not a party; or

(b)         to record a private conversation to which the person is a party.

A similar provision applies to optical surveillance devices (ie cameras) (s 5). The conversations take place between the paramedics and the patient. The TV production crew are not parties to the conversation but are recording those private conversations.

There is an exception for recording ‘in the public interest’ (s 6).  It is trite to say that what the public is interested in is different to what is in the public interest. Recording interactions, particularly one’s that are not consented to or which cannot be consented to, for potential use in a TV production, is not in the public interest.

A person can record a private conversation if ‘the use of the device is reasonably necessary for the protection of the lawful interests of that person’ but these recording are not the protection of the lawful interests of either the paramedics involved or the TV production company.

Further the Act makes it an offence to ‘use, communicate or publish information or material derived from the use (whether by that person or another person) of a surveillance device’ (s 12).  One might of course argue that if it’s not used, there’s no problem. But if the material is recorded and then shared with members of the production crew eg to decide if there’s material that they want to use than that information is being communicated to those people involved in the production and perhaps editing decision.  If there’s a meeting between the ambulance service staff and the production staff where they review cases to see what might be of interest that itself would be sharing the information and breaching the patient’s confidentiality – and this long before a decision is made to actually broadcast the material.

When it comes to body worn cameras, there has had to be significant legislative change to allow police and others to wear them – see

• Body cameras for Victorian paramedics (December 19, 2016);
• Body cameras for Victorian paramedics No. 2 (November 25, 2017); and
• Body cameras for NSWAS – implications for others? (December 6, 2019).

On some of these shows the paramedics appear to be wearing body worn cameras. It is not clear if they are issued by the service for its own purposes or provided by the production company for getting footage for the show; or whether they are provided by the ambulance service, but the footage is shared by the ambulance service. Either way there has had to be significant law reform to allow their use both by paramedics and police but those reforms do not extend to capturing footage for broadcast.

Again, if the patient’s happy to be involved, no problem. But if they’re not?

Privacy principles

The Australian Privacy Principles are set out in the Privacy Act 1988 (Cth).  Privacy principle 6 says:

If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) …

The Commonwealth Act applies in the SA health care context by operation of the Health Practitioner Regulation National Law (SA) s 213.  Where a paramedic asks a patient about their condition or history, they are collecting that information for primary purpose of providing health care to the patient. Recording that information for the benefit of the TV producers is a secondary purpose.  The use for a secondary purpose is permitted if ‘he individual has consented to the use or disclosure of the information’ (Principle 6.1(a)) but as I have argued above, the idea that any consent obtained at the scene is a real consent is at least doubtful.   And if the person was recorded when they could not consent but is then approached to ask if they would consent to the use of the information then one can infer the information has already been used for the secondary purpose of making an assessment about the value of the story, and that is already a breach.

A work health and safety issue?

Another consideration is the impact on the paramedics workload. An article recently came across my desk: Malone DF, Sims A, Irwin C, Wishart D, MacQuarrie A, Bell A, Stainer MJ. Lights, Sirens, and Load: Anticipatory emergency medical treatment planning causes cognitive load during emergency response driving among paramedicine students. Accid Anal Prev. 2024 Jun 2;204:107646. doi: 10.1016/j.aap.2024.107646. Epub ahead of print. PMID: 38830295.

This article discusses how ‘high cognitive load negatively affects driving performance, increasing the risk of accidents, particularly for inexperienced drivers’. Their study suggests ‘that contemplating cases and treatment plans may impact the safety of novice paramedics driving ambulances for emergency response’. Adding the further cognitive load of being filmed and then dealing with the film crwe on the scene must surly add to the stressors already facing paramedics with a risk when driving and, potentially, a risk in the delivery of care.  

So how do they continue?

Shows like this have been around for many years – with access to hospitals and ambulances, so if I’m right, how do they keep going?

There are a few possible answers to this question:

1. I’m wrong, and there is legal justification and authorisation for the whole process from start to finish and I just don’t know what the legal justification is or I’ve made erroneous assumptions about the process; or
2. As I like to say, the law is not ‘self-executing’.  Just because there is a breach of the law doesn’t mean anyone is going to do anything about it. It is a shock to realise that law is a self-help tool. It’s there but an aggrieved person has to do something about it, to make the complaint to AHPRA or the Privacy Commissioner or the police or take their own action in court.  And that is complex, traumatic and if you’re going to take legal action, expensive.  And if you make a complaint to an agency, they have to prioritise it against the other issues they face and are no doubt under resourced to pursue. And it may not be considered the most urgent particularly if the service apologises and all footage is deleted; or
3. As said on Facebook, “… the production company responsible …are consummate and caring professionals who care deeply about the patients’ well-being during and after” and they have managed to keep the customers satisfied. And perhaps people who have objected to being filmed have been satisfied by assurances that the footage will all be deleted so that they don’t feel the need to take it further.

Conclusion

I understand why the ambulance, health services and TV stations like these shows. As SAAS says in the Facebook discussion:

The show is incredibly popular and shines a light on the incredibly tough job our heroes in green do, plus, it can really serve as an amazing education piece for road safety, cardiac events and much much more.

That doesn’t make it legal. If there’s a breach of the Surveillance Devices Act or the Privacy Act then there’s a breach no matter the positive outcome.

As for paramedics, doctors and nurses, personally I expect them to take steps to protect my privacy and the confidentiality of our interaction.  I think a paramedic who agrees to take part in the show is in clear breach of the Code of Conduct [3.3]. They should understand that the power imbalance and the patient’s need to obtain care means they are not in any position to consent to being filmed nor to give ‘informed’ consent to the sharing of information. By agreeing to invite a camera crew in, working in an ambulance with cameras installed or wearing bodyworn cameras to capture footage for possible use in a TV show then neither they, nor the ambulance service are providing ‘surroundings to enable private and confidential consultations and discussions…’

To reiterate I’m not concerned with the person who is happy to be part of the show who consents to sharing the information with the world. I’m concerned with the process of sharing the information with the film crews and the producers who have to decide what they want to use when the person could not consent or was unable to give informed consent and who objects to the fact that they were recorded even if that footage is never broadcast.  I expect that one day (and that day may be the day that an ambulance crew turns up at my door with a TV crew) there will be a complaint to AHPRA.

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 has:

… a question surrounding mandatory reporting. If a registered health care professional volunteers their time in a community organisation (non-clinical) and they hear a child make a disclosure… is it adequate for the clinician to follow the organisations reporting channels or is the clinician (who is not in a clinical capacity) still required to make their own report? I got asked this question and I didn’t know how to answer it. This question was asked in QLD.

This is mandatory reporting under the Child Protection Act 1999 (Qld), not mandatory reporting under the Health Practitioner Regulation National Law.

The Child Protection Act says that a ‘relevant person’; that is:

(a) a doctor;

(b) a registered nurse;

(c) a teacher;

(d) a police officer who, under a direction given by the commissioner of the police service under the Police Service Administration Act 1990, is responsible for reporting under this section;

(e) a person engaged to perform a child advocate function under the Public Guardian Act 2014; [or]

(f) an early childhood education and care professional.:

is required to report a ‘reportable suspicion about a child in the course of the person’s engagement as a relevant person’ (s 13E(3)).   A ‘reportable suspicion’ is (s 13E(2)):

… a reasonable suspicion that the child—

(a) has suffered, is suffering, or is at unacceptable risk of suffering, significant harm caused by physical or sexual abuse; and

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

The first thing to note is that it’s not all registered health professionals. There are 15 registered health professions, but s 13E only applies to medical practitioners and nurses.  For those professionals the obligation to report arises if they form the ‘reportable suspicion’ ‘in the course of the person’s engagement as a …’ medical practitioner or nurse. What follows is if they form the belief whilst volunteering in another role, eg volunteering as part of their child’s sport team then the mandatory reporting obligations do not apply and it would be ‘adequate for the clinician to follow the organisations reporting channels’.

Where reporting is not mandatory, anyone can report a concern to the Chief Executive of the Department of Child Safety, Seniors and Disability Services (see s 13A).

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.

In United Firefighters’ Union of Australia v Honourable Jaclyn Symes (No 2) [2024] FCA 510 the United Firefighters’ Union (UFU) challenged the power of the Minister to give directions to Fire Rescue Victoria (FRV) on how FRV was to respond in an ongoing industrial dispute.

FRV and the UFU were engaged in negotiations to establish ‘an independent registration board, the apparent purpose of which being to maintain a register of personal and training details (perhaps amongst others) pertaining to Victorian firefighters’ ([15]).  The UFU established the Victorian Professional Career Firefighters Registration Board Limited (the Board) and continued negotiations with FRV on arrangements to be made between the Board and FRV.  Issues that could not be resolved between the parties turned on whether any agreement would be between the Board and FRV or between the Board, FRV and the UFU.

Ministerial consent was not required

Under s 25A(3) of the Fire Rescue Victoria Act 1958 (Vic), FRV needed the Minister’s consent before

(a) entering into any agreement or arrangement with any person or body for the provision of goods or services by Fire Rescue Victoria; or

(b) forming, participating in the formation of, or becoming a member of a body corporate, association, partnership, trust or other body; or

(c) entering into any joint venture agreement, shareholders agreement or unitholders agreement.

The Minister wrote to FRV indicating that in her view the proposed agreement with the Board required her consent which would not be forthcoming ([22]).  Section 8 of the Fire Rescue Victoria Act provides that FRV is ‘subject to the general direction and control of the Minister’ and that the Minister ‘may from time to time give written directions to Fire Rescue Victoria and the Fire Rescue Commissioner’. The Minister followed up on her letter denying consent under s 25A with a s 8 direction that FRV was not to enter the proposed agreement with the Board ([24]).

The UFU argued that the Minister’s intervention were not authorised by the Act and was an attempt to coerce FRV over how it exercised its right to settle a dispute with it employees. This was said to be contrary to the Fair Work Act 2009 (Cth) s 343.

The issue before the court turned on whether the Minister’s letter withholding consent to any agreement, or the direction not to enter the agreement was permitted by the Fire Rescue Victoria Act.  If either was, then it was not coercion but the legitimate exercise of her statutory powers and authority.

The UFU argued that Ministerial consent was not required to enter the proposed agreement because the agreement did not involve the provision of services by FRV nor did it involve FRV becoming a member of the incorporated board.  Justice Snaden, in the Federal Court of Australia, agreed and held that the Minister’s consent was not required under s 25A(3)(a).

His Honour also found that even though FRV was negotiating with the UFU on the terms of agreement with the Board, the actual creation of the Board was something that had been done earlier. His Honour said (at [88]):

There is no basis upon which the court might properly construe “formation” in s 25A(3)(b) of the FRV Act in a way that extends, in the case of Victorian Professional Career Firefighters Registration Board Limited, to activities that were to be engaged in several months after it was incorporated.

Entering into a contract with the Board after it had been established did not constitute ‘forming, participating in the formation of, or becoming a member of a body corporate…’  The Court agreed that the Minister’s consent was not required.

The Minister’s direction

With respect to the direction under s 8, the UFU argued the Minister could not use s 8 to impose conditions on FRV’s freedom to contract where her consent was not required, that is she could not use s 8 to ‘get around’ the limitations in s 25.  His Honour disagreed. He said (at [102]-[103]):

Section 8 of the FRV Act confers upon the Minister a general power to give directions to FRV (and a corresponding obligation on the part of FRV to follow them). Expressly reserved by s 8(1) is a general power on the part of the Minister to give directions about “the exercise of powers of [FRV]”. … it is plain beyond doubt that s 8(2) is intended to confer upon the Minister a power to give directions in relation to the exercise of FRV’s statutory powers. Necessarily, that must include the powers conferred by s 25A(1) and (2)—specifically, the powers to do things, including without ministerial consent.

The fact that FRV has powers that it may exercise without ministerial consent is not a matter that requires any reading down of the Minister’s powers under s 8 of the FRV Act. The absence of a need to obtain consent to do something is one thing. Subjection to a general power of direction is something else entirely…

Even so the Minister may not make directions about ‘operational functions and powers’ (s 8(3)). The UFU argued that the decision to enter a contract with the Board about registering appropriately qualified firefighters. The UFU argued (at [107):

… that the reference in s 8(3) of the FRV Act to “operational functions and powers” is properly understood as a reference to functions and powers that pertain to the prevention and suppression of fires. The power to regulate the registration of professional firefighters, it says, is something so integral to that overall operational purpose as to itself qualify as operational by nature.

The Act does not define what is an ‘operational function’ or ‘power’ so it was up to the court to define the distinction between what is ‘operational’ and what is not. At [114] His Honour said:

Although, admittedly, the issue is not free from doubt, it appears … that what separates FRV functions and powers that are “operational” from FRV functions and powers that are not “operational” is a question of proximity; specifically, proximity to the core FRV functions of fire safety, prevention and suppression. … it appears that operational functions and powers are functions or powers that are directed immediately (or at least sufficiently proximately) to the provision of fire safety, prevention or suppression services. In other words, an operational function or power should be understood as one that, if interfered with, might visit an immediate negative impact upon FRV’s capacity to discharge its essential functions.

Whilst it is ‘not easy to draw a bright line’ between an operational function and a non-operational function, His Honour was satisfied that in this case the decision to enter a contract with the Board was not ‘operational’ and therefore could be the subject of a Ministerial direction.  His Honour said (at 116):

Here, what was proposed was an exercise of FRV’s power to enter into an agreement with a third party for the provision of services.  More specifically, FRV was contemplating an exercise of its power to enter into an agreement to establish a registration board and to regulate the provision of its registration services.  Neither the function of such a board nor the character of the services so provided are sufficiently (which is to say immediately or proximately) integral or essential to the function of fighting or preventing fires (or otherwise promoting fire safety).

Because the Minister’s direction under s 8 was lawful it could not be ‘coercion’ but the issue of the Minister’s letter, refusing consent when consent was not require, remained open. The court said that the letter could only amount to coercion if it ‘was unlawful, unconscionable or illegitimate’ ([128]).

The court, after reviewing the legal authorities, held that unlawful meant ‘forbidden by law’ ([156]). The Minister had written a letter implying that she had the right to withhold consent and that her consent was in fact required. In this she was mistaken but ‘Generally speaking (and acknowledging that there are exceptions), the law does not forbid people from writing letters, nor from mistakenly asserting that they possess certain powers. Here, the worst that can be said of the Minister’s conduct is that it was not authorised under the FRV Act’ ([156]).

The Minister’s belief about the need for her consent and her power to withhold that consent were wrong but not ‘unconscionable’, nor was it ‘illegitimate’.  His Honour said (at [174]):

… the Minister’s conduct, though premised upon a mistaken assumption of power, was nonetheless a good‑faith endeavour to exercise authority under a statute so as to prevent FRV from entering into a contract that risked visiting consequences that the Minister regarded as unacceptable.  So understood, it cannot be said that there was any want of proportionality as between the Minister’s lawful conduct and the interest that she hoped to advance by it.

For the purposes of assessing whether it might qualify as coercive for the purposes of s 343(1) of the FW Act, I do not regard the Minister’s conduct to have been relevantly illegitimate…

The Minister was mistaken about s 25A.  She did not want FRV to enter into the contract with the Board. As the minister she had a legitimate interest in the matter and the power to direct FRV under s 8.   Writing the letter to FRV clearly indicated her views on how they should resolve or more importantly, not resolve the issue with the UFU and the Board but her belief that her consent was required, and therefore her belief that she could withhold that consent was wrong but not ‘unlawful, unconscionable or illegitimate’ and therefore did not amount to unlawful coercion.

The UFU’s request for declarations as the unlawfulness of the Minister’s conduct was denied.

Discussion

The case gave rise to an interesting discussion of the Minister’s power to give directions under s 8 and what is or is not an operational power.

What is interesting but is not explained is what is to be the role of the is registration board. The FRV Act already provides for the creation of a Firefighters Registration Board (s 149).  This Board is required by s 154:

(a)     to administer the Firefighters Registration Scheme;

(b)     to perform the registration functions prescribed by the regulations in relation to—

(i)     maintaining the Firefighters Register; and

(ii)     including on the Firefighters Register persons who satisfy the competency requirements for inclusion on the Register;

(c)     to perform functions in respect of setting professional capability and standards, including but not limited to—

(i)     the recognition of qualifications and accredited courses of training, including through certificates or other evidence in relation to those matters from professional organisations, higher education bodies or post-secondary technical or vocational educational institutions; and

(ii)     the establishment and approval of competencies that will satisfy the requirements for inclusion on the Firefighters Register; and

(iii)     the development, establishment and maintenance of guidelines about appropriate standards;

What this other Board is required to do is not made clear. At [83] the judge quotes from FRV’s submissions that said:

During the period from at least early 2021 until 17 August 2022 (when the Minister sent the Letter to FRV), representatives of FRV and representatives of the applicant were taking steps with a view to establishing a firefighters registration board that would operate separately to the Statutory Board, given the limited functions of the Statutory Board. The purpose of the proposed firefighters registration board was to register professional career firefighters employed by FRV with the appropriate qualifications, competencies and operational experience specific to the ranks covered by the 2020 Agreement — that is, to ensure firefighters were capable of performing the roles they were employed by FRV to perform.

One of the reasons the Minister gave for withholding her consent to FVR entering into an agreement with the Board was (at [22]):

The potential for duplication between the functions to be performed under the Services Agreement and those to be performed by the Board established by section 149 of the FRV Act (Statutory Board) may create confusion and undermine the legislative objectives of the Statutory Board.

One would have to go through the Act with a fine-tooth comb to identified the ‘limited functions’ of the Statutory Board and why the UFU and FRV seem to think a second registration board is required.

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.

The Queensland Minister for Police and Community Safety, the Honourable Mark Ryan and the Minister for Fire and Disaster Recovery the Honourable Nikki Boyd have announced that new emergency services legislation in Queensland has come into force. The legislation means that State Emergency Service and Marine Rescue Queensland are now formally established but now fall under the responsibility of the Queensland Police Service rather than Queensland Fire and Emergency Service. The Police Service also becomes responsible for coordination of Queensland’s disaster response.

You can read the Ministers’ media release here – https://statements.qld.gov.au/statements/100475

I will try to write my own review of the legislation, but it may take some time. In the meantime, see:

• Changes to Queensland emergency services announced (December 9, 2022); and
• New legislation for Queensland SES (December 6, 2023).

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 takes us back to the issue of the Queensland medical records viewer (see QAS paramedics accessing patient information via ‘The Viewer’ for ‘follow up’. (October 20, 2023)).  They say:

I am a paramedic with 20 years’ experience in an extended care role. I am really concerned about the use of The Viewer by paramedics. What I am finding is most paramedics, mainly the younger generation, now ask our communications staff for patient details to look up The Viewer prior to arriving on scene.  I have huge problems with this; firstly often they get diverted to another case therefor they have just accessed information for a patient they have no contact or business with. Secondly it creates a bias, and I am seeing many, many bad decisions being made based on their poor understanding. 

For example, a close friend who lives in my street with a lot of issues had attempted to take her life. I was off duty but providing care when the paramedic arrived, and I began giving a handover. She put her hand up and said, “It’s ok, don’t worry, I know what is going on I read The Viewer”, therefore missing critical information about this episode.  Second example a patient with long history of AF presents with chest pain and ECG changes typical of an AMI. The paramedic, having read The Viewer says that because other episodes did not end up being an AMI this would not be.

I feel they must be breaching legislation in some form. Do patients have some recourse if it is found under FOI that a paramedic accessed their record without actually ending up having attended the patient?

I rarely ever feel the need to use it as a paramedic there are some very few limited times where I have attended a complex presentation that I was not transporting and used it for risk mitigation but always explaining why to the patient not just acting like it’s my information to do as I please.

These are difficult questions. On first glance, it would seem looking up The Viewer before arriving would make good sense to inform the paramedics. Patients may be annoyed at having to relay information that could have been accessed prior to arrival.  But what does the legislation say?

In my earlier post I concluded that the terms of use say, in effect:

You may access and use the Application, to view, use and display the Content for your professional use when necessary, in accordance with the care or treatment of an individual by a Prescribed Health Practitioner acting in that capacity and in accordance with section 161C(2)(a) of the Hospital and Health Boards Act 2011 (Qld). You must not access or use the Application for any other purpose.

Section 161C(2) of the Hospital and Health Boards Act 2011 says:

A prescribed health professional must not access information contained in a prescribed information system unless—

(a) the information is necessary for the prescribed health professional to facilitate the care or treatment of an individual;

It cannot be the case that a practitioner can only access The Viewer where ‘the information is necessary for the prescribed health professional to facilitate the care or treatment of an individual’.  Taken literally that would mean a practitioner has breached the terms of access if they look to The Viewer and discover that there is no information necessary for the treatment of the patient, even though they thought there would, or might, be relevant information. (Of course, even finding no information relevant to the treatment of the patient’s current condition may be helpful).  I would infer that it must be appropriate to access The Viewer if the practitioner has reason to believe that access the information may facilitate the care or treatment of the patient.  But does that extend to a possible patient?

A paramedic proceeding en route would have reasonable grounds to believe that he or she will be called upon to treat the patient and informing themselves before they get there (subject to the examples given above) may improve their ability to treat the patient. On the other hand, the patient is not yet ‘their’ patient, and they are not engaged in caring for the patient. For all they know the patient may refuse treatment or transport or the information may be quite irrelevant. For example, if the patient is in cardiac arrest, or suffering life threatening trauma, is there past medical history relevant for the care that needs to be provided there and then?

It would be consistent with good paramedic practice to ask the patient if they are happy for the paramedic to look up the record and to discuss with the patient what the record shows and what it may mean for their care (see Paramedicine Board Code of Conduct Part 4: Working with Patients and in particular[4.1] Partnership and [4.2] Informed Consent). Where a patient has an ongoing relationship with their GP there may be a clear understanding that the GP is accessing the information. But an ambulance patient has never met the paramedic before so it would be more respectful to engage with them and to seek permission before accessing their record, even if some patients may be annoyed that the paramedics do not already have information that is available for that purpose.

I can see the argument that provided the practitioner has reasonable grounds to believe that they are going to be involved in the treatment of the patient and that access to the information is reasonable in anticipation of that then access is permissible. But, on balance, I think accessing The Viewer before accessing the patient and entering into a health care relationship with them is inconsistent with both the Code of Conduct and the terms of access.  Regardless of the merits, the legislation and the terms of access refer to accessing the information to treat a patient, and until the paramedic meets the patient there is no health care/patient relationship, they are not involved in the care of the patient and cannot form a view of whether access to the record ‘is necessary … to facilitate the care or treatment of [the] individual’ who is before them.

As for access affecting the care of the patient, paramedics need to remember that good paramedic practice requires them to (Paramedicine Board, Code of Conduct [1.1(a)], emphasis added):

assess the patient, taking into account their history, views and an appropriate physical examination where relevant. The history includes relevant psychological, social and cultural aspects, and available electronic records such as My Health Record.

Access to information on The Viewer may be relevant in the circumstances but cannot replace the need to assess the patient as they present.  A paramedic who fails to hear from the patient or those involved in their care, or to make their own clinical judgement of the patient’s current condition, informed but not guided by, the patient’s history may well fail to provide ‘reasonable care’ with the all the implications that may bring. 

If a paramedic does access the record, and if the patient is aggrieved about that, I suggest the remedy is not under FOI law. Improper access to The Viewer is a criminal offence (Hospital and Health Boards Act 2011 (Qld) s 161C) though I’m sure no-one would want to prosecute in the circumstances described.  A complaint to the ambulance service or the Health Ombudsman would probably be sufficient to make the point.

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 says:

Over the last couple of years, a number of large volunteer organisations in NSW have used The Voice to conduct a pulse check across their paid and volunteer staff. 

The sell to staff and volunteers was that these surveys are completed anonymously. It has come to light that one of these prominent volunteer organisations has used this “anonymous” survey feedback to instigate disciplinary action against staff and/or volunteers whom they believe made certain statements, in what was believed to be an anonymous survey.

This raises a question but more importantly a major consequence for said organisation:

Question: can an organisation legally use feedback from a supposed anonymous survey to instigate disciplinary proceedings against staff and/or volunteers?

Even if the answer is ‘yes’, as word spreads about what the organisation has done with this “anonymous” feedback, the organisation has done irreparable damage to the trust employees and volunteers now have in its executive and leadership structure, and the willingness for employees and volunteers to speak up.

I accept that if an organisation promises that feedback is anonymous, but it isn’t that will permanently damage the organisation’s standing and the value of any future survey. That is not however a legal issue, and I won’t take it further.

As for the legal question that’s difficult. Evidence law would give a court a discretion to exclude evidence that has been improperly obtained or in the circumstances would be unfair to the accused (see for example, Evidence Act 1995 (NSW) ss 137 and  90), but we are not talking about criminal proceedings and in most situations, the Evidence Act won’t apply (see The rules of evidence and a NSW RFS disciplinary panel (February 16, 2024)). 

Even where the Evidence Act does apply there is generally a discretion to use such evidence where it is crucial and where the alleged offending is very serious. If though an anonymous survey evidence is obtained of serious misconduct that poses a risk to the organisation or individuals (eg fraud, sexual offending, using agency resources to advance criminal conduct etc) then it would be incumbent on the organisation to use that information to start looking into the matter even if the survey answers could not be directly used.  That is if they put an organisation on notice of some serious issues, they cannot ignore them because the survey was anonymous and if they did ignore them it would defeat the purpose of the survey which is to invite people to anonymously report their concerns.  That is if a person or persons completing the survey says that they are not happy as they are subject to bullying by a named person then the organisation is not breaching rules of anonymity if they say ‘this has been reported by one or more people, we don’t know who but it is something we must investigate’.  That must be fine. 

What would also be fine is if they read the survey results and see someone has made a statement to the effect that they are damaging the organisation or are an unacceptable risk to others. The organisation may say ‘we don’t know who said that but if it’s true we need to work out what’s going on’ and then began an investigation that narrowed down the possible people to include, and perhaps only include, the person who wrote the survey. That does not deny that the survey was anonymous, but it triggered an investigation. And what is the point of the surveys if not to trigger action to resolve what’s reported?  If what is reported is general dissatisfaction or low morale, then the organisation wants to use that information to identify the problem and start the solution.  If what is identified is individual misbehaviour that poses a risk to the organisation or those in it that too, having been anonymously identified, has to be resolved. What is not fine is if the person completing the survey makes an admission and the organisation then says ‘You said this in your survey, and we are now investigating whether or not you are a fit and proper person to be in the organisation’. That would be a breach of confidence.

In short acting on what the survey reveals must be the expected or hoped for result of the survey and that does not breach confidentiality. Identifying who completed the survey from the survey, does. The critical question is what type of ‘disciplinary action’ is being take based on what type of statements?

It would not be fine to take vindictive or punitive action against someone who completed the survey honestly and is now being targeted for their opinion.  If for example someone wrote that ‘all the middle managers are useless’ then trying to work out who they were would be wrong; but equally that could hardly be a breach of any code. If the person is asked to give their opinion in an anonymous survey then they are doing what they are asked and I cannot see how that could warrant action against any code of conduct.

If we accept that that the organisation is identifying who completed the survey then that be a breach of a duty of confidentiality. That duty can arise where information is obtained in circumstances where it is expected that the information will be confidential. That would seem to apply here so there could be an action for damages or for an injunction to restrain the use of that information.  The Privacy Act requires organisations that collect personal data to use that data only for the purpose for which it was intended and if it was promised to be confidential then to use it in the way suggested would ] be a breach of the privacy legislation if the information was ‘personal’ information.

Conclusion

Assuming that the organisation can and does identify the author of the survey from their survey answers, and that there is action based solely on the answer then for an employee there would remedies under industrial law. Volunteers would certainly argue that the information cannot be used and that honest answers given in response to a request for those answers cannot amount to any breach of discipline. They may be successful in seeking a review of any decision on the basis that the use of the material was ‘unfair’ but that is both time consuming and costly.  If it can be proved that the material was collected for one purpose but used for another then the most effective remedy may be a complaint under relevant privacy legislation.

If on the other hand, the organisation identifies a problem from the survey so starts investigating the problem, then that is fine even if, in the course of the investigation, they find that the person who identified the problem is also the cause of the problem.

The biggest implication would be, as noted, no-one would ever trust the survey process again.

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.

Daniels v NSW State Emergency Service [2024] NSWCATAD 118 (7 May 2024) involves the former commander of the Coffs Harbour unit of the NSW SES.  Mr Daniels was removed from the commander’s position following an investigation into allegations of misconduct.  In this application before the NSW Civil and Administrative Tribunal (NCAT) he sought a review of decisions made by the SES in response to his application to access records produced in the course of the investigation.

The Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) works on the assumption that information held by a government agency, such as the SES, should be made available unless there is good reason to withhold the information.

The issue

In this case the applicant, Mr Daniels, made three applications for access to information.  The SES refused to respond to the initial applications on the basis that responding ‘would require an unreasonable and substantial diversion of the agency’s resources’ (GIPA Act s 60(1)(a)). Mr Daniels challenged that decision which in turn led to a mediation between the parties. The outcome of the mediation was that Mr Daniels would reduce the scope of the application, that is the amount of material being sought, and the SES would reconsider the application for the more limited information ([9]).  The Tribunal put the results of the mediation into orders. One of the orders was that the SES would ‘provide the applicant … with a schedule of the emails referred to in paragraph 34 of the affidavit of Christian Marin, including details of any attachments to the emails’ ([10]).  The affidavit said that the SES had identified 294 emails with 697 attachments that may have been relevant to the application as originally drafted (ie not the more narrow, revised scope of the application).

The SES gave access to some documents and refused access to others. With respect to a request for ‘Report or reports of Anthony Day relating to allegations of misconduct against the applicant’ the SES reported that there were no reports to be disclosed. Mr Day is ‘a Deputy Zone Commander in the Northern Zone for NSW SES’. The Northern Zone includes Coffs Harbour ([62]). The applicant challenged these decisions.

The decision

The Tribunal noted (at [53]) that it exercised a limited jurisdiction and its powers and functions were determined by the GIPA Act. The applicant had asked the Tribunal to ‘review the whole of the Agency’s conduct against ‘The Ethical Framework’ for the NSW public sector published by the NSW Public Service Commission and its core values of ‘integrity’, ‘trust’, ‘service’ and ‘accountability’.’ ([25]). This was beyond the Tribunal’s jurisdiction.

Reports by Mr Day

With respect to the reports of Mr Day the applicant argued that there must be such reports but that is not proof that there are reports.  The SES gave evidence of the search strategy it had adopted ([29]).  Senior Member P French said (at [58]-[59]), that the GIPA Act s 53:

… imposes a “reasonableness” standard in relation to the searches required to be undertaken by an agency, rather than any absolute or strict standard. Such searches must therefore be “logical”, “sensible”, “appropriate” and “fair” but are not required to be “extreme” or “excessive” (to illustrate using synonyms and antonyms). The reasonableness standard is an objective one. It is what a fair minded person possessing reasonable knowledge of the agency’s obligations and the circumstances of the case would consider reasonable. It is not the standard of an obsessive, mistrustful, perseverative, or belligerent observer …

It thus falls to the agency to establish … that it has carried out searches for government information within the scope of the access application in a logical way that has been fair to the applicant having regard to the object of the GIPA Act and the applicant’s … right to government information.

The Tribunal reviewed the agency’s decisions including reviewing confidential documents and determined that there was no evidence that documents matching the request – that is any report or reports authored by Mr Day existed.  Member French was critical of one aspect of the agency’s search strategy, that is they did not ask Mr Day directly if he had written any report or reports but he did not send the matter back to the agency on that basis, instead coming to the conclusion that:

… the evidence is sufficient to persuade me that the allegations and the investigation process did not involve Mr Day, such that there is an unlikelihood that he would hold a ‘report’ or ‘reports’ authored by him in relation to these matters that would not otherwise appear in the Agency’s records if they did exist. Remittal of this item would be a futility in these circumstances, and unreasonably prolong finalisation of the access request.

He was therefore satisfied that the agency conducted reasonable searches and if those searches did not produce any documents that matched the description of documents sought then there were no documents to produce.

The schedule of emails

After Mr Daniels challenged the outcome of his first applications, the parties agreed that the application would be narrowed, and the agency would go back and look for documents that met the narrower scope. It was also agreed that the agency would provide a schedule detailing the emails referred to in an affidavit. The Tribunal held that the production of that schedule was not a response to the GIPA application – that is the outcome of the mediation was in two parts. One, a narrower application that would be reconsidered and two, the production of the email schedule.  The agreement to provide the schedule of emails ‘operates independently of the remitted access request’ ([70]).

Because the production of the schedule and the decision to give access to some, but not all fo the emails, was not responsive to the GIPA application, the Tribunal had no jurisdiction to review the agency’s decision ([71]).  The Tribuanl also noted that the terms of the agreement had been that the agency would provide the schedule (ie a list) identifying the emails, not that it would provide complete access to each of those emails and each attachment ([72]).

The decision to withhold information

Although there is a presumption in favour of disclosure, information may be withheld when that is in the public interest. The Act sets out, in a table to s 14, factors that may be considered. The SES argued ([81]) that they withheld information on the basis that the release of the information would:

• ‘prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions’ (s 14, Table [1(d)]);
• ‘reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency’ (s 14, Table [1(e)]);
• ‘prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed)’ (s 14, Table [1(h)]);
• ‘reveal an individual’s personal information’ (s 14, Table [3(a)]); and/or
• ‘contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002‘ (s 14, Table [3(b)]).

In short the SES sought to protect the confidentiality of those involved on the basis that if confidentiality could not be guaranteed people would not contribute to investigations and improper conduct may remain undetected (see [91]). At [93] the Tribunal said:

… I conclude on the evidence and submissions before me that the clause 1(d) consideration is properly engaged in this case. I am satisfied that the information at issue is confidential information which facilitates the agency’s complaint handling functions. I am also satisfied that the agency’s future ability to obtain this confidential information would be prejudiced if persons who are in a position to supply such information were to apprehend that it would be disclosed to a person in the position of the Applicant in a manner that would reveal their identity and opinions.

With respect to [1(e)] the Tribunal (at [100]) was:

… satisfied that the clause 1(e) consideration is engaged. The Investigation Report and refused emails clearly contain information related to consultation and deliberation conducted in relation to the complaint allegations and disciplinary process. The disclosure of this information would prejudice the proper exercise of the Agency’s complaint handling functions by deterring people with relevant information from participating in these processes lest their identity and opinions be exposed to a person whose conduct has been the subject of complaint. It would also inhibit officers with responsibility for conducting complaint investigations and disciplinary processes from obtaining advice and ‘thinking through’ issues with other relevant persons in writing because of the potential that these preliminary steps to a final outcome decision would be exposed to the person subject to the investigation/disciplinary process.

For s 14 Table [1(h)] to apply, Senior Member French noted that there was conflicting authority on whether the prejudice had to be to a particular investigation or whether the release of information might prejudice future investigations. He held that the agency had to demonstrate that the release of the information would prejudice the particular investigation and in this case they could not do that as the investigation and the disciplinary process had been concluded. He said (at [104]):

I cannot see how revealing the purpose, conduct or results of the Agency’s disciplinary investigation now could prejudice the conduct, effectiveness, or integrity of that investigation. That is because it has long since concluded. I am thus not satisfied that clause 1(h) is engaged in the circumstances of this case.

With respect to the claims that the release of the investigation report and the refused emails would release personal information, Member French said (at [105]):

The definition of ‘personal information’ … is capable of including complaints made about a person and the opinions or the person making the complaint. Information of this kind will be personal information of both the person subject to the complaint and the person who made the complaint…

He concluded (at [106]):

The Agency submits that the Investigation Report contains personal information about individuals in addition to the Applicant, including complaints made by some individuals, and the views expressed by individuals consulted about the allegations of misconduct against the Applicant or who have otherwise expressed an opinion about the Applicant in the context of the Investigation… Based upon my perusal of the Investigation Report and those emails I accept that is the case. The Agency further submits, and I accept, that merely redacting the names of the individuals contained in this information would not prevent their identity from being ascertained because the contextual information surrounding their name would reveal their identity to someone with knowledge of the organisation and its paid and volunteer personnel, such as the Applicant.

The Tribunal then had to weigh the competing interests both for and against disclosure. Senior Member French held (at [115]-[117]):

… In short summary, it is an essential function of an agency that it is able to receive and act on complaints of misconduct made against paid and volunteer staff in a manner which not only accords fairness to the subject of the complaint but also protects the privacy of any complainant or witness, and guards against the potential for retaliatory or some other form of adverse action to be taken against the complainant or witness by the subject person or others. If an agency could not protect information received or created during its investigative and deliberative processes from full exposure to a person subject to a misconduct inquiry there is a reasonable likelihood that this would deter complainants from raising allegations of misconduct which may be in the public interest, and witnesses from providing relevant information in relation to those allegations. At the least there is a risk they would be more guarded, and less candid, in doing so.

An agency also reasonably requires the freedom to obtain advice and feedback during the deliberative phase of an investigation to assist it to formulate a final position. There is a reasonable likelihood that the potential for exposure of information created during such a deliberative process, as distinct from its final outcome to the person subject to the investigation would inhibit and deter deliberation, potentially compromising the quality of decision-making on issues of organisational, and potentially, public importance.

The public interest test incorporated into s 13 of the Act requires the decision-maker to make a principled choice between competing values, where those values are incapable of reconciliation. In this case values related to the transparency of government information must be held subordinate to values related to the integrity of internal, and ultimately public, accountability processes.

Accordingly, the agency’s decisions to withhold certain documents, and its conclusion that it did not have any documents that matched a particular description was upheld.

Discussion

This decision is consistent with an earlier case reported in this blog also involving the NSW SES – see  Accessing information relating to complaints and disciplinary proceedings (September 28, 2018).

It is understandable that members who feel aggrieved by the process and the outcomes will want to know who said what and when and there is an obligation to ensure that they are ‘provided with sufficient information about the allegations made against them to ensure they have a reasonable opportunity to respond to the allegations’ ([86]) but that does not mean they have to be given access to every piece of information that has been received about them or the details of the thought process followed by those looking into the allegations.  There is a difficult balancing act between ensuring the respondent knows what is alleged and the need for an agency to be able to receive information and conduct its processes.  In this case the balance fell in favour of withholding certain information.

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 came as a comment but warrants its own post. I’m asked:

Can a paramedic suggest to a patient at hospital  even before seeing a doctor that she needs to see a psychatrist????DO THEY HAVE ACCESS TO RECORDS ?   I BELIEVE WITH OUT knowing what my wife has been through  the botched treatment by a hospital. And medical. Profession over 8 yrs or more WE ARE STILL TRYING TO UNDO DAMAGE DONE  I believe she has crossed boundarys  with her option   a trainee ALSO  was with them AND may have over heard her comment…..your thoughts pls

There is clearly a lot of emotion behind this question. It is easier to answer it if we try and remove the emotion and re-format the question as:

Can a paramedic suggest to a patient at hospital – even before seeing a doctor – that she needs to see a psychiatrist? Do they have access to records? I believe without knowing what my wife has been through, the botched treatment by a hospital and medical profession over8 years or more. We are still trying to undo damage done. I believe she has crossed boundaries with her [opinion].  A trainee was also with them and may have overheard her comment. Your thoughts please?

The answer has to be ‘yes’.  The Royal Australian and New Zealand College of Psychiatrists says:

A psychiatrist is a qualified medical doctor who has obtained additional qualifications to practise in the specialty of psychiatry, and is registered by the Medical Board of Australia or the Medical Council of New Zealand.

So the question is asking whether a paramedic can suggest to a patient that they may need to see a specialist medical practitioner.  If we think of paramedic work as being equal to ambulance work, then we may think that paramedics treat patients and take them to an emergency department to be seen by an emergency physician (at least in major trauma centres; it may be a gp in a country hospital) and only doctors can know what to do.  But a paramedic is a health professional and today a paramedic can and should give advice based on their professional opinion. They may want to advise a patient that a trip to ED is not in their best interest and what they need to do is see their GP or ask for a referral to see a specialist – a cardiologist, a rheumatologist, a dermatologist etc.

Alternatively, a paramedic might, in discussion with a patient who is considering whether they need to go to hospital, give their advice that the patient should consent to transport because they need to see a specialist eg an orthopaedic surgeon, a radiologist, a cardiologist etc.  In either case a paramedic will be giving an opinion to assist the patient to make an informed choice about what course of action to take.

I infer that in this question the author has a view about psychiatrists.  It seems that the author is concerned that the paramedic’s suggestion that his partner needed to see a psychiatrist was unnecessary because she really have suffered as a result of inappropriate health care.

There is an adage I picked up somewhere, I cannot recall where, that says ‘Just because your paranoid, does not mean they are not out to get you’.  The point is that we shouldn’t dismiss the mentally ill or the deluded, there may still be truth in what they say.  (That is why judges have to spend so much time with unrepresented litigants who appear to be making non-sense claims to try and work out whether, underneath it all, there really is some merit to their claim. Just because they are deluded does not mean that there is no merit in their claim).

To return to our context, a person may be mentally ill but that does not mean that everything they say can be discounted. Equally, to reverse it ‘Just because they are out to get you, does not mean you are not paranoid’.   I’m not a mental health practitioner but I understand that mental illness can be caused by chemical issues in the brain and that is where medication can help, but also from traumas and impacts upon one’s life – think PTSD.  So a patient may well have had ‘botched treatment by a hospital and medical profession over8 years or more’ causing serious damage.  To say that such a person needs to see a psychiatrist is not the same as saying they’re wrong or a malingerer or making it up.  A person with a broken leg still needs to see an orthopaedic surgeon even though we know the cause of the injury.  A person with poor outcomes from hospital treatment and then trying to bring that to account may need to see a psychiatrist because those events may have had an impact upon their mental health.

The critical reference is the Code of Conduct.  That code requires paramedics to:

• assess the patient, taking into account their history, views and an appropriate physical examination where relevant. The history includes relevant psychological, social and cultural aspects, and available electronic records such as My Health Record;
• formulate, record and implement a suitable management plan (including providing treatment and advice and, where relevant, arranging investigations and liaising with other treating practitioners);
• recognise and work within the limits of your skills and competence, and refer a patient to another practitioner when this is in the best interests of the patient;
• practise within an evidence-based and patient-centred framework;
• communicate courteously, respectfully, compassionately and honestly with patients, their nominated partner, substitute decision-maker, carers, family and friends; and
• encourage and support patients to be well-informed about their health, and to use this information wisely when they are making decisions, caring for themselves and managing their health, including through informed consent processes.

Provided the paramedic has done this – ie formed the opinion that the patient may benefit from seeing a psychiatrist based on their assessment of the patient, are expressing a genuine opinion that is supported by an evidence base and where their practice is consistent with what may be expected of a practitioner with similar skills and experience, then they are just doing their job.

If, on the other hand, the comment is intended to be disrespectful, is intended to imply that the patient is not really unwell at all but overreacting or making up their complaints, is influenced by the paramedics own prejudices or a belief that the patient has contributed to their own condition then that would not be good practice and could be the subject of an appropriate complaint to the paramedicine board.  From the question asked we can make no determination about that one way or the other.

As for letting the trainee hear, the trainee is there to learn from their more experienced mentors. The trainee may be a university student on a placement, or they may be a recent graduate, now a registered paramedic but going through their employer’s intern program. Either way they are bound by the Code of Conduct and duties of confidentiality etc.  They are part of the health care team.  Allowing someone not involved in the patient’s care to overhear a consultation should be avoided but it’s not always possible (think of the curtains that divide the beds in an ED) and ideally patients should be asked if it’s ‘ok’ if a trainee is involved; but again, that is not always possible. In a public teaching hospital, it is expected that trainees (doctors, nurses and other health professionals) will work with patients. In an ambulance if the trainee is a graduate intern paramedic, they may be one of a two-person crew and a vital part of the treatment team.   Allowing the trainee to observe their mentor in practice is a key part of the training.

Conclusion

We don’t have enough information to form a conclusion in this case but, as a general rule, we can say that paramedics are health professionals. They have moved beyond the days of the ‘stretcher bearer’.  As part of the health care team it may be appropriate to give advice to a patient – it may be that the advice is ‘you don’t need to go to hospital but perhaps you can see your GP and discuss with them whether a referral to a psychiatrist would be in order’.  Or to say ‘I think you are really unwell and we should take you to hospital as you need expert help from a psychiatrist to ensure you are safe’ (or any multiple variations on those themes).  To say someone needs to see a psychiatrist is not to deny that they may have very genuine and serious needs and that they have suffered a serious traumatic event that would cause mental health issues in anyone.

Whether the opinion is appropriate depends on how it is formed and how it is communicated.  Done properly then yes ‘a paramedic [can] suggest to a patient at hospital – even before seeing a doctor – that she needs to see a psychiatrist’.

As for a trainee, if they are part of the treatment team it is appropriate subject again to consent being obtained if that is possible, for them to see and hear their mentor. That is how training works.

As I said there is clearly a great deal of emotion behind this question.  When we take it out and ask ‘can a paramedic suggest to a patient that they would benefit with a consultation with a specialist practitioner’ we can see the answer has to be ‘yes’ provided the opinion is formed and communicated in a way that is consistent with the Code of Conduct applicable to paramedics.

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:

… writing about a situation occurring in NSW Ambulance whereby Registered paramedics are witnessing statutory declarations for people applying for Sick leave and other types of leave.

Staff were advised in E-Mail that “Statutory declarations can be signed by a registered paramedic or nurse (so any of your colleagues).”

My understanding this that this has come from an incorrect interpretation of the Commonwealth Statutory Declaration witness criteria and that in NSW Only a Lawyer, Notary Public or a JP can witness a statutory declaration.

Have I missed something or is NSW Health privy to some piece of legislation outside of the Oaths Act 1900 that I’m not aware of.

There are two different forms of statutory declaration. One is under the Oaths Act 1900 (NSW); the other is under the Statutory Declarations Act 1959 (Cth).

New South Wales

Under a New South Wales law (Oaths Act 1900 (NSW) s 21):

The Registrar-General, a Deputy Registrar-General or any justice of the peace, notary public, commissioner of the court for taking affidavits, Australian legal practitioner authorised by section 27 (1) to take and receive any affidavit, a federal judicial officer, or other person by law authorised to administer an oath, may take and receive the declaration of any person voluntarily making the same before him or her…

I am not aware of any NSW law that would authorise a paramedic to administer an oath.

It follows that NSW paramedics cannot witness a NSW statutory declaration.  It is an offence to take and receive a NSW declaration without appropriate authority. The maximum penalty is a fine of 2 penalty units or up to 12 months imprisonment (s 21A).

The Commonwealth

Commonwealth statutory declarations must be made before a prescribed person (s 9).  A prescribed person is either (Statutory Declarations Regulation 2023 (Cth) r 6) is either:

a) a person who is enrolled on the roll of the Supreme Court of a State or Territory, or the High Court of Australia, as a legal practitioner (however described); or

b) a person who, under a law of the Commonwealth, a State or Territory, is currently licensed or registered to practise in Australia in one of the following occupations:

Architect

Chiropractor

Dentist

Financial adviser or financial planner

Legal practitioner

Medical practitioner

Midwife

Migration agent

Nurse

Occupational therapist

Optometrist

Patent attorney

Pharmacist

Physiotherapist

Psychologist

Trade marks attorney

Veterinary surgeon.

That list does not include paramedics even though it does include many (but not all) of the other registered health professions.  Other people authorised to take declarations are various prescribed officer holders including a:

Permanent employee of:

a) a State or Territory or a State or Territory authority; or

b) a local government authority;

with 5 or more years of continuous service, other than such an employee who is specified in another item of this Part

Ambulance NSW employees are staff of NSW Health (Health Services Act 1997 (NSW) s 67A). They are ‘employed … by the Government of New South Wales in the service of the Crown’ (s 115(1)).  Paramedics are therefore employees of the ‘state’ and if they are a permanent employee with 5 or more years continuous service then they are eligible to take a Commonwealth declaration.

A declaration is different to an oath. The fact that NSW Ambulance paramedics can take and receive a Commonwealth declaration does not mean that they are a ‘person by law authorised to administer an oath’ to bring them within the NSW Act.

Conclusion

NSW Paramedics who are permanent employees of NSW Health with more than 5 years service, can administer a declaration under the Statutory Declarations Act 1959 (Cth) but not the Oaths Act 1900 (NSW). Given the penalty for taking a NSW declaration without authority, paramedics asked to witness a declaration should be careful to ensure that the form they are presented with is the Commonwealth, and not the state form (and for an example of the Commonwealth form, see the NSW Justice of the Peace Handbook (2021), p. 30).  

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.

In Health Care Complaints Commission v GGO [2024] NSWCATOD 50 (19 April 2024) the NSW Civil and Administrative Tribunal made orders disqualifying a former paramedic from seeking registration for at least 12 months following his conviction of two offences.

On 27 March 2020, the respondent, CGO was charged with three counts of sexual intercourse without consent. The offences were alleged to have occurred on 5 May 2019. His registration was suspended by the Paramedicine Council on 14 May 2020. On 29 September 2021 he entered a plea of guilty to a single allegation of sexual touching of another person without their consent.  On 26 November 2021, he was convicted and sentenced to a two-year community corrections order ([4]-[8]).

On 26 October 2021 the local court made an apprehended domestic violence order restraining the respondent’s behaviour for the protection of his wife.  On 9 April 2022 he was charged over conduct in breach of that order. He entered a plea of guilty and was sentenced on 31 January 2023 to a further 14-month community correction order ([9]-[12]).

On 20 October 2023 the Health Care Complaints Commission commenced proceedings seeking orders to cancel the respondent’s registration for ‘1-2 years’ ([13]).  The basis of the allegation was that the respondent was guilty of unsatisfactory professional conduct.

The Health Practitioner Regulation National Law (NSW) provides that a practitioner must notify AHPRA within 7 days of being charged with a serious offence (s 130(1)). Further, the Tribunal is empowered to suspend a practitioner’s registration where (s 149C):

… the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner’s profession;

The HCCC made a complaint (s 144(a)) that the practitioner had been convicted and that action should be taken under s 149C and that the practitioner had failed to report that he had been charged within the required 7 days.

The Tribunal reminded itself that the overriding reason for disciplinary measures is to protect the public (see [36]). At [41] the Tribunal said:

it is not a requirement of the National Law that there be a direct nexus between the occurrence of the offence [that the practitioner has been convicted of] and the professional role, however where there is no nexus a more careful inquiry into the public interest factors may be required. There may be instances in which ‘public interest’ is taken to encompass the goal of broader protection of the reputation and standing of the profession such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences involving violence, sexual assault or the sexual exploitation of children, for example, the public’s ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise…

The applicant, the Health Care Complaints Commission argued that the two offences showed:

… a disregard for the law and a disturbing pattern regarding the respondent’s attitude towards women. This is a relevant consideration in relation to both the Tribunal’s consideration of whether the circumstance of the offending render the respondent unfit in the public interest to be registered as a paramedic for the following reasons:

(a) the behaviour is inconsistent with the high standard expected of paramedics regarding understandings of consent, boundaries and respect for women, and as such may present a risk to future patients; and

(b) the nature of the conduct has the ability to diminish of public confidence in the profession if not appropriately condemned;

The Tribunal agreed and made the orders sought, suspending the practitioner’s registration for 12 months. The Tribunal also made orders restricting the publication of the practitioner’s name, and the name of the victims in order to protect the interests of his children. 

Discussion

One ground of the complaint was that the practitioner failed to report when he was charged. This was not, however, a case where had he come forward the result may have been different. The allegations were about serious offences including an offence of a sexual nature. Having been convicted it was always likely that his registration would be suspended. As the tribunal noted, where a paramedic is convicted of ‘serious criminal offences involving violence, sexual assault or the sexual exploitation of children’ then they can expect to have their registration suspended even without proof of any link between the offending and their professional practice.

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 I respond to a question with a ‘Goldilocks’ answer! The question relates to the:

…  newly established VRA State Rescue Group – Metro Squad; I recently expressed my interest in joining as a current GLR operator for another Volunteer Rescue agency as I would be moving to Sydney full time in the near future away from my regional unit. My issue is the following: after an information session, they informed me that the unit itself is not SRB accredited and that it is a unit that provides ‘surge’ capacity to their regional squads backfilling accredited stations. Now my issue is when I reread the SERM Act 1989 (NSW) after initially reading it going through my rescue course in the past, and I came across Part 3 Division 4 Section 53(2) today stating:

A rescue unit is required to be accredited even though—

(a)  it is a unit of the NSW Police Force, Fire and Rescue NSW, the Ambulance Service of NSW, the State Emergency Service, the NSW Rural Fire Service or any other government agency, or

(b)  it is a unit of a volunteer agency, or

(b1)  it is a unit comprised of persons from one or more emergency services organisations or other agencies, or

(c)  it carries out, in addition to operations for the rescue of persons, other operations such as the rescue of animals or the recovery of property.

I wanted to know whether you believe prospective volunteers would be at legal risk by joining this squad to conduct rescue operations as it is not an accredited unit but will be backfilling accredited units elsewhere. As when operating other unit vehicles are they at risk of legal repercussions as per the following section of the SERM Act?

(1A)  It is an offence for a person who is not a member of a rescue unit accredited under this Division to display, drive or operate a rescue vehicle.

Maximum penalty—50 penalty units.

My first answer to the question is ‘no, prospective volunteers would not be at legal risk by joining this squad or driving a rescue squad vehicle’ but that answer it too short.

My second answer is: NSW has extensive regulation of rescue set out in the State Emergency and Rescue Management Act 1989 (NSW) (the SERM Act).  The Act establishes the State Rescue Board which, amongst other things, is to make recommendations to the Minister regarding the accreditation of rescue units (s 48(h)). A rescue unit is ‘a unit (comprising a group of persons) which carries out rescue operations for the protection of the public or a section of the public’ (s 52). It is an offence to establish, manage or control ‘a rescue unit which is not accredited’ (s 53(1)). 

A organisation that operates a rescue unit (relevant to this question, the Volunteer Rescue Association or VRA) ‘is required to maintain a register of the personnel who comprise the unit’.  The register must be updated every 6 months (s 57).

Accredited rescue units are operated by Fire and Rescue NSW, Marine Rescue NSW, NSW Rural Fire Service, NSW State Emergency Service, NSW Volunteer Rescue Association, NSW Ambulance and NSW Police Force (see https://www.nsw.gov.au/emergency/rescue-and-emergency-management/state-rescue-policy/state-rescue-board-accredited-rescue-units).

With respect to the Metropolitan State Rescue Group, a press release dated 2 February says (emphasis added):

The new VRA Rescue NSW – SRG Metropolitan Squad will provide highly-trained and skilled operators ready to back-fill and support regional squads, and other emergency service organisations, during peak emergency operational periods to ensure continuity of service and capability…

The Squad will offer training across all facets across the rescue portfolio, including: General Land Rescue, Road Crash Rescue, Flood Rescue, Search and Rescue, Remote Piloted Aircraft Services, Search Dog Handling as well as an array of non-field roles.

Members from other agencies and all walks of life are encouraged to apply. They will have the opportunity to create their own volunteer career pathway with VRA Rescue NSW and stand up and deploy to regions at times that also suit their work and lifestyle.

Reading between the lines, and accepting my correspondent’s report that the ‘unit itself is not SRB accredited and that it is a unit that provides ‘surge’ capacity to their Regional squads backfilling accredited stations’ one can infer that it is not a rescue unit.  To repeat the definition, a rescue unit is ‘a unit (comprising a group of persons) which carries out rescue operations for the protection of the public or a section of the public’ (s 52; emphasis added).  This unit, I infer, provides rescue training but will not carry out rescue operations in its own right. This makes sense given that Fire and Rescue will be the primary rescue service throughout most of metropolitan Sydney (excluding marine and flood rescue where that is provided by Marine Rescue NSW and the SES, and some areas covered by NSW Police).  If the unit does not actually carry out rescue operations, it is not a rescue unit.

Organisations must however have the capacity to fill gaps and provide surge capacity. FRNSW for example constantly move people around to ensure that they have the capacity to meet community needs (see Fire Rescue NSW and taking appliances ‘off line’ (April 5, 2022)).  Those firefighters must be able to perform both fire fighting and where relevant rescue duties even if they are not normally assigned to that accredited rescue brigade.

With respect to driving my correspondent has quoted s 53(1A) which makes it an offence for a person who is not a member of a rescue squad, to operate a rescue vehicle. I think if there was ever an issue a court would accept that the members were members of the relevant rescue unit for the period that they were working for that squad. If, for example members of the VRA Rescue NSW – SRG Metropolitan Squad, were tasked to back fill a temporary shortage in an accredited VRA rescue squad then during that time they were members of that squad. The VRA could put that beyond doubt by notifying the SRB, in their six-monthly update, of the time the members were part of that squad.

But that answer is too long.

My third answer is that my correspondent has quoted s 53(1A) but there is also s 53(1B) which says:

(1B) It is a defence to any proceeding under subsection (1A) if the person who contravened the subsection had a reasonable excuse or lawful authority for displaying, driving or operating the rescue vehicle.

This section would protect a mechanic who was driving a rescue vehicle for the purpose of repairing it or testing it.  It would also protect a member of the Metropolitan Squad who was driving the vehicle as part of their duties with the VRA that operates the squad.

I think that answer is ‘just right’.

Conclusion

There is no legal risk in joining the VRA Rescue NSW – SRG Metropolitan Squad.  That squad is a training squad, not a rescue unit. There is no offence in providing training to people in a squad that does not carry out rescue operations.

When the members are ‘stood up’ as part of a surge capacity or to backfill when an accredited unit is short of members (perhaps members are on holidays or need to be taken off line for training) then those members become members of that unit, and that could be confirmed by the VRA reporting that staff movement to the State Rescue Board.  When it comes to driving a rescue vehicle, those members would have a ‘reasonable excuse’ and the ‘lawful authority’ from the VRA.

 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 says:

The Health Practitioner legislation, to my knowledge, makes it unlawful to hold yourself out as a specialist practitioner, especially in professions where there are no recognised specialties.

ASNSW has recently taken to calling extended scope paramedics (intensive care, extended care) “specialists,” which would seem to be in violation of the legislation.

The Health Practitioner Regulation national Law (NSW) provides for specialist registration ‘in a recognised specialty in a health profession’ (s 57). The medical profession and the dental profession have specialist registration.  All other professions need approval by the Ministerial Council to provide for specialist registration (s 13). In the absence of that approval, the Paramedicine Board cannot register paramedics as a ‘specialist’.

I stop to note here that the Australasian College of Paramedicine (one of the sponsors of this blog) has recently reported (We’re being heard – Health Ministers recognise advance practice paramedic roles (2 May 2024) that:

At the Health Ministers Meeting held recently in Brisbane, the Health Ministers agreed to work with the Paramedicine Board of Australia to establish Area of Practice Endorsements for advanced practice paramedics in critical care and community paramedicine, marking an important milestone for professional advancement and recognition.

That is not the same as eIndorsing specialist registration, but it could be a step along that path.  Whether that will lead to specialist registration or not, the situation is that today there is no specialist registration for paramedics and therefore no protected specialist title.

Section 115 provides that a person must not use the title of a specialist unless they are so registered that is a person cannot use the title ‘dental specialist’ or ‘medical specialist’ unless they are registered as a specialist. Equally a person cannot use a specialist title related to any of the other professions if there is, indeed, such a title (s 115). Given that paramedicine does not have specialist registration there is no ‘specialist title for a recognised specialty’ in paramedicine as there is no ‘recognised speciality’ (s 115).  Therefore a person could not use the tile of a recognised specialist.

More importantly, section 118(2) says

A person must not knowingly or recklessly–

(a) take or use the title of “specialist health practitioner”, whether with or without any other words, in relation to another person who is not a specialist health practitioner; or

(b) take or use a title, name, initial, symbol, word or description in relation to another person who is not a specialist health practitioner that, having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate–

(i) the other person is a specialist health practitioner; or

(ii) the other person is authorised or qualified to practise in a recognised specialty; or

(c) claim another person is registered under this Law in a recognised specialty or hold the other person out as being registered under this Law in a recognised specialty if the other person is not registered in that recognised specialty; or

(d) claim another person is qualified to practise as a specialist health practitioner if the person is not a specialist health practitioner.

It would seem that calling intensive care and extended care paramedics “specialists” would indeed be a breach of s 118(2). It is in effect calling them a specialist health practitioner (contrary to s 118(2)(a)), when they are not.  The use of the term could also indicate that they are a specialist when specialisation does not exist in paramedicine (contrary to s 118(2)(b)(i)).    I’m not sure where NSWAS is doing this, there does not appear to be any reference to the use of the term on the NSWAS website. It would however be prudent to find a different term to use.

POSTSCRIPT

This postscript deals with the various comments below and on the Facebook page:

The maximum penalty for a breach of s 118 in the case of an individual is a fine of $60,000 or 3 years imprisonment or both. For a corporate entity (which would include the NSW Government) is a fine of $120,000 but nothing like that would be expected in these circumstances.

Malcolm points out that the term ‘“Paramedic Specialist” in NSW is a term that predated the paramedic registration scheme and is defined in the Award, which is a publicly available via https://www.health.nsw.gov.au/careers/conditions/Awards/ambos-paramedics.pdf’.  It has to be remembered that the priority of the National Law is consumer or patient protection. Section 118(1)(b) and s 118(2)(b) both prohibit the use of specialist claims where ‘having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate–having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate’ that the person has specialist registration. Where the term is used in internal documents or in an award that has its own definitions then the use of the term is not going to confuse or imply specialist registration to anyone who is reading that document. 

This internal use is confirmed by David on Facebook but Justin says ‘Except of course on the side of the ECP vehicles, which are now labelled with ‘paramedic specialist’’.  The Act prohibits the use of a title to suggest that a person is ‘a specialist’ or ‘qualified to practise as a specialist health practitioner’.  Consumers may not know what the specialist titles or be aware that there are no recognised paramedicine specialities. So I suggest that the use of the term ‘Specialist Paramedic’ would suggest to an average person that the paramedic does have specialist endorsement and, if they considered that paramedics are registered under the same law as doctors that this implies that like specialist doctors they are registered in that speciality. I would suggest putting the words ‘paramedic specialist’ on the side of the ambulance would be a textbook example of a breach of s 118(1)(a) and (2)(a).

It would certainly seem prudent, since the introduction of registration, for ambulance services to find another word to use rather than ‘specialist’.

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.

Mr Francis was a volunteer with the Volunteer Marine Rescue Association Queensland Incorporated (“VMRAQ”).  On 5 January 2021 he commenced employment with VMRAQ as a State Training Officer.

Mr Francis’ initial contract was for 6 months; he was then offered a second contract, this time for 12 months.  Mr Francis continued in his role after the end date of this second contract, ie after 30 June 2022.  On 28 September he was offered a further 12 month contract with the start date backdated to 1 July 2022. He did not formally accept the offer until 5 December but during that time he continued in his role and continued to be paid.

On 25 January 2023 Mr Francis was suspended, on full pay, following a complaint. An investigation was launched. On 14 June 2023 Mr Francis was advised that the inquiry had determined that the allegations were not established.  Two days later he was advised that his contract, due to expire on 30 June 2023 would not be renewed.

Mr Francis sought a remedy for unfair dismissal – Warren George Francis v Volunteer Marine Rescue Assoc Qld Inc [2024] FWC 978 (16 April 2024) (Hunt C).  This case dealt with the question of whether or not he had been dismissed. At [20]:

The Respondent [VMRAQ] contended that Mr Francis’ employment ceased as a result of an effluxion of time. Mr Francis refuted the Respondent’s position, arguing that in reading the correspondence of 14 and 16 June 2023, in the context of the facts, the Respondent dismissed Mr Francis for the purposes of s.386 of the Act.

The respondent argued that all employees were on time limited contracts to link to annual government funding.  It was agreed that when the decision was made not to renew Mr Francis’ contract there was funding for the position and shortly after they did indeed advertise a position that they agreed was Mr Francis’ position (see [34] and [74]).

The Fair Work Commission held that Mr Francis had been dismissed. At [103]-[105], [109] and [112]) the Commission said:

A “termination at the initiative of the employer” is when two criteria are satisfied:

• the employer’s action “directly and consequentially” results in the termination of employment; and
• had the employer not taken this action, the employee would have remained employed.

The employment relationship between Mr Francis and the Respondent commenced from 5 January 2021 and was the product of three outer-limit employment contracts.  The first two employment contracts were issued to Mr Francis in advance of the terms commencing.  The last of the three employment contracts was issued to Mr Francis three months after the third term commenced and counter-signed by Mr Francis more than five months after the third term commenced.

Each of the three employment contracts provide the parties with a right to terminate the employment by the provision of notice …  The contracts were therefore not a contract of employment for a specified period…

Having regard to the employment relationship that existed between Mr Francis and the Respondent, I consider that Mr Francis did consider he would continue to be offered, and he would accept employment contract extensions …  I consider that Mr Francis’ expectations were reasonable and also understood by the Respondent…

The reason for not providing a fourth employment contract to cover the period from 1 July 2023 had nothing to do with the Respondent not being confident of funding for the 2023-2024 period; this is clear from the advertisement the Respondent placed on Seek to cover the role Mr Francis had been performing.  The reason was simply that the Respondent did not wish for Mr Francis to continue performing the duties he had been performing for two and half years.

And at [116]:

Having regard to my earlier comments, I am satisfied that the time-limited third contract, offered to Mr Francis nearly three months after its purported commencement date, did not in truth represent an agreement that the employment relationship will end at a particular date.

The Commission was satisfied that Mr Francis employment did not end simply because his contract reached its end date. Rather he was dismissed by the respondent as they brought to an end an ongoing employment relationship that was expected to continue, and which funding was available.

That is not the end of the matter. Having resolved the preliminary question or whether Mr Francis was, or was not dismissed, the unfair dismissal case can proceed, or perhaps settle, in the usual manner. If it does settle, we will hear no more about it. If it proceeds to a hearing, there may be a further judgment.

Discussion

The decision contains a detailed analysis of employment law which I have not tried to summarise here. The relevance for readers of this blog is that I imagine many people are employed with the emergency services (as in other fields) on fixed term contracts.  Such contracts give employers an easy ‘out’ to get rid of staff by letting the contract end rather than having to go through the process of dismissing them.  But as this case shows, it’s not as simple as that. A tribunal, like the Fair Work Commission, can look at the whole relationship and see what is the actual arrangement. In this case Mr Francis and VMRAQ expected his employment was ongoing even if contracts were said to be time-limited to meet funding arrangements.  The fact that he had worked for some months without a contract but on the basis of the ongoing relationship confirmed this. 

Other members of the emergency services – in fact all employees – should remember that there is an independent referee.  An employer’s assertion of ‘the way things are’ does not have to be accepted.  If in doubt, seek legal advice.

The other reason the case is worth reporting is that members of the VRMAQ may read this blog and want to know what happened to Mr Francis.

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.

The Industrial Relations Commission has again intervened in an ongoing industrial dispute between NSW Ambulance (NSWA) and members of the Health Services Union (HSU). This time, members of the HSU at Rutherford Ambulance Station (near Maitland) imposed industrial bans with effect from 20 May 2024.   At 4pm that day, NSWA made an urgent application to the Commission for orders to prohibit the ongoing action – Health Secretary in respect of NSW Ambulance v Health Services Union (NSW) [2024] NSWIRComm 1032, Commissioner Webster.   

In the application NSWA identified (at [4]) that there had been ongoing issues with a new roster.  They said:

NSWA held an urgent meeting with the HSU at 1200 hours 20 May 2024 to further attempt to resolve the matter. The HSU confirmed that:

• Staff at Rutherford station will not work to the roster that was posted on 3 May 2024, which commenced and took effect between 11-19 May. The relevant shift of concern is the second night shift which HSU members would not work to. They instead would work to an HSU endorsed roster, which includes an additional afternoon shift. This action is as per the HSU’s advice received on 15 May.

• Staff at Rutherford would refuse all jobs until NSWA agreed to accept the HSU endorsed rosters (and pay staff who work to the HSU roster). This action was initiated by staff which was as confirmed by HSU in the meeting on 20 May.

• Staff across Hunter New England sector would refuse all R3 jobs, as per HSU’s email on 20 May.

At [7] Commissioner Webster said:

The Health Secretary sought dispute orders from the Commission on an urgent basis and pressed for the matter to be listed for arbitration last night [20 May]. The HSU opposed this. The HSU raised concerns with respect to the futility of the orders being made, because these could not be served on members in the evening in any event. They also submitted that the HSU has serious grievances relating to issues of public safety and health and they would be precluded from effectively putting their position if the matter was to proceed on such an urgent basis. The HSU gave no undertaking that it would cease the industrial action while conciliation was undertaken in respect of the underlying issues that led to the industrial action occurring. Ideally, the Commission would have provided the parties with more time to prepare their cases before determining the matter in arbitration. However, balancing the desirability of this against the risk to public safety alleged by the Health Secretary, I decided that it was appropriate to provide the parties with a short time within which to prepare their case before listing the matter for hearing.

The Health Secretary put on material in support of the application. The HSU did not take part in the arbitration ([8]).  The Secretary’s evidence pointed to the risk to public safety if the Rutherford paramedics refused to respond to all jobs.  They pointed to delayed responses in 29 incidents and that paramedics had responded to an infant in cardiac arrest but that was the only job that they had agreed to respond to ([10]-[12]).  At [19] the Commission said:

There is a strong public interest in ensuring the health and welfare of people seeking to access the Ambulance Service. The uncontested evidence of Mr Wiseman [Associate Director Clinical Operations Hunter New England Sector] was that those interests were being compromised by the industrial action being undertaken. The evidence in respect of public harm was most relevant and of greatest concern in respect of the industrial action being taken by paramedics by not responding to all jobs. It is important to observe that Ambulance NSW has in place systems and processes to mitigate these risks and provide services to people in need. However, I accepted the uncontested evidence of Mr Wiseman that it is not possible to sufficiently mitigate the risk to the community that bans of this type and duration causes because the level of participation in the industrial action cannot be known in advance and impacts on workload to other staffing areas:…

The Commission also agreed that it was inconsistent with the industrial relations scheme for a union to commence industrial action ‘without first attempting to resolve these issues through the processes available through the Commission’ ([23]).

The Commission made the orders sought directing the HSU to withdraw the bans and to communicate to its members by 5:45pm on 21 May that the bans are to be withdrawn.

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 I report on a case from New Zealand decided on 12 April 2024. Clearly not ‘Australian’ law but relevant because paramedics in both Australia and New Zealand are now registered health professionals and the lessons identified in Bowen v R [2024] NZCA 106 will also be applicable in Australia

Mr Bowen was a registered NZ paramedic. At the time of applying for registration (2020) he failed to disclose his prior criminal convictions.  In 1994, Mr Bown, then known as Michael Gosnell, was sentenced to two years imprisonment for ‘unlawful sexual connection’ ([3]). He changed his name in 2010.  He was, at that time, working as a paramedic and operating his own private ambulance service ([4]). In 2020 Mr Bowen was required to apply for registration as a paramedic. He completed the registration forms and answered ‘no’ to the question ‘Are you under investigation by the police or have you been convicted of any offence against the law in New Zealand or any other country?’  In support of his application for registration he provided a criminal history check but when applying for the check he failed to disclose his previous surname so the check came back with no prior convictions ([5]-[14]).

Mr Bowen was ‘hoist on his own petard’.  He had received a speeding ticket when driving one of his own ambulances and indicated that he wanted to defend it. In preparing for that case police obtained a full criminal history that revealed his earlier conviction and imprisonment. The police became concerned that even with that history, Mr Bowen had been registered as a paramedic ([15]-[16]). Further investigation led to Mr Bowen’s arrest and subsequent conviction for ‘dishonestly using a document to obtain valuable consideration’ the document being his application for registration where he gave a deliberately false answer.  Upon being charged Mr Bowen did advise the Paramedic Council of his prior conviction and his ongoing registration was denied.

Mr Bowen appealed his conviction raises issues of errors in the police evidence that do not need to be reported here.  The Court of Appeal rejected the argument that the errors by the police meant his trial had miscarried. The Court said (at [36]):

There is, in our view, an irresistible inference from all the other evidence that Mr Bowen knew that disclosure of his previous convictions would likely jeopardise his chances of getting registration and so deliberately and dishonestly completed the two forms with the intention of deceiving the Paramedic Council for his own benefit.

Discussion

An essential aspect of professional registration is honesty.  A person must be able to take a registered health professional at their word. There have been other cases reported here where it is a failure to disclose some offending conduct, rather than the conduct itself, that has been the reason for a paramedic’s de-registration (see for example Paramedic disqualified for 2 years over driving offences and for driving an ambulance whilst disqualified (March 27, 2024); Tasmanian paramedic banned for 2 years (February 11, 2024); Paramedic suspended for 12 months for dishonesty (October 31, 2023)).

In this case it is probably not the case that had he been honest about the prior conviction he would have been registered. The conviction for ‘unlawful sexual connection’ was probably (but not necessarily) a permanent bar to conviction. Once it was disclosed Mr Bowen’s application for registration was rejected. This case shows another cost in that Mr Bowen not only lost he registration he was also charged with a criminal offence and sentenced to perform ‘100 hours community work’ ([1]).  His conviction for this offence would be a further bar to future registration.

When it comes to professional practice, both in Australia and New Zealand, honesty is the best policy.

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 we begin to catch up on some recent cases (see Australian Emergency Law is taking a holiday (March 22, 2024)).  The first case, decided on 3 April 2024, is Paul Mifsud v Fire and Rescue NSW Band Incorporated [2024] FWC 853 (03 April 2024) (Wright DP).  This was a claim for unfair dismissal by two members of the Fire and Rescue NSW Band.   Deputy President Wright gave this history of the band (at [9]-[10]):

The Fire and Rescue NSW Band (the FRNSW Band) formed in 1891. The Band receives funding from Fire and Rescue NSW (FRNSW) and performs at various events, such as ceremonies, parades, concerts, festivals, and community engagements, to promote FRNSW and its values.

On 26 May 2022, the Respondent [ie the Fire and Rescue NSW Band Incorporated] was established when the FRNSW Band was incorporated at the request of FRNSW pursuant to the Associations Incorporation Act 2009 (NSW)…

The Constitution of the now incorporated band provided for a management committee and provided rules for membership of, and exclusion from, the band. The rules required members to attend 80% of rehearsals, seek leave if they were going to be absent for any time, submit to the discipline of the band, only wear their uniform on band duties etc.  The sorts of rules that one might expect to be applied to employees.

The applicants, Mr Mifsud and Mr Webster joined the band in 1986 and 2016 respectively.  Being a member of the band is not a full-time job, nor, as the Commission found (discussed further, below) a job at all.  Band members were paid $15 and hour for attendance at rehearsals and performances. Rehearsals were for two hours every Thursday night.  At [23]-[24] Wright DP said:

The FRNSW Band performed on Anzac Day, at firefighter graduation ceremonies, FRNSW’s annual ball, FRNSW stations, Christmas Carol events, car shows, with school bands and at community events. Prior to the COVID pandemic, the FRNSW Band were engaged privately from time to time to perform at shopping centres, private celebrations and for tourists at the Casino. The FRNSW Band also went on overseas trips every two to four years. The cost of these trips was subsidised by the income received from private engagements. The FRNSW Band also raised money for the trips through fundraising activities. Band members did not get paid when performing overseas, however many members used the opportunity of the subsidised airfare to extend their trips and have a holiday.

Prior to the COVID pandemic, the FRNSW Band usually performed on about 2-3 occasions per month. In the last year, this has decreased to about one performance per month. The performances usually took place during the weekend, however firefighter graduation ceremonies usually occurred from 10am to midday on a weekday. Band members were expected to attend performances on the weekend but not during the week, unless they were available…

The evidence was that most band members attended most rehearsals and there was never trouble having enough band members to perform at the various events. Mr Mifsud said (at [26])

… after incorporation, the Respondent had greater expectations regarding attendance at rehearsals. There were concerns raised about poor attendance. There continued to be 70% of band members attending rehearsals however Mr Mifsud believed that the Respondent applied the Band Protocol inconsistently, with some members permitted to not attend while others faced action if they missed rehearsals…

Mr Mifsud also acted as the band librarian and received an honorarium of $2000 a year and $15 an hour for ten hours per month to perform the librarian’s duties.  He was allowed to attend FRNSW headquarters when it suited him to perform those duties. When the band was incorporated the band manager directed that the librarian’s duties were to be performed in the one hour before rehearsals. On 24 August 2023 the management committee resolved (at [33]) ‘that Mr Mifsud should relinquish the Librarian position.’

At [36] we are told:

On 29 September 2023, Mr Mifsud and Mr Webster were advised that the Committee met on 29 September 2023 and unanimously resolved to expel them from the Respondent under Clause 14 of the Constitution, with immediate effect. Clause 14 of the Constitution makes provision for the disciplining of members. It provides that a complaint can be made to the Committee by any person that a member of the Respondent has engaged in specified conduct. It outlines the process that the Committee is required to follow in dealing with the complaint. It states the action that the Committee can take after following the process which includes expelling the member at 14.4.4. There is a right to appeal against action taken by the Committee to a general meeting of the Respondent.

There is no detail as to why that action was taken.  In seeking a remedy for unfair dismissal, the applicants argued that the terms of band membership were in fact terms of employment. The respondent argued (at [41]-[450) that

… since its inception, the Band members have always been regarded as volunteers who give their time to promote the heritage, traditions and public image of Fire and Rescue NSW. As time progressed the NSW Fire Brigade and then later Fire and Rescue NSW has provided a yearly grant to the band to pay for instruments, uniforms, travel costs and other ancillary costs that allow the Band to play at a schedule of FRNSW events and occasional other events. The largest costs to come out of this grant is the honorariums for the musicians to help cover their costs. These honorariums are prescribed through a Service Level Agreement with FRNSW…

The Respondent has no employment contracts with any members of the FRNSW Band and the band members are not employed under a modern award or an enterprise agreement. The Respondent does not deduct income tax payments, superannuation or any other deductions from these ex-gratia payments as they are not regarded as wages or salary but voluntary payments to cover the costs of the Band members.

The legal intent of the Protocol is to provide the mission of the Band and structure and directions on how to achieve this; it has never been considered as any form of employment contract.

Deputy President Wright found there was no contract of employment. The Band Protocol was:

…  an instrument created by the Respondent under the Constitution which can be unilaterally varied and which applies to members rather than employees. In my view the Band Protocol is not a contract between each of Mr Mifsud and Mr Webster and the Respondent.

Given that the band members were not employees then the Fair Work Commission could give no remedy.  The Deputy President commented on that situation with some advice for Fire and Rescue NSW. She said (at [72]-[74] emphasis added):

The circumstances that bring these matters before the Commission are most unfortunate. It appears that problems started to emerge in the FRNSW Band after it was incorporated as a requirement of receiving ongoing funding from FRNSW. Given that FRNSW is a NSW government agency, it is likely that the requirement for incorporation was to ensure that the funds it provides to the FRNSW Band were accounted for in accordance with contemporary governance and compliance standards.

There were always rules and requirements that Band members were required to follow in relation to attendance, rehearsals and uniform in various versions of the Band Protocol. However, with incorporation came a Committee which had powers that previously were not able to be exercised by the FRNSW Band leaders. These powers were used to expel Mr Mifsud and Mr Webster from the Band. For Mr Mifsud, this ended a 37 year association with the Band which started soon after he left school. Whatever the reasons for the expulsion, it is likely that it caused significant distress to both Mr Mifsud and Mr Webster. While it may be understandable that Mr Mifsud and Mr Webster wish to challenge the decision to expel them the Commission is not the appropriate forum, given my findings that Mr Mifsud and Mr Webster were not employees. However these findings should not be construed by the Respondent or FRNSW as endorsing their approach to engage band members as volunteers.

The FRNSW Band has a long history and has been financially supported by FRNSW for many years. It is clear from the objects of the Respondent’s constitution that the FRNSW Band plays an essential role in promoting FRNSW, creating public awareness in respect of fire safety and performing at FRNSW ceremonies, parades, marches and concerts and at community functions. This is highly skilled, valuable and important work and raises the question of whether it is appropriate to have volunteers undertaking such work particularly as other NSW Government agencies have adopted an employment model with respect to the engagement of band members. At a time that FRNSW has sought to modernise the structure of the FRNSW Band, it may be appropriate to review its approach to the remuneration and engagement of its musicians, without whom the FRNSW Band would not be able to continue making its significant contribution to FRNSW and the wider community.

Commentary

The legal lesson for readers of this blog is to restate that volunteers cannot rely on the Fair Work Commission, or state based Industrial commissions, to provide a remedy if they are dismissed from their volunteer roles (see also Volunteers, unfair dismissal and the SES (June 27, 2019)).  In the absence of an employment contract the power to dismiss is found in the rules – either in the regulations for statutory organisations or the rules for incorporated associations.  Presumably Mr Mifsud and Mr Webster could try to seek some remedy if they felt the rules had not been complied with but that may require an action in the Supreme Court which would be prohibitively expensive. And courts are reluctant to intervene in such matters where economic interests are not at stake (see Castle v Director General State Emergency Service [2008] NSWCA 231).

The case was also of interest just to see how the FRNSW band operates. Evidence was led that members of the NSW Corrective Services Band ‘are employed on a casual basis pursuant to s.43(4) of the Government Sector Employment Act 2014 (NSW)’.  Wright DP noted the anomaly in FRNSW relying on a band that is now a separate legal entity, and therefore presumably not subject directly to FRNSW control, to perform the valuable community service that the band provides.

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.

On 27 March 2024, the Hon Brett Lee Potter, in his capacity as the Northern Territory’s Minister for Police, issued a declaration under the Emergency Management Act 2013 (NT) s 18(2). The next day the declaration was amended so that it referred to Mr Potter as the Minister for Fire and Emergency Services rather than the Minister for Police. The declaration says that:

… an emergency situation exists in the area described as “High Risk Area – Alice Springs Precinct” and shown within the thick yellow lines depicted on Certified Plan S2023/023 lodged with the Surveyor-General, Darwin.

The area is shown on the picture below. The picture is sourced from, and you can read the declarations in full, at the following website https://nt.gov.au/emergency/emergencies/alice-springs-emergency-declaration.

The declaration remains in force until the Minister declares that it is no longer in force (s 18(1)(a)).

The declaration itself says nothing about the response to the ‘emergency situation’. The website says:

Dates and hours in effect

Wednesday 27 March to Wednesday 10 April 2024 from 6pm to 6am, unless revoked beforehand.

Who it affects

The curfew affects you if you’re in the high risk area and are under the age of 18 years without a valid reason, between 6pm and 6am

A valid reason can include:

• working as part of your employment

• accessing a youth-related service

• being with a responsible adult

• having a medical emergency.

• working as part of your employment
• accessing a youth-related service
• being with a responsible adult
• having a medical emergency.

Police are taking a common sense approach. This means you don’t need documentation if you have a valid reason for being out during curfew.

How it’s enforced

There will be an increased police presence.

Police will speak with you if you’re out during the curfew hours. If necessary, you will be instructed to leave the area or taken to a safe place with your consent.

The police will do this with the support of the Youth Outreach Engagement Team and the Tangentyere Council community patrols.

If you don’t follow directions, you will be cautioned that you’re committing an offence.

Arrests and youth diversion will be considered under the Youth Justice Act 2005 if you continue to not follow police direction.

The union representing the NT Police have raised doubts over whether the Emergency Management Act 2013 (NT) can authorise the implementation of a curfew that is now in place in Alice Springs – see

• Legality of Mparntwe/Alice Springs curfew called in… | NIT; and
• Do the police have the powers to enforce the Alice Springs youth curfew? | ABC News (youtube.com)

I cannot give a definitive answer to the question of whether the curfew is legal under this Act, that will be up to a court if anyone challenges it; but I can see the argument.

The Emergency Management Act 2013 (NT)

The Act says, at s 18(2):

The Minister, acting on the advice of the Council, may declare that an emergency situation exists in an area if:

(a) an event has occurred or is reasonably likely to occur; and

(b) the Minister is satisfied that the special powers under section 23 are necessary in the area for effective emergency and recovery operations in response to the event.

‘Council’ means the Territory Emergency Management Council established by s 36 of the Act. The term ‘event’ means (s 8):

… an occurrence, whether natural or caused by human acts or omissions, that:

(a) causes or threatens to cause:

(i) loss of, or damage to, property; or

(ii) loss of life or injury or distress to persons; or

(b) in any way endangers the safety of the public.

Section 23 says that during an ‘emergency situation’:

(1) … an authorised officer may do any of the following to carry out emergency operations or recovery operations or to ensure adequate protection of life or property:

(a) direct a person to evacuate from, and remain outside, a specified place in the affected area;

(b) remove or direct another person to remove a person who does not comply with a direction under paragraph (a) from the place;

(c) direct the owner of anything in or near the affected area to remove or secure the thing;

(d) remove or secure, or direct another person to remove or secure, anything in or near the affected area if the owner of the thing:

(i) does not comply with a direction to remove or secure the thing under paragraph (c); or

(ii) cannot be found within a reasonable time to give the owner a direction under paragraph (c);

(e) direct the owner or occupier of property in or near the affected area to place the property under the control of the authorised officer.

(2) An authorised officer, or a person acting in accordance with the directions of an authorised officer, may use reasonable force to remove a person under subsection (1)(b) if necessary.

A police officer is an authorised officer (s 98(1)(f)). 

Section 4 of the Act says:

This Act does not authorise a person to do, or make preparations to do, any of the following:

(a) engage in armed combat;

(b) put down a riot or other civil disturbance;

(c) end a strike or lockout.

The terms ‘riot’ and ‘civil disturbance’ are not defined.

Discussion

The Minister’s declaration does not identify ‘an event’ that has warranted the declaration.  Compare that to, for example the declaration of a national emergency in response to the 2022 NSW Floods which set in detail the event and the reasons for the declaration (see https://www.legislation.gov.au/F2022L00312/latest/text).  Compare also the various Public Safety Orders made under the Public Health and Wellbeing Act 1988 (Vic) relating to the COVID pandemic (https://www.health.vic.gov.au/covid-19/public-safety-order-2022) which provide some statement of the risk being addressed and why the orders are necessary and the declaration of a state of emergency in NSW in 2019 (NSW Government Gazette, 19 December 2019 https://legacy.legislation.nsw.gov.au/regulations/2019-664.pdf) where the Premier said she was ‘satisfied that an emergency, namely bushfires in various parts of the State, constitutes a significant and widespread danger to life or property …’

We are of course meant to infer that there is lawlessness in Alice Springs but as noted, the actual ‘event’ that is said to warrant the declaration is not identified.  Leaving it to people to infer from the press release is hardly sufficient.  Presumably if the declaration is challenged the Minister will need to produce the advice received from the Council to put the declaration in context but the declaration, on its face, gives no guidance to either the police or the citizenry as to what it is about or why it is needed.

The failure of the NT minister to identify the nature of the emergency and whether paragraphs (a) and/or (b) of the definition of an ‘event’ apply or why the powers under s 23 are required is a significant omission.

If the issue is lawlessness, the question will arise whether it is permitted by s 4. The Criminal Code 1983 (NT) s 63 says:

(1) When 3 or more persons, with intent to carry out some common purpose, assemble in such a manner or, being assembled, conduct themselves in such a manner as to cause persons in the neighbourhood to fear on reasonable grounds that the persons so assembled will tumultuously disturb the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons tumultuously to disturb the peace, they are an unlawful assembly…

(4) When an unlawful assembly has begun to act in so tumultuous a manner as to disturb the peace, the assembly is called a riot and the persons assembled are said to be riotously assembled.

If young people are gathering on the streets of Alice Springs in order to ‘conduct themselves in such a manner as to cause persons in the neighbourhood to fear on reasonable grounds’ then they commit an offence which may turn into a riot. Presumably the point of the curfew is to prevent the offence which is better than criminal prosecution after the event so there is much to commend it.  Arguably the powers are not being used to ‘put down’ but rather prevent a ‘riot or other civil disturbance’ but it would be an arguable point.

The government website (https://nt.gov.au/emergency/emergencies/alice-springs-emergency-declaration#emergency-declaration) says:

The Northern Territory (NT) Government has declared an emergency situation in Alice Springs. This includes a curfew in the high risk area to enhance the safety of young people in Alice Springs.

The declaration does not include a curfew. The declaration, published on the website, says nothing about the powers that may be used. It is unusual for the government to publish how this emergency declaration is to be enforced. The presence of the declaration empowers police, as authorised officers, to exercise the powers listed in s 23 as they see fit. They can exercise those powers ‘to carry out emergency operations or recovery operations or to ensure adequate protection of life or property’.

One can imagine that during an emergency a fire service or the Territory Emergency Service may want to order an evacuation in order to allow fire fighting operations to continue or to remove people at risk from a flood zone.  One would not expect the government of the day to tell the emergency managers what powers they will exercise.

Given the curfew only applies to those under the age of 18 it may be contrary to anti-discrimination legislation. Not all discrimination is unlawful but discrimination on the basis of age is (Anti-Discrimination Act 1992 (NT) s 19(1)(d); Age Discrimination Act 2004 (Cth)). Society discriminates against people on the basis of their age all the time, people have to meet a particular age to be criminally responsible for their actions, to be able to give effective consent to sexual intercourse, to drive, to vote etc.  Age Discrimination in the NT is not unlawful if it is required or authorised by ‘an Act or regulation of the Territory’ (s 23(a)). The police powers are authorised by s 23 of the Act but there is no specific power to discriminate on age. I can imagine a fire incident controller would want to direct a group of young people who are making the job of the firefighters harder than it needs to be but that would not be directing them to leave because of there age. But I can imagine in a flood or fire there may be an order to evacuate children on the basis that the adults can make their own decisions and may want to ‘stay and defend’ but children are at particular risk. I would infer that s 23 would be broad enough to justify that sort of discrimination where it is necessary for the purposes set out in s 18 . Equally there is nothing to stop the police extending the curfew to everyone if they think that is warranted. Of course we cannot judge what is warranted as we don’t know what ‘event’ triggered the declaration or what is at risk.

The Commonwealth Act (which applies in the NT by virtue of s 10 and the Australian Constitution s 122) says (at s 27):

It is unlawful for a person to discriminate against another person on the ground of the other person’s age:

(a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or

(b) in the terms or conditions on which the first – mentioned person is prepared to allow the other person access to, or the use of, any such premises; or

(c) in relation to the provision of means of access to such premises; or

(d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or

(e) in the terms or conditions on which the first – mentioned person is prepared to allow the other person the use of any such facilities; or

(f) by requiring the other person to leave such premises or cease to use such facilities.

The NT government is intending to restrict the access of young people to the public presmises (eg parks, the streets etc) on the basis of their age alone.  

Conclusion

Naturally the NT government have their own advice. I am not privy to that advice nor to the advice given to the Minister by the Council.

From an administrative law point of view the failure to identify, in the declaration, what event calls for the declaration, and whether the Minister is satisfied that the event causes or threatens to cause loss of, or damage to, property, loss of life or injury or distress to persons or in some way endangers the safety of the public is a major omission. It would be up to a court to decide whether it can consider the advice the Minister has received or whether the declaration has to be judged on its face. On its face it does not disclose that the Minister has considered any of the factors he is required to consider when making the declaration. 

On its face the declaration bears no relationship to the instructions on what the police will do in response to the declaration. The declaration is not limited as to time (though the website says it will expire on 10 April); the declaration does not identify why the powers under s 23 will be used nor how or on what basis it has been decided, in the absence of any particular event, that a curfew for those aged under 18 is a necessary response to the unidentified risk. Insisting that there is a curfew for those under the age of 18 may well be a breach of the Age Discrimination Act 2004 (Cth).  

The declaration says that there is an emergency situation.  It is up to the authorised officers to determine what powers under s 23 are relevant in response to that undefined situation. The failure to set out, either in the declaration or the website, the circumstances leading to the declaration give the police, and the citizens, no guidance on what powers under s 23 are relevant to the response to the emergency situation and would give a court little opportunity to assess whether the measures set out on the website are an appropriate response for the purpose of responding to the emergency.

I don’t pretend to have a definitive answer to the question ‘is the declaration unlawful?’  I can see the issue and can understand the concerns raised. If nothing else the failure to address the matters required by s 18 that is setting out what ‘event has occurred or is reasonably likely to occur’ and how or why ‘the Minister is satisfied that the special powers under section 23 are necessary in the area for effective emergency and recovery operations in response to the event’ is very bad form. There would be an arguable case that the minister has not considered the factors required by s 18(2) and that the declaration is specifically prohibited by s 4(b).

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.

I received an email purporting to be from a chaplain associated with one of the emergency services. The email said:

I am a chaplain with [service name] …  Following a recent conversation, one of the [members] … explained to me that they made an enquiry to you about … [number of] years ago regarding [subject matter and link to post included] …

They have expressed that they feel incredibly embarrassed about having asked the question, going as far to admit that it still upsets them to think about it today. I am reaching out at their request, to ask if you could possibly remove the response post from your public page? …

I was torn. On the one hand I don’t like to delete my posts (see Blog content removed (May 17, 2021)) and I thought the post of concern was a good and useful post.  On the other hand, I don’t want to cause unnecessary grief, but talking about the law involves talking about difficult subjects and often involves telling people they’re wrong when they really want to be, or believe they are, right.  And when I’m reporting on cases I appreciate that I am making information more accessible to a wider audience.  Given the competing concerns I wanted to discuss with the chaplain whether some editing to further deidentify the source of the question would meet two competing objectives – ie to provide a public answer but to minimise the grief.  A quick google search brought up the chaplain’s phone number.

Imagine their surprise in receiving my call, and my surprise when they said they are no longer a chaplain for that service and have not been for many years.  They did not write the email and it did not come from their email address, but it did come from a Gmail address using their name, so someone has gone to significant lengths to impersonate them.  Possibly it’s the author of the original question who thought pretending to be a chaplain may have more impact than a direct approach? Perhaps it’s someone else?  Either way it is outrageous that anyone would attempt such subterfuge and I put this up here so that whoever wrote it knows that a) the email was received b) the fraud was discovered and c) the original post will remain. And if anyone thinks the original correspondent is, or should be, or might be ‘incredibly embarrassed’ by their question whoever wrote this email should be doubly so.  Rest assured, if I identify who they are, I will report them to the agency involved for improper conduct in impersonating a former service chaplain.

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.