M. Eburn

New Mental Health Act 2014 (Vic) brings new powers for Victorian paramedics

In Ambulance on July 28, 2014 at 10:20 pm

In response to my earlier post, New laws come into force (7 July 2014) “Cannulator” wrote a comment where he or she said:

Also commencing on 1st of July was the Victorian Mental Health Act 2014, with quite a few important changes that will impact on other Acts and the powers afforded to operational paramedics. Many changes to status, process and powers to behold!

It’s taken me some time to get to look at that Act, but having done so I have to agree with Cannulator.  The Act is too long to explore in detail here but we can make some quick observations.

First a search of the Act reveals that the term paramedic is used in only two sections – sections 3 and 350.  Section 350 says that a registered medical practitioner may administer sedation to a person where that is required to facilitate their transport, and that the practitioner may authorise a paramedic to administer that sedation.  So far that is nothing too controversial.

It is section 3 that has the hidden impact.  Section 3 is the definition section and it defines the term ‘authorised person’.  Many people are authorised persons, including paramedics, and authorised persons have significant powers.  An authorised person may:

  • use bodily restraint to prevent serious and imminent harm to a person being taken to or from a designated health service (s 350);
  • enter premises, apprehend and take person to a designated mental health service (s 353);
  • search a person who is being transported to a designated health service in order to find anything that may pose a danger (s 354);
  • may seize and detain anything found in that search (s 356);
  • apprehend a person who is absent without leave from an interstate mental health facility (s 326);

These provisions are not so unique, as there are similar provisions in a number of states see Mental Health Act 2000 (NSW) s 20; Mental Health and Related Services Act 1998 (NT) s 31; Mental Health Act 2000 (Qld) ss 32–36; Mental Health Act 2009 (SA) s 56 and similar powers are proposed for the ACT (see Mental Health (Treatment and Care) Amendment Bill 2013 (ACT)).  That does not however make these provisions uncontroversial (see Ruth Townsend and Morgan Luck, ‘Protective Jurisdiction, Patient Autonomy and Paramedics: the Challenges of Applying the NSW Mental Health Act’ (2009) 7(4) Australasian Journal of Paramedicine Article 5) and raise critical questions about the role of paramedics and the appropriate division of roles between police and paramedics.

As ‘Cannulator’ says this new Act brings ‘Many changes to status, process and powers’ and it will be interesting to see how they are implemented in Victoria.

Resuscitation and a patient’s best interests

In Ambulance, Criminal law, Negligence on July 28, 2014 at 9:48 pm

I’m responding to an issue on ‘twitter’ (but a word of caution, I really don’t follow twitter and rarely look at my account, so this is not an efficient way to get in touch with me; but it worked this time).

The ‘tweet’ says

“NZ case law confirms no requirement to resus when medically not in their best interest. #nzrc2014” same in Oz? Ping @EburnM

The link is to, I think, the New Zealand Resuscitation Council.

The case law is clear and that may be because the key cases come from the UK. I’m not sure what NZ case law the speaker was referring to; but in Australia the law that justifies treating a person who cannot give consent is the principle of necessity.  In In Re F [1990] 2 AC 1 Lord Justice Goff set out the test for necessity.  He said (p 25, emphasis added):

… not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.

In Airedale NHS Trust v Bland [1993] AC 789, the House of Lords had to consider whether doctors could withdraw treatment from Anthony Bland who had been crushed in the 1989 Hillsborough football stadium disaster.  Young Mr Bland was not dead, but was in a persistent vegetative state.  The judges agreed that there was no obligation to provide futile treatment and that the treatment that was keeping Mr Bland alive was indeed futile as there were no prospects for Mr Bland’s recovery.    As the treatment was not in Mr Bland’s best interests it could not be justified by the doctrine of necessity. Lord Browne-Wilkinson even suggested that if a practitioner

… comes to the reasonable conclusion … that further continuance of an intrusive life support system is not in the best interests of the patient, he can no longer lawfully continue that life support system: to do so would constitute the crime of battery and the tort of trespass to the person.

In that case they were talking about medical practitioners but there is no reason to think that the same test does not apply to paramedics and others where there action depends on ‘necessity’.

So a person who is called to resuscitate another need not do so if the treatment is not in the person’s best interests.  Most of the time a paramedic will not be able to make a judgement on that matter so of course resuscitation is the appropriate treatment, but that will not always be the case. For example a person may be terminally or chronically ill, perhaps expected to die or simply at the inevitable end of their life. It is legitimate to ask, for example, whether it is the best interests of a 99 year old person, wholly dependent on continuing care, to reuscitate them if they are found in cardiac arrest in their comfortable chair in front of the TV.   I don’t profess to be able to make those decisions, that is the ‘hard’ call for health practitioners, doctors, nurses and paramedics, but the law is clear, if treatment is not in the persons best interests it is not only appropriate to withhold that treatment, in Lord Browne-Wilkinson’s view it may be both a crime and tort to administer treatment that the practitioner has reasonable grounds to believe is not in the patient’s best interest.

 

Metropolitan Fire Brigades and General Order 3, ‘Prohibition on Operational Staff’

In Fire on July 21, 2014 at 11:09 am

I was contacted via LinkedIN and asked to comment on this order.  My correspondent wrote:

I read your articles with interest and thought you may be interested in dissecting the legality of general order 3 which the Metropolitan fire brigade has introduced for its operational firefighters.

I asked for, and received a copy of the order along with these further questions:

Operational staff are reminded of general order 3 compliance whilst off duty by the chief officer.

Is general order 3 lawful in relation to ones activity and rights under discrimination laws, bullying and harassment in the workplace laws and human rights charter?

and

Does this general order breach other rights of firefighters?

And

Is it lawful to gag firefighters whilst off duty?

This includes political beliefs, association or activity whilst off duty. Given the public standing of firefighters in the community, members are often recognised and associated as such, firefighters, whether on duty or not.

I appreciate the want to protect the board, brand and standing in the community, but question whether the revised general order 3 has pushed the boundaries too far.

An internet search reveals that the United Firefighter’s Union ‘is seeking legal advice on this matter and after such … will notify members’ <http://www.ufuvic.asn.au/wp-content/uploads/2014/03/UFU-Bulletin-057-MFBs-new-general-order-no.-3.pdf>.

These questions deal with labour or employment law and human rights law.  Victoria is in the rare position of having statutory guaranteed human rights in the Charter of Human Rights and Responsibilities Act 2006 (Vic).  (The position is rare as the ACT is, as I understand it, the only other Australian jurisdiction with human rights legislation, see Human Rights Act 2004 (ACT)).    Victoria also prohibits discrimination on the grounds of various attributes which include ‘employment activity’, ‘industrial activity’, ‘political belief or activity’ and ‘personal association … with a person who is identified by reference to any of the above attributes’ (Equal Opportunity Act 2010 (Vic) ss 6 and 7).

The provision of the order that is causing concern is, I infer, paragraph 3.2(i) which says:

‘… an operational staff member must not:

(i)                  represent him or herself to any person, persons, or organisation in a manner contrary to the authorised position of the MFB.  This prohibition includes where an individual is reasonably identified as a firefighter, despite the covering or removal of any MFB rank or insignia, or by otherwise disguising any uniform, appliance, equipment or facility (this includes uniform, appliances, equipment or facilities that are no longer in service or operation of have been superseded);’

My first thought is that applying the rule of ‘ejusdem generis’ (that is where there is a general list of examples, the general application of the rule will be limited to similar examples (http://legal-dictionary.thefreedictionary.com/Ejusdem+generis), then the sort of conduct that the rule is aimed at is a firefighter who is clearly acting as a firefighter but makes some poor attempt to disguise that fact, eg a firefighter who wants to say that the reason the fire is out of control is because of some MFB policy but before making that statement they remove their ‘turn out’ coat and put on a jacket.  We’ve all seen officers from various services in their uniform with a non-uniform coat or jacket and it’s still pretty obvious that they are wearing a uniform.  If that’s correct it would be hard to apply that to a member who’s off duty and not wearing any uniform items.  That is I would infer that the order can only apply when the person is representing him or herself as a firefighter or ‘is reasonably identified as a firefighter’ not when their position as a firefighter is irrelevant to the issue at hand.

It seems to me that the document, standing alone, cannot be contrary to the provisions of either the Charter of Human Rights and Responsibilities or the Equal Opportunity Act. Questions of whether the policy enshrined in the order is contrary to those rights and laws can only arise when there is an attempt to apply the Order.  The MFB will need to take account of the fact, for example, that it is unlawful to deny or limit access to opportunities for promotion, transfer or training, to dismiss an employee, to deny access to any guidance program or occupational training or retraining or to subject an employee to any other detriment because of that employees political views or their involvement with the union (including representing or advancing the views, claims or interests of members’ of that union) (Equal Opportunity Act 2010 (Vic) ss 4, 6, 7 and 18).  Further, in Victoria, people have a rights to freedom of thought, conscience, belief, expression, association (including a right to join a trade union) and to participate in the public life of Victoria (Charter of Human Rights and Responsibilities Act 2006 (Vic) (ss 14-16, 18)).  One can imagine that Order 3 could be used in ways that contravene those rights, but it’s not axiomatic that it must or will be.

Further rights are not absolute, so the rights to freedom from forced work (s 11), freedom of movement (s 12) and freedom of association (s 16) would not be sufficient to stop an employer dismissing an employee who decided to ‘hang out’ with his or friends rather than go to work.     How the various rights and obligations of an employee may be lawfully balanced is a matter for lawyers expert in the fields of labour/employment law and human rights law and would depend on the particular facts.

So, in short I can’t answer whether or not this order breaches any rights, either in the abstract or if and when it is applied.  The UFU are seeking legal advice and presumably they will obtain that from lawyers with a practice in industrial law rather than emergency response law.   It will be very interesting to see what that advice is, if and when the UFU make it public.

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