M. Eburn

Revoking appointments – Queensland SES

In SES on October 19, 2014 at 10:28 pm

I was asked this question by a Queensland SES volunteer (though I have edited the text somewhat):

Accepting that the power to appoint includes the power to revoke that appointment of an SES volunteer the how might the phrase ‘“only if satisfied the person has the appropriate abilities to bean SES member” in Fire and Emergency Services Act 1990 (Qld) s 132 be qualified or clarified?

It’s true that were an Act gives a person, such as the SES Commissioner, the power to appoint a person to an office also gives them the power to revoke that appointment (Acts Interpretation Act 1954 (Qld) s 25).

Section 132 of the Fire and Emergency Services Act 1990 (Qld) says:

(1) The SES consists of the persons appointed by the commissioner as SES members.

(2) The commissioner may appoint a person as an SES member only if satisfied the person has the appropriate abilities to be an SES member.

The reference to appropriate abilities means that the commissioner does not have to accept every application for membership.  There is little room to challenge that where the person is an applicant, rather than a member.  There is no right to be a member and no loss by not being denied a right to join.  A person who applied to join the SES and whose application was rejected would have little if any grounds to challenge that decision or to argue that they did have the ‘appropriate abilities’.  It is a matter for the Commissioner.

The case is different if the Commissioner, acting on the power in the Acts Interpretation Act, moved to revoke an appointment.   Interestingly the Act has significant details on how the Commissioner must act when seeking to discipline members of the Queensland Fire and Emergency Service (see ss 30-33) but these do not appear to apply to the SES.

In any event before seeking to revoke a person’s appointment, either for disciplinary grounds or because they no longer have ‘the appropriate abilities to be an SES member’ he or she would have to give them natural justice, ie the commissioner would have to notify the member why he or she thought action should be taken and allow them the chance to make submissions to the effect that their appointment should not be revoked (see Castle v Director General State Emergency Service [2008] NSWCA 231.  In Castle the NSW Court of Appeal confirmed that a volunteer unit controller was entitled to natural justice when the then Director General moved to close the unit and necessarily cancel the Unit Controller’s appointment.  The Controller argued that he should have been given the opportunity to make submissions to the Director General as to steps he could take to rebuild the membership, Basten JA held that ‘in the present case, that where the decision to revoke the appointment was based upon the deregistration of the unit, the applicant was entitled to respond to the reasons for deregistering the unit…’)

It’s impossible to make any prediction on what the Commissioner may consider ‘appropriate abilities’ but one can imagine it would include a person who’s appointment was going to be terminated as he or she had an injury or disability that meant they could no longer function, but that would be a hard call given the volunteer nature of the SES.  Even if a person could not perform active rescue duties there are likely to be many other roles that they could perform.

So, in any summary, the Commissioner could revoke a persons appointment if they no longer had ‘appropriate abilities’ but he or she would have to give them a chance to be heard before that decision was made.  What would constitute a lack of ‘appropriate abilities’ would be a matter for the Commissioner but given the nature of the SES it’s hard if not impossible to predict what would be sufficient grounds to make that finding.

Step aside – I’m a doctor

In Ambulance on October 17, 2014 at 4:41 pm

This question comes from a volunteer with St John Ambulance (NSW) who asks:

I am a St John Ambulance volunteer and also work for a private pre-hospital care service provider here in NSW.

Quite a few times in my career with the private sector as well as on duty with St John I have been in situations where people have attempted to take over or keep me from providing treatment to a patient by proclaiming: “I am a doctor/nurse”.

This has happened in different scenarios for example, coming across an accident and a person in scrubs and with hospital ID to a loud proclamation from a friend of a patient at a party or even just a bystander on a soccer field.

Neither my company nor St John have a clear policy to deal with this nor as far as I understand has any other service. Even ASNSW (upon asking) seem to deal with this case by case.

My question to you would be if there is any legal writings on this scenario at all? You can generally have a good guess at who is actually a doctor/nurse and who isn’t, based on their behaviour but I myself have never been a particular fan of handing over the care of a patient to someone who I cannot identify clearly.

Also I wonder if there are any consequences for those who show up and claim to be health care professionals but aren’t?

There are some important first principles here.  The first is that doctors or the medical profession don’t ‘own’ health care, others such as nurses, paramedics and first aiders don’t practice their art at the direction of, or with the permission of doctors (see earlier discussions in ‘Doctors delegating authority to carry drugs’ (20 August 2014) and ‘What is a paramedic’s ‘authority to practice’?’ (19 August 2014)).

Second no-one ‘owns’ the patient.  The issue must always be what is in the patient’s best interests or who is best able to provide the care that the person needs.

Let me then turn to the law and let me assume the patient cannot consent (because if they could consent they could chose who they wanted to accept care from).  The case about treating those who cannot consent is In Re F [1990] 2 AC 1 where Lord Goff said (emphasis added):

The basic requirements, applicable in these cases of necessity, that, to fall within the principle, 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.

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

If there is a person who is unconscious, anyone can help and commits no battery if they do help but not if their intervention is officious that is ‘another more appropriate person is available and willing to act’.  That begs the question of who is the more appropriate person and I would suggest that is not necessarily a doctor.

If the person is at a public event where the St John Ambulance is in attendance and contracted to provide the health care services, then the St John staff are the appropriate people to help.  An off duty doctor or paramedic, or nurse has no right to insist that they hand over care to them and why would they want to?  They would then get ‘stuck’ with the person, what are they going to do with them?  Assume the person giving care is a paramedic with their ambulance, a doctor isn’t going to want to have to drive the person to hospital; they need to go by ambulance so the ambulance officer is the appropriate person.  A position made even clearer by the fact that the state ambulance service is the authority established to provide that purpose (see, for an earlier discussion of the relationship between a doctor and the ambulance service, my article ‘Doctors, the Duty to Rescue and the Ambulance Service‘, (1999) 10 Current Therapeutics 92-95).

Equally however, if a person with first aid training comes across a scene and sees people caring for the injured and the person appears to be a doctor, then they could stop you providing care – just as if you are on St John duty a doctor has no right to push you aside; if a doctor is treating an accident victim, you have no right to push them aside.   In short it is not the case that a doctor always is, or is not, the more appropriate person to provide care.  It will depend entirely on the circumstances, eg if there is an off duty first aider and an off duty doctor at a car accident then one might expect the doctor to take charge; it would be different if the doctor was off duty at a public event and St John were the contracted first aid providers, and very different if the issue is between a doctor and an ‘on duty’ NSW Ambulance paramedic.

The NSW ambulance paramedic would be in a different position by virtue of the role of the ambulance service and the provisions of s 67J of the Health Services Act 1997 (NSW) which says:

A person must not intentionally obstruct or hinder an ambulance officer when the ambulance officer is providing or attempting to provide ambulance services to another person or persons.

In Western Australia two St John Ambulance officers (remembering that St John provide the ambulance service in that state) attended a call to a person collapsed in a medical centre carpark.   On arrival one of the doctors was attending to the patient.  In a complaint under the Equal Opportunity Act 1984 (WA) (Zangari and St John Ambulance Service [2010] WASAT 6 (25 January 2010)):

Dr Zangari [said] that on 6 July 2006, the ambulance officers, as employees of SJA, discriminated against her on the grounds of her race when they provided ambulance services to her. She says they dismissed her, ignored her and were rude to her. She relies on an inference that there is no other reasonable basis to explain the ambulance officers’ actions, other than that they had a stereotypical view of who they were dealing with and their stereotypical view was based on race. She says they therefore treated her less favourably than they would have treated someone who was not Italian, and it would seem, particularly a doctor who was not an Italian.

The State Administrative Tribunal of Western Australia found that the Doctor did not have standing to bring the complaint as St John was not providing a service to her, but to the person in need.  That’s the technical legal answer but there are some interesting observations relevant to our discussion.

First (at [187]) the tribunal said: ‘Dr Zangari seems to argue that she is in a special position with SJA because she is a medical practitioner. We agree she should be treated with respect and regard should be had for her status as a medical practitioner. But it does not put her in a special or different position when considering the nature of her connection with SJA.’  The Doctor was not a ‘conduit’ between the patient or St John, she was just a bystander who happened to be a doctor.  She argued that part of the relationship is that she arranged for the ambulance to be called to ‘have the patient attended to under her supervision and transported to hospital’.  The tribunal rejected the idea that the paramedics would treat the patient ‘under her supervision’.

The Tribunal went on to say:

190         … It was acknowledged and we find that on arrival, the ambulance officers are entitled, if not required, to take charge of the situation; which is what the ambulance officers correctly did on arrival at the surgery; they have the primary conduct of patient care and in this case, Ms Howell was the attending paramedic and also the primary person in charge: (see [5] of Ms Howell’s witness statement). The medical practitioner takes a step back once an ambulance arrives, allowing the ambulance officers to attend to the patient and provide what is needed. We have found that this did not happen in this case. The patient becomes SJA’s patient and for the purposes of the particular incident is no longer the medical practitioner’s patient, regardless of the physical location of the patient. For ambulance officers, patient care is their first priority and we find that when the ambulance officers went to the surgery, Mr L was their first priority and they were primarily focused on him and his needs, and accordingly, devoted their attention and skills to him.

191         The role of the medical practitioner is to provide patient and other pertinent information and medical or other assistance if required, by the ambulance officers. It would be good practice if the medical practitioner does what they can to facilitate patient diagnosis and care by the ambulance officers. It would certainly be pertinent and helpful for a doctor present at the scene to identify themselves as such, particularly if they are the patient’s treating doctor. There is no stated policy document or procedure (of which we are aware) that requires ambulance officers to seek out or engage the assistance of a medical practitioner if they are called to provide assistance at a doctor’s surgery (as was the case here), or indeed at any place where a medical practitioner is present. It might be common sense to do so, but it is a discretion exercisable by the ambulance officers based on their appraisal of the situation they are attending and on the needs of the patient, and on the ability of the patient to provide the required information.

192         We have found, on the facts, that the ambulance officers did not require information or assistance from Dr Zangari because they gathered adequate and appropriate information from the patient as was the correct procedure in this particular situation; in the third, fourth and fifth allegations, Dr Zangari is critical of the ambulance officers for not ‘engaging’ her ‘assistance’ at various times throughout the period they were attending to Mr L in the car park. But she offers no detail of what ‘assistance’ she could have given or should have been allowed to give nor does she explain how the ambulance officers, acting on a priority one callout, could have ‘engaged her assistance’. The ambulance officers did not require assistance from Dr Zangari as they concluded either that they did not need any assistance or that Dr Zangari was incapable of providing any sensible assistance because she was emotive and panic­striken. Dr Zangari did not provide any convincing evidence of what assistance she could have provided to the ambulance officers or Mr L if requested by the ambulance officers…

That’s not a binding precedent but it appears to be a sensible approach, whether the person providing care is a St John volunteer at a public event or a paramedic responding to a triple zero call.

Having said that no-one should stand mute if the person giving care is going to make a mistake.  A doctor should intervene if the first aider or paramedic is going to harm the patient and equally a paramedic or first aider should intervene if a person who claims to be a doctor is clearly going to harm the patient.  Professional modesty should not stand in the way of protecting a person against poor care.

Are any consequences for those who show up and claim to be health care professionals but aren’t?  Absolutely.  A person who steps out of the crowd in order to assist may want to rely on the good Samaritan provisions in the Civil Liability Act 2002 (NSW).  Section 57 says:

A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

Section 58(3) goes onto say (emphasis added):

This Part does not confer protection from personal liability on a person in respect of any act or omission done or made while the person is impersonating a health care or emergency services worker or a police officer or is otherwise falsely representing that the person has skills or expertise in connection with the rendering of emergency assistance.

If they are sued then, as the High Court said in Rogers v Whitaker (1992) 175 CLR 479 ‘The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill’.   So if a person claims to be a medical practitioner and they are not, they get no protection from s 57 and if they were sued the question would be ‘did they act as the reasonable medical practitioner’ because that is the skill they ‘professed’ to have.

‘Reasonable Grounds’ for disciplinary action in the South Australian Country Fire Service

In After action review, Fire, Negligence on October 10, 2014 at 10:59 am

A fire fighter in South Australia asked me this:

My query relates to the South Australian Fire and Emergency Services Act and Regs. Within the act, the Chief Officer of the CFS is empowered to impose penalty on CFS volunteer members (Div 6 sec 70 (12)) based on “reasonable grounds”.

This sounds fairly loose and subjective and I dont think there is anything else in the act which sheds light on what “reasonable grounds” may be. It appears to give the CO a free hand to do anything he likes unless there is a  review mechanism available outside of the CFS

Should the Chief Officer pursue an action against a volunteer individual “unreasonably”, are there any general appeal grounds outside of the CFS, for instance can the Ombudsman review the Chief Officers decision, is this possibly covered within the jurisdiction of the State Admin appeal or any other body?

The relevant section is, as my correspondent has noted, in the Fire and Emergency Services Act 2005 (SA) s 70, subsections 11 and 12.  These subsections says:

(11)        The Chief Officer may, on reasonable grounds—

(a) demote a person who holds a particular rank in SACFS;

(b) disqualify a person from holding a rank in SACFS;

(c) disqualify a person from membership of SACFS;

(d) exercise any other disciplinary power in accordance with the regulations.

(12)        Before taking action against a person under subsection (11), the Chief Officer must give the person a reasonable opportunity to appear before the Chief Officer (either personally or through his or her representative) and to make submissions in relation to the proposed course of action.

Subsection 12 is in effect a statement that natural justice must be applied (see also Castle v Director General State Emergency Service [2008] NSWCA 231).  Natural justice requires that a person is given the opportunity to address an impartial decision maker before a decision is made and to make submissions as to whether, in this case, there are ‘reasonable grounds’ upon which the decision maker can act, and if there are, what action he or she should take.   The decision must be made by an impartial person so if the person appointed to make the decision, whether the Chief Officer or his or her delegate, is not, or might not be seen to be, impartial, they should step aside to allow someone else to make the decision (see the ICAC report into the ‘NSW State Emergency Service – allegations concerning SES Commissioner (Operation Dewar)’).

The question then is, “what are ‘reasonable grounds’”?  To have a requirement for ‘reasonable grounds’ is to say that he decision cannot be made on a whim; it does not give the Chief Officer ‘a free hand to do anything he likes’ rather he or she has to have ‘reasons’ for that decision.

In George v Rockett (1990) 170 CLR 104 the High Court had to consider what ‘reasonable grounds’ meant when considering whether or not a Magistrate had reasonable grounds to issue a search warrant.  In a unanimous judgment the Court (Mason CJ., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said (at [8]) ‘When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person… That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers.’

To put that in our context, the Act doesn’t say that the Chief Officer must have ‘reasonable grounds’ to believe some fact is true, but he or she may only act upon ‘reasonable grounds’ that is he or she must have some reason to make the decision; he or she must be aware of, or be satisfied that there are facts which are sufficient to show that their action was warranted by those facts.  So if the allegation was that the person had acted in a way that was improper, whether deliberately, negligently or because they are incompetent, then the decision maker would have to be able to identify what he or she believed had happened and why that justifies the action taken.

As the High Court noted the requirement for reasonable grounds opens the decision to judicial review.  If the power was a power to dismiss for any reason that the Chief Officer decided then there could be no review, the Chief Officer could do what he or she liked.  As there has to be reasonable grounds though, there can be review under the relevant Administrative Review processes in the State (for South Australia see the Legal Services Commission of South Australia, ‘South Australian Ombudsman’ and ‘State Administrative Appeals’’).

Ultimately because the Chief Officer is making a decision according to law, a court of law (in South Australia, the Supreme Court) could be called upon to review the decision (see South Australia Legal Services Commission of South Australia ‘Judicial Review’ and Supreme Court Civil Rules 2006, rr 199-201).  The judge’s task would be to determine whether there were ‘reasonable grounds’ for the decision not whether he or she would have made the same decision.   The question for the judge would be ‘did the decision maker have some reasons, some evidence to establish the facts upon which he or she relied and some reason for making the decision he or she made?’  If the answer to that is ‘yes’ then the decision would be expected to stand.

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