M. Eburn

Mines Rescue teams and responding to the community in Western Australia

In Rescue, Volunteer compensation on August 22, 2014 at 3:03 pm

This was a very long question, so I’ve edited to make it shorter.  I am also told that my correspondent has removed this discussion from his assessment task, so I’m only addressing this on the understanding that I am NOT contributing to his assessment task.    My correspondent writes:

I am currently studying unit on Emergency and Crisis management as part of my Masters in OHS at Edith Cowen University WA.    As part of this unit we have been asked to comment on the new WHS legislation and the inclusion of volunteers into the definition of worker, how this WHS legislation might affect volunteers and to summarise the legal health and safety issues that underpin volunteers in your region.

This task set me off thinking about the Emergency Response Teams on WA Mine sites.  My interpretation of the Mines Safety and Inspection Act [WA] 1994(MSIA) is that all members of the ERT working in any capacity, are under direction of the employer, and are employees even though they have volunteered to be members of the ERT.

This then begs the question as to what is the coverage if they as volunteers, utilising the skills and knowledge gained during their employment, along with the resources of the mine, assist in emergency management beyond the mine.  If they attend traffic accidents on the gazetted road, which runs through the mine lease, are they acting as employees or good Samaritans?  Let us assume they apply first aid measures, and transport casualties, in the first instance to the town medical centre.  This is within the boundaries of the community, and on the mine lease.  However the MSIA explicitly exempts these community areas, from the Act. So what now are we employee or Good Samaritan?   If during this patient transfer a member of the ERT injures his back, is he covered by the MSIA act?  Does Workers Compensation cover him?  I would argue this is still within the confines of the mine, and therefore he is an employee and covered, because the MSIA excludes “leisure activities”.   Now let us assume he is transferring the patient from the medical centre to the Royal Flying Doctors aircraft.  During this if the hypothetical ERT member causes harm, by the fault of his actions, were would this stand at law?  Covered by the Civil Liabilities Act 2002?

Now let us assume the accident they attend utilising the equipment and resources of the mine happens out on the North West Coastal Highway.  Now they are well and truly off the mine lease?  They have taken on the duties of the now defunct, volunteer fire brigade.  Defunct as a direct result of the introduction of mine rescue teams by the mining company and the withdrawal of their support to the volunteer fire brigade.  Had they attended the scene as members of the volunteer fire brigade, they were volunteers and therefore entitled to the protection of the State government or the Civil Liabilities Act?   As members of the Mines ERT they are employees who must adhere to the policies and procedures of the mining company as well as the MSIA.  Not possible as the MSIA does NOT cover workplaces outside a mine.  So will we revert then to the Occupational Safety and Health Act?  Looking beyond these semantics, over which act, what happens again if they make a mistake and cause serious harm to the casualty.  Can that person now take action against the individuals or even the mine?  As a corporation the mine is not covered by the “good Samaritan clauses”.  Would members of the team be entitled to coverage?

Good Samaritan clause gives protection via the Civil Liabilities Act.  This is not applicable to the workplace and only covers claims for “damages for harm caused by the fault of a person” the Western Australian Volunteers (Protection from Liability) Bill 2002 specifically excludes a person who is taken to be performing a function under an emergency services act.  Would this include the privately funded ERT units?

This question suggests that the law is much more complex than it actually is or will be and the legislation will not really determine most of the matters.

First, though, the Volunteers (Protection from Liability) Bill 2002 was a Bill.  A bill is a draft law, it is not however ‘the’ law.  The relevant Act in WA is the Volunteer and Food and Other Donors (Protection from Liability) Act 2002 (WA).

I can’t see where or how the Mines Safety and Inspection Act 1994 (WA) explicitly exempts ‘community areas’ or ‘leisure activities’ as those terms are not used in either the Act or its regulations.

To the law:

An employee is an employee when they are doing what they are employed to do.  There is no doubt that a person who is employed at a mine and who joins the Emergency Response Team is still an employee.  They are not a ‘volunteer’ because they volunteered to assume extra duties.  Their employment includes their role in the ERT so they are an employee.

An employer is vicariously liable for the torts or wrongs of their employee.  If they are acting as members of the ERT they are employees, so if there is any negligence it will be the employer (the mine) that is liable (Hollis v Vabu (2001) 207 CLR 21; Sweeney v Boylan Nominees (2006) 226 CLR 161).  This will not be the case if there is gross or wilful misconduct or their actions are so far beyond what they are employed to do they can be described as being on a ‘frolic of their own’.  If they are using the ERT vehicle for drag racing or to provide a cool wedding transport vehicle, without the knowledge or permission of the mine, they may be on a frolic of their own.

So if they are attending to an emergency outside the mine the issue is, is that endorsed by the employer?   If they are just driving along the road and see an accident and stop to help they, and the mine, are good Samaritans.   The Civil Liability Act 2002 (WA) s 5AD says:

 A good samaritan does not incur any personal civil liability in respect of an act or omission done or made by the good samaritan at the scene of an emergency in good faith and without recklessness in assisting a person in apparent need of emergency assistance.

A ‘good samaritan means a natural person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance’.  In law a corporation is also a person (Interpretation Act 1984 (WA) s 5) so the reference to ‘natural person’ makes it clear that this section does not extend to a corporation, so the rescue workers can rely on that provision, but the mine could not.

I do not think this would be sufficiently divorced from their duties to constitute a frolic of their own.  If they’re driving an emergency vehicle and representing a company that is a major player in the community then I cannot imagine for a moment that the employer would in any way want them to drive past and not help. The reputational damage would be immense.  So even if there were no instructions that say ‘you can stop’ I would expect that any court, should it be an issue, would accept that by stopping their emergency vehicle to provide care they were acting in the course of their duties so if they were injured in the course of that work they could still expect to receive workers compensation.

If they turn out because they have ‘taken on the duties of the now defunct, volunteer fire brigade’ that must imply some level of cooperation with the police and emergency services, ie someone has to have called them out.    One can imagine lots of reasons why a mine company would make its ERT available in those circumstances, it makes them a good corporate citizen, maintains good will, maintains the interest and willingness of people to join the ERT as they know they are contributing to their community and the people they are helping are their employees and the community they depend upon.   In that case responding is clearly part of the ERTs duties and should there be any liability it would fall on the mine.  Provisions that are designed to remove personal liability such as the Volunteer and Food and Other Donors (Protection from Liability) Act 2002 (WA) and the Fire and Emergency Services Act 1998 (WA) s 37 don’t apply as the members of the ERT are employees, not volunteers.  Equally the good Samaritan provisions won’t apply as they are turning out as part of their work, but again that doesn’t matter as any liability (if any) would fall to the mine.

If the mine entered into an agreement with the Department of Fire and Emergency services to provide emergency services to help the Department fulfil its obligations under the Fire and Emergency Services Act 1998 (WA), or entered into an agreement with the local council to provide bush fire fighting services (Bush Fires Act 1954 (WA) ss 41 and 42A) then the mine could rely on s 37 of the Fire and Emergency Services Act 1998 (WA) which says ‘a person does not incur civil liability for anything that the person has done, in good faith, in the performance or purported performance of a function under the emergency services Acts’.  Note that it does not say ‘natural’ person so that would include a corporation.  Such an arrangement would be necessary, or at least implied, if the rescue service is being notified of triple zero calls requesting assistance and/or the mine has ‘taken on the duties of the now defunct, volunteer fire brigade’

The ERT members are employees when their responding to an emergency or if they are driving the truck in the course of their duties and come across an accident so the Occupational, Safety and Health Act 1984 (WA) and/or the Mines Safety And Inspection Act 1994 (WA) and the Workers’ Compensation And Injury Management Act 1981 (WA) will all continue to apply in any of the circumstances described above.

Queensland Paramedics – Recognition of Life Extinct (ROLE)

In Ambulance on August 22, 2014 at 11:35 am

My correspondent writes:

When attending a case in which a patient has died, state paramedics in Queensland can cease or withhold resuscitation based on a protocol contained within the clinical practice manual we use. Following this, the paramedic who ceased or withheld resuscitation can complete a Recognition of Life Extinct (R.O.L.E.) form and hand this to the attending police officers in order to provide evidence that an assessment has been undertaken to confirm that the person is deceased so that their body can then be removed from the scene and certification of death by a doctor can be carried out separately. This system works well for state-employed paramedics.

If the same circumstances were to occur on a mine site or gas construction site many hours from a state ambulance response, what would be the position of a commercial paramedic who was in attendance? They can cease or withhold resuscitation based on similar criteria as their state-employed counterparts, but would they, in their commercial capacity, have the ability under legislation to complete a “Recognition of Life Extinct” without input from the state ambulance service? Is this something that would need to be documented in their own clinical practice manual or is there specific legislation that refers to recognition of life extinct and the role of an “Ambulance Officer”.

The relevant protocol is ‘Clinical Practice Guidelines – Other Emergencies’.  Relevantly that Guideline says (at p 3):

Part B – Management of a deceased person

Recording life extinct

Following determination that life is extinct, the paramedic is to complete a Life extinct form and the eARF.

Details regarding the criteria relied upon to determine life extinct are to be recorded on the eARF.

The paramedic is then required to record the following in the eARF:

I declare life extinct at [record exact time of declaration].

Notification of death to police

The Queensland Police Service (QPS) is to be notified of all deaths and provided with information that will assist the police to determine if the death is a reportable death as defined in the Coroners Act 2003 (Qld) (see following for the definition of reportable death).

eARF is the ‘Electronic Ambulance Report Form’ (see https://ambulance.qld.gov.au/records.html).

The ‘Life Extinct Form’ appears to be a Queensland Police form (QP0001).  The Queensland Police Operational Policy on Coronial Matters says (at p 12) that even though they have a form, ‘There will continue to be instances where other versions of a Life Extinct Form will be used. For example, the Queensland Ambulance Service will use an Electronic Ambulance Report form to record the life extinct procedure.’

Queensland Corrective Services have a life extinct form, and whilst that is clearly a Corrective Services’ form I assume it is for all intents and purposes it records the same information as either QP001 or the eARF.  In essence the paramedic is signing either a printed form, or the eARF to the effect that they examined the patient, determined that criteria to determine life extinct had been met, that is:

The eARF implies that is the basis of the diagnosis and confirms the time of that diagnosis.

Now to the law.  The relevant law is, as the Practice Guideline says, the Coroners Act 2003 (Qld), as well as the Births, Deaths and Marriages Registration Act 2003 (Qld).

An application to register a death in Queensland must contain, amongst other details, information about the cause of, and the date of, death (Births, Deaths and Marriages Registration Regulations 2003 (Qld) reg 12 and Schedule 1).   The paramedic’s eARF cannot record the cause of death but gives some evidence as to the date of death, or at least that the date of death was not after the date recorded on the eARF.  The cause of death may be certified by a doctor if the doctor

(A) attended the deceased person when the person was alive; or

(B) examined the deceased person’s body; or

(C) has considered information about the deceased person’s medical history and the circumstances of the deceased person’s death; and

the doctor is able to form an opinion as to the probable cause of death.  (Births, Deaths and Marriages Registration Act 2003 (Qld) s 30).

Consideration of ‘ information about the deceased person’s medical history and the circumstances of the deceased person’s death’ would include consideration of the fact that the person was identified as dead at the time and date recorded on the eARF.

Some deaths must be reported to the Coroner, a reportable death is one where:

(a) it is not known who the person is; or

(b) the death was a violent or otherwise unnatural death; or

(c) the death happened in suspicious circumstances; or

(d) the death was a health care related death; or

(e) a cause of death certificate has not been issued, and is not likely to be issued, for the person; or

(f) the death was a death in care; or

(g) the death was a death in custody; or

(h) the death happened in the course of or as a result of police operations. (Coroners Act 2003 (Qld) s 8).

A coroner must investigate a reportable death and record, if possible, ‘when the person died’ (Coroners Act 2003 (Qld) s 45(2)(c)).

None of these Acts, or their regulations make reference to ‘life extinct form’.

It is the duty of Queensland police to assist the coroner in the investigation of deaths (Police Powers and Responsibilities Act 2000 (Qld) s 794).  Police must also complete a Form 1 Police Report of Death.  This form is prescribed under the Coroners Act 2003 (Qld) and that is where the paramedics ‘Life Extinct form’ comes in.  The Life Extinct form is not legally prescribed, it is simply evidence that assists the police to report to the coroner (if the death is reportable) and any doctor who is completing a cause of death certificate to know at least a date time that the patient was dead.  The form is, as I say, evidence but it is not provided for in legislation and so is not something that is unique to Queensland Ambulance.  As noted Corrective Services have a similar form as do others (see Capricornia Department of Health and Ageing, Aged Care Resource Pack, 2005).

So if a private or ‘commercial’ paramedic were to face a case where the person they are called to assist is clearly dead, ‘would they, in their commercial capacity, have the ability under legislation to complete a “Recognition of Life Extinct” without input from the state ambulance service? Is this something that would need to be documented in their own clinical practice manual or is there specific legislation that refers to recognition of life extinct and the role of an “Ambulance Officer”’?

Whether they could complete a life extinct form would depend on their relationship with the local police.  If the private ambulance company developed a form they could speak to the local police about whether or not that would be useful.  In the absence of the form the police would simply need to take a statement recording when the officer’s attended and determined life was extinct.  That may be no more than notebook entry.   Even if they did not liaise with the police, a private ambulance company could develop a form but whether the police decided to accept it at face value would be a matter for the investigating police in each case.   Any ambulance provider would, I suggest, have to have clinical guidelines on determining when life is extinct and resuscitation can be withheld or withdrawn and any such guideline should also provide for appropriate record keeping so yes the use of any designed form should ‘ documented in their own clinical practice manual’.

There is no legislation that ‘refers to recognition of life extinct and the role of an “Ambulance Officer”’ either a QAS officer or anyone else.  As I say all the form is, is evidence; it has no legal effect, it just helps the police, the coroner, and a doctor who may be completing a certificate as to the cause of death, to know that the person was at least dead at the time on the paramedics form.

 

 

Doctors delegating authority to carry drugs

In Ambulance on August 20, 2014 at 8:11 pm

This was a comment made in response to my post ‘What is a paramedic’s ‘authority to practice’? (19 August 2014)

This is a very informative post. I would be appreciative if you could confirm a doctor’s ability to legally delegate permission to carry and dispense S4 – S8 drugs to Registered Nurses outside of a hospital environment or government sanctioned medical centre for the purposes of providing first aid.

Responding to this comment was so important that I’ve made it a separate post so it is not ‘lost’ in the comments.

A doctor has NO ‘ability to legally delegate permission to carry and dispense S4 – S8 drugs to Registered Nurses outside of a hospital environment or government sanctioned medical centre for the purposes of providing first aid’.

I’m not sure what state the comment came from, so I’ll stick to NSW.  Section 17A of the Poisons and Therapeutic Goods Act 1966 (NSW) says:

A nurse is authorised to possess, use, supply or prescribe a poison, restricted substance or drug of addiction for the purposes of the practice of nursing, if:

(a) the nurse’s registration is endorsed under section 94 of the Health Practitioner Regulation National Law as being qualified to possess, use, supply or prescribe that poison, restricted substance or drug of addiction, or

(b) the nurse is a nurse practitioner who is authorised in writing by the Director-General to possess, use, supply or prescribe that poison, restricted substance or drug of addiction.

It says nothing about being ‘delegated’ permission by a doctor.  A medical or nurse practitioner must not prescribe or supply drugs of addiction (s 28) without a proper authority.  A proper authority is issued by the Director General of Health, not any doctor who chooses to.

A person must not possess a prescribed restricted substance unless they are, inter alia, a nurse practitioner authorised under s 17A (see above); or is getting the substance in accordance with a prescription, or is caring for the person for whom the drugs have been prescribed or otherwise approved by the Director General (s 16; see also s 23 ‘Possession and supply of drugs of addiction by carers’); not who is authorised by ‘a doctor’.

It is an offence to supply schedule 1, 2 or 3 drugs unless the person is a nurse practitioner authorised by the Director General (s 10); not who is authorised by ‘a doctor’.

A prescription for a restricted (Schedule 4) substance or drug of addiction (Schedule 8) must contain, inter alia, the patient’s name and address (Poisons and Therapeutic Goods Regulation 2008 (NSW) clauses 35 and 80).   Clearly one cannot write some general prescription to issue drugs to someone the nurse thinks should get the drugs.

Both nursing and medical practitioners are registered under the Health Practitioner National Law.  Unprofessional conduct, of a registered health practitioner includes ‘the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession’ (Health Practitioner National Law s 5).  A nurse who is carrying schedule 4 or schedule 8 drugs because ‘a doctor told them they could’, would be acting in contravention of the Poisons and Therapeutic Goods Act 1966 (NSW) (or its equivalent in other jurisdictions) and could expect to  be prosecuted and subject to professional discipline.

A relevant health registration board can establish codes of conduct that are relevant in determining whether or not a practitioner’s conduct ‘constitutes appropriate professional conduct or practice for the health profession’ (Health Practitioner National Law ss 39 and 41).  The Medical Board of Australia’s ‘Good medical practice: a code of conduct for doctors in Australia’ says that good medical practice requires

2.1.1 Assessing the patient, taking into account the history, the patient’s views, and an appropriate physical examination. The history includes relevant psychological, social and cultural aspects.

Somehow ‘authorising’ others to carry and use drugs does not involve making that assessment.    A doctor who purports to authorise people who are not authorised under the relevant drugs legislation to carry drugs and in effect treat people as the doctors’ agent is not engaged in good medical practice.  They can expect to be liable in the event of a poor outcome and to be subject to disciplinary action.

Nurses are, and paramedics want to be, health professionals.  They have their own skills and their own professional standards.  They do not, and should not consider that they practice their professions because doctors authorise them to do so.  Doctors are not the authority that determines who can carry and use drugs, the Parliament is and the parliament determines who can give other authority, in NSW it’s the Director General of Health.

To reiterate: A doctor has NO ‘ability to legally delegate permission to carry and dispense S4 – S8 drugs to Registered Nurses outside of a hospital environment or government sanctioned medical centre for the purposes of providing first aid’.

 

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