M. Eburn

Paramedics and off duty volunteering – but for who?

In Ambulance, OHS on May 1, 2015 at 4:26 pm

This question comes from a Victorian Paramedic:

I have a question for you and hope you can help. I (and a number of other paramedics) have been approached by a large international motorcycle company to help provide first aid to events they operate. The events involve week long trips into various states and territories within Australia with limited vehicular access. The paramedics would be operating outside of work as volunteers but may be given free accommodation and entrance fee. I have approached my employer who states we would not be legally indemnified if we rendered assistance.

Do you think we would be covered by the Good Samaritan Act in this situation or should we try to gain some form of indemnity insurance?

My employer also states I cannot act at a skill level above basic first aid. After reading many of your articles I get the sense I can act at the level at which I have been trained (ALS) with the equipment available to me at the time. Is this correct?

In the absence of professional registration, describing oneself as a ‘paramedic’ is, I’m afraid to say, legally meaningless.   Your employer is correct that you would not be legally indemnified (at least by them) if you undertook this task. There is a notion called ‘vicarious liability’ that says an employer is liable for the negligence of an employee in the course of their employment. The event organizer is not approaching ambulance Victoria or entering an agreement with them so any paramedic doing this job is not acting as an employee of ambulance Victoria so any liability issues would have nothing to do with them.

Whether the event organizer would be liable for any negligence would depend on the nature of the agreement. If the organizer were employing the paramedics there is no issue, the organizer would be liable for any negligence by their employees. If however they are engaging the paramedics as ‘independent contractors’ (and it sounds like that is what is intended) then the paramedics are providing a service to the organizer and would be liable for any alleged negligence.

Do I think you would be covered by the Good Samaritan Act? No I do not. The good Samaritan provisions (Wrongs Act 1958 (Vic) ss 31A-31D) says:

A good samaritan is an individual who provides assistance, advice or care to another person in relation to an emergency or accident in circumstances in which—

(a)     he or she expects no money or other financial reward for providing the assistance, advice or care; and

(b)     as a result of the emergency or accident the person to whom, or in relation to whom, the assistance, advice or care is provided is at risk of death or injury, is injured, is apparently at risk of death or injury, or is apparently injured.

They go on to say that

A good samaritan is not liable in any civil proceeding for anything done, or not done, by him or her in good faith—

(a)     in providing assistance, advice or care at the scene of the emergency or accident…

Arguably as a volunteer you meet that definition but that is not the sort of person that the Act is intended to cover. These provisions were intended to cover people who might refuse to assist at a sudden accident for fear of legal liability; the section is meant to put their mind at ease.   By setting yourself up as professionals ready and willing to provide assistance, particularly to a sport that may not be able to proceed without paramedic assistance, you are not, I suggesting acting as good Samaritans.   Rather you are doing the task for a reward even if that reward is not payment, it is clearly a ‘job’ that is providing some reward even if it is just the fun of going, the professional challenge and the ‘something different’.   Whilst the matter is arguable I think a court would have no trouble holding that you are not a good Samaritan.

You may be protected by the volunteer protection provisions that say ‘A volunteer is not liable in any civil proceeding for anything done, or not done, in good faith by him or her in providing a service in relation to community work organised by a community organisation’ (Wrongs Act 1958 (Vic) s 37). This begs the question of whether ‘a large international motorcycle company’ organizing week long events, presumably for profit, is a community organization. I doubt that it is. Even if it is whether you are volunteering for that organization, or providing a service to it, would depend on the exact terms of the agreement.

My answer to the first question is, in short yes, you should have professional indemnity insurance if you can find anyone that offers such insurance. The problem is that there is no real expectation of private paramedic practice so I would anticipate there would be few insurers who would offer such insurance.

As for skill level, you can do whatever you like provided there is no law against it and it’s got nothing to do with your employer. If you have oxygen, a defibrillator, intubation kit etc you can use them all, but at your risk. The restricted practice is in relation to the use of scheduled drugs. As a Victorian Paramedic the right to carry Schedule 4 and 8 drugs is limited to an ‘operational staff member within the meaning of the Ambulance Services Act 1986’ (Drugs, Poisons and Controlled Substances Regulations 2006 (Vic) reg 5). Given that the anticipated work is with the motorcycle organization and not Ambulance Victoria, that right would not transfer, that is without a personal authorization, or an authorization held by the ‘large international motorcycle company’ you could not carry or use any scheduled drugs.

It is not the place of this blog to provide legal advice but even so, one should note that there is a growing private ambulance profession. A commercial entity seeking to provide motor sports, that I would imagine actually require on site health facilities, should be engaging professional services to ensure that the legal entity of the contracting party is clear, that the terms of the agreement set out who is responsible for what and to provide relevant legal authority for paramedics to practice with the drugs that are part of the tools of their profession.   Approaching paramedics employed by Ambulance Victoria may get experienced staff but the details of who is responsible for what, whether the paramedics are working for, or providing a service to the organizer would be unclear.   Participants in the race would expect a certain level of professional service and probably equipment so one would have to ask who is going to provide on site ambulances, first aid kits, resuscitation kits etc.     What are the medical plans and who is expected to write them? What are the plans to evacuate injured riders from remote areas etc.

These matters may all be addressed in the terms of the offer, but I suggest getting involved in such matters should be left to entities that have set themselves up as being able to provide these services, not recruiting a number of ambulance Victoria employees on an ad hoc basis.

Liability for dangers trees

In Negligence on April 28, 2015 at 3:26 pm

This question comes from a correspondent on the NSW Central Coast:

i would like to find out the responsibility of councils regarding trees that cannot be removed but poses a danger to people or properties. Can council be sued if a tree say destroys property. If not why should council have the power to punish those who cut trees yet they cannot be liable for damage caused by the same trees.

Local governments are indeed governments; they are not the same as individuals Graham Barclay Oysters v Ryan (2002) 211 CLR 540). Councils have the power to make tree preservation orders under various Local Environment Plans under the Environment Planning and Assessment Act 1979 (NSW). They have the power to do that as the preservation of trees may be in the public interest even if they are not in a person’s individual interest.

The real issue in this question is, I would suggest, a dispute as to whether or not the trees are dangerous? Another critical question is ‘who owns the tree?’

If the tree is a council tree and the risk is to a neighbouring property, then council would be liable, like anyone, if it failed to take reasonable care of its trees. That does not mean council has to know the up-to-the-minute state of every tree, but it would, ideally, have some sort of inspection program and a policy regarding tree replacement given the type of trees and their expected life span.

If a neighbour thinks the tree is unsafe they should let council know which would put them on notice of a problem and would, one might expect, cause them to at least arrange an inspection.

If the tree is a private tree and the person wants to remove it but is prohibited, the question is ‘are they really prohibited?’ If there is a tree preservation order in place it will provide a means to apply for permission to remove the tree. If one were to make an application one would need to support it with evidence, ideally from an arborist, that the tree is indeed, unsafe.

In Timbs v Shoalhaven City Council [2004] NSWCA 81 a council was liable for failing to properly consider a request to remove trees that were dangerous. The issue arose because a council employee, when asked if trees could be removed, did not advise the homeowner to make an application, rather he said that the trees could not be removed without permission (which was true). By not giving correct advice or taking steps to inspect the trees the employee was negligent. If, however an application had been made, the trees had been competently inspected and a decision made, in good faith, not to allow the removal of the trees there would have been no liability even if the tree had fallen in the wind.

Liability does not arise because of bad consequences but because of a failure to take reasonable care. One might assess a risk as very low and not take action, but even a low risk can occur so the fact that it does occur does not show that the assessment was wrong, or that other action should have been taken.

Australian Emergency Law heads overseas          

In Uncategorized on April 26, 2015 at 1:46 am

Well not so much the blog, as the blogger.   For the next month I will be in the United States asking questions about post-event learning to inform research that colleagues and I are undertaking with the support of the Bushfire and Natural Hazards Cooperative Research Centre (http://www.bnhcrc.com.au).

My trip begins with a week in Sacramento taking part in a course on ‘Learning from Unintended Consequences’ run by the National Advanced Fire and Resource Institute (www.nafri.gov).   This course will explore Facilitated Learning Analysis (FLA). In the FLA Implementation Guide, part of my pre-course reading, they say:

How an agency responds to an accident is enormously important. The leaders’ responses will either vector the agency toward a Learning Culture or away from it. If the leadership assumes the accident happened because someone failed to do something right, then the natural response is to determine (in dazzling hindsight) what rules or protocols were broken. We can then identify (or blame) the rule breaker and return the system to safety. All that’s needed are better rules or better compliance. End of story—until the next accident.

Alternatively, leaders can see that while accidents are very rare, risk is ever present. It is ubiquitous. … Understanding this, progressive leaders can treat accidents and other unintended outcomes as precious opportunities to look deeply into the operation to better understand how employees perceive and manage risk. This view enables deep learning and with it, an accident can become a safe opportunity for those involved to share their story.

This course will involve learning how to implement FLA and encourage people to ‘share their story’.   This process can be used in what might be considered traditional accidents and near misses but can it applied at a larger scale, when all of community is involved? Is there a method here that can be applied to large scale events such as Victoria 2009 or Coonabarabran 2013?   Apart from taking part in the course I hope to have the chance to talk with the presenters and other participants on their experience in post event learning.

For a very different change of pace, I travel from there to Monterey to the 9th Annual Wildland Fire Litigation Conference. (http://www.wildlandfirelitigation.com/) This conference is intended to bring lawyers who act for both plaintiffs and defendants together to build their mutual understanding of relevant issues, science and evidence in order to help ensure litigation is more efficient and focussed on relevant issues. I do expect to get a very different view on post-event learning from the participants there.   As I am a lawyer, though, this conference will be with my professional peers and I’m honoured to give the opening key-note address on the litigation from the Victorian 2009 bushfires.

After that I will be in Tucson to spend a week visiting the Widland Fire Lessons Learned Centre (http://www.wildfirelessons.net/home) to discuss their role in ensuring lessons are shared with the wildland fire community. Again I am interested in exploring whether there is a model there that may be useful in Australia but not only to identify lessons from, and for, firefighters, but also for the whole community.

I then travel to Berkeley to spend a week visiting the Center for Law, Energy & the Environment where a number of scholars with an interest in law and disaster management are working.   Some family time will be followed by a two day workshop at Stanford University looking at the question ‘‘How Can International Environmental Law Reduce Disaster Risks?’

I’ll be back in Australia on 24 May after a month away; but if that’s not enough, two weeks later I’m off to Rome for an ‘Experts Meeting on the International Law Commission’s Draft Articles on the Protection of Persons in the Event of Disasters’ where I’m privileged to be counted among one of the experts.

After that workshop I will be a guest of the University of Bologna’s International Disaster Law project (http://disasterlaw.sssup.it/about-us/project-overview/) where my colleague, Federico Casolari (http://disasterlaw.sssup.it/the-team/unibo/federico-casolari/) is organising a forum on regional cooperation in disaster management.   International law says that fundamental responsibility for disaster management lies with the affected state, and there has been pressure for a universal, multi-national law similar to the Geneva Conventions with their universal application in times of war. This forum will, I anticipate, explore the role of the middle ground, between nation states and the collective world community to consider how regional cooperation can enhance disaster management.

After that there is one more trip when, in July, I’ll be travelling to New Zealand to address the Forest and Rural Fires Association (http://www.frfanz.org.nz/) Annual Conference.

Apart from these international engagements there’s also the Emergency Media and Public Affairs (EMPA) Conference in Sydney (http://www.empa.org.au/site/conferences_aus.htm) and the Australian Fire and Emergency Services Authorities (AFAC) and Bushfire and Natural Hazards CRC conference in Adelaide in September (http://www.afac.com.au/events/conference2015/home).

That’s a lot of travel but I do hope that what I learn, and what I can share, helps the emergency service community, and the community generally, to help manage emergencies and in context of our current research, manage the post-event learning.

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