M. Eburn

Releasing submissions to a public inquiry

In Legislation and plans on July 23, 2016 at 7:15 pm

This question relates to a review of the South Australian Emergency services legislation.  My correspondent writes:

In July 2014 the South Australian Government announced a reform to the emergency services. In August 2014 the South Australian Fire and Emergency Commission took submissions on proposed structures and opinions on the Sector Reform and had contacted writers of submissions to seek approval to make publicly available published pieces, therefore does SAFECOM have a responsibility to ensure every submission is publicly available if they have requested it to be made available to the public?

The South Australian government did commission a review of the emergency services legislation (Hon. Paul Holloway BSc, BEc, BE (Hons), Review of the Fire and Emergency Services Act 2005 Pursuant to Section 149 of the Fire and Emergency Services Act (August 2013).   Following that the Minister called for emergency services sector reform (see SAFECOM, Emergency Services Sector Reform.  This lead to a further discussion paper – A SAFER Community: Discussion paper (September 2014).  That paper concluded wth this invitation:

The Honourable Tony Piccolo MP, Minister for Emergency Services would welcome your comments on the discussion paper, in particular on the proposed structure outlined in figure 3.

Comments, in writing, were required by 5pm Friday, 24 October 2014.

SAFECOM has published some of the received submissions (see Emergency Services Reform Submissions).  That page says:

Below are the submissions to the discussion paper, A SAFER Community, released in September 2014.

Authors of the submissions have been contacted and their identifying details removed (if they have requested it).  Not all authors wished to have their submission provided publicly.

My correspondent’s question implies that some people were contacted and indicated that they wanted their submission to be provided publicly, but those submissions have not been released.  Is there any legal obligation to put those submissions on this paper?

Discussion

I can’t think of any particular obligation.  The inquiry was not conducted under any particular legislation.  Governments are entitled to make enquiries into issues where they need information – they don’t need particular legislative authority to do so if all they are doing is calling for submissions.

I can see nothing in the Freedom of Information Act 1991 (SA) or the Constitution Act 1934 (SA) that would require the release of all submissions and I can imagine that a government would want to withhold submissions that were regarded as defamatory or offensive.

But there is an issue here.  If a government only releases some submissions then the community could be misled.  If for example the government only released submissions that supported a particular view they may claim, and others may believe, that there were no alternative views.  Not only would that be misleading it would be poor governance.

I anticipate that if a report was released that did for example claim that 100% of submissions supported proposition ‘A’ and the government simply hid alternative submissions, that a person could seek judicial review to have the report set aside.  Further the political implications would be disastrous.

The area of law we are talking about here is administrative law – not what I would call ‘emergency services’ law – so it’s not an area that I am completely over, so if other lawyers out there have an alternative view I’d be pleased to hear it. But my initial view is that there is no obligation ‘to ensure every submission is publicly available’.   I can see that there is a responsibility to do so and certainly if some have been omitted just by accident or oversight – but a legal obligation is harder to find.

 

Liability of volunteer members of a Victorian community resilience committee

In Legislation and plans, litigation, Negligence on July 23, 2016 at 3:29 pm

A member of a local community resilience committee in Victoria writes:

I am one of a number of community members of a community resilience committee (CRC) established by the local council in conjunction with Emergency Management Victoria.  8 community members were appointed to the CRC and we are awaiting confirmation that the appointments were formally approved by council.

As the activities of the CRC have increased with the recovery & reconstruction programs now underway, we have looked critically at our legal status as volunteers, and the potential personal liability issues associated with our participation.

We see the principal role of the community members is informing, identifying, providing local knowledge and feedback etc, rather than approving/executing projects or committing expenditure; but the CRC’s purpose includes supporting principles of accountability and good governance, with specific responsibility to “ensure actions are flexible and responsive to emerging community needs…”.  While the risk of direct legal action may be low, there may be disaffected property owners who react hostilely to decisions and/or restrictions imposed by council or other agencies on re-building and other measures, and the role or advocacy of community members of the CRC may be called into question. We don’t put it too highly, but small, relatively isolated communities can have very strong and divergent views, especially where self-interest and personal property assets are in play…

We have noted the volunteer provisions of the Victorian Wrongs Act, and specifically section 37.  We have also been advised (informally at this stage) that we are covered by the volunteer emergency worker provisions of the Emergency Management Act.

I appreciate that you do not offer or provide legal advice but would appreciate any comments you have on the respective merits of immunity under the EMA and what seems to be the more expansive protection of the Wrongs Act, and how this might be formally confirmed.

The creation of community resilience committees was a recommendation of the Review of the 2010–11 Flood Warnings & Response (2011).  The flood review recommended (recommendation 93; emphasis added) that:

… the state comprehensively pursue the objective of achieving (where possible) the priority outcomes of the National Strategy for Disaster Resilience and the imperative of shared responsibility, in particular by:

  • requiring that local knowledge is considered as a critical component of all phases of emergency management
  • involving local communities in the development and ownership of community resilience plans based on an ‘all hazards’ approach and tailored for the specific needs of each community
  • encouraging local communities to form resilience committees to develop and administer community resilience plans
  • nominating Victoria Police as the lead agency in initiating the strategy to develop community resilience committees; and
  • requiring emergency service agencies to consult and engage with local community resilience committees in the preparation, planning, response and recovery phases of emergency management.

The development of community resilience committees appears to be part of the Community Resilience Framework identified by Emergency Management Victoria.    Two of the objectives of the Victorian Strategic Framework to Strengthen Victoria’s Social Cohesion and the Resilience of its Communities (2015) are:

  1.  Empower communities … to build community resilience to prevent violent extremism.
  2. Develop our understanding of the driving factors that strengthen or undermine social cohesion and community resilience.

No doubt the development of community resilience committees is part of the work to achieve those objectives, however the committees are not provided for in either the Emergency Management Act 1986 (Vic) or the Emergency Management Act 2013 (Vic).  Other than in the title of the State Crisis and Resilience Council (Emergency Management Act 2013 (Vic), Part 2) resilience is not mentioned in either Act.

As my correspondent has noted, the “role of the community members is informing, identifying, providing local knowledge and feedback etc, rather than approving/executing projects or committing expenditure”.    Given that role it is hard to see how issues of ‘personal liability’ could ever arise?  What is the committee doing that they could be liable for?  Even if there are ‘disaffected property owners who react hostilely to decisions and/or restrictions imposed by council or other agencies …’ it is indeed those agencies that are the decision makers.    If one questioned ‘the role or advocacy of community members of the CRC’ I suppose there could be some sort of administrative attempt to perhaps get the members removed if they were failing to perform their duties, but that seems pretty far fetched.

In any event, who ‘owns’ the Committee?  The Flood Review recommendation was that Victoria Police would take the lead in developing community resilience committees but my correspondent says the committee has been formed by the local council and that the members’ appointments require confirmation by the council. If it’s a committee of council, then it follows that if there is any liability for the processes of the committee it must belong to the council.

The problem with asking questions in the abstract is that the answer must also be abstract.  I just can’t think of any circumstances, malice and fraud excepted, where a member of the community resilience committee could be personally liable to anyone for anything they do.  If there was a specific scenario put to me one could consider issues of whether or not there was a duty of care and whether or not the committee’s actions were reasonable and whether or not it was the committee that was the cause of any harm.    In the absence of some specific scenario where it was thought that liability could arise the answers must be necessarily general.

But let us look at the law.  The ‘volunteer emergency worker provision of the Emergency Management Act’ 1986 (Vic) s 37 says:

A volunteer emergency worker is not personally liable in respect of any loss or injury sustained by any other person as a result of the engagement of the volunteer emergency worker in emergency activity unless the loss or injury is caused by the negligence or wilful default of that worker.

A “volunteer emergency worker” is ‘a volunteer worker who engages in emergency activity at the request (whether directly or indirectly) or with the express or implied consent of the chief executive (however designated), or of a person acting with the authority of the chief executive, of an agency to which the state emergency response plan or the state emergency recovery plan applies’.  An ‘emergency activity’ is ‘”emergency activity” ‘performing a role or discharging a responsibility of an agency in accordance with the state emergency response plan or the state emergency recovery plan’ (Emergency Management Act 1986 (Vic) s 4).

The community resilience committees are not mentioned in either the State Emergency Response Plan or the State Emergency Relief and Recovery Plan.  Further it is clear that the role of the committee, whilst focused on building resilience to an emergency or hazard, are not working in emergency circumstances.    The terms of reference of the particular committee that my correspondent belongs to makes no mention of either the 1986 or 2013 Act.   Without going through every chapter and verse of the Emergency Management Manual Victoria and the Community Recovery Handbook it seems implausible to suggest that the members of the Committee are ‘emergency workers’ for the purposes of the Emergency Management Act 1986 (Vic).

The Wrongs Act 1958 (Vic) s 37(1) says:

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.

Community work is defined in s 36 and includes work done ‘for the purpose of promoting the common interests of the community generally or of a particular section of the community’.  I would have no doubt that the work of the Committee is ‘community work’.

If that is the case, then the Wrongs Act provides the necessary legal protection.  The Act goes on to say (s 37(2)) ‘Any liability resulting from an act or omission that would but for subsection (1) attach to the volunteer attaches instead to the community organisation’ which can include a council (s 34).  So if there is any liability, it belongs to the council that established the committee.

It should be noted that volunteer members of the emergency services (the Country Fire Authority, Victoria SES and a ‘volunteer emergency worker within the meaning of the Emergency Management Act 1986’) are not ‘volunteers’ for the purposes of the Wrongs Act.  This ensures that their legal protection is provided by the emergency services legislation and avoids confusing arguments about whether the scope of one protection is different to the other.  So a member of the community resilience committee, if they have legal protection, have it from EITHER the Wrongs Act or the Emergency Management Act – but they can’t rely on both.  In my view they are not a ‘volunteer emergency worker within the meaning of the Emergency Management Act 1986’ so their legal protection is provided by the Wrongs Act 1958 (Vic).

Conclusion

I just can’t imagine any scenario, fraud and malice excepted, where liability could be an issue.  In my view, if such a situation could be thought of, the members of the committee would enjoy the legal protection provided by the Wrongs Act 1958 (Vic).  In my opinion they are not volunteer emergency workers within the meaning of the Emergency Management Act 1986 (Vic) so the liability protection provision in that Act (s 37) will have no application.

There is of course no way that any of these can be ‘formally confirmed’.  Even if a minister or the Crown Solicitor gave an opinion that either the Wrongs Act or the Emergency Management Act applied, or didn’t apply, that is just an opinion.  Resolution of the question would require someone to sue and an argument in court, and a formal ruling from a judge.  It is the courts that determine questions of law.  Given I can’t see any situation where the members will be sued, I expect this will remain, forever a question of hypothetical interest only.

Authority to expedite between hospitals

In Ambulance, Driving and Road Rules on July 23, 2016 at 1:49 pm

This question comes from a NSW paramedic who is concerned about:

A treating doctor requesting lights and sirens transfer of a patient from one hospital to another for definitive care. The reason for the urgency is (ideally) based on the patient’s condition. Many of our hospital colleagues are not aware of the skills and procedures we have at our disposal and this can sometimes influence their request for urgent transport. And sometimes, it’s just because.  In the event of the reasons being other than patient based, I would like to ensure that the paramedic has the legal authority (indeed, the responsibility!) to make the decision to drive under normal conditions.

Our circulars just refer us to the Australian Road Rules and Traffic Act 1909.  I am led to believe that the paramedic cannot be instructed to expedite by an external party when it’s not essentially required, but I can’t find it. On the assumption that “it” actually exists of course!

It’s a worry if the circulars that are given to my correspondent refer to the Traffic Act 1909 (NSW).  This Act was repealed on 30 November 1999!

This question does raise issues that I have addressed, in different contexts, in:

We’re never going to find a rule that says ‘a paramedic cannot be instructed to expedite by an external party’.  No-one can instruct anyone to do anything unless the person giving the instruction has some lawful authority.  For a third party to be able to instruct a paramedic you would need a rule saying that the third party had authority, not a rule saying that they do not.  So ‘it’ –  a rule ‘that the paramedic cannot be instructed to expedite by an external party when it’s not essentially required’ will not exist.

So let us look at the rules.  We know that rule 306 of the Australian Road Rules (incorporated into NSW law by the Road Rules 2014 (NSW)) provides an exemption from the other road rules where it is ‘reasonable’.  We also know that the rules don’t specifically say who gets to decide whether or not it is reasonable in the particular circumstances.  That is because it is ultimately, up to a court.  If the rule said that it was the driver, or the services opinion that counted, then that decision could not be challenged. By saying that rule 306 applies in circumstances where ‘the driver is taking reasonable care’ and ‘it is reasonable that the rule should not apply’ the final arbiter in any given case is the court (see Road traffic exemption – Who determines if it is reasonable that the provision should not apply? (May 22, 2016)).

To revisit the question – what is really being asked is ‘is it reasonable that the other road rules should not apply – or that rule 306 should apply – because a doctor has indicated that the need for patient transfer is urgent?’  The answer has to be ‘no; that on its own is not sufficient’.

First the doctor may be expert in assessing the patient’s condition and the need for transfer to definitive care but he or she is not an expert on driving and in particular on the road conditions that are applying at the very time that the transfer is occurring.  So, for example, the doctor might say I want a ‘lights and siren’ response but that will be irrelevant if the driver finds themselves stuck in traffic due to a protest.  The doctor can’t say ‘just run those people over because I want this transfer to be urgent’ – the doctor can want what he or she wants but that doesn’t mean it can be provided.  Whether it’s a risk to pedestrians or other drivers, the driver of the ambulance has to balance all those factors to determine what ‘urgent’ means.

We are reminded that an ambulance is not a taxi – and paramedics need to believe that.

taxi

If it is believed that a doctor can direct the paramedic how to drive, or when to use lights and sirens, that’s behaving more like a taxi service, not a professional health care service; see Transport everyone or act as a professional? A question for paramedics (May 6, 2013) (and even with a taxi, the passenger can’t tell the driver how to drive).

In Transporting a Queensland prisoner by ambulance – and stopping at an accident (July 1, 2016) I said:

As for the prison guard’s instructions, the prison service doesn’t own the ambulance and the ambulance crew aren’t subject to the prison guard’s direction and control. It is not for the prison guard to tell the driver of an ambulance what he or she is ‘permitted’ to do.  Imagine, if you will, you are transporting a person to hospital ‘for medical review and treatment’ and you are involved in or observe an accident where someone is injured.  Would you allow the patient’s family to tell you ‘you are not permitted to stop’ because they think their family member’s needs, or worse, their own needs are more important?  The answer is ‘no’ and the prison guards are in the same position.   It’s not like a taxi service where having hired the taxi I can say whether or not the taxi driver can take on a multiple hire (Transport Operations (Passenger Transport) Regulation 2005 (Qld) s 66) so I can’t tell a paramedic not to treat an injured person because I, or my loved one, or my prisoner, got into the ambulance first.  And if I hire a taxi, I can’t tell the driver to keep going after he or she has been involved in an accident because me getting to where I want to go is more important than the needs of the injured.  The guards are there to secure the prisoner not tell the paramedics how to treat them or how to drive.  If the prison service wants to give those sort of directions it should buy its own ambulance and employ its own paramedics, but even then the prison service couldn’t give instructions to ignore the provisions of the Transport Operations (Road Use Management) Act.

A similar statement can be made here.  As for the doctor’s instructions, the doctor or health service doesn’t own the ambulance and the ambulance crew aren’t subject to the doctor’s direction and control. It is not for the doctor to tell the driver of an ambulance what he or she is ‘permitted’ or required to do. If the health service wants to give those sort of directions it should buy its own ambulance and employ its own paramedics.

As I said in Road traffic exemption – Who determines if it is reasonable that the provision should not apply? (May 22, 2016):

Where does the caller, whether it’s a citizen who calls triple zero or a doctor fit into that list?  The answer is ‘they don’t; they don’t get to decide what response is required’.    This goes back to my first decision maker, the relevant service. They should have a policy and it may be that they have a policy that a doctor can request an ambulance and if the doctor says the request is ‘urgent’ then the ambulance service will direct its officer to ‘respond’ with lights and sirens. But it’s the service, not the doctor that is making that decision.    If a doctor is travelling with the patient and paramedics and expresses the view that the urgent nature of the patient’s condition requires an expedited response, he or she can ask for that to happen, but the doctor cannot direct the driver as to how to drive or to ‘turn on the lights and sirens’.

And if the reason for the request is ‘other than patient based’ then it can’t be the case that it is reasonable for r 306 to apply.

Conclusion

A doctor can request an urgent response but cannot require it.  One can’t find a rule that says that – but if the law was that a doctor can require an urgent response there would have to be a rule to gives that authority to the doctor; and there isn’t one.  Rule 306 does not say it applies ‘when a doctor says it does’; it says it applies when it is reasonable in the circumstances.  The doctor’s request is only one of those circumstances as is the patient’s need, the care that the paramedics can provide en route, the traffic conditions and the need to take care to avoid harming other road users and the patient.

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