M. Eburn

What can a non-state employed paramedic do?

In Ambulance on April 28, 2016 at 3:19 pm

Here’s a quick question, and a quick answer:

I am a paramedic in the private space (Events/Industrial etc).  And would like some advice on what skills we can perform outside a state service.  Are you able to advise on these, either in the blog or paid for.

Paramedicine is an unregulated industry.  You can do whatever you are competent to do.  The only restrictions involves scheduled drugs and that depends on the authority granted to you or your employer.    If the quality of treatment isn’t ‘reasonable’ or if the treatment isn’t ‘reasonably required in the circumstances’ there may be liability in negligence but there is no law that says what paramedics may or may not do; and in states other than South Australia, Tasmania and New South Wales, there is no law on who is a ‘paramedic’.

As noted in the ‘about’ page (https://emergencylaw.wordpress.com/about-2/) ‘This is not a place for providing specific legal advice…’ so that is a general proposition.  If you do want advice on what particular paramedics, with particular skills sets can do when working for a particular provider with reference to their training documents and authorities, then that is advice you have to pay for.   Always happy to discuss that too.

Fatigue management for volunteers with QAS

In Ambulance, OHS on April 26, 2016 at 9:47 pm

As we know, Australia’s emergency services depend on volunteers.  Volunteers may respond after a day’s work and spend many hours in the field.   Fatigue management has become an important issue in the emergency services but it can have implications on service provision as suggested by my correspondent, a community first responder with the Queensland Ambulance Service.

I’m hoping you are able to provide your opinion regarding a recent imposition of a maximum “10 days in 14” On call constraint by the Queensland Ambulance Service (QAS) imposed on volunteer QAS Community First Responders (FRs) to manage fatigue.

My understanding, from my correspondent, is that QAS has introduced a policy that volunteers must have ‘at least 4 continuous days of no On Call duty in every 14-day period (“10 days in 14”)’.  Further ‘The QAS asserted that this is in accordance with “QAS Operating Procedures” (specifically the QAS First Responder Policy 2007), the Ambulance Service Employees’ Award – State 2012 (“Award”) clause 6.1.5 and the Queensland Ambulance Service – Determination 2013 (“Determination”) Part 4 s19 (g) which specify that “no employee will be placed on-call for more than 10 Days in a continuous 2 week period”.  My correspondent further says

My interpretation is that First Responders are not covered by either the Award or the Determination, and the QAS using these as the argument to impose the “10 days in 14” policy is therefore flawed.

Specifically, my questions are:

  1. What legal constraints (including industrial relations laws, duty of care) can be applied to volunteer emergency workers (specifically QAS volunteer First Responders) that limit the hours that a volunteer can be available On Call to respond to emergency calls?
  2. Are there any ‘best practice’ methods of managing emergency services volunteers fatigue in an environment similar to that described in this paper?
  3. Are there enforced ‘on call’ constraints applied to other volunteer 24×7 emergency services (eg rural firefighters) in Queensland or other states?
  4. Ultimately the QAS can simply direct FRs to follow the 10 days in 14 constraint, however would this stand up to community, public, media, legal or coronial scrutiny (and the Queensland “Courier Mail” test) if the resultant reduction in FR coverage contributed to a poor patient outcome?
  1. What legal constraints (including industrial relations laws, duty of care) can be applied to volunteer emergency workers (specifically QAS volunteer First Responders) that limit the hours that a volunteer can be available On Call to respond to emergency calls?

Critically the legislation is the Ambulance Services Act 1991 (Qld) and the Work Health and Safety Act 2011 (Qld).

I’m told that ‘QAS first responder volunteers are classified as honorary ambulance officers under section 14(1) of the Ambulance Service Act 1991’.   That section says:

(1) The commissioner may appoint such persons as the commissioner considers appropriate to be honorary ambulance officers.

(2) Honorary ambulance officers—

(a) may carry out, without remuneration, such of the functions of the service as the commissioner may direct; and

(b) are subject to the control and supervision of the commissioner.

The Work Health and Safety Act 2011 (Qld) says at s 19 that ‘A person conducting a business or undertaking [a PCBU] must ensure, so far as is reasonably practicable, the health and safety of’ workers.  The definition of ‘worker’ includes ‘a volunteer’ (s 7).  The fact that a person is a ‘worker’ for the purposes of the Work Health and Safety Act does not make him or her an employee for other purposes.

Fatigue is an important issue for both employees and volunteers in the emergency services – see for example Bushfire CRC, Awake, smoky and hot; Safe Work Australia Guide for Managing the Risk of Fatigue at Work; Queensland  State Emergency Service Fatigue Management and Duty Time Limitations; NSW Rural Fire Service Service Standard 3.1.14 Fatigue Management; NSW Health Fatigue – Preventing & Managing Work Related Fatigue: Guidelines for the NSW Public Health System.

What follows is that a service like QAS has to undertake its own risk assessments and develop control methods to minimise those risks. One of the risks is danger caused by fatigue.  Further the duty to manage to fatigue applies whether the person is an employee or a volunteer.

As noted an honorary officer is ‘subject to the control and supervision of the commissioner’.

It follows that the Commissioner can develop policies to meet the Ambulance Service’s obligations to ensure worker health and safety and honorary ambulance officers are required to comply with those policies.

  1. Are there any ‘best practice’ methods of managing emergency services volunteers fatigue in an environment similar to that described in this paper?

I am a lawyer not an expert on fatigue management.  What I would suggest, however, is that there are no doubt a number of approaches that could be adopted.  As the Work Health and Safety Act says a PCBU must manage a risk via a risk assessment that includes ‘the availability and suitability of ways to eliminate or minimise the risk’ (s 18(d)).  For all risks there is more than one way to manage that risk that has to take into account the context of the operations.

  1. Are there enforced ‘on call’ constraints applied to other volunteer 24×7 emergency services (eg rural firefighters) in Queensland or other states?

I do not know.

  1. Ultimately the QAS can simply direct FRs to follow the 10 days in 14 constraint, however would this stand up to community, public, media, legal or coronial scrutiny (and the Queensland “Courier Mail” test) if the resultant reduction in FR coverage contributed to a poor patient outcome?

It’s true, ‘QAS can simply direct FRs to follow the 10 days in 14’ roster.  Would this stand up to public scrutiny?  I suspect it would.  My correspondent says:

The “10 days in 14” On call constraint has reduced the availability of FRs to be on call by 30%, potentially reducing the response capability of the group (and therefore impacting service delivery capability of the QAS). The constraint does not manage fatigue … and seems to have no purpose other than “tick the box” for QAS. I would argue that reducing First Responder availability without good reason fails to support the QAS Mission and at least two of the strategic objectives for the QAS.

Even if that’s correct attributing any poor outcome, eg a delayed response, to a particular policy would be difficult.  If a coroner was investigating ambulance response times then there may be questions asked, but being asked questions does not mean that there are no acceptable answers.  QAS would rightly say it did have to manage its workforce, including volunteers, and take into account fatigue issues.

The issue will be whether or not QAS have reasons for the implementation of this policy; it does not matter that there are other policy options or some would argue that a different policy would be better.  Provided that QAS can point to reasons behind their policy and their choices, then their choice is open to them (see the discussion on Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and the concept of ‘Wednesbury unreasonableness’ discussed in A Question on the ACT Emergency Services Authority Volunteer Charter (April 14, 2016)).

Whether it would stand up to the Courier Mail depends on how they want to paint it.  If a patient dies and the press want to blame the ambulance service, then no doubt the policy will be subject to criticism.  Equally if a fatigued paramedic dies in a car accident then again the approach will be blamed.  But that’s true no matter what policy is.  When someone dies, the press can always paint a picture to blame whoever they want and blaming government is always more attractive than blaming the patient or the paramedic, or simply recognising that life is not risk free.

Conclusion

I am a lawyer and my blog is on legal issues.  I do not know what best practice of fatigue management is but I can confirm that:

  1. QAS has an obligation to manage fatigue issues for workers, which includes paid staff and volunteers.
  2. How they do that is a matter, ultimately for the Commissioner. There are, no doubt a number of options or approaches that could be adopted, provided the policy is not ‘so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions’ (Civil Liability Act 2002 (Qld) s 36(2)) then it’s a legitimate exercise of their authority.
  3. If a member, such as my correspondent, thinks that the policy is less than ideal the only approach is to advocate for change. There is no legal rule that one can point to to say that the policy is indefensible.

POSTSCRIPT

Following my post my correspondent has asked some follow up/clarification questions:

I was hoping that your analysis would validate some of my opinions, including that the Ambulance Service Employees’ Award – State 2012 (“Award”) and the Queensland Ambulance Service – Determination 2013 (“Determination”) don’t apply to volunteers (only paid employees); that even if it did, the 10 in 14 approach doesn’t work in the volunteer FR scenario where we don’t also ‘work’ fulltime rostered shifts like paramedics.

The Ambulance Service Employees’ Award – State 2012 says at cl 6.1.5 ‘No Employee shall be placed on emergency availability and/or continuous stand-by for more than 10 days in any continuous 2 week period’.  The Queensland Ambulance Service – Determination 2013  cl 19(g) says ‘No employee will be placed on-call for more than 10 days in any continuous two week period’.  There is no doubt that these documents do not apply to volunteers, they are referring to employees and as noted, just because a  volunteer is a ‘worker’ for the purposes of the Work Health and Safety Act, it does not make them an employee for other purposes (see What does it mean to be a ‘worker’ (February 19, 2015)).    So QAS does not have to impose the same limitations on its volunteers, but it doesn’t mean that it can’t do so.  The QAS can determine a policy on fatigue management for its honorary officers and if it chooses to implement the same measures as for its paid staff then that is an option that is open to it.

As for whether the ‘10 in 14 approach doesn’t work in the volunteer FR scenario where we don’t also ‘work’ fulltime rostered shifts like paramedics’. My correspondent says that the application of this policy is out of context as the Award and the Determination are dealing with the situation where paramedics have worked a normal roster and are then ‘on call’ but first responders have not worked a prior roster with QAS.  That may be true but many First Responder’s will have done a days’ work at their normal job or been playing sport, or doing home maintenance or doing any number of things before being ‘called out’.   It is an issue with all volunteer emergency services, they ask volunteers to turn out after having done a full days’ work, albeit not for the emergency services so they can’t know or control what volunteers do before they call upon them to respond.  As a result all the agencies have to consider fatigue issues balanced against the demands of the task and the inherent nature of volunteering, that volunteering is on top of work and other commitments.

If I can step out of my area of expertise to give a personal anecdote: When I was in an accredited rescue unit, I found just being ‘on call’ disrupted sleep and added fatigue, even if the pager did not go off!  The unit I was with tried to make arrangements where people were rostered 1st or 2nd on call, or ‘not on call’.    Those 1st on call were meant to respond, 2nd on call were available to relieve the first on call team should the job take a long time or to be available should a second incident arise.  The ‘not on call’ team were told they could have a complete night’s sleep, or a drink, knowing that they would not be called.  It was a good idea but difficult to implement.  Volunteers volunteer to do the job – and call outs were relatively infrequent so no-one was prepared to be put ‘off line’ and perhaps miss the only job for weeks or months.  When the pager went off, everyone who could showed up.

That may be the outcome of encouraging volunteers to manage their own fatigue and may be why an organisation like QAS might decide to implement a policy that directs people to stand down. That gives the Service both the authority and the obligation to monitor compliance and to not call members who have been on call for 10 days out of the last 14. That does not mean the 10/14 requirement is the best policy or that there are not alternatives that might work better both for response times or for individual members, but it is a policy option and provided the agency, in this case QAS, can show that it has actually considered the various issues and it has a reason for choosing this policy among the many other policy responses it could have chosen, then it is a ‘reasonable’ choice that would certainly stand up to legal scrutiny even if the community or the media thought it had reduced response times.

It should be noted that as volunteers are workers for the purposes of the Work Health and Safety Act 2011, QAS should have consulted with them before introducing this or some other fatigue management policy (see Work Health and Safety Act 2011 (Qld) ss 47-49) but as to what consult might mean see:

 

 

 

 

Outcome of Airservices Australia prosecution over fatal fire appliance accident

In Criminal law, Driving and Road Rules, Fire, OHS on April 24, 2016 at 11:06 am

On 7 August 2011 an airport fire appliance was travelling to assist the Northern Territory Fire and Rescue Services when it was involved in a fatal collision (see Airservices Australia to be prosecuted over fatal fire appliance accident in Darwin (January 14, 2015)).  At long last that prosecution has been resolved with Airservices Australia being fined $160 000 in the Federal Court of Australia (Kristy O’Brien ‘Fire truck operator ordered to pay $160k over 2011 Darwin crash that killed threeABC News (Online) 22 April 2016; and thank you Luke Dam for bringing this report to my attention).  (Interestingly the ABC Report says that the case was heard by Justice John Reeves, but if you go to the actual judgment, Comcare v Airservices Australia [2016] FCA 418, the judge is named as Justice White.  I’ll assume the transcript from the Court is correct.  References in [square brackets], below, are to numbered paragraphs in White J’s judgement).

In the Federal Court White J accepted that Airservices Australia breached its obligations both to its employees and to others ([1]-[2]) by:

a) failing to train, inform and instruct its employees appropriately in driving on public roads under emergency conditions; and

b) failing to conduct an appropriate risk assessment to identify and subsequently control hazards relating to the task of driving on public roads under emergency conditions.

It should be noted that Airservices Australia never denied its liability.  At [10] White J said:

Airservices admits its contraventions and acknowledges that Comcare is entitled to the relief which it seeks. It did this in the defence which it filed two weeks after the commencement of the proceedings and, therefore, at the earliest practical opportunity. Accordingly, this judgment concerns principally the penalty to be imposed on Airservices.

The Court made a declaration that the conduct of airservies Australia was a breach of the (then) OHS Act.  Such a declaration was required by the Act and had the effect of giving a public statement both to the defendant, and to others, that this conduct is a breach of the Act.  That sort of declaration is to give guidance to others as to what is, or is not, a breach.  The Court made the declaration but then had to consider whether a monetary penalty was also appropriate.  The maximum possible penalty was a fine of $242 000 ([19]-[21], [24]).  Because the defendant was a ‘body corporate’ ([7]-[8]) and not an individual, gaol was never an issue.   (The driver of the fire appliance had been charged with various traffic offences including proceeding through a red traffic light, dangerous driving and dangerous driving causing death but those charges were withdrawn by the Director of Public Prosecutions on 15 November 2012).

What is the point of imposing a fine?  White J (at [27]-[28]) referred to the decision of the High Court of Australia in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA.  In that case

… the plurality (French CJ, Kiefel, Bell, Nettle and Gordon JJ) made two observations concerning civil penalty regimes generally which are pertinent in the present context… The second is that the object of civil penalties is primarily to achieve deterrence. They seek to do so by putting a price on contraventions which is sufficiently high to deter repetition by the contravenor and by others who might be minded to contravene the particular regime in the same way: at [55]. Punishment and retribution are not the purpose of civil penalties …

This means that the penalty the Court imposes must be such as to deter Airservices from further contraventions of the OHS Act and serve as a signal to those in a similar position of the need to comply with their obligations under work, health and safety legislation.

In deciding the penalty the Judge had to weigh up how serious the contraventions by Airservices were, recalling that the contraventions were the failure to provide training, not the seriousness of the actual outcome.  At [51] White J said:

Airservices’ contraventions are objectively serious because it failed to recognise and act on what was plainly a reasonably foreseeable risk and one which, if realised, was capable of producing very grave consequences for its own employees and other road users

On the other hand there were a number of factors that operated in favour of Airservices Australia ([57]-[59]):

Airservices has expressed its sorrow and regret to the surviving victims and their families. It did so long ago and not just in the course of the submissions on penalty to this Court. It is evident that Airservices has conducted itself in relation to the surviving victims and their families with genuine compassion and sorrow. I note that a senior employee of Airservices made a public statement of apology and regret on its behalf at the Coroner’s inquest held in May 2013. It has repeated those statements in the submissions to this Court. I accept these statements as sincere. I note that Airservices has taken a number of steps to give effect to its contrition.

As noted earlier, Airservices admitted at the earlier opportunity the contraventions alleged by Comcare. This was consistent with its expressions of contrition and reflected a willingness to facilitate the course of justice in relation to its contraventions. This is a significant matter of mitigation and by itself warrants a significant reduction in the penalty which would otherwise be appropriate.

Since 7 August 2011, Airservices has addressed, conscientiously and diligently, the deficiencies in its training and risk assessments and has sought to identify any other shortcomings in its equipment and systems. In particular, it has undertaken itself, or has commissioned others to undertake, several investigations and reviews in respect of matters arising from the incident …

Airservices took other action as well. Shortly after 7 August 2011, it informed each State and Territory authority with which it had an MOU that it would not respond to any requests for assistance until it had addressed the issues arising from the incident of 7 August 2011 to its satisfaction. At the same time, Airservices issued an interim direction to all its employees requiring compliance with all road rules at all times, irrespective of whether they were driving on a public road under emergency conditions.

The Northern Territory Coroner conducted an inquest into the incident. Airservices cooperated responsibly and thoroughly with the inquest and has implemented many of the recommendations made by the Coroner in his report.

Airservices has acted in accordance with the recommendations in the reports and reviews it has commissioned… It has developed and implemented an enhanced driver training program involving both theoretical and practical elements which all drivers of its vehicles must undertake; and it has reviewed the configuration and profile of the Rosenbauer Mark 8 vehicles resulting in modifications to improve visibility and recognition, including by repainting all of its ARFFS vehicles a lime green colour.

Finally, I note that Airservices cooperated fully and frankly with all independent investigations concerning the incident on 7 August 2011. I respectfully agree with the following assessment made by the Northern Territory Coroner of Airservices’ response:

There is little doubt that Airservices Australia has responded to this tragedy in a thoughtful, thorough and determined way. The management of that organisation [has] been humble and willing to admit the mistakes that were made and the need for improvement. The gravity with which they view their task is reflected in the number of excellent and detailed reports commissioned on their behalf and then provided without hesitation to the inquest and interested parties.

Weighing everything in the balance, his honour imposed a fine of $160 000.

Comment

This was always a tragic case, and the law has to be applied, but I do wonder to what effect.  As noted by the High Court the point of the penalty is to deter future conduct.  Although I’m not a criminologist I think it can also be taken that deterrence or punishment is most effective if it is reasonably swift.  This fine has been imposed some 4 ½ years after the event. There is no doubt that Airservices Australia took on board the ‘lessons learned’ and have taken action to ensure it doesn’t happen again.  As the judge said (at [68]):

Airservices has responded to the incident of 7 August 2011 in a responsible and conscientious manner. It is not easy to identify what more it could have done by way of facing up to its responsibilities.

If there is not much more that it could have done, what further deterrence does a $160 000 fine provide?

Fining a ‘for profit’ company makes sense because that takes money, ultimately, from the shareholders.  They in turn want to maximise their return so are likely to influence the Board and senior executives on how they want the company to run.  When fining a commonwealth agency the money is taken from one part of the Commonwealth and given to another.   Further, being in the nature of a penalty, it will not come from insurance but from the agencies budget.   As the sister of one of the victims is reported to have said ‘… the money was not going to benefit the family and it was “shifting from one Commonwealth bucket to another”’; and she’s right.  (Compensation to victims is governed by the Motor Accidents Compensation Act (NT) and hopefully claims under that scheme have been resolved.  The difference with compensation schemes however is that they are covered by relevant insurance so the money to pay that compensation would not have come from the budget Airservices Australia had to maintain airport fire fighting and rescue services).

On the other hand, the rule of law is meant to apply equally and exempting the Commonwealth from fines imposed, in effect, by the Commonwealth would not send the right message.  This fine is intended to signal to everyone, government and private sector alike, that there are financial penalties that come with failing to adequately assess and address risks to employees and others.

Given that Airservices Australia has cooperated fully with each inquiry and admitted liability as soon as it was prosecuted, it does beg the question of why it took 4 ½ years to determine penalty.   Presumably some of that delay was occasioned by waiting for coronial processes and for Airservices Australia to complete its own reviews so it could make an informed decision on whether to defend the case or not.  But even so ‘justice delayed is justice denied’ and as evidenced by the response of Airservices Australia, the organisation today is not the same as it was.  It seems unlikely that this fine will make any difference to Airservices Australia’s efforts not to make the same mistake again.

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