I have been referred to Victoria’s Vulnerable People in Emergencies Policy and the Vulnerable People in Emergencies Policy Protocol. My correspondent says:

I have had a number of meetings with Local Government who believe they have a legal liability in relation to this policy mainly around if a person who is not on their list is killed in an emergency.

For example, an individual has chosen not to give consent to be placed on the vulnerable people register and is therefore not considered in the planning or response during an evacuation and is killed or if an employee of that Council makes an assessment that a person does not fall within the definition of vulnerable, is therefore not placed on the register and is hurt or killed during an emergency.

There are people in the community for whom determining their vulnerability is difficult and general advice to Council is to do two things, put them on the register and at the same time, request Red Cross to undertake a Rediplan with that person to see if the person could come off the register. The premise being that we build resilience and a shared responsibility in this area.
The advice from the State Relief and Recovery Coordinator (and this is not in writing) is that there is no legal liability for local government or agency applying this policy.

Your advice is most welcome…

According to the policy, ‘funded agencies’ that is “those agencies who provide personal care, support and/or case management services either in home or community settings, to clients living in the community . This includes health or community care services such as home and community care, personal care or disability day programs” and includes local councils if they provide those services (p 5), are to consider their clients, asses them and determine whether or not they should be entered on a vulnerable persons register.
A vulnerable person is not anyone who may be affected by the hazard (flood, fire etc) but

… someone living in the community who is:
• frail, and/or physically or cognitively impaired; and
• unable to comprehend warnings and directions and/or respond in an emergency situation” (p 3).

A funded agency should assist a vulnerable person with emergency planning. If a person is vulnerable and “cannot identify personal or community support networks to help them in an emergency” then they may be identified for inclusion on a Vulnerable Persons Register (Policy p 3; Protocol p 5).

Each agency is enter relevant personal details on the Vulnerable Persons Register and all the local registers are ‘coordinated’ by council (Policy p 7). Before entering a person on the Register the agency must obtain their informed consent… and that’s the answer to the question. If informed consent is required, a person who does not consent cannot be entered on the register. As the protocol says (p 7)

Being on the Vulnerable Persons Register is not compulsory – and identified people can choose not to consent and can remove themselves at any time. If consent is not obtained, this should be recorded internally within the agency as part of standard record keeping practices. Information must be collected and recorded in line with information privacy requirements.

If a person does not consent to being on the register they cannot be put on the register. If they are not on the register on what basis could any council have any legal liability if that person is killed or injured? Even if they are on the register: “Being listed on the Vulnerable Persons Register does not guarantee assistance in an emergency” (Protocol p 8).

The US courts draw a distinction between ‘policy’ and ‘operations’. It is not a distinction that has found favour in the Australian courts but it can be used to explain the position here. Governments (American and Australian) cannot generally be liable for policy decisions, so the decision to have, or not have, a vulnerable persons register, or the terms of the policy are non-justiciable. Assume that there is a catastrophe and someone could argue that if the policy had been different, eg that it was compulsory, would have protected someone – but that is not something the courts will entertain. The question of what the policy is is a matter for an elected government. They have many policy options to chose from and if they chose this one then so bet it.

Putting the policy into operation is another matter. Having set the policy a government could be liable for not doing what the policy says (remembering that I’m drawing on US jurisprudence here so the authorities are not quite the same here, but close enough I think for this purpose). In this context the register is optional and requires informed consent. A government (local or state) could not be liable if an informed person refuses consent and this is not identified or given assistance in an emergency (equally they could not be liable if they are identified, entered on the register and not given assistance in an emergency but that is a different matter).

The law respects autonomy:

… it is unusual for the common law to subject a person to a duty to take reasonable care to prevent another person injuring himself deliberately. “On the whole people are entitled to act as they please, even if this will inevitably lead to their own death or injury.” This principle gives effect to a value of the law that respects personal autonomy” (Cole v Sth Tweed Heads Rugby Club (2004) 217 CLR 469, [14] (Gleeson CJ); see also Stuart v Kirkland-Veenstra [2009] HCA 15)).

If a person does not want to be on the register, that’s their own lookout.

If a council worker involved in providing services such as community care makes an assessment that a person is not a vulnerable person without “personal or community support networks to help them in an emergency” then the question would be, given all the circumstances, was that a reasonable assessment. If it was then the fact that there was a bad outcome does not prove that assessment was wrong; bushfires and floods can kill many people who are not vulnerable. If the Council doesn’t apply the policy for example if the Council does not implement the policy by training staff to ‘screen for vulnerable persons registers’ (Policy p 5) or an employee simply doesn’t think to do it, then that could lead to liability if it could be shown that they would have been included on the register and it would have made a difference to the outcome.

It may be true that “There are people in the community for whom determining their vulnerability is difficult” but the general advice “to do two things, put them on the register and at the same time, request Red Cross to undertake a Rediplan with that person to see if the person could come off the register” cannot be correct. On that advice you would put everyone on the register. The policy says they are to be assessed (p 5), if assessed as vulnerable and if they consent, then their details are entered on the register; not entered on the register and then assessed.
The premise for that advice, I’m told is “that we build resilience and a shared responsibility in this area” but putting everyone on the register would not build resilience or shared responsibility if it gives the impression that help will be despatched. The policy is clear, the Register is not an opt-in system and people seeking to be on the register have to be advised:

• Being listed on the Vulnerable Persons Register does not guarantee assistance in an emergency.
• Emergency planning is important and it is an individual’s responsibility to have a plan and be prepared for an emergency.
• You need to think about your family and friends and know your neighbours; encourage them to plan for emergencies, and help them plan if they need assistance. (Protocol p 8)

The policy clearly anticipates being on the register is not a substitute for personal emergency planning or emergency planning by agencies to support their clients. The vulnerable person’s register is not even to be publicly promoted (Policy p 7); being on the register is not facilitating ‘shared responsibility’.

In short there can be no legal liability for councils applying this policy; there could, arguably be liability if a council did not implement the policy. The policy is not, however, some statement that ‘all vulnerable people will be protected’; the policy does not guarantee that everyone, or all vulnerable people, will be protected and just because someone is killed, it does not follow that they should have been on the register.

Michael Eburn
8 November 2013