A correspondent has written:
May I ask, with the Emergency Services Legislation scheduled for September 2014, whether there are any specific statements with regards to bodies funded by the Government (for example, a hospital funded by the Department of Health) – for example – a client prevents a staff member (practitioner, nurse, etc) attempting to reach a person in distress and may be charged with a criminal offence for doing so?
I’ve received this information third hand and despite my research, I cannot locate any ‘obvious’ linkage between the EMA and the criminal offence of impeding access (eg client impeding access of practitioner to attend to another person in distress).
I did confirm that my correspondent was referring to the Emergency Management Act 2013 (Vic) That Act provided it would commence in September unless commenced earlier, and it was, in fact, commenced on 1 July (see ‘New laws come into force’, 7 July 2014).
The Emergency Management Act 2013 (Vic) makes no provision for anything like an offence of hindering the delivery of care. The Act creates the State Crisis and Resilience Council, Emergency Management Victoria, the office of the Emergency Management Commissioner and makes provision for writing the State Emergency Response and Recovery Plans.
The Emergency Management Act 1986 (Vic) does create an offence of obstructing an emergency worker. Section 36 says:
“A person, other than a person engaging in an emergency activity, must not, without reasonable excuse, obstruct, hinder or in any way interfere with a person engaging in an emergency activity.”
For the purposes of that section, ‘emergency activity’ means performing a role or discharging a responsibility under the state emergency response or recovery plan, training for that purpose or travelling to or from a place where one is required to perform that function (s 4). There is no way the wording of that Act could be extended to suggest it applies to ‘to bodies funded by the Government (for example, a hospital funded by the Department of Health) – for example – a client prevents a staff member (practitioner, nurse, etc) attempting to reach a person in distress’ in their normal operations.
It could however extend to those agencies if they have a function under the disaster or response plan and are exercising that function; so if for example, the person is a member of a Department of Health disaster response team and are responding in accordance with the plan. It should be noted that this is not a new section, s 36 has been in place since the Act was written in 1986 (though it was amended in 2012 to add the words ‘without reasonable excuse’; Emergency Services Legislation Amendment Act 2012(Vic) s 106).
In daily practice, anyone who ‘prevents a staff member (practitioner, nurse, etc) attempting to reach a person in distress’ may well commit an offence. If they threaten the practitioner with violence then that’s an assault; if they actually touch the practitioner that is an assault. If they are acting with an intention to cause serious harm or injury to the person in need then it would be an aggravated offence (ie assault with intent to cause grievous bodily harm), and if their intention was to see the person in need of assistance die, then the actions could amount to murder or attempted murder.