This is a question I’ve thought about before, so I’m pleased someone asked. The question is:
Is NSW SES allowed to be the first aiders onsite at community events/non-emergencies?
Obviously, if NSW SES find an injury they will render first aid. My question relates to a community event where the organisers have requested NSW SES be the first aiders instead of St. John Ambulance or a private group.
Before answering this I should disclose I have been a member of both St John Ambulance (NSW) and NSW SES. In answering this I am going to make some assumptions about skill levels and training that may be a bit out of date, but I’m sure there are plenty of readers of this blog who will correct any errors.
To consider that one would have to consider is there a law against it. In my view, arguably there is. The Health Services Act 1997 (NSW) s 67E(1) says
A person must not:
(a) directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, or
(b) conduct for fee or reward any operations similar to the operations carried on by the Health Secretary under this Chapter,
without the consent of the Health Secretary and except in accordance with such conditions (if any) as the Health Secretary may from time to time impose.
I have previously argued that there is nothing in s 67E that says that ‘transport’ means ‘transport to hospital’. Any transport, including around the event, is contrary to the section – see:
- Paramedical Services Pty Ltd v The Ambulance Service of New South Wales  FCA 548.
- Michael Eburn and Jason Bendall, ‘The provision of Ambulance Services in Australia: a legal argument for the national registration of paramedics’ (2012) 8(4) Australian Journal of Paramedicine, Article 4; and
- Changes to ambulance legislation in NSW – about time too! (August 24, 2015). (The Bill discussed in that post has been passed as the Health Services Amendment (Ambulance Services) Act 2015 but it has not yet ‘commenced’ so s 67E, as set out above, remains the current law).
Let us assume that the SES are not providing any transport (s 1(a)) but they are providing operations similar to operations carried out by NSW Ambulance. NSW Ambulance provides ambulance services, that is “services relating to the work of rendering first aid to, and the transport of, sick and injured person” (Health Services Act 1997 (NSW) s 3 and Dictionary, definition of ‘ambulance services’). NSW Ambulance will provide event first aid services, for a fee. So anyone else doing that is providing operations similar to those of NSW Ambulance. If the SES are doing it for fee or reward (eg a donation to the unit) then arguably they are in breach of s 67E.
I say arguably because s 67E has been effectively ignored for years and that has allowed the growth of private event first aid services (see again Michael Eburn and Jason Bendall, ‘The provision of Ambulance Services in Australia: a legal argument for the national registration of paramedics’ (2012) 8(4) Australian Journal of Paramedicine, Article 4). It’s hard to believe NSW Ambulance would actually seek to prosecute or restrain the SES but, at least under current law, it is possible.
The other consideration when considering ‘allowed’ is the State Emergency Service Act 1989 (NSW). This Act, at s 8, sets out the functions of the SES. They are:
(aa) to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis,
(a) to act as the combat agency for dealing with floods (including the establishment of flood warning systems) and to co-ordinate the evacuation and welfare of affected communities,
(b) to act as the combat agency for damage control for storms and to co-ordinate the evacuation and welfare of affected communities,
(c) to act as the combat agency for dealing with tsunamis and to co-ordinate the evacuation and welfare of affected communities,
(d) as directed by the State Emergency Operations Controller, to deal with an emergency where no other agency has lawful authority to assume command of the emergency operation,
(e) to carry out, by accredited SES units, rescue operations allocated by the State Rescue Board,
(f) to assist the State Emergency Operations Controller to carry out emergency management functions relating to the prevention of, preparation for and response to, and to assist the State Emergency Recovery Controller to carry out emergency management functions relating to the recovery from, emergencies in accordance with the State Emergency and Rescue Management Act 1989,
(g) to assist, at their request, members of the NSW Police Force, Fire and Rescue NSW, the NSW Rural Fire Service or the Ambulance Service of NSW in dealing with any incident or emergency,
(h) to maintain effective liaison with all emergency services organisations,
(i) to carry out such other functions as may be assigned to it by or under this or any other Act, or by the State Emergency Operations Controller or the Minister.
Clearly the sort of exercise being considered is not a ‘function’ of the SES, that is the SES was not created to do that sort of work; which makes sense. The SES is a state government agency, as is NSW Ambulance. If someone wants the state to provide first aid services, the relevant agency is NSW Ambulance.
Just because it is not a specific function does not mean that the SES can’t do it. It may be sufficiently related to their functions, in particular as a training exercise to make it legitimate. There has to be a line – a taxpayer could quite rightly be concerned if, say, the SES started operating a for profit business to raise money for the unit and using SES resources on the basis that was not a legitimate purpose of the SES. Whether first aid services crosses that line would be a matter in each circumstance.
The bigger question is not so much ‘is the SES allowed to do it?’; but ‘is it a good idea?’ An event coordinator needs to do a risk assessment as to the level of first aid services that are required taking into account the nature of the event, who might attend, locality and access to the emergency services (including ambulance service) and who might be able to offer assistance – SES, St John Ambulance, private event first aid providers, NSW Ambulance etc.
Now I may be out of date here, but my experience is that every member of the SES is required to do a first aid certificate, and renew it every three years, but that may be their total exposure to first aid. They may never be called upon to actually use those skills in their work or in their volunteering with the SES. Even if the SES operates the accredited rescue unit, their actual experience in providing first aid may be very limited. Further, training to meet the functions set out in s 8 would not include training in how to run a first aid room and operate a first aid service.
Imagine a staging area during a major flood, storm or even bushfire operation. If SES training was sufficient, the SES could say, to any member, ‘today you are the first aid person at this staging post to provide first aid to any injured member of the response agencies and members of the public?’ I doubt they would do that because they would accept that this is a different skill set. I imagine they would get NSW or St John Ambulance to provide those sort of first aid services because it would be recognised that simply holding a first aid certificate is not sufficient qualification for those purposes. It is sufficient for what it is – to quote from a recent newspaper story (Benjamin Law: ‘What happens in a first-aid course these days?‘ Sydney Morning Herald Good Weekend (Online) (November 12 2016)):
We’re not expected to come out of this as medical professionals, Rhonda-Lee [the instructor] clarifies. “First aid is exactly that,” she says. “You’re the first aid until professional help arrives. Keep them breathing; stop them bleeding. Everything else is buttons and bows.”
A first aid certificate may be adequate training to keep someone alive in a sudden and dramatic emergency but is it, on its own, adequate for all the minor injuries, the ambiguous presentations that an event first aid provider might see, and does it allow the provision of care that can actually keep someone out of hospital?
St John used to let members loose on the public with nothing more than a senior first aid certificate but I think that is no longer the case. As I understand it further training is required before members are allowed to provide first aid without direct supervision. Further, as the St John (NSW) website says “Our committed volunteers are able to receive further training in advanced first aid through courses such as Advanced Resuscitation, Analgesic Gases and Semi-Automatic External Defibrillation”.
If I’m right about the different skill levels, an organiser that calls upon the SES is going to get people who have a senior first aid certificate, they may be quite practical people able to cope in an emergency but with no particular skill or experience in actually administering first aid. Contacting an event first aid provider (whether St John or someone else) they are going to get someone with more training, actual first aid experience and the possibility that they will also bring oxygen, analgesia and a defibrillator.
One does have to consider what sort of risk assessment would suggest that having the SES to do the first aid is sufficient to address the risk? For an organiser, or the SES to think they can provide event first aid they must think that event first aid providers (whether St John, another community organisation or a private for-profit provider) bring no more skills or experience to the task. Those skills and experience are not only clinical but actual operational –how best to actually run a first aid service whether at a small or large event.
So the first question I would want a unit controller to ask, when approached to provide first aid services is ‘are we actually qualified and competent to do this?’ And the question I would ask an organiser who requested ‘NSW SES be the first aiders instead of St. John Ambulance or a private group’ is ‘do you know what the SES does, and why do you think they are appropriate providers?’ My fear would be that they think the SES is better qualified and better equipped than they actually are. Now that could lead to all sorts of problems.
Let us assume, for the sake of the argument, that the event in question is reasonably high risk, let’s say a ‘rodeo’. A rodeo rider is injured and the SES come to assist with, let’s face it, very basic skills. Let us also assume that the low level care and all the circumstances lead to a claim of negligence. It may be against the event organiser on the basis that they did not do a proper risk assessment and if they had, they would have had more advanced care available on the scene. The event organiser may, in turn, say ‘but I thought the SES had those skills so they are at fault’. That could well become a significant argument about who communicated what to whom, what did the SES say they could do? What did the event organiser ask for etc.
Let us assume that somehow the matter does progress. The SES might want to rely on the State Emergency Service Act 1989 (NSW) s 25(1) that says:
A matter or thing done by:
(a) a member of the State Emergency Service, including a member of an SES unit, …,
does not, if the matter or thing was done in good faith for the purpose of exercising the functions of or assisting the State Emergency Service or the Consultative Council, subject the member, officer or volunteer personally to any action, liability, claim or demand.
But providing first aid at a community event is not done for the purpose of exercising the functions of the State Emergency Service (though no doubt if the action were endorsed by the SES, even at unit controller level, the SES would be vicariously liable for any negligence by the member).
What of the Civil Liability Act 2002 (NSW) s 57 that says:
A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.
I don’t think that in this case the SES or its members are ‘good samaritans’. They have not just come across the accident, they are on site with the express intention of providing care and are probably getting some reward, eg a donation to the unit. A person or organisation that offers to provide first aid event services is not providing care as a good Samaritan, but out of performance of the agreement that they have entered and, which no doubt brings some reward.
That’s not to say members would be personally liable. They would be there in SES uniform engaging in an activity endorsed by the SES (at least at unit level). They could still rely on the notion of vicariously liability and the volunteer protection provisions in the Civil Liability Act 2002 (NSW) s 61. But in the wrong circumstances, I don’t think that the members, or the SES could rely on the provisions discussed above.
It is arguable that he SES are not allowed to provide event first aid because such action is, at least arguably, prohibited by the Health Services Act 1997 (NSW) s 67E (at least until that section is amended by the Health Services Amendment (Ambulance Services) Act 2015). It’s also arguable that they are not allowed because such action is not a function of the SES but in the right circumstances it could be sufficiently related to the functions of the SES as it might provide relevant training and ‘team building’ to allow the SES to meet its statutory functions.
The more critical question is ‘does the SES have the training, skills, equipment and experience to do the task they have been requested to do?’ Given that SES training requires no more than a basic first aid certificate and my understanding is that SES training and equipment does not include oxygen therapy, analgesia and other advanced care skills the answer is probably ‘no’. No-one organising an event would say to a group ‘you’ve all done a first aid certificate sometime in the last three years; that’s good enough to run a first aid service’ and that’s really what’s happening if they ask the SES.
That could lead to legal issues if it turns out that the SES cannot provide treatment at the level of care that the event organiser or participants expect. The organiser may have misunderstood what the SES could provide. Participants, depending on the event in question, may have a reasonable expectation that care is provided at a certain skill level. Failure to provide that care may be negligence by either the organiser, the first aid providers, or both.
On balance I think the SES are probably ‘allowed’ to do that task; but whether it’s a good idea to do so is a very different question.