This question again touches on the issue of privacy – see
- Releasing information to SA police (May 31, 2017) and
- Giving feedback to paramedics (April 1, 2017).
See also Discovering crime during an emergency response (July 19, 2016).
Today’s correspondent is a Queensland paramedic who
… attended an injury road traffic crash where the driver appeared to have been intoxicated and had sustained injuries as a result of the crash. The QPS officer at the scene never completed a breath screening test, nor did QPS officers who attended the major hospital in relation to this driver, nor was a blood sample taken for analysis.
I have been contacted by the QPS and was told that they want to take a statement from me in relation to this case and appear as a witness for the QPS in this matter.
While I find drink driving deplorable, I believe that the agency responsible for investigating these events and presenting the facts in Court, is the QPS, and that expecting QAS to provide this information detracts from our position of neutrality. In short I believe that the QPS is expecting QAS to provide an opinion (as we do not carry alcohol measuring devices) to secure a conviction because of a very poor policing.
Is there a law which requires Queensland paramedics to provide statements to the Queensland Police Service with regard to cases attended?
The simple answer is that there is no obligation to provide a statement to police.
That can be explored in more detail. In Queensland, the privacy principles are adopted by the Information Privacy Act 2009 (Qld). Under that Act ‘Personal information is information or an opinion … about an individual whose identity is apparent…’ (s 12). An opinion about the driver’s level of intoxication is therefore personal information. An agency, including Queensland Ambulance, is only to use personal information for the purpose for which it was obtained, in this context to provide pre-hospital care to the injured person. Even so personal information can be disclosed for ‘the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of laws imposing penalties or sanctions’ (National Privacy Principle 2(1)(g)(i) set out in Schedule 4 of the Queensland Act).
That makes sense. Assume a person made an admission of a serious criminal offence to a paramedic, the police may well want evidence of that admission as evidence in a prosecution and the paramedic may well think that the circumstances are such that the breach of confidence is warranted (see Discovering crime during an emergency response (July 19, 2016)).
It would appear to me that my correspondent could rely on the relevant privacy principle exceptions to give a statement but that does not impose an obligation to do so, ie the statement may be given, not must be given.
But what value is the opinion? As a general rule, a person’s opinion is not admissible as evidence in court. A person can say what they observed but what conclusion one draws is a matter or the court. That would mean that the paramedic could say what was observed about the patient but not a conclusion that the patient was intoxicated.
There are exceptions to the rule against opinion evidence. Qualified experts can give evidence of an opinion, and we can all give opinions of the sort of matters that are part of everyday life and where we give opinions without being conscious of all the factors we observe before drawing the opinion. In the High Court of Australia, French CJ, Heydon And Bell JJ said (Lithgow City Council v Jackson  HCA 36 at ):
The common law permitted the reception of non-expert opinion evidence where it was very difficult for witnesses to convey what they had perceived about an event or condition without using rolled-up summaries of lay opinion – impressions or inferences … The usual examples are age, sobriety, speed, time, distance, weather, handwriting, identity, bodily health and emotional state, but a thorough search would uncover very many more.
Forming an opinion that someone is intoxicated could be covered by either rule, ie we all are capable, in everyday life of forming an opinion whether someone is intoxicated or not. Paramedics, like police, may also be qualified as experts. Police often give evidence along the lines of:
I have been a police officer for xx years. In that time I have had many dealings with people who are intoxicated. On this occasion I noted that the defendant’s speech was slurred, he/she was unsteady on his/her feet, their eyes were bloodshot (etc). I formed the opinion that he/she was slightly/moderately/well affected by alcohol.
Paramedics with their experience could probably give similar evidence.
Evidence that a driver was intoxicated would be irrelevant to a prosecution alleging that the driver had in his or her blood stream, alcohol in excess of the legal limit, but would be relevant to an allegation that the person was ‘under the influence of liquor or a drug’ (Transport Operations (Road Use Management) Act 1995 (Qld) s 79(1)). No doubt defence counsel would seek to have any evidence excluded for the very reason that my correspondent objects to giving it, the evidence is being used to shore up a police case when other, better evidence could and should have been obtained (see Transport Operations (Road Use Management) Act 1995 (Qld) s 80 re the power to require a driver to give a breath and/or saliva sample or a doctor to take a blood sample).
The police could subpoena the clinical record and attempt to rely on that, but whether that would be admissible and what it would prove would depend on what was written and how it was expressed (see Lithgow City Council v Jackson  HCA 36; Wells v Council of the City of Orange (No 2)  NSWSC 510 and Ross v Vaughan  NSWCA 188 where, in each case, notes by paramedics as to the possibly history of the patient’s injuries were not admissible to prove the cause of the relevant accident, but those cases did not involve recordings of things the paramedics saw or observed which may distinguish them from a situation where the paramedics has made observations about the patient’s condition and draws an inference as to the cause, in this case that the patient is affected by alcohol.
The paramedic could also be subpoenaed to give evidence in which case he or she would be required to answer questions put to him/her in court. As a witness he or she could ask the judge to exclude questions that would reveal information received as part of the confidential health care relationship. It would then be up to the judge to rule whether the questions had to be answered. It would be a ‘brave’ prosecutor who called a witness without first having a statement to know what they were likely to say.
My correspondent could give police a statement setting out what he or she observed at the scene of the traffic accident including an opinion as to the driver’s sobriety. Whether that would be admissible in any prosecution would depend on the charges brought and whether the defence was able to argue that it should be excluded for any number of grounds.
Saying that my correspondent could give the statement is not, however, the same as saying that he or she must do so. There is no law compelling a person to give such evidence. The police could subpoena the clinical record and/or subpoena the paramedic to give evidence, in which case he or she would have to answer questions put to them.
Deciding whether or not to give a statement would, I suggest, require consideration of the issues raised in my earlier post Discovering crime during an emergency response (July 19, 2016).