What is a vehicle that is ‘operated by or on behalf of and under the control’ of Ambulance Victoria?

This question follows on from my post St John Ambulance, NEPT providers and the Victorian Road Rules (July 17, 2017). To reiterate that post started on the question of whether a vehicle operated by either St John Ambulance Australia (Victoria) or a licensed Non-Emergency Patient Transport (NEPT) provider was an ‘emergency vehicle’ for the Road Safety Road Rules 2017 (Vic) and, in particular, r 79A which imposes a 40km/h speed limit for drivers as they pass a stationary or slow moving emergency vehicle that has its emergency warning lights or siren on.  My conclusion was that these vehicles are not ‘emergency vehicles’.

This led to many comments both about the merit of that rule and on whether such vehicles can be fitted with flashing warning lights at all.  As I noted in that post, a vehicle other than an exempt vehicle, can only be fitted with flashing warning lights if there is approval from VicRoads.  An exempt vehicle includes an emergency vehicle (Road Safety (Vehicles) Regulations 2009 (Vic) Schedule 2, cl 118).  An emergency vehicle includes (Road Safety (Vehicles) Regulations 2009 (Vic) Schedule 2, cl 3):

a vehicle operated by or on behalf of and under the control of—

(i) an ambulance service created under section 23 of the Ambulance Services Act 1986 or listed in Schedule 1 to that Act …

Schedule 1 to that Act lists 17 separate ambulance services that are, collectively, known as Ambulance Service – Victoria (‘AV’) (Ambulance Services Act 1986 (Vic) ss 3 and 23).  An ambulance service is a body corporate that can enter contracts and sue, and be sued (s 23(2)).  An Ambulance Service can be part of a company, association or joint venture where that is ‘incidental or conducive to the exercise of the powers of the ambulance service’ (s 16).

In the context of my original post there were comments to the effect that NEPT providers are acting under contract to AV.  That may be true but I understood, in context, the inference to be that the contract with AV was the basis of their authority to act and it also implied that they were therefore acting ‘on behalf of’ AV.  In that context, I said:

NEPT providers are not contractors to Ambulance Victoria that is to say they do not operate because of some contract with AV. They may contract with AV in that AV may outsource patient transport services by engaging the services of licensed NEPT providers but that is the same way that they may outsource the maintenance of their ambulances. The contract with AV to the extent there is one, is a business opportunity for the NEPT providers not the source of their authority to operate.

If AV is a customer of an NEPT provider it does not mean that their vehicle is being operated ‘by or on behalf of and under the control of’ AV. If I hire a taxi the driver takes me where I want to go but he or she is operating the vehicle and it’s under their control. If a person contacts AV for non-emergency patient transport and they contract with a private NEPT provider to provide that service, then AV and the patient are the NEPT provider’s customers but the vehicle is being operated by and on behalf of the NEPT provider who is operating its business.

Note that in the Non-Emergency Patient Transport Regulations 2016: Regulatory Impact Statement, the Department of Health & Human Services said (at p. 6):

More than half of the NEPT services in Victoria are provided by twenty licenced private businesses. The remainder is provided by AV. Six of the licenced private businesses also currently provide NEPT services under contract to AV.

So 6/20 NEPT providers act ‘under contract’ to AV. Further ‘The Minister of Health has also stated publically that NEPT transports currently undertaken by AV are to be transferred to the NEPT sector.’

In writing that I had a particular business model in mind but my comments have led to confusion.    As one correspondent has written:

I know you said that NEPT cars contracted to do AV work are not emergency vehicles but granted they maintain AV issued radios and MDTs as well as being Dispatched to emergency (code 2 and 3 via Triple Zero) and non-emergency cases (code 4) both via ESTA and basically directed and controlled by the AV DM and clinician, can that not be argued that they are being contracted to and operated on behalf of Ambulance Victoria.

I mean essentially, the contract is the NEPT company provides the vehicle and the staff, and AV has full control over it without the NEPT company’s interference and it is treated as an AV resource.

Like in the taxi scenario, if13 Cabs is providing the driver and the taxi but if it is taking jobs from Silver Top Cabs due to a contract, is the 13 Cabs operating on behalf of Silver Top Cabs despite it being a 13 Cabs car?

Also, in some rural areas, the CPAV is contracted out to NEPT companies to respond to Emergency calls at the request of AV paramedics and sometimes these are requested code 1. Would these then be considered as emergency vehicles operated on behalf of Ambulance Victoria?

This was not the point of my original post so I will now try to clarify my thinking.  Note however there is not going to be a definite answer here.  What there will be are arguments.  Resolving the issue in any case would require a judge to make a decision but this is unlikely to ever be a matter that will occupy a judicial officer other than, perhaps, a magistrate.

The issue is what does ‘operated by or on behalf of and under the control of’ an ambulance service mean?

‘Operated by’ is probably pretty clear.  As noted an ambulance service is a legal entity so it can own assets.  Where an ambulance service owns its own fleet, that fleet is operated ‘by’ that ambulance service.  Those vehicles are an emergency vehicle so can be fitted with flashing lights.  This I would suggest also applies to vehicles that the ambulance service may not own.  The ambulance service may establish a subsidiary company to operate its fleet or may use some fleet management or leasing company to provide the ambulances.  But if the vehicle is incorporated into their service, operated by their staff etc one would, I suggest, conclude that the vehicle is operated ‘by’ the ambulance service.

‘Under the control of’ may also be reasonably clear.  Where the vehicle is still incorporated into the work of the service and it is the service that determines how and when the vehicle is used.  Like an employee/employer relationship, the more authority that the service has to decide what jobs the vehicles are dispatched to, when the staff are stood down, where the vehicle is positioned etc then one might reach a conclusion that the vehicle is being operated ‘under the control’ of the ambulance service.

‘On behalf of’ is more controversial.  I suggest that a private NEPT provider is acting on its own behalf.  If it’s a for profit exercise it is making services available that may be available to AV but they may also have other customers – private hospitals, nursing homes etc.  They are acting on their own behalf.

Let me draw an analogy with the airline industry (the details that follow are no doubt incomplete but I think they make the point). I am a regular flyer with Qantas.  If I fly from Canberra to any capital city, other than Sydney, I’ll get on jet aircraft that is clearly marked ‘Qantas’.  I don’t know if Qantas own the aircraft, or lease it, but I would suggest that aircraft is operated ‘by’ Qantas.

If I fly to Sydney I may get a Qantas aircraft, but often it will be a Boeing 717 or Bombardier Q400 and these aircraft are marked ‘QantasLink’.  My ticket will say that this flight is operated by Eastern Australian Airlines on behalf of QantasLink.  I don’t know who Eastern Australian Airlines are but I can’t book a flight with them except by booking with QantasLink.  They don’t operate their own services, they operate only as QantasLink.  The crew all wear QantasLink uniforms and I suggest that QantasLink (no doubt guided by its parent company, Qantas) set out details on how the flight is to be run, standards for crew behaviour and presentation, script the emergency briefing etc.  I would suggest that this is a flight operated ‘under the control’ of QantasLink.

During the mid-1980’s there was a pilot’s strike.  At that time Qantas, chartered aircraft from Air Canada.  I can’t remember where I was going but I remember getting on an Air Canada aircraft.  The plane was clearly an Air Canada plane, the crew wore Air Canada uniforms and I would suggest the policies and procedures used during that flight were those of Air Canada. But I the days of the two airlines policy Air Canada couldn’t fly domestic routes in Australia.  I couldn’t log onto the Air Canada website (if there had been such a thing in those days) to book an Air Canada flight between Sydney and Melbourne.  No doubt Qantas determined the routes and the timetable but Qantas were not operating the aircraft.  I would suggest those aircraft were being operated ‘on behalf’ of Qantas; but not ‘under the control’ of Qantas (even if Qantas did set the destination and timetable).

Today if I fly to Europe, Qantas flights go through Dubai. My booking may say I’m on a Qantas flight but when I get to the airport I’m clearly getting on an aircraft owned and operated by Emirates.  I could log onto the Emirates website and book a seat on the same plane with an EK flight number.  So Emirates have an agreement with Qantas to operate the flight on a ‘code share’ basis and to offer various services to me as a Qantas passenger, but they are not operating the flight on behalf of or under the control of Qantas. It is an Emirates flight and the agreement they have with Qantas they have because they think that it is in the best interests of Emirates and its shareholders.

What’s the relevance to ambulance services?  Assume I’m an inpatient in a hospital and I need to be transported somewhere.  The hospital books NEPT with AV.  A vehicle turns up marked ‘Ambulance Victoria’.  The crew are wearing AV uniforms.  It is an AV dispatcher that has determined which car is to be allocated to transport me.  AV determines the salary, and uniform of the staff and supplies all the equipment in the car.  I don’t know who owns it and I don’t care.  I would suggest that is a vehicle being operated ‘by’ AV.

Assume that AV have entered into arrangements with some private hospitals and private health insurers and have created ‘Ambulance Victoria NEPT Service’ as a separate legal entity.  Assume that service only accepts tasks from AV.  The AV despatcher decides which vehicle is assigned to a job and AV sets standards that the subsidiary company is required to meet.  I would suggest that might be an example of a service (and therefore a vehicle) that is being operated ‘on behalf of and under the control’ of Ambulance Victoria.

Assume now that I’ve set up an NEPT service – Michael Eburn’s Victoria NEPT Service.  I employ my own staff, meet the requirements of the NEPT regulations but to the extent there’s flexibility I determine the manner in which the company operates.  AV is one of my customers but so are local hospitals and others.  My company is not being run ‘on behalf of and under the control’ of Ambulance Victoria.  If I’m transporting a patient where the client rang AV and AV were unable to provide the service and therefore asked me to do it, then one might say that I’m acting ‘on behalf of’ AV but my service is not being run ‘on behalf of and under the control’ of Ambulance Victoria – and the ‘and’ means both must be true.

My correspondent has set out other scenario and asked whether it could be argued that these services are being operated ‘on behalf of and under the control’ of Ambulance Victoria.  The answer is yes, it could be argued that.  The more control that AV has, that is the more ‘AV has full control over it without the NEPT company’s interference and it is treated as an AV resource’ the more likely it is that one might conclude the vehicle is being ‘operated on behalf of and under the control’ of Ambulance Victoria.

The issue is more theoretical than real

But the reality is the issue is largely irrelevant. The conversation began with s 79A and would these vehicles be ‘emergency vehicles’.  They might be, but r 79A is largely unenforceable. If it is enforceable one has to imagine the police are there with a radar/lidar operation. All it takes is there to be one other emergency vehicle, or for the police vehicle to have its red/blue lights on and the lower speed limit applies.  If the NEPT vehicle is the only vehicle there, a person who doesn’t slow down isn’t going to get prosecuted anyway.

And if someone does get a ticket for driving past an NEPT vehicle (and no other emergency or police vehicle with its red/blues on) and if that driver choses to take the matter to court and if that driver thinks to argue – ‘but that wasn’t an emergency vehicle’ then I suggest a Magistrate is likely to take a pragmatic view – You saw there was an accident; you saw there was an NEPT vehicle with red/blue flashing lights; you saw the crew was working there, but still you didn’t slow down?’  A magistrate may well decide to hold that the vehicle was an emergency vehicle noting that this does not create a ‘precedent’ that other judges have to follow.  A decision to that effect may not be correct according to the strict reading of the law but Magistrates have to move through their list.  An appeal to the Supreme Court may be get down to the sort of discussion here but not many people are willing to take a traffic ticket to the Supreme court.  Alternatively, if you don’t slow down in those circumstances and there’s an issue of whether the vehicle was an emergency vehicle, the police could allege negligent driving or driving at a speed dangerous in the circumstances so there are still offences that could be charged even if not a breach of s 79A.

What of the exemption under r 306?  An NEPT vehicle is transporting a patient who goes from ‘non-urgent’ to ‘urgent’ so the driver activates the red/blue lights and proceeds through a red light whilst taking the person to hospital.  If the vehicle is not an ‘emergency vehicle’ r 306 doesn’t apply.  But again, a pragmatic police officer may decide not to issue the fine after reviewing the red light camera and hearing the story.  And he or she might, on the report, say that they relied on s 306 and even if that’s not correct, who’s going to challenge that?   And if the police officer does issue a ticket, and the driver choses to take the matter to court, a magistrate may again take a pragmatic view and agree that in the circumstances it was an emergency vehicle even if that’s not the letter of the law – remembering that the Magistrate’s decision is not binding on anyone else. If the magistrate does that and everyone’s happy that’s the end of it.  If the Magistrate accepts that the vehicle was not an emergency vehicle, the magistrate may apply the rule of necessity and say that even in the circumstances there was a defence and find the driver ‘not guilty’.  Or he or she may find the offence proved but take no action imposing no conviction and no penalty.

If the action was dangerous, it does not matter whether the vehicle is an ‘emergency vehicle’ or not as r 306 only applies if the driver was taking ‘reasonable care’.

What about fitting warning lights? That’s relevant.  If the vehicle is operated ‘on behalf of and under the control’ of Ambulance Victoria then the permission of VicRoads is not required to fit flashing warning lights.  A prudent NEPT provider, even a subsidiary company owned by AV (Ambulance Victoria NEPT Service in my example above) should seek permission from VicRoads to ensure that there is no dispute as to what they are allowed to have fitted to their vehicle.  And if you can argue that an NEPT vehicle when transporting a patient under contract to AV is acting ‘on behalf of and under the control’ of AV then they can have lights fitted then, but not when they are transporting a patient for another client, in which case they’d have to remove the fitted lights – or get permission from VicRoads.

Who will see this as important?

The issue will only be a real issue for an NEPT provider who wants to fit red/blue lights but either doesn’t want to get permission from VicRoads, or VicRoads has refused permission. If the operator can argue that their vehicle is operated ‘on behalf of and under the control’ of Ambulance Victoria’ then they can fit the lights regardless of VicRoads’ attitude.   But the argument that ‘we might have to stop at an accident’ or ‘we might be tasked by AV’ or even ‘we may be tasked by AV to an emergency’ may be good reasons for VicRoads to give permission but they will not convert the non-emergency patient transport vehicle (emphasis added) into an emergency vehicle as defined by the road rules.  And, as noted above, even if it is the case that when providing the service under contract with AV the vehicle is operating ‘on behalf of AND under the control’ of AV then they could have flashing lights fitted but would have to remove them when they were providing other patient services.   Accordingly the argument, if it could succeed would only be helpful if the NEPT provider’s one and only client was AV.  The alternative is to get permission from VicRoads.

Conclusion

To be an emergency vehicle (in the context of an ambulance) it has to be a vehicle that is ‘operated by or on behalf of and under the control’ of Ambulance Victoria.  What that means is arguable. The more control that AV has, that is the more ‘AV has full control over it without the NEPT company’s interference and it is treated as an AV resource’ the more likely it is that one might conclude the vehicle is being ‘operated on behalf of and under the control’ of Ambulance Victoria.