Today’s question raises a truly disturbing prospect that I think paramedics should actively and strenuously resist. My correspondent says:

Recently at a major event, several registered paramedics were asked at various times to act as advocates (i.e. support persons) for persons aged 16-17 in police custody. The requests were for being a support person in lieu of parents for both strip searches and police interviews so an independent third-party adult was present during those events.

While paramedics and other health practitioners are used to providing advocacy, doing so in a legal or law enforcement proceeding c While it is understood that police were required to phone-conference in a youth legal advisor if a young person was actually being charged, the incidents where paramedics were requested to take part did not require legal representation by police procedure.

My questions are as follows:

1)      Is there any risk to the health professional in engaging in this type of third-party advocacy/support?

2)      What would occur if the health professional disagreed with the police handling of the matter?

3)      Is there liability for any act or omission of the health professions, for example, providing advice to the young person (which may or may not be accurate) on their matter with law enforcement? If the advice was inappropriate, or the police took exception to it, could that matter be referred to the regulator as a professional conduct matter.

4)      Is the risk or standard any different if a non-registered health practitioner, for example a first aider, performs these types of roles.

For reference, this example takes place in NSW, however similar jurisdictions no doubt have similar situations. This is a vexed area with multiple facets, so I appreciate the breadth of the issue.

Law

Strip search

A ‘strip search’ (Law Enforcement (Powers and Responsibilities Act 2002 (NSW) s 3) is:

… a search of a person or of articles in the possession of a person that may include–

(a) requiring the person to remove all of his or her clothes, and

(b) an examination of the person’s body (but not of the person’s body cavities) and of those clothes.

I will assume (given the question) these searches are not occurring ‘at a police station or other place of detention’ In that case (s 31):

A police officer may carry out a strip search of a person if— …

(b) … the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary.

Section 33(3) says:

A strip search of a child who is at least 10 years of age but under 18 years of age, or of a person who has impaired intellectual functioning, must be conducted–

(a) in the presence of a parent or guardian of the person being searched, or

(b) if that is not acceptable to the person, in the presence of another person who is not a police officer and who is capable of representing the interests of the person being searched and whose presence is acceptable to that person.

If the young person says ‘it’s acceptable if mum or dad is here’ s 33(3)(b) is not relevant. If ‘mum or dad’ are not there and the police officer believes:

(a) delaying the search is likely to result in evidence being concealed or destroyed, or

(b) an immediate search is necessary to protect the safety of a person.

Then the police officer can conduct the search in the absence of a relevant support person, but he or she ‘must make a record of the reasons for not conducting the search in the presence of a parent or guardian, or other person capable of representing the interests, of the person being searched’ (s 33(3A)).

To put that in context if at the major event the police want to do a strip search, the young person says that it is acceptable to them that the search is conducted in the ‘presence of a parent or guardian’ then the police have to wait for that parent or guardian to be there or, if the circumstances of s 33(3A) do exist they can do the search and record why they did not do wait for the presence of the parent or guardian. Neither section 33(3) nor s 33(3A) says that ‘another person who is not a police officer and who is capable of representing the interests of the person being searched and whose presence is acceptable to that person’ can ‘stand in’ because it is not convenient to wait for the parent or guardian. ‘Another person who is not a police officer and who is capable of representing the interests of the person being searched’ is only relevant where the presence of a parent or guardian is unacceptable to the young person.

A search must be conducted by an officer of the same sex as the person to be searched – ie a male person must be searched by a male officer, a female person by a female officer (transgender and intersex persons are not provided for). Section 32(7A) says:

… if a police officer of the same sex as the person who is to be searched is not immediately available, a police officer may delegate the power to conduct the search to another person who is–

(a) of the same sex as the person to be searched, and

(b) of a class of persons prescribed by the regulations for the purposes of this subsection.

The search by that other person is to be conducted under the direction of the police officer and in accordance with provisions of this Act applying to searches conducted by police officers.

The regulations provide for who may conduct that search. The list includes ‘ambulance officers (within the meaning of the Mental Health Act 2007)’ (Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) r 47). (An ambulance officer ‘(within the meaning of the Mental Health Act 2007)’ is ‘a member of staff of the NSW Health Service who is authorised by the Secretary to exercise functions of an ambulance officer under this Act’ (Mental Health Act 2007 (NSW) s 4)).

Interview

The Law Enforcement (Powers and Responsibilities Act 2002 (NSW) says, with respect to vulnerable persons (s 31)

A detained person or protected suspect who is a vulnerable person is entitled to have a support person present during any investigative procedure in which the detained person or protected suspect is to participate.

Strangely enough, ‘investigative procedure’ is not defined.

The Evidence Act 1995 (NSW) s 139 says that police must caution a person if the officer ‘formed a belief that there was sufficient evidence to establish that the person has committed an offence’ or the person is under arrest.  A person is under arrest when a police officer makes it clear, expressly or by implication, that the person is no longer free to leave. I would suggest any questioning at that place (and I think we can infer it’s going to be questioning about drug use) is an ‘investigative procedure’ even if it is not taking place at a police station.

A child cannot waive the right to have a protected person present (s 33).  Where the vulnerable person is aged over 14 the support person must be ‘an adult (other than a police officer) who has the consent of the child to be the support person for the child’ (s 30(a)).  Further, s 34 says that a:

… support person for the detained person or protected suspect that the support person is not restricted to acting merely as an observer during an interview of the detained person or protected suspect and may, among other things–

(a) assist and support the detained person or protected suspect, and

(b) observe whether or not the interview is being conducted properly and fairly, and

(c) identify communication problems with the detained person or protected suspect.

Paramedicine Code of Conduct

The Paramedicine Board’s Code of Conduct: Interim (June 2018) says:

  • ‘Practitioners have ethical and legal obligations to protect the privacy of people requiring and receiving care’;
  • ‘Minimising risk to patients or clients is a fundamental component of practice’;
  • ‘Practitioners have a duty to make the care of patients or clients their first concern and to practise safely and effectively’;
  • ‘Good practice is centred on patients or clients’;
  • ‘Good practice involves:…
    b) ensuring that practitioners maintain adequate knowledge and skills to provide safe and effective care’.

With respect to children and young people

  • ‘Good practice involves:
    (a) placing the interests and wellbeing of the child or young person first’.

Discussion

The role of a support person must be to provide support to the person, and in particular a young person (or any vulnerable person) who is undergoing what may be quite invasive police procedures.

It may be consistent with good paramedic practice to agree to be the support person where the police want to interview or search a paramedic’s patient and the patient asks the paramedic to stay with them. In those circumstances the paramedic may be able to say that he or she is putting the young person first, by attending the interview or search they are ‘minimising risk’ to the young person, and focussing on their patient.

I do not think that applies where police look around for an adult and ask the paramedic to be the support person for a child the paramedic has never met. A paramedic, as my correspondent says, has no training in this area so one would question whether a person, simply by virtue of their registration ‘is capable of representing the interests of the person being searched’.

One would also have to question whether the young person is in a position to say whether or not the paramedic’s presence is ‘acceptable’.  Imagine a situation where a young person is confronted with the authority of police, and is told or even asked ‘is it ok if the paramedic is here’. Paramedics tend to also be in uniform and most often (but not always) are from state/territory ambulance services.  They are as much a part of government as the police. How a young person could seriously understand that he or she is being asked ‘is it acceptable to you that this person you have never met is going to watch you be searched’ and that they have the option to say ‘no’ is beyond me.

Police finding someone, including a paramedic, who the young person does not know and who has no training or experience and asking them to be a ‘support person’ is ‘ticking a box’ – we had an adult there so it’s ok – it is providing support to the police, not the young person.

Asking paramedics to stand in sounds to me like lack of planning. Police must know that these situations arise and should have in place plans to meet the legal requirement, and ‘asking the paramedic who happens to be there’ is not a plan. If the plan is to ask paramedics to take on that role, or to conduct searches where there is not a police officer of the same sex as the person to be searched, then this should be negotiated with ambulance services and paramedic associations and appropriate training and procedures put in place.

The questions

1)      Is there any risk to the health professional in engaging in this type of third-party advocacy/support?

Absolutely. I expand on that below.

2)      What would occur if the health professional disagreed with the police handling of the matter?

He or she would have to raise that with police at the time. And if the matter went further the paramedic could expect to be called as a witness in any proceedings either by the police (to confirm that they did ‘ok’) or by the accused (to confirm that they did not). If they failed to do act in the client’s interests, then there may be professional or legal consequences. Providing comfort to police may even, in some extreme circumstance, give rise to an allegation that the paramedic was an accessory to police misbehaviour.

3)      Is there liability for any act or omission of the health professions, for example, providing advice to the young person (which may or may not be accurate) on their matter with law enforcement? If the advice was inappropriate, or the police took exception to it, could that matter be referred to the regulator as a professional conduct matter.

I would think so. I could make an argument that a paramedic who stepped in where there was no prior relationship with the patient is thereby supporting police, not their patient and that could, possibly be a breach of the code of conduct by not putting the young person’s interests first.

As for liability for advice (or not) or stepping in to stop misconduct (or not) then I could see that the fact that the paramedic has agreed to be a support person does give rise to a duty of care to the young person. What is ‘reasonable’ would be hard to judge given the absence of training or experience, but they are there as a professional and are asked as a professional which is different to ‘mum or dad’ or a sibling doing the same task. There would be difficulties, but it could be arguable that failure to intervene in some circumstances would be a breach of the very duty that the paramedic agreed to take on, ie support the person and act not ‘merely as an observer during an interview’.

4)      Is the risk or standard any different if a non-registered health practitioner, for example a first aider, performs these types of roles.

A non-registered health practitioner cannot be ‘struck off’ or subject to AHPRA discipline but would face similar issues.

Conclusion

Stepping in at ‘a major event… [when] asked … to act as advocates (i.e. support persons) for persons aged 16-17 in police custody’ seems to me to be an anathema to paramedic practice. It may be appropriate for paramedics who really wanted to join the police force and did not get in, but not for others, particularly where such action ‘is both outside their training and normal scope of’ practice.

With respect, what paramedics are being asked to do is ‘bear witness’ not support the young person. If they are to support the young person, or to conduct delegated searches (Law Enforcement (Powers and Responsibilities Act 2002 (NSW) s 32(7A)) then that should be the subject of preplanning between the ambulance service and the police force and be subject to training and procedures.

If, at the scene, the police say ‘if you don’t step in we can’t do the search’ or ‘we have to do it without a support person’ (s 33(3)) then the correct response is

That’s that’s your problem – either don’t search them or take responsibility for your call that the circumstances warrant a search without a support person. Don’t pretend that I can support a person who I’ve not met and where I have no training or experience in this matter.

Paramedics should not take responsibility for the police forces failure to think ahead nor absolve a police officer from his or her obligation to decide whether the circumstances in s 33(3A) apply.

The only exception that I see to that rule is where the paramedic has a clinical relationship with the young person and the police want to interview or search the paramedic’s patient. In those circumstances I would think standing with the young person/patient, insisting on being present during a search or stretcher side interview, would be quite consistent with good paramedic practice, but that is not the situation described.

In summary:

Police finding someone, including a paramedic, who the young person does not know and who has no training or experience and asking them to be a ‘support person’ is ‘ticking a box’ – “we had an adult there so it’s ok” – it is providing support to the police, not the young person.