Today’s correspondent poses:
A few questions from the ACT [the Australian Capital Territory]. I work for a private ambulance provider and we see a lot of interstate (NSW or QLD) based providers come into the territory to provide ‘first aid’. The basis of my question is what constitutes first aid. These ‘first aid’ providers clearly do more than simple splinting/bandaging or administering the patient’s own medication. The Emergencies Act 2004 (ACT) provides law around approved providers of Ambulance Services and those that render first aid do NOT require a licence. But what is first aid? Most of the providers bring schedule 2, 3, 4 medications into the ACT and provide them to patients, this is another concern. They should be licenced with ACT Health (administered by the Health Protection Service) to possess, supply or administer scheduled medications.
So just to reiterate:
1. What constitutes first aid? Or what is more than first aid in terms of medical coverage?
2. What penalties apply of providing ambulance services without an approval?
As the advice given to me by the ACT Ambulance Service and the Minister is that although penalty units apply for breaches, there is no mechanism for enforcement unless it is an approved provider who breaches their current approval, as opposed to an entity without an approval but providing services.
3.What additional mechanisms (if any) would you recommend to ensure that the public and event/festival organisers are protected?
Q1: First aid
The relevant provision is the Emergencies Act 2004 (ACT) s 63 which says:
(1) A person commits an offence if—
(a) the person is not approved by the Minister under this part to provide emergency, ambulance, firefighting or rescue services; and
(b) the person provides emergency, ambulance, firefighting or rescue services.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(2) A person commits an offence if—
(a) the Minister approves the person to provide ambulance, emergency, firefighting or rescue services; and
(b) the person provides ambulance, emergency, firefighting or rescue services for which they are not approved.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(3) This section does not apply to—
(a) a doctor in relation to the provision of medical treatment, or pre-hospital care to a patient, in the course of, or as an incident of, conducting a medical practice; or
(b) an entity in relation to the provision of first aid; or
(c) a person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently—
(i) injured or at risk of being injured; or
(ii) is in another way in need of emergency assistance; or
(d) a person who, acting without expectation of payment or other consideration, does something to reduce, or attempt to reduce, the effects of an emergency before the arrival of an emergency service; or
(e) a Commonwealth or State agency.
How do we distinguish between an entity that is providing first aid and an entity that is providing an emergency ambulance service? The Act gives no guidance so the only way to find out would be for someone to be prosecuted and for them to argue that s 63(3)(b) applies to them and for the prosecution to argue that it does not, and then a court would have to decide the question.
A first step would be to ask what is an emergency ambulance service? First aid is not defined but ‘ambulance services’ means (s 60) ‘the provision of medical treatment and pre-hospital patient care, and includes the transport of a patient by ambulance or medical rescue aircraft.’
That is not very helpful. The first question is what is ‘medical treatment’? If medical treatment (in s 60) means ‘treatment by a medical practitioner’ then an ambulance service is ‘the provision of medical treatment [by a doctor]…’ but s 63(3) says that the prohibition does not apply to ‘medical treatment [by a doctor]’ or in other words, it’s an offence to provide medical treatment by a doctor unless you are a doctor. I don’t think that is what is intended, and that medical treatment means something more than treatment by a medical practitioner. Paramedics and nurses can also provide ‘medical treatment’ as can first aiders.
Pre-hospital care is also an issue. Much care provided by ‘event health services’ is not pre-hospital. The person was never going to go to hospital or, in some cases, the care provided may mean they can avoid a trip to hospital. First aiders who give band-aids and Panadol may not be giving ‘pre-hospital care’ but even first aiders can treat people who are critically ill and that is ‘pre-hospital’ care. Controlling life threatening haemorrhage or doing CPR on a patient in sudden cardiac arrest is all ‘pre-hospital’ care, no matter who is providing that care.
I suspect the key component is that it ‘patient transport’. An event health service, staffed by paramedics may be providing medical and pre-hospital health care but if they don’t ‘include’ transport does that take them outside the definition? Prima facie it does as an event health team that only treats patients where they are and say calls ACTAS if they need transport is not providing an ‘ambulance service’ (ambulance being ‘a vehicle equipped for taking sick or injured people to and from hospital, especially in emergencies’). If you haven’t got an ambulance you may be an event health service or a first aid service, but not an ‘ambulance service’, even if the staff are providing sophisticated medical care and using scheduled drugs.
And a service that provides patient transport but no actual patient care would, it seems to me, be an ‘ambulance service’ if we read the definition as saying the term ‘pre-hospital care’ includes’ the transport of a patient by ambulance. If you provide ‘transport of a patient by ambulance’ you are providing ‘pre-hospital patient care’ even if there is in fact no other ‘hands on’ care provided. I that must be true – if you are transporting a patient by ambulance you are providing ‘pre-hospital care’ even if the only care is the transport and it is providing an ‘ambulance service’ (ie ‘taking sick or injured people to and from hospital’ and that is prohibited. That prohibition gives the ACT government the chance to impose quality controls on the vehicles and staff levels and qualifications.
It does seem to me the critical issue is patient transport- if you transport the patient you are providing an ambulance service and it does not have to be transport to a hospital on a public road. Driving a patient in a golf buggy from one area of an event to the medical tent is still patient transport (Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548).
The answer to the first question ‘What constitutes first aid? Or what is more than first aid in terms of medical coverage?’ is ‘We have no idea; we’ll need to wait for someone to be prosecuted to find out.’
Q2. What penalties apply of providing ambulance services without an approval?
The penalty for providing an ambulance service without approval is a maximum fine of 50 penalty units or imprisonment for 6 months or both. In the ACT a penalty unit is worth $160 for an individual and $810 for a corporation (Legislation Act 2001 (ACT) s 133).
So the maximum penalty for an individual is (50 x $160 =) $8000 and/or up to 6 months in gaol. For a corporation the maximum fine is (50 x $810 =) $40,500. A corporation cannot go to gaol.
There is a mechanism for enforcement, it’s called the criminal law. The police or ACT Health could lay an information before a magistrate, or file and serve a court attendance notice (Magistrates Court Act 1930 (ACT) ss 26 and 41B) alleging that a defendant had committed an offence contrary to s 63. The matter would proceed to court and the prosecution would have to prove its case ‘beyond reasonable doubt’.
Q3. What additional mechanisms (if any) would you recommend to ensure that the public and event/festival organisers are protected?
I’m not sure as I don’t know as recommending legislative change requires detailed consideration of the problem and consultation with stakeholders. The states and territories should, however, watch with interest the effectiveness of the licensing system being developed in Victoria – see Discussion paper on licensing of first aid providers in Victoria released (July 2, 2019).
Australian Emergency Law 
The first draft of the legislation for the Victorian Event First Aid was disappointing and seemed to be more of an administration proposal (eg basically the creation of a paperwork trail), rather than attempting to address the many issues plaguing the Victorian Event Service industry.
Whilst hopes were high that the legislation would lean up the industry in Victoria, this first draft failed abysmally. Part of this may be due to the fact that the legislation is in most part being drawn up by an administrator with no knowledge or first-hand experience of the Ambulance or Event First Aid industry. Based on this first draft, Backyarders who operate out of the back of a ute with nothing more than a first aid kit will be able to continue to operate and provide substandard care at public event.
The industry is currently being poorly managed by the Victorian Government, and the first draft seems to show a complete lack of interest to fix the issues at ground level. So don’t hold your breath for the Victorian legislation if this first draft is any hint of what’s coming.