Welcome to the emergency services law blog
This blog is maintained by Michael Eburn, Senior Lecturer in law at the University of New England, Armidale NSW, to discuss legal issues affecting the emergency services (that is fire, ambulance and rescue services) in Australia.
Why Michael Eburn? I am an academic researcher looking at legal issues affecting and applying to the emergency services. I am the author of Emergency Law (2nd ed 2005, The Federation Press) the only book (or at least the only one that I know of) on the subject of Emergency law in Australia. I am currently writing the 3rd ed so I would value any feedback people have on the 2nd ed. If there is a subject that you want to see discussed or some part of the discussion of it isn’t clear, let me know and I’ll see what I can do in the next edition.
Apart from that book I have written numerous articles and given conference papers and inservice training on legal issues affecting the emergency services. You can see my CV here.
Here I will put up my thoughts and reflections on developing issues, in particular developments in the law that I think may impact upon the law that applies to the emergency services. I also want to hear from the members of the emergency services, paid and volunteer. If there is an issue that you think needs discussion post it here and we’ll see what comes out of it.
Having said that I have to add the usual lawyers disclaimers. This is not a place for providing specific legal advice, so I wont be able to answer questions that are based on actual events, such as ‘we responded to a job and now someone wants to sue me, what should I do’. For those jobs you (or more importantly, the service of which you are a member) needs to get legal advice from a practising lawyer. I also wont comment on questions about service decisions, so questions like ‘My service has just issued a directive/policy/item of PPE and I think it is illegal, what do you think?’ wont be answered. Finally I wont get into inter-personal issues ‘A fellow member said this, is it defamatory or can we kick them out of the service?’. Having said that I want to hear as many things as possible because if I know the issues that are affecting the members I can do more productive and useful work in trying to find answers. If your concern clearly falls in the above categories then understand I may not be able to give an answer, but remember there is no harm in asking and if I think I shouldn’t answer a question or comment on an issue, I’ll say that.
I hope this site proves useful and interesting for all and I look forward to our discussions.
Michael Eburn
29 January 2009
January 29th, 2009 at 10:14 am
Well done and good luck in the big wide world of blogging Michael!
I look forward to reading more on this vital (and often misunderstood!) topic, especially given that it is an Australian focus as opposed to the many other international focussed sites for emergency services.
I’ll be sure to spread thw word to my clients and colleagues and I look forward to catching up in the near future and perhaps working together again on a few projects in ‘09.
May 4th, 2009 at 11:04 pm
I’ve been browsing around your blog for a while but I just had to comment on this post, great information!
May 5th, 2009 at 6:04 pm
Excellent post, I wish I’d have found your blog earlier!
July 21st, 2009 at 1:52 pm
I find it interesting that the Dept of Health has put out a document sating that a child aged 14years and over can consent or not consent to prehospital care treatment.
CONSENT TO TREATMENT
Where it states that a 14 year old can consent to or refuse treatment.
I have read through all 42 pages of the document.
I have some concerns with the stated age of 14 years.
In Section 174 of the Child and Young Persons Care and protection Act. (Amended)
We class a child between the ages of day of birth to 16 years and a young person between 16 to 18 years. And it is only under Section 25 of the Act that we can consider a child at “Risk of Harm” after the birth of the child. As the foetus is not classed as a separate identity.
So taking all this into account how can it be now said that a person 14 years of age can consent to treatment when we require a guardian to consent to treatment for a child less than 16 years of age. Unless a life threatening situation is evident, where we are permitted to administer treatment under Section 174 of the Child and Young Persons Care and Protection Act.
This really leaves the child from 14 to 16 years in limbo under the Act.
Whilst I can appreciate that it would be prudent to gain consent but it must be remembered that if this is the situation the child can refuse the consent given by the Parent or carer.
So if we are placed in a situation where we attend to a child 14 years of age and the parent consents to treatment but the child then refuses that consent but we are of the opinion that medical treatment is required but not a life threatening situation. We can’t use section 174 of the Protection Act we can’t use the Guardian Act and we can’t use the Family Law Act.
But now we are required to abide by the Minors (Property and Contracts) Act 1970.
These Acts appear to be in conflict with each other.
On the SUBSTITUTE CONSENT FOR MEDICAL TREATMENT form under the Guardianship Act 1987 it clearly states (for patients 16 years and above where consent is provided by a person responsible)
Then on the REQUEST/CONSENT FOR MEDICAL PROCEDURE TREATMENT it states (For parents/guardians of patients less then 16 years of age)
I would be interested in your views on this please
regards Jim
July 21st, 2009 at 2:34 pm
This is a problematic area. The Minors (Property and Contracts) Act 1970 (NSW) s 49 is the relevant provision. It says that the consent of a parent or guardian of a child under 16 is effective; as is the consent of a child over 14. That means if you treat a child between 14 and 16 you need the consent of either the child, or their guardian/parent. You only need the consent of one or the other so if the child refuses consent, and the parent gives consent, that is sufficient (at least to avoid an allegation of assault); equally if the parent refuses, the child’s consent is sufficient. Once the child reaches 16 parental consent is no longer effective, at that point the Guardianship Act applies and you need to locate the ‘person responsible’ if the young person is not competent to consent.
It should be noted that the Minors (Property and Contracts) Act 1970 refers to ‘medical treatment’ that is “(i) treatment by a medical practitioner in the course of the practice of medicine or surgery, or (ii) treatment by any person pursuant to directions given in the course of the practice of medicine or surgery by a medical practitioner” which would not include Paramedic practice; but the common law (see Gillick’s case [1986] 1 AC 112 says that a child’s consent is effective once they have the necessary maturity and understanding rather than meeting a particular age.
I hope that helps
Michael Eburn
July 30th, 2009 at 3:02 am
Great to see some legal information about emergency services at long last and i hope this blog stands the passage of time. Also Michael is there plans for a 3rd edition to your book emergency law.
July 30th, 2009 at 10:30 am
Hi Dodge,
Yes there are plans for a 3rd ed of the book, the manuscript is due with the publisher on the 17th August but that is also the date that the Victorian Bushfire Royal Commission is to hand down its interim report, so we may hold off to see what is said there. If there is anything you think should be included in the 3rd ed, or any improvements you can suggest, do let me know.
Michael Eburn
July 31st, 2009 at 2:01 am
Michael i am currently studying criminolgy and justice over here at Edith Cowan and being a volunteer ambulance officer i have through my studies taken a greater interest in the legal area of what i do, so i would appreciate your thoughts on the Volunteers and Food and Other Donors (protection from liability) Act 2002 (WA), as at present this and the Civil Liabilty Act 2002 (WA) seem to be the only protection that volunteer ambulance officers have in Western Australia and career ambulance officers only seem to have the Civil Liability Act to protect them as there is no Ambulance Service Act at present in Western Australia. The only emergency services that have any statutory protection are those that are covered under Fire and Emergency Services Authority of Western Australia Act 1998 (WA) and Bush Fires Act 1954 (WA).
Mind you i am waiting to see the outcome of the Ambulance Service review that has been announced by the government to see what changes will be made as to if the provision of the service is to governed by an Act in the future or it will remain as it is at the moment.
But the 3rd edition whenever it dose come out will be joining my rapidly growing personal library as soon as it is available
July 31st, 2009 at 11:11 am
Hi Dodge
The question I am always left with is what protection do you need? Most if not all professionals operate without specific legal exemption from tort law; we are all expected to act as reasonable professionals in whatever profession we are in. The best protection that ambulance officers have is the rules of tort law and the rules of vicarious liability, that is no-one (at least no-one in their right mind) is going to want to sue the individual officer for anything; and no organisation that uses volunteers is going to let their volunteers wear personal liability, because the day that happens is the day they cease having volunteers. The Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA) provides that where a volunteer is protected, the community organisation is still liable, thereby entrenching the notion of vicarious liability. It is debatable whether or not vicarious liability extends to volunteers so that clause is of some benefit but is not required for employed ambulance officers as the service is necessarily vicariously liable for them.
You might want protection from those that are not ‘in their right mind’ but no legislation will do that. As the litigation in NSW v West shows all these alleged indemnity clauses do is shift the argument as to whether they apply in the circumstances and what do they mean.
In my research I have only found 2 cases where these provisions have been successfully relied upon, and one was the case where a fire brigades inspector set fire to a theatre he was inspecting as he used a cigarette lighter rather than a torch to try and illuminate what he wanted to look at!
In all other cases they are generally ignored as the courts have found that under the common law, for whatever reason, there was no liability anyway. In the vast majority of cases where the emergency services have been sued, they have won; but the sort of protection clauses that people look to don’t stop either the litigation or lead to a result that would be different if they were not there. The reality is that the major effect of those clauses is to make people feel better, rather than actually achieve very much (and here, of course, is the plug, see the detailed discussion in Eburn’s Emergency Law, 3rd ed, forthcoming).
So it’s true there is no ambulance Act in WA, but I’m not sure what people think they need protection from. And if you are going to argue that you need some legal protection we need to consider the principal that if someone is injured by neglect or default that should be made good. Every ‘protection’ for one group is a bar to another.
They’re my thoughts. What do you think?
Michael Eburn
August 1st, 2009 at 12:59 am
I do agree with what you say and yes i await for the forthcoming release of your third edition but one thing i did forget to mention and may be you can include in the forthcoming edition is the Protective Custody Act 2000 (WA). As this act is quite often used to ensure that intoxicated people be they adult or child can recieve needed medical attention when due to their intoxication refuse treatment and transport where they would not if they were in a more sober state, having said that it dose become problematic when even though they have taken alcohol onboard whom is to decide they are intoxicated or they are suffering from the result of a head injury (as can happen in drunken brawls) which is the cause of them to be unreasonable in their thought and not the alcohol. Of course this is not a problem if the person is of unsound mind due to mental defect as there is a course of action under the mental health act 1996 (WA). But the refusal of treatment and transport to care is one of the greatest if not the greatest of all challenges facing Ambulance Personnel be they volunteer or career officers, especially when it can be plainly seen that such refusal can have dire consequences.
August 9th, 2009 at 2:02 pm
Dodge
Thanks for raising these issues, I’ll certainly give them some consideration. The problem is always trying to find a balance between respect for autonomy and the right of people to make their own, even if foolish, decisions and the need to protect people from themselves. Both Neal v NSW Ambulance and Metro Ambulance v Victoria involved cases where the patient refused transport and was subsequently found to have had a serious head injury. In the NSW case the ambulance officers were exonerated but not in Victoria.
Another relevant case is Stuart v Kirkland-Veenstra [2009] HCA 15 (22 April 2009) where the High Court had to consider the position of two police officers who found a person sitting in a car with a pipe from the exhaust into the car, but with the windows open and the engine off. After talking to him they came to the conclusion he was not displaying symptoms of being mentally ill (and the court explained that contemplating suicide was not, of itself, proof of mental illness) so in any event the police did not take him into custody under the Victorian mental health legislation. He later killed himself and the police were sued by his widow.
In that case the court was concerned that the whole point of mental health legislation is to ensure that the mentally ill are detained only as a last resort and only in specified circumstances, and the basic principles of autonomy and freedom had to be respected for everyone. They found there was no negligence by the police and they did not have the power to detain the person as he was not demonstrating symptoms that would have allowed the police to act.
All are cases where judgment calls have had to be made. In 2 of 3 cases the courts came down in favour of the defendant ambo/police officer but not until some years and many appeals later.
Michael Eburn
9 August
September 18th, 2009 at 2:35 pm
Michael, are you aware of a case involving VICSES being investigated by the NSW Coroner in relation to the drowning of a member on the Murray River during a training exercise?
I’m not certain of the deatils or where it is at (from a legal proceedings perspective), but thought it would make an interesting study given it invovled training (as oppossed to an emergency response).
September 21st, 2009 at 11:22 am
Hi Luke, yes I’m certainly aware of it, it made news at the time. I understand that the matter is yet to be finalised. I’ll make sure to comment on it if the findings set any interesting legal precedent, but of course, the most important thing is to try to ensure such a loss doesn’t happen again.
Let me know if you hear via your contacts when the Coroner’s report has been released.
Michael Eburn