That’s the heading from a story in today’s Herald Sun. The gist of the story is that Victorian ambulance officers are concerned about getting speeding tickets on ‘code 2’ jobs. The article says:
Dozens of ambulance officers a month are being fined for speeding on their way to code 2 jobs, which are urgent but not life-threatening…
Paramedics are demanding their bosses use discretion and waive fines for minor speeding in the course of their duties…
Ambulance officers are not issued with speeding fines when they are using lights and sirens for the most urgent, code 1, cases, but they are fined when on less serious, code 2, cases such as transporting people to hospital and overdoses.
The story may have some merit but there are so many, fundamental legal mistakes, that it is no credit to either the Herald Sun or Ambulance Employees Australia.
The critical starting point is the law. All Australian states and territories have adopted the uniform Australian Road Rules and have incorporated the rules into their local laws. In Victoria the relevant law is the Road Safety Road Rules 2009 (Vic) (‘the Rules’). These rules are regulations made under the Road Safety Act 1986 (Vic).
The basic speeding offence (as well as more specific offences) is set out in the Rules. Rule 20 says:
A driver must not drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving.
There are exemptions for the driver of an emergency vehicle, which includes an ambulance. Rule 306 says:
A provision of these Rules does not apply to the driver of an emergency vehicle if-
(a) in the circumstances-
(i) the driver is taking reasonable care; and
(ii) it is reasonable that the rule should not apply; and
(b) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm.
Let us assume that Victoria Ambulance and Victoria Police have discussed what constitutes a ‘code 1’ job. Let us also assume that Victoria Ambulance have given some instruction to their staff about what constitutes a ‘code 1’ and what is expected. We can infer, if that is the case, there is agreement between Victoria Ambulance and Victoria Police that, all else being equal, it is reasonable that ambulances may be driven in excess of the speed limit on code 1 jobs or to put that in the terms of the section, that when on a code 1 job, clause 306(1)(ii) applies. Whether or not the driver is taking reasonable care is a matter the police will judge taking into account all the circumstances in particular the time of day or night and the traffic conditions.
Whether or not clause 306(b) applies is not a matter of judgement; either the blue and red flashing lights, and/or the siren are on, or they are not.
When clause 306 applies, it is not the case that traffic fines are ‘waived’, it is the case that no offence has been committed. Ambulance officers are required to comply with the law but the law includes clause 306 of the Rules. ‘Ambulance officers are not issued with speeding fines when they are using lights and sirens for the most urgent, code 1, cases’ because that is the law, not because anyone is doing them a favour.
Paramedics may demand ‘their bosses use discretion and waive fines for minor speeding in the course of their duties’ but it is not the discretion of the Ambulance service. The decision on whether clause 306 applies lies at first instance with the police. And the police don’t have a lot of discretion. A police officer by the side of the road with a RADAR or LIDAR speed detector may choose not to fine an ambulance officer but if they are detected by stationary cameras then there is a record and a process to be followed. Whether the ambulance has the red and blue lights on will probably be seen on the photo. If they are not on, there is no exemption. If they are on then the matter is probably referred to ambulance to determine if it was a code 1 job or not. If not, then even if they have their lights on if they are acting contrary to ambulance instructions then it is not reasonable that the rule should apply, and there is no exemption.
Police would have to issue a fine. If they did not they could face internal disciplinary proceedings or worse. One can imagine a journalist could, if they chose, make a story when someone finds they got fined in circumstances where a non-exempt ambulance officer was not on the basis that police were helping out their mates and not issuing fines notwithstanding the law had been breached.
An ambulance officer who is issued with a traffic fine and who believes that, for example, the patient’s condition meant that urgent ‘code 1’ travel was required and who activated the lights and siren, could make representations to the police or, ultimately, elect to have the matter determined by a court. A magistrate would (or is at least meant to; but see Magistrate O’Shane dismisses case against a man accused of assaulting a NSW Paramedic and Commentary on Magistrate O’Shane) hear both sides and make a decision in public with published reasons as to why they believe that the exemption does or does not apply.
The AEA spokesman is quoted as saying the ‘pressure to speed was worse now than ever before’ that may be true but that is trite and no justification for not issuing speeding tickets. The defence ‘I was just doing my job’ has never been a lawful defence. Ambulance officers like everyone are expected to do their job in accordance with the law, that law includes exemptions such as rule 306 of the Road Rules and other defences that justify treating people in circumstances that may be an offence if a non-ambulance officer gave the same treatment. It is not the case that we just don’t apply the law because we value the work of paramedics, the law contains provisions, such as rule 306 to allow them to do their work, but the law is not carte blanche, there are conditions that must be met and in the case of rule 306 they are that it is reasonable and the lights and/or sirens are activated.
The fact that the job has demands does not justify breaking the law as the heavy truck industry has learned. There are increasing obligations upon the supply chain, from manufacturers to retailers to ensure that their demands don’t put unreasonable burdens on truck driver’s forcing them to speed or drive beyond the regulated prescribed hours. If there is “… pressure on paramedics to get response times down and offload patients at hospitals” then the answer is for ambulance officers to drive as required by the law, and the ambulance service to do something to ensure that they can meet their obligations by making appropriate staffing arrangements or having performance indicators that reflect reality. If ambulance officers try to meet unrealistic expectations by breaking the law the ambulance service may not see a problem and, as noted, ambulance paramedics will face traffic infringement notices, but that is not a fault with the law and no reason not to issue fines or to assume that the speed limit for ambulances is some percentage higher than for other vehicles. Simply leaving it to police to decide if they should issue a fine (particularly when the incident has been caught by camera) is to open the door for favouritism, resentment and corruption and is the antithesis to the concept of the rule of law.
Finally the Herald Sun asks the loaded and misleading question, ‘Should paramedics be fined for doing their job’ and invites a ‘yes’ or ‘no’ answer, but this begs the question of ‘what is their job?’ It is not their job, nor a police officer’s job (see “Police caught on camera running red lights, speeding for no reason”) or a journalist’s job or anyone else’s job to break the law. A paramedic should not be fined for speeding when rule 306 applies but speeding when it does not apply is not part of their job. If the answer to that question as ‘yes’ what happens when the speeding paramedic runs over a child and is not prosecuted because they were ‘just doing their job’?
In other posts (Questions about the new Work Health and Safety laws; Suspended jail sentence for firefighter involved in a fatal accident) I have made the point that if anyone in the emergency services are concerned about legal liability, and in particular criminal liability, the risk lies in driving emergency vehicles.
Ambulance paramedics, and more importantly the AEA should understand
- The decision not to issue a traffic infringement notice is not a matter left to the whim of the police, the ambulance service, or the public; they are not fined because the Government has granted an exemption as part of the law; to benefit from the exemption the law has to be complied with;
- The decision whether to issue a traffic infringement notice, or to withdraw it, is a matter for the police, not the ambulance service;
- Pressures of work is not an excuse for breaking the law and, worse, exposing others to risk of injury or death. The fact that the ambulance is responding to a life threatening emergency is no good reason to expose others to injury or death; if you are going to exceed the speed limit, or travel through red lights you have to have the warning devices (lights and sirens) on to warn other drivers so they can make way. If you do not you do not get an exemption from any rules and may face charges for offences that are much more serious than speeding.
Michael Eburn
13 February 2012
Australian Emergency Law 