A correspondent wrote and said:

I would appreciate you addressing the transport of patients to public hospitals by privately operated ambulances from mine sites on your blog if you have time and consider it appropriate.

I am an Intensive Care Paramedic with the ASNSW with mixed rural/urban experience. I currently work in a rural area where mines rescue personal transport patients (their employees) to public hospitals in ambulances. I have been informed that they are able to do this under the Mines Rescue Act. Recently a certain mine has transported critically ill patients and delivered sub standard care. Where does the government ambulance service (ASNSW) stand here? When the patient leaves the mine site and is traveling to a nearby public hospital are they still acting under the Mines Rescue Act?

As you have previously cited; in NSW it is an offence to:

(a) directly or indirectly provide or take part in the provision of transport of sick or injured persons for fee or reward, or

(b) conduct for fee or reward any operations similar to the operations carried on by the Director-General under this Chapter,

without the consent of the Director-General… (Health Services Act 1997 (NSW) s 67E).

Is this practice allowed because they are not charging a fee to their employees?

The reference to s 67E is only a reference to half the section.  Sub-section 3 goes on to say:

(3) This section does not apply to:
(a) the St John Ambulance Australia (NSW) in respect of operations similar to the operations lawfully carried on by that body immediately before the day on which this section commences, or
(b) the Royal Flying Doctor Service of Australia (NSW Section), or
(c) the mines rescue company, within the meaning of the Coal Industry Act 2001, (or a member, director or employee of that company) in the exercise of mines rescue functions under Division 3 of Part 3, or Part 4, of that Act, or
(d) a member of the New South Wales Mines Rescue Brigade established under the Coal Industry Act 2001 , or
(e) any person (or class of persons) prescribed by the regulations.

The Mines Rescue Act 1994 (NSW) was repealed by the Coal Industry Act 2001 (NSW) s 54.  The 2001 Act provides that the minister may approve a company or companies to operate Mine Rescue Brigades (s 10(k)).   The functions of a Mines Rescue Company are set out in the Act (ss 14-17).  ‘Rescue’ is not defined, but an approved rescue company is to operate subject to the State Emergency and Rescue Management Ac t 1989 (NSW).  Rescue is defined in the State Emergency and Rescue Management Ac t 1989 (NSW) s 3, as ‘the safe removal of persons or domestic animals from actual or threatened danger of physical harm’.  The Mines Rescue Brigade is established to provide rescue services under the direction and control of the approved Mines Rescue Company.  Each Brigade is made up of members of the various mines who agree to be part of the Brigade.

There is nothing in the Act that refers to first aid or the transport of people to medical care.  The obligation to ensure that there are first aid or emergency medical procedures in place does however arise under the Work Health and Safety Act 2011 (NSW) and the Coal Mine and Safety Act 2002 (NSW).  A coal mine operator must have health and safety and an emergency management systems in place (Coal Mine and Safety Act 2002 (NSW) Division 2; Subdivisions 1 and 5).  An emergency management system must include:

  • ‘provisions for the treatment and transport of sick or injured people’;
  • ‘procedures to be adopted when emergency services external to the mine are required’ to attend the underground parts of the mine;
  • ‘first aid arrangements, including the provision of appropriate facilities, competent people and procedures …’; and
  • ‘arrangements for the treatment of electric shock and fluid injection injuries together with the effective training of people providing such treatment’ (Coal Mine Health and Safety Regulation 2006 (NSW) s 45).

Coal mine operators are required to contribute to the running cost of the Mines Rescue service (Coal Industry Act 2001 (NSW) ss  19, 20) but there are no fees charged for rescue unless the rescue takes longer than 8 hours or such other prescribed time (Coal Industry Act 2001 (NSW) s 22).

It should be noted that the Mines Rescue Company is not the same as the coal miner so the rescue company is not transporting its employees but the employees of the coal mine (and members of the Brigade, when acting in that capacity, are deemed employees of the Mines Rescue Company, not the coal mine (Coal Industry Act 2001 (NSW) s 35).

It must have been thought that the activities of the Mines Rescue service could constitute an ambulance service, hence the need to specifically exempt them from the operation of s 67E.  What follows is that the Mines Rescue Service is entitled to conduct its operations, and even if they are providing a service like that provided by NSW Ambulance they commit no offence.

It follows that neither the Mines Rescue Brigade nor the mine commit any offence by not calling the ambulance service.   If there is sub-standard care, that is a matter between the injured worker, the Mines Rescue Brigade and the coal mine should the worker seek any remedy, but a worker injured at work is entitled to no-fault workers compensation so is unlikely, except in the most extreme cases, to want to sue anyone.   If there has been some failure to ensure health and safety that would be a matter for Workcover as the agency charged with enforcing the Work Health and Safety Act.

So ‘where does the government ambulance service (ASNSW) stand here?’ and the answer is ‘nowhere’.  The ASNSW is ‘an’ ambulance service provided by NSW Health but it is not the ambulance police or regulator.    If the ambulance service is not called to assist they have no interest in the matter, it is not their job to see that adequate care is provided, that is up to the Department of Health or the patient if he or she suffers injury or damage.    If paramedics were members of a registered health profession they could be subject to professional discipline but that is not currently the case.  The Health Care Complaints Commission may have some jurisdiction to investigate the treatment by an unregistered health professional but that will, again, only arise if someone chooses to make a complaint.  The most appropriate complainant would be the patient or their treating doctor if they thought the substandard care was going to have significant adverse outcomes.

Michael Eburn

21 July 2012

Updated 21 September 2012.