The Ambulance Service Amendment Act 2013 has now passed through the Tasmanian Parliament (it received Royal Assent on 19 December 2013) though it has not yet commenced operation. The Act will become effective law on 1 July 2014 unless proclaimed to commence on an earlier date (s 2). The Bill was the subject of an earlier blog post (see ‘New law for ambulance services in Tasmania‘ and ‘New law for ambulance services in Tasmania – Update). Now that the Bill has become an Act it is worth, briefly, revisiting the provisions in their final form.
The most significant provision is the attempt to protect the title paramedic. As I have noted elsewhere, the term ‘paramedic’ is undefined and anyone can call themselves a paramedic. One of the advantages of national registration, should it happen, is the term ‘paramedic’ will be limited to people who qualify for registration as a paramedic. In the absence of registration, Tasmania has moved to restrict the use of the title. Once this Act commences, the term ‘paramedic’ will be limited to:
1. Employees of Ambulance Tasmania (the new name for what is now the Tasmanian Ambulance Service) who hold prescribed paramedic qualifications or qualifications that the Commissioner thinks equate to those prescribed qualifications and who is employed in a position determined by the Commissioner to be a paramedic position. Accordingly a person who is a employed as a mechanic by Ambulance Tasmania would not be able to call themselves ‘a paramedic’ even if they had also completed a prescribed paramedic qualification.
2. Employees of approved inter-state ambulance services who hold the necessary qualifications, is approved by the Commissioner as qualified to provide care in Tasmania, and is providing care in accordance with approved protocols. In effect this means paramedics with interstate services who are assisting, as part of interstate cooperation to provide ambulance services in Tasmania so if Ambulance Victoria sends paramedics to assist Ambulance Tasmania during a disaster (see Ambulance Service Amendment Act 2013 (Tas) s 31 inserting a new s 38A into the Ambulance Service Act 1982 (Tas)).
3. Other people who have been listed in the regulations; so that may be anyone who holds a particular qualification and is employed by an authorised private provider in Tasmania. (Ambulance Service Amendment Act 2013 (Tas) s 4 inserting a new s 3AB into the Ambulance Service Act 1982 (Tas)).
It will be an offence for anyone to drive or ‘have charge of’ a vehicle with the word ‘ambulance’ or ‘paramedic’ on it unless it is, respectively, an ambulance or being staffed by a paramedic (so what happens when a vehicle marked ‘paramedic’ is being driven by a mechanic?) (Ambulance Service Amendment Act 2013 (Tas) s 31 inserting a new s 39 into the Ambulance Service Act 1982 (Tas)).
Importantly an ambulance is a vehicle operated by Ambulance Tasmania or approved by the Commissioner. A private provider, including St John Ambulance Australia, cannot put the word ‘ambulance’ on their vehicles without the Commissioner’s approval. This is the case even though St John Ambulance is allowed to provide ambulance services (Ambulance Service Act 1982 (Tas) s 37). This is because the definition of ‘ambulance’ will not say a vehicle operated by a organisation authorised to provide ambulance services, rather it will say that an ambulance is:
(ii) operated by, or on behalf of, the Ambulance Service to provide ambulance services other than non-emergency patient transport services; or
(b) which is approved by the Commissioner to be so operated
and the term ‘ambulance service’ will mean the Ambulance Tasmania! (Ambulance Service Amendment Act 2013 (Tas) s 4 ).
It will be an offence for someone to represent that they are a paramedic, or that they run a business that employs paramedics, unless approved by the Commissioner (Ambulance Service Amendment Act 2013 (Tas) s 31 inserting new ss 39 and 39A into the Ambulance Service Act 1982 (Tas)). As noted a paramedic will be a person who has the prescribed qualifications and is employed by Ambulance Tasmania. In short, private ambulance providers such as Ambulance Private (http://www.ambulanceprivate.com.au/) will not be able to use the word ‘ambulance’ on their vehicles or describe their staff as paramedics without the approval of the Commissioner.
Under fire and emergency services legislation, various officers of the fire and emergency services have statutory authority to enter land or do other things that may otherwise constitute a legal wrong (a tort or a crime). Most ambulance service Acts do not have similar provision. This Act will give specific statutory power to Tasmanian ambulance officers to use reasonable force, and whatever assistance may be necessary, to ‘enter any land, premises or vehicle if the officer has reasonable grounds for believing that a person in or on the land, premises or vehicle requires urgent ambulance services’ (Ambulance Service Amendment Act 2013 (Tas) s 13 inserting a new s 14A into the Ambulance Service Act 1982 (Tas)).
Where there is more than one statutory agency in attendance, eg police, Tasmania Fire Service or the State Emergency Service, and an ambulance officer is providing care to a person, then the senior ambulance officer is responsible for the care of the patient and may make recommendations to the other services as to their priorities in order to protect the welfare of the person requiring assistance. To put that in context, at a rescue the senior ambulance officer may ask the rescue service to prioritise releasing on person ahead of another because of the person’s injuries.
The Act introduces a licensing scheme to allow private providers to supply non-emergency patient transport (Ambulance Service Amendment Act 2013 (Tas) s 25 inserting a new Part IIIA into the Ambulance Service Act 1982 (Tas)). Similar schemes already operate in Victoria (Non Emergency Patient Transport Act 2003 (Vic)) and South Australia (Health Care Act 2008 (SA) s 58).
The CEO of Ambulance Tasmania will be ‘the Commissioner’ and honorary ambulance officers will now be volunteer ambulance officers.
Just to clarify, the new Commissioner is a change of title for the Director of Ambulance position, currently the Secretary of the Department of Health and Human Services, Tasmania
The amendments delete the word ‘director’ and replace it with ‘commissioner’ throughout the Act. Section 5(1) now says ‘ (1) The Minister administering the State Service Act 2000 may appoint a State Service officer or State Service employee to be Director of Ambulance Services who is, by this subsection, incorporated as a corporation sole with the corporate name “Director of Ambulance Services”‘ If the Director of Ambulance is currently the Secretary of the Department of Health and Human Services, Tasmania then he or she will now be the Commissioner.
(so what happens when a vehicle marked ‘paramedic’ is being driven by a mechanic?)…
Why not implement large magnetic stickers stating eg. “Not in Service”. Using these to cover Ambulance badges may be a way to alleviate such problems, allowing mechanics to drive the vehicles.
With this act suggesting that a paramedic can only be employed by AT, is there any scope for industrial paramedics or a paramedic working within a Doctors Surgery, as a medic for a sporting team and so on? Does this potentially limit or restrain our trade?
Once the amending Act comes into force, the term ‘paramedic’ will mean, among other things, ‘ a prescribed person, or a member of a prescribed class of persons, who meets any requirements, conditions or approvals prescribed in respect of that person or class of persons.’ So yes there is ‘scope for industrial paramedics or a paramedic working within a Doctors Surgery, as a medic for a sporting team and so on’. They can continue to practice but will not be able to use the title ‘paramedic’ unless approved by the Commissioner. It is unlikely that the Commissioner will want to get into the business of approving individuals so he or she would, I suggest, be likely to approve ‘a class of persons’ such as ‘anyone holding x or y qualification and appointed by say a company to do a job’. For example, under the Poisons Regulation 2008 (Tas) Reg 62B ‘A first aid officer who has a current certificate in the use of nitrous oxide (S4) granted by a registered training organisation may – (a) possess nitrous oxide (S4) …’ This is not identifying each individual but a broad class of individuals who can use nitrous oxide. Equally the Commissioner may approve the use of the title ‘paramedic’ by, say, a person who has graduated with a Bachelor of Paramedic Practice from the University of Tasmania and who is employed by an approved ambulance provider in a position designated as a paramedic position.
As for restraint of trade, the problem for paramedics is that they do not have easily transferable qualifications, so the right to ‘trade’ is in fact limited. As for ambulance providers it doesn’t stop them doing their work but it does stop them using the title ‘paramedic’. Is that a restraint of trade? Probably but not all restraint of trade is illegal, if it is appropriate in the public interest (see ACCC http://www.australiancompetitionlaw.org/law/rot.html). Protecting the title ‘paramedic’ is not unreasonable and this Act may be unreasonable if it really said that only a person employed by Ambulance Tasmania could use the title, but it doesn’t say that it says that a person approved by the Commissioner can also use the title. One could suggest that the Commissioner has an inherent conflict of interest between his/her role as head of AT and also the profession regulator, but equally public servants realize that they are indeed acting in the public interest. If the Commissioner refused to endorse people who are clearly ‘paramedics’ simply to protect AT’s monopoly position that would not be bona fides decision making and one could seek administrative review of that sort of decision. But having a law that says’you can’t call yourself a paramedic without permission’ and then determining who is to give that permission is not going to be an unreasonable restraint of trade nor I would suggest, run foul of government policy on competitive neutrality (see http://www.finance.gov.au/financial-framework/financial-management-policy-guidance/competitive-neutrality.html), ie that governments should not take steps to protect their commercial interests at the expense of the private sector.
Lets play devils advocate. If Paramedic National registration occurs under AHPRA. Will “registered paramedics” under a national legislation/scheme be able to call themselves such or would the Tasmania State law conflict?
That’s an interesting question; the national law is in fact a cooperative scheme, rather than federal legislation (see HEALTH PRACTITIONER REGULATION NATIONAL LAW (TASMANIA) ACT 2010 (Tas)) so s 109 of the Constitution (which says federal law prevails over inconsistent state law) won’t apply. But Parliamentary Counsel are well aware of that. I would expect that if paramedics became nationally registered, the definition of paramedic would be altered to refer to registered paramedics; and if it did not the Commissioner would approve the use of the title by anyone registered as a paramedic under the National Law. Now I can’t guarantee that but anything less would be silly, and believe it or not legislatures don’t like being silly and, and not my earlier comment they can’t restrict the title just for commercial advantage. If the two Acts are left and are inconsistent then there is a rule of interpretation to the effect that the passage of a later, inconsistent Act by necessary implication repeals the earlier Act to the extent of the inconsistency, so if the Health Regulation National Law is amended to include paramedics, then it would be arguably that this by necessary implication repeals a provision to the effect that a registered paramedic cannot use the title ‘paramedic’.