On 4 August the NSW Health Minister, Mrs Jillian Skinner, introduced the Health Services Amendment (Ambulance Services) Bill 2015.
This Bill, if passed, will open the door to allow licensed providers of “supported non-emergency transport”. The scheme will be based on the scheme already in place in Victoria. According to the Minister:
Organisations providing supported transport will be obliged to ensure that the vehicles used are equipped in a manner that ensures patient safety. They will also be required to ensure that clinical care and monitoring is provided in a manner that ensures patient safety. Similarly, hospitals, aged care facilities or other organisations that contract or engage service providers to supply supported transport will be obliged to take reasonable steps to assure themselves the transport provided is safe and appropriate.
These provisions follow developments in other states and make sense to ensure that emergency ambulance crews are not diverted to cases that do not require their specialised skills.
It should be noted that the Bill does not provide for a licensing scheme, that is an operator will not need to apply to the Department or Minister before setting up a transport service. Provided the service meets the prescribed standards it can operate. The Minister has the power to prohibit a person or entity from providing ‘supported non-emergency transport’ if they have previously operated in contravention of the standards and it is necessary to prohibit their future involvement ‘to protect the health or safety of members of the public’.
From my perspective, the more interesting aspect of this Bill are changes to the prohibition on the provision of ambulance services. The Health Services Act 1997 (NSW) s 67E currently says:
(1) A person must not:
(a) directly or indirectly provide or take part in the provision of transport for 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 Health Secretary under this Chapter,
without the consent of the Health Secretary and except in accordance with such conditions (if any) as the Health Secretary may from time to time impose.
This section does not say that a person must not take part in the provision of transport to a hospital but other transport is OK. Even though it does not say that many providers of private ambulance services think it does. The idea that private providers can transport around an event, say from the site of injury to a medical centre, was put and rejected in Paramedical Services Pty Ltd v The Ambulance Service of New South Wales  FCA 548. In that case, Justice Hely ‘concluded that the provision of event prehospital care and patient transport, even if that transport is limited to transportation around the event site, for example from a first aid post to a medical centre, was the provision of ambulance services and was, therefore, illegal without appropriate approval.’ (For a more complete discussion see Michael Eburn and Jason Bendall, ‘The provision of Ambulance Services in Australia: a legal argument for the national registration of paramedics’ (2012) 8(4) Australian Journal of Paramedicine, Article 4 <http://ro.ecu.edu.au/cgi/viewcontent.cgi?article=1380&context=jephc>).
Even so there has been a growth in private event first aid providers and, as Bendall and I noted:
Governments appear to tolerate these activities and many of the private sector providers have government authority to carry and administer medications that are used in prehospital care. The effect is that a number of people and organisations are authorised to carry and use medications for the provision of first aid or transport of the sick and injured even though the provision of those services (in NSW) is prohibited.
The 2015 Bill will change all that. If passed it will no longer ben an offence to ‘conduct … operations similar to the operations’ of NSW Ambulance, rather it will be an offence to provide ‘emergency ambulance services’. ‘Emergency ambulance services’ will be defined to mean
… ambulance services that provide transport to sick and injured persons to or from hospitals:
(a) in response to requests for medical assistance for persons who may have injuries or illnesses that require immediate medical attention in order to save or maintain life or to alleviate suffering, and
(b) using staff who provide attention for the purpose of saving or maintaining life, or alleviating suffering, during transportation.
Ambulance services will continue to mean ‘services relating to the work of rendering first aid to, and the transport of, sick and injured persons’ (Health Services Act 1997 (NSW)).
What will be prohibited under the Bill is transport ‘to or from hospital’. Transport around an event site will not be prohibited.
Why is it about time?
It’s about time these changes came in because it is apparent that for years the prohibition contained in s 67E has been ignored. Legislators should ensure that the law says what they mean it to say, and they say what they mean. The law has said that there is a prohibition on providing ambulance services but clearly no-one really meant it. Bringing the law into line with desired practice is a good idea, but this change may go too far.
Where does that leave event first aiders?
The obvious problem is that an organisation that wants to provide first aid or paramedic services at a community event may be even less regulated than they are now! If they are not providing ‘transport … to or from hospitals or other places where those persons can obtain medical services’ then they are not providing ‘supported non-emergency transport’ nor are they providing an emergency ambulance service.
There is in fact nothing to stop me setting up Eburn’s Paramedic Event Services and sending people out to provide first aid with nothing more than good intentions. If they injure a patient or mislead the event organisers into thinking the are getting a service they are not, then all the remedies will be private in nature, that is the patient or the event provider would have to sue me. I would not be in breach of any provision of the ambulance service legislation and the government would have difficulty regulating my conduct.
If and when the Health Services Amendment (Paramedics) Bill 2015 (NSW) passed, my service could not use the title ‘paramedic’ but apart from that I could continue to operate.
The current prohibition was clearly not enforced on its terms, ie private providers were providing services ‘similar to the operations’ of the Ambulance Service of NSW but at least they needed consent or risked prosecution. Should this Bill become law, it will certainly be easier for event first aid providers to set up with less regulation. I’m sure that is not the intended outcome.
I think a better method of regulation can be found in the Emergencies Act 2004 (ACT). Under that Act it is an offence to provide an ’emergency service’, which includes an ambulance service, without the permission of the Minister (s 63). The minister has however granted approvals and these are published on the ACT Legislation Register – see for example, http://www.legislation.act.gov.au/ni/2015-350/current/pdf/2015-350.pdf. It is then possible to see who is approved and what services they can provide. Their services could be non-emergency patient transport, emergency patient transport or event first aid. Requiring prior approval allows the Minister to be satisfied, before patients get treated, that the provider is meeting all the necessary standards as it is better to protect patient safety before, rather than after, they need patient care services.
It is about time that the NSW Government recognised both the need for private providers to help meet the demand for patient transport and to free up NSW Ambulance for emergency work. That is a good step but it is a concern that prior approval is not required before private operators start their business. Having the power to prohibit providers after they have failed to meet prescribed standards is not as secure as requiring them to satisfy the minster before they commence operations that they are meeting those standards.
Removing the blanket ban on the provision of ambulance services, and now having it for emergency ambulance services will also reflect the reality that there are private providers but it has gone so far that those that are providing event first aid, and not transport to and from a hospital, are now unregulated. That may have gone too far.