As we know, Australia’s emergency services depend on volunteers.  Volunteers may respond after a day’s work and spend many hours in the field.   Fatigue management has become an important issue in the emergency services but it can have implications on service provision as suggested by my correspondent, a community first responder with the Queensland Ambulance Service.

I’m hoping you are able to provide your opinion regarding a recent imposition of a maximum “10 days in 14” On call constraint by the Queensland Ambulance Service (QAS) imposed on volunteer QAS Community First Responders (FRs) to manage fatigue.

My understanding, from my correspondent, is that QAS has introduced a policy that volunteers must have ‘at least 4 continuous days of no On Call duty in every 14-day period (“10 days in 14”)’.  Further ‘The QAS asserted that this is in accordance with “QAS Operating Procedures” (specifically the QAS First Responder Policy 2007), the Ambulance Service Employees’ Award – State 2012 (“Award”) clause 6.1.5 and the Queensland Ambulance Service – Determination 2013 (“Determination”) Part 4 s19 (g) which specify that “no employee will be placed on-call for more than 10 Days in a continuous 2 week period”.  My correspondent further says

My interpretation is that First Responders are not covered by either the Award or the Determination, and the QAS using these as the argument to impose the “10 days in 14” policy is therefore flawed.

Specifically, my questions are:

  1. What legal constraints (including industrial relations laws, duty of care) can be applied to volunteer emergency workers (specifically QAS volunteer First Responders) that limit the hours that a volunteer can be available On Call to respond to emergency calls?
  2. Are there any ‘best practice’ methods of managing emergency services volunteers fatigue in an environment similar to that described in this paper?
  3. Are there enforced ‘on call’ constraints applied to other volunteer 24×7 emergency services (eg rural firefighters) in Queensland or other states?
  4. Ultimately the QAS can simply direct FRs to follow the 10 days in 14 constraint, however would this stand up to community, public, media, legal or coronial scrutiny (and the Queensland “Courier Mail” test) if the resultant reduction in FR coverage contributed to a poor patient outcome?
  1. What legal constraints (including industrial relations laws, duty of care) can be applied to volunteer emergency workers (specifically QAS volunteer First Responders) that limit the hours that a volunteer can be available On Call to respond to emergency calls?

Critically the legislation is the Ambulance Services Act 1991 (Qld) and the Work Health and Safety Act 2011 (Qld).

I’m told that ‘QAS first responder volunteers are classified as honorary ambulance officers under section 14(1) of the Ambulance Service Act 1991’.   That section says:

(1) The commissioner may appoint such persons as the commissioner considers appropriate to be honorary ambulance officers.

(2) Honorary ambulance officers—

(a) may carry out, without remuneration, such of the functions of the service as the commissioner may direct; and

(b) are subject to the control and supervision of the commissioner.

The Work Health and Safety Act 2011 (Qld) says at s 19 that ‘A person conducting a business or undertaking [a PCBU] must ensure, so far as is reasonably practicable, the health and safety of’ workers.  The definition of ‘worker’ includes ‘a volunteer’ (s 7).  The fact that a person is a ‘worker’ for the purposes of the Work Health and Safety Act does not make him or her an employee for other purposes.

Fatigue is an important issue for both employees and volunteers in the emergency services – see for example Bushfire CRC, Awake, smoky and hot; Safe Work Australia Guide for Managing the Risk of Fatigue at Work; Queensland  State Emergency Service Fatigue Management and Duty Time Limitations; NSW Rural Fire Service Service Standard 3.1.14 Fatigue Management; NSW Health Fatigue – Preventing & Managing Work Related Fatigue: Guidelines for the NSW Public Health System.

What follows is that a service like QAS has to undertake its own risk assessments and develop control methods to minimise those risks. One of the risks is danger caused by fatigue.  Further the duty to manage to fatigue applies whether the person is an employee or a volunteer.

As noted an honorary officer is ‘subject to the control and supervision of the commissioner’.

It follows that the Commissioner can develop policies to meet the Ambulance Service’s obligations to ensure worker health and safety and honorary ambulance officers are required to comply with those policies.

  1. Are there any ‘best practice’ methods of managing emergency services volunteers fatigue in an environment similar to that described in this paper?

I am a lawyer not an expert on fatigue management.  What I would suggest, however, is that there are no doubt a number of approaches that could be adopted.  As the Work Health and Safety Act says a PCBU must manage a risk via a risk assessment that includes ‘the availability and suitability of ways to eliminate or minimise the risk’ (s 18(d)).  For all risks there is more than one way to manage that risk that has to take into account the context of the operations.

  1. Are there enforced ‘on call’ constraints applied to other volunteer 24×7 emergency services (eg rural firefighters) in Queensland or other states?

I do not know.

  1. Ultimately the QAS can simply direct FRs to follow the 10 days in 14 constraint, however would this stand up to community, public, media, legal or coronial scrutiny (and the Queensland “Courier Mail” test) if the resultant reduction in FR coverage contributed to a poor patient outcome?

It’s true, ‘QAS can simply direct FRs to follow the 10 days in 14’ roster.  Would this stand up to public scrutiny?  I suspect it would.  My correspondent says:

The “10 days in 14” On call constraint has reduced the availability of FRs to be on call by 30%, potentially reducing the response capability of the group (and therefore impacting service delivery capability of the QAS). The constraint does not manage fatigue … and seems to have no purpose other than “tick the box” for QAS. I would argue that reducing First Responder availability without good reason fails to support the QAS Mission and at least two of the strategic objectives for the QAS.

Even if that’s correct attributing any poor outcome, eg a delayed response, to a particular policy would be difficult.  If a coroner was investigating ambulance response times then there may be questions asked, but being asked questions does not mean that there are no acceptable answers.  QAS would rightly say it did have to manage its workforce, including volunteers, and take into account fatigue issues.

The issue will be whether or not QAS have reasons for the implementation of this policy; it does not matter that there are other policy options or some would argue that a different policy would be better.  Provided that QAS can point to reasons behind their policy and their choices, then their choice is open to them (see the discussion on Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and the concept of ‘Wednesbury unreasonableness’ discussed in A Question on the ACT Emergency Services Authority Volunteer Charter (April 14, 2016)).

Whether it would stand up to the Courier Mail depends on how they want to paint it.  If a patient dies and the press want to blame the ambulance service, then no doubt the policy will be subject to criticism.  Equally if a fatigued paramedic dies in a car accident then again the approach will be blamed.  But that’s true no matter what policy is.  When someone dies, the press can always paint a picture to blame whoever they want and blaming government is always more attractive than blaming the patient or the paramedic, or simply recognising that life is not risk free.

Conclusion

I am a lawyer and my blog is on legal issues.  I do not know what best practice of fatigue management is but I can confirm that:

  1. QAS has an obligation to manage fatigue issues for workers, which includes paid staff and volunteers.
  2. How they do that is a matter, ultimately for the Commissioner. There are, no doubt a number of options or approaches that could be adopted, provided the policy is not ‘so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions’ (Civil Liability Act 2002 (Qld) s 36(2)) then it’s a legitimate exercise of their authority.
  3. If a member, such as my correspondent, thinks that the policy is less than ideal the only approach is to advocate for change. There is no legal rule that one can point to to say that the policy is indefensible.

POSTSCRIPT

Following my post my correspondent has asked some follow up/clarification questions:

I was hoping that your analysis would validate some of my opinions, including that the Ambulance Service Employees’ Award – State 2012 (“Award”) and the Queensland Ambulance Service – Determination 2013 (“Determination”) don’t apply to volunteers (only paid employees); that even if it did, the 10 in 14 approach doesn’t work in the volunteer FR scenario where we don’t also ‘work’ fulltime rostered shifts like paramedics.

The Ambulance Service Employees’ Award – State 2012 says at cl 6.1.5 ‘No Employee shall be placed on emergency availability and/or continuous stand-by for more than 10 days in any continuous 2 week period’.  The Queensland Ambulance Service – Determination 2013  cl 19(g) says ‘No employee will be placed on-call for more than 10 days in any continuous two week period’.  There is no doubt that these documents do not apply to volunteers, they are referring to employees and as noted, just because a  volunteer is a ‘worker’ for the purposes of the Work Health and Safety Act, it does not make them an employee for other purposes (see What does it mean to be a ‘worker’ (February 19, 2015)).    So QAS does not have to impose the same limitations on its volunteers, but it doesn’t mean that it can’t do so.  The QAS can determine a policy on fatigue management for its honorary officers and if it chooses to implement the same measures as for its paid staff then that is an option that is open to it.

As for whether the ‘10 in 14 approach doesn’t work in the volunteer FR scenario where we don’t also ‘work’ fulltime rostered shifts like paramedics’. My correspondent says that the application of this policy is out of context as the Award and the Determination are dealing with the situation where paramedics have worked a normal roster and are then ‘on call’ but first responders have not worked a prior roster with QAS.  That may be true but many First Responder’s will have done a days’ work at their normal job or been playing sport, or doing home maintenance or doing any number of things before being ‘called out’.   It is an issue with all volunteer emergency services, they ask volunteers to turn out after having done a full days’ work, albeit not for the emergency services so they can’t know or control what volunteers do before they call upon them to respond.  As a result all the agencies have to consider fatigue issues balanced against the demands of the task and the inherent nature of volunteering, that volunteering is on top of work and other commitments.

If I can step out of my area of expertise to give a personal anecdote: When I was in an accredited rescue unit, I found just being ‘on call’ disrupted sleep and added fatigue, even if the pager did not go off!  The unit I was with tried to make arrangements where people were rostered 1st or 2nd on call, or ‘not on call’.    Those 1st on call were meant to respond, 2nd on call were available to relieve the first on call team should the job take a long time or to be available should a second incident arise.  The ‘not on call’ team were told they could have a complete night’s sleep, or a drink, knowing that they would not be called.  It was a good idea but difficult to implement.  Volunteers volunteer to do the job – and call outs were relatively infrequent so no-one was prepared to be put ‘off line’ and perhaps miss the only job for weeks or months.  When the pager went off, everyone who could showed up.

That may be the outcome of encouraging volunteers to manage their own fatigue and may be why an organisation like QAS might decide to implement a policy that directs people to stand down. That gives the Service both the authority and the obligation to monitor compliance and to not call members who have been on call for 10 days out of the last 14. That does not mean the 10/14 requirement is the best policy or that there are not alternatives that might work better both for response times or for individual members, but it is a policy option and provided the agency, in this case QAS, can show that it has actually considered the various issues and it has a reason for choosing this policy among the many other policy responses it could have chosen, then it is a ‘reasonable’ choice that would certainly stand up to legal scrutiny even if the community or the media thought it had reduced response times.

It should be noted that as volunteers are workers for the purposes of the Work Health and Safety Act 2011, QAS should have consulted with them before introducing this or some other fatigue management policy (see Work Health and Safety Act 2011 (Qld) ss 47-49) but as to what consult might mean see: