A Victorian correspondent tells me that:
There’s a discussion unfolding in my confined space group regarding first responders not wearing adequate PPE for the identified hazards in an industrial setting.
As an example, if an Ambulance crew or Fire crew respond to a refinery, and the refinery has specific PPE requirements such as long sleeves, long pants, hard hats and goggles (all quite common in a refinery), but they deem it unnecessary (the Vic OHS Legislation affords exemptions to certain requirements for responders) where does the liability and the legal ramifications (if any) stop and start if they’re injured?
Likewise, in the same vain, if a crew is stopped at a gate and told they must comply with the requirements and the response is delayed which impacts on patient care, is there issues there too?
This is about the Occupational Health and Safety Act 2004 (Vic). (If only Victoria has adopted the Work Health and Safety Act 2011 it would make answering these questions so much easier; but they haven’t). Under the 2004 Act (s 21):
An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
Further, under s 23:
An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
Putting aside the question of volunteers that means the employer of the ambulance or fire crew has to take steps to ensure their health and safety. In a perfect world there’s been a risk assessment and consultation with the workers and PPE suitable for the sort of work those crews are likely to face are provided. For fire crews we see that the turn out gear includes boots, trousers and jackets, helmets, gloves, eye protection, breathing apparatus etc. No doubt ambulance crews also have gloves, hard hats, eye protection etc. When selecting PPE the services have to consider the broad range of situations that their crews will face including entering into workplaces that themselves pose a risk.
By the same token, the operate of a factory has to ensure that its staff have PPE and that others are not exposed to risk so for example, visitors are not allowed on the site without the PPE commensurate with the risk on site. There are exemptions from some requirements for emergency service employees (see Occupational Health and Safety Act 2004 (Vic) ss 42 and 50) but we need not concern ourselves with these in this answer.
What follows is that there are two duty holders. The emergency service organisation owes a duty to ensure the safety of its staff and the owner of the business where the emergency has occurred also has a duty to ensure that those coming onto the site, the emergency staff, are not put at risk by that workplace. The question really is, what is the risk?
The factory/refinery/plant may have PPE requirements that apply because of the various hazards in the work of the industry. But if there’s an emergency such that police or ambulance have been called perhaps the work place has been shut down so those risks are not present. In any event it’s hard to imagine that in most workplaces the PPE worn by responders, at least fire fighters, isn’t going to be better than that worn by the factory workers. So a security guard who says, for example, ‘the factory policy is that you can’t come here without a high-viz vest and a hard hat’ to an ambulance paramedic who is coming to treat a patient who’s collapsed in the car park is probably being over-officious. No doubt other emergency services, like the fire service, would rely on their statutory authority to force entry.
On the other hand, the security guard who says ‘this is a highly secure chemical laboratory and we’re not going to let you in because if you go in there, there is material that will kill you or you will release some microbe and cause Armageddon’ is meeting his or her duty. And the paramedics or fire fighters would be wrong to insist on being allowed in (see also Laboratory safety (April 7, 2016).
Ideally the responders need to listen to the PCBU that operates the business to understand what hazards there are and the PCBU that operates the business needs to warn the responders if there are particular hazards. The factory or plant should have its own emergency plan and if there are extraordinary hazards that should be communicated to the local fire and other emergency services, in other words the emergency services should be involved in the planning so everyone knows what is required in the response. If, on the other hand, the insistence on some PPE is simply inflexible doctrine without regard to the actual risk, given what’s actually happened, then the PCBU is not being reasonable trying to prevent the emergency services from effecting the rescue.
So ‘where does the liability and the legal ramifications (if any) stop and start?’ In simple terms it depends on who is being ‘reasonable’ or not. Everyone has their obligations – the 2011 Act says ‘If more than 1 person has a duty … each person: (a) retains responsibility for the person’s duty in relation to the matter…’ so depending on what happens the question will be did both the emergency service and the factory or plant PCBU do all they could to ensure ‘so far as is reasonably practicable’ everyone’s safety.
This opens a ‘can of worms’ in a number of areas. we can look at the basic PPE, but what happens when specialised PPE and / or procedures need to be met? The area i refer to is working at heights, where an agency/ies believe they do not need to observe safety protocols in the interest ‘getting the job done’.
Who is ultimately responsible? Certainly the PCBU, however the ‘incident Controller / Crew leader’ also needs to be held accountable, but sadly, their swift actions are applauded irrespective of the significant risks the crew and the casualty have been exposed to. For the casualty, if the action turns out positive, then all is good, however if they suffer further injury, maybe to a point of not being able to work again, what is the “real consequence”. From my experience, just a slap on the wrist for the emergency services operatives, which is really no longer acceptable in today’s environment.
Everyone has duties under the OHS Act. In Victoria and employee must:
An employee who fails to do that commits an indictable offence, but that doesn’t mean everyone or even anyone gets prosecuted.
In the discussion paper we’ve written for the Bushfire and Natural Hazards CRC, we tell ‘The Tale of Two Coroners’. (One is actually a Scottish Sheriff not a coroner; but I liked the literary allusion of the title). In any event one incident involved a rescue where the Scottish incident controller strictly applied what he understood were the OHS policy requirements, and the patient died (see also Legal confusion leads to unnecessary death (December 8, 2011). The sheriff was very critical calling for a more flexible risk based assessment. The other case involved the death of a NSW Ambulance Paramedic who no doubt did a risk assessment and believed that by doing somethings not quite by the book would achieve a good outcome for everyone (if he hadn’t thought that, he wouldn’t have done what he did). Regrettably it did not work out. What the Scottish Sheriff, in my view, failed to give proper weight to was the obligation on the IC to protect his crew including the potential finding of industrial manslaughter if a fire fighter had died. What the NSW Coroner did not investigate was, as you say, the culture of the organisation. Emergency services are made up of people who want to do things and achieve the result. How often are ‘swift actions are applauded’ and how often do they work? As with most risks, chances are most of the time they won’t eventuate so stopping to play it all ‘by the rules’ is contrary to the desire of most people who join the emergency services to actually achieve the desired outcome.
And its not just the culture of the service. When interviewing chief officers about measures of success (see Eburn, M. and Dovers, S., ‘How chief officers view the measures of success in fire policy and management’, (2014) 29(3) Australian Journal of Emergency Management 16-21) a common response was that a mission was a success if no responder died or was injured. I queried whether that was true. That was the attitude of the Scottish IC but both the coroner and the community were outraged that firefighters were directed not to affect a rescue (that they thought they could do) because of concerns for fire fighter safety. For another, this time English Coroner’s comments along the same lines, see Role of OHS legislation in rescue (July 26, 2013) and the news story linked to that post). Communities make heroes of emergency workers because we believe that they are willing to risk their lives. Following the 2009 Black Saturday bush fires, then Prime Minister Kevin Rudd said:
Fire fighters on that day no doubt made decisions that actions were too dangers, that ‘standing before the gates of hell’ was a poor decision compared to getting in a fire truck and getting away. But no one is going to describe as ‘a new army of heroes’, people who say ‘we weighed up the risks, and decided that the risk to our lives was too great so we let others die, or we walked away’. We reward with accolades and medals ‘swift actions … irrespective of the significant risks the crew and the casualty have been exposed to’ and provided the patient doesn’t die, the community will offer those accolades even if the rescuer does. Whilst that’s the reality no amount of legislation is going to effect change – sticking one’s nose up at the regulation, condemning the bureaucratic paper pushes in headquarters is the subject of folklore and every movie you’ve ever seen.
So is that sort of conduct, and the response to it “really no longer acceptable in today’s environment”?
From a professional stand point this scenario should adopt an ‘interprofessional practice’ approach. Interprofessional practice is the process of a team of people from different professions (which can be expanded to industries) where each share a relatively unique scope of knowledge and practice to achieve a shared goal.
The scenario suggested in this discussion describes a situation where members of a team are within an environment that they have little or no knowledge about. However there are other people within this team that have specific knowledge. As a part of interprofessional practice, and teamwork, there is a need to use the strengths, such as knowledge, of others to overcome hurdles and achieve the most positive outcome achievable. However if some was to ignore information that could be vital, such as wearing full length clothing, then someone may be likely to get hurt. Although through working together such hurdles can be overcome, for example clothes could be borrowed to enter the site, machinery/plant could be shut down, the patient could be brought to a safer area, or some other solution that every bodies agrees with.
I would be fairly certain that a person who is saying that it is unsafe to go in is not doing it because they do not want the paramedic, EMT, attendant, … to not do their job, but so that they will come out again. This safety person has a duty to ensure the safety of others especially if they are unfamiliar with the environment. If someone was to ignore this information and proceed into an environment that was unsafe, I am not sure that there would be any law that would protect the person who did not listen. But at the end of the day, the example suggested is just another hurdle that as a team a solution needs to be defined and executed to achieved the shared goal, getting everybody in and out safely.