Further to my post Unregulated event first aid in NSW (July 20, 2019) I was asked:

…another question regarding NSW Ambulance powers and their ability to [advise] committees of events into who they can and can’t use for medical provisions. I have come across … clubs and committees are being pushed by ambulance managers that attend a meeting, into using a preferred provider ie St John Ambulance or NSW Ambulance. Now there are legitimate providers in the state of NSW and there are ones that you wouldn’t trust with a dead cat. Should all of these providers be unfairly rated with the same brush as the dodgy ones…?

In the absence of regulation or formal quality assurance who is or is not a ‘legitimate provider’ is a matter of opinion only.

In Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548 two NSW Ambulance paramedics established a private ambulance provider, Paramedical Services Pty Ltd.  They entered into negotiation with the Confederation of Australian Motor Sports (CAMS) to provide ambulance services to CAMS.  CAMS contacted NSW Ambulance. The appellant’s alleged that the Ambulance Service gave advice to CAMS (at [25]) that:

(a)        That the applicant [Paramedical Services Pty Ltd] is not lawfully entitled to provide the services it offers;

(b)       That the applicant is not lawfully entitled to transport sick or injured persons in its ambulances;

(c)        That the officers and staff of the applicant lack suitable training and qualifications to provide the services offered by the applicant; [and]

(d)       That the applicant does not have adequate quality assurance programs in place.

The appellant, amongst other things, alleged that this advice was false and misleading.  There was some dispute as to what was said, the evidence of the Ambulance Service was that CAMS was told ‘Paramedical Services cannot transport patients on public roads’  and ‘the Ambulance Service of New South Wales is the only service entitled to provide pre-hospital care and transport for a fee’ ([29]).  At the time the relevant prohibition on the private provision of ambulance services was found int eh Ambulance Services Act 1990 (NSW) s 23. The current section 67E of the Health Services Act 1997 (NSW) is in the same terms as the old s 23.

With respect to (a) and (b) above, Hely J said (at [31]-[32]):

…  I am satisfied on the balance of probabilities that at the meeting with Mr Corke [of CAMS] in May 1995 there was discussion of s 23 of the Ambulance Services Act, and that Mr Webster [from NSW Ambulance] expressed the view at this meeting that the applicant was not entitled to provide ambulance and paramedic services at sporting events for reward, nor could it lawfully transport injured persons from those events to hospital for reward…

But the question which then arises is where my finding leaves the applicant. If I am right in my view that Mr Webster was expressing an opinion as to the impact of s 23 on the applicant’s activities in providing ambulances at sporting events (and the [evidence] … suggests that nothing stronger than an opinion was conveyed) there is no basis for a conclusion that Mr Webster did not hold that opinion, or that it was without reasonable foundation. On that basis there is no contravention of s 42 [of the Fair Trading Act 1966 (NSW)].

Now this is an old case and I’m no expert on defamation law, but I do note that the Defamation Act 2005 (NSW) s 31(1) says:

It is a defence to the publication of defamatory matter if the defendant proves that:

(a) the matter was an expression of opinion of the defendant rather than a statement of fact, and

(b) the opinion related to a matter of public interest, and

(c) the opinion is based on proper material.

Further if a person is asked for their opinion, they can’t be engaged in misleading and deceptive conduct if they give their honest opinion.

What follows is that it has to be the case that if an event organiser asks another person, including a manager from the ambulance service, for their opinion on the services provided by another provider then the person asked can give their honest opinion.  Whether they should or not give their opinion, given considerations of the role of the public sector and government competitive neutrality is a different question.

Some interesting asides

In paragraph 33 Hely J said:

Even if I am wrong in the view that there was merely an expression of an opinion, and Mr Webster made statements as to what the legal position in fact was, then what he said was, in my view, a correct statement of the position. The operations which the applicant conducted in providing ambulance and paramedic services at race tracks and other sporting events for reward were, as a matter of fact, similar to the operations carried on by the respondent in that regard.

As noted in my original post it has always been my view that many if not all private providers, if they do not have formal approval from the Health Secretary are acting in breach of s 67E (or the old s 23) and Hely J took the same view.  As noted I am not aware however of any action being taken by NSW Health to enforce the prohibition in either Act.

With respect to the claimed assertion at (c) above that ‘the officers and staff of [Paramedical Services Pty Ltd] lack suitable training and qualifications to provide the services offered by the applicant’ Hely J said (at [48]-[49]):

… I am satisfied that Mr Webster made a statement to the effect that the qualifications of Messrs Mikhail and Mangles as paramedics were no longer recognised by the respondent, because they were no longer employed by the respondent. I am also satisfied that Mr Webster was generally concerned to emphasise what he perceived to be the benefits offered by the respondent in comparison to those offered by the applicant.

It was the respondent’s attitude or philosophy at the time that to be a paramedic, one had to be working for the respondent, and that when a paramedic ceased to work for the respondent, he ceased to be a paramedic. That, I think, tends to support the proposition … that the probabilities are that Mr Webster was stating that the qualifications of the applicant’s officers were no longer recognised by the respondent rather than making a representation in the terms pleaded…

Prior to 1 December 2018 and the start of paramedic registration, anyone could call themselves a paramedic.   Back in 1999 (or 1995 when the representations the subject of this case were made) the term paramedic was relatively new and limited, in NSW, to Ambulance Officers employed by NSW Ambulance and qualified to level V.  In 2007 by simple executive action, NSW Ambulance extended the title to all clinical employees (see ‘New uniform same excellence in care’ Ambulance Online Summer 2007-08; see also ‘New uniform – we’ve come a long way in 120 years!’ Sirens (October 2015), p. 4).  Over time the title has been adopted by more and more people with varying skills and qualification.  This was, in my view, part of the reason to justify paramedic registration, so only appropriately qualified people can use the title and those being treated by a ‘paramedic’ can know that the person’s qualifications have been assessed and they are subject to the professional oversight under the Health Practitioner Regulation National Law.  Back in 1995 saying that a person was a paramedic, as far as NSW Ambulance was concerned, if and only if they were employed as a paramedic by NSW Ambulance was both accurate and reasonable.

Paramedical Services today

It should be noted that Paramedical Services continues to operate.  Today they say they are:

… accredited by the NSW Ministry of Health, pursuant to section 67E(1) of the Health Services Act 1997. Acting under delegation from the Health Secretary, Paramedical Services is authorised to provide non-emergency patient transport services.

No-one should read the 1999 judgment, or this commentary, as reflecting on the services provided by the company at any time after the date of the judgment (5 May 1999).

Conclusion

The question I was asked was about ‘NSW Ambulance powers and their ability to [advise] committees of events into who they can and can’t use for medical provisions’.  The answer is that if a committee asks a NSW Ambulance manager for an opinion that manager is allowed to give his or her honest opinion (subject of course to internal rules that may limit that ability).