Today’s correspondent asks an interesting question which I imagine is inspired by the decision from the Victorian Magistrate’s court and reported by the ABC as ‘Premier Daniel Andrews urges prosecutors to appeal after paramedic attacker avoids jail’ ABC News (Online) 28 August 2019.  The question is:

Could you please advise on your blog how AHPRA may view a conviction for ‘Contempt of Court’ or similar. For example, if a registered practitioner were to stand up during sentencing and state, “What a load of rubbish – clearly you are no longer in touch with the expectations of the community as you have failed to apply what is seen as an appropriate sentence”, and then be found In Contempt, what are the possible outcomes?

First courts are unlikely to convict anyone of contempt in those circumstances.   The Judicial College of Victoria’s Victorian Criminal Proceedings Manual (20 March 2019) says at [8.5(9)-(11)]

9. A person who wilfully insults a judge in the course of proceedings in court does something which necessarily interferes, or tends to interfere, with the course of justice (Lewis v Ogden (1984) 153 CLR 682, 689; [1984] HCA 28).
10. The power to punish for contempt of court exists to vindicate the authority of the court, and not to vindicate the personal dignity of the judge. It should be used ‘sparingly and only in serious cases’ (Lewis v Ogden (1984) 153 CLR 682, 693; [1984] HCA 28).
11. A contempt against the judge must be a “wilful insult”. Conduct that is “discourteous, perhaps offensive and deserving of rebuke” may still fall short of this standard (Lewis v Ogden (1984) 153 CLR 682, 693; [1984] HCA 28).

I would not think the behaviour described would meet any of those tests however contempt may also be shown by ‘loud screaming’ or ‘Protests or demonstrations in court’ ([8.5(10)].  The most likely consequence from the conduct suggested by my correspondent is that the person would be evicted from the court.  But let as assume that punishment for contempt in the face of the court is the outcome.

A conviction of contempt would no doubt be treated as any other criminal conviction and will form part of the paramedics’ criminal history.  How criminal history is considered in applications for registration is set out in the Paramedicine Boards Registration Standard: Criminal history (17 May 2018).

Further the Health Practitioner Regulation National Law says (s 5):

“unprofessional conduct“, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes— …

(c) the  conviction  of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession

It would be up to a panel or the relevant tribunal appointed in each jurisdiction (not AHPRA) to determine if the defendant’s conduct affected ‘the practitioner’s suitability to continue to practise’ paramedicine.  If they determined that it did affect the practitioner’s suitability, then they could apply any of the range of penalties provided for in the Health Practitioner Regulation National Law.  What that penalty may be would depend on all the circumstances and cannot be predicted here.

The more interesting issue is ‘what is an appropriate sentence and what is the relevance of community expectations?’  I have previously given my views on mandatory sentencing:

I don’t suppose anything I say here is going to change anyone’s mind on the issue, nor do I suppose anyone is going to change mine.  Even so, imagine:

A community whose members believe that only doctors are capable of providing definitive care and that providing treatment at the road side is a waste of time.  They claim governments are letting down communities by not ensuring that all ambulances are staffed by at least one medical practitioner and if they are not paramedics should simply ‘load and go’ or be backed up by helicopter medical retrieval team.  Everytime there is a report of a patient dying on scene they campaign that again the government and the ambulance service is failing to provide the level of service the community wants, expects and is entitled to. 

When the Minister tries to explain the position he or she is told ‘”What a load of rubbish – clearly you are no longer in touch with the expectations of the community as you have failed to apply what is seen as an appropriate” level or resourcing.

Paramedics, and the Minister, may rightly say –

Helicopter and road based medical retrieval teams are a vital part of the overall emergency response, but they are not warranted in every case (equally an ICP or even an emergency paramedic is not required in every case).  What is required depends on many things including the patient’s condition, the distance to hospital, the level of care that can be provided on scene providing more rapid and effective care than would be achieved by trying to get the patient to a medical practitioner.  And further, paramedics are highly qualified, experienced practitioners who are trained and competent to assess all the clinical indicators, not just the ones reported on the news or imperfectly perceived by ‘the community’ and are able to form a view of what is the best treatment for this patient in these circumstances.  It is a professional judgement and paramedics are there to make that call with a greater knowledge both of the patient’s condition and what services and resources are available.  

That the community might expect a doctor at every emergency response does not mean they can or should get one or even that it is the best response to any particular patient. Should, in that scenario, the ambulance service change its practice to meet community expectation when that expectation is not only not supported by evidence, it is contradicted by evidence?

As for the evidence, Jarryd Bartle (‘We know that prison doesn’t work. So what are the alternatives?’ The Guardian (Online) 16 August 2019) says:

… decades of research have shown that prison is the least effective place to rehabilitate offenders. Studies have indicated that a stint in prison increases the likelihood that inmates will reoffend…

Young people are particularly ill-suited to prison – detention renders them more likely to graduate from low-level juvenile offenders to lifetime criminals via a stint in corrections.

Moreover, despite being seen as the ultimate “stick” to ensure social order, prison is not a deterrent for most forms of offending. Crime is largely impulsive or driven by complex external factors on decision-making – the notion that offenders are “rational agents” weighing up the cost and benefits of offending has been largely debunked…

Ultimately, a shift in thinking away from imprisonment as a default solution for criminals can free up the public purse for more effective preventive measures.

(And see other reports with similar conclusions cited in my earlier posts).

A person who does not go to goal but who must, instead, undergo compulsory treatment over 18 months which may include detention in a treatment facility and regular testing is someone who is subject to a deprivation of liberty. They are not ‘walking free’ and the chances of making the community safer is increased if they can be forced to deal with the issues that lead to their offending, including drug taking, and can be supervised for 18 months rather than locked in a cell for six.

With respect to mandatory sentencing in Victoria, no matter what the Premier has told the community, a prison sentence for assaulting a paramedic is not required if the court finds that the circumstances set out in s 10A of the Sentencing Act 1991 (Vic) exist (see s 10AA(4)).    The circumstances in s 10A(2) are:

(c)        the offender proves on the balance of probabilities that—

(i) subject to subsection (2A), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender’s culpability; or

(ii) he or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or

(d) the court proposes to make a Court Secure Treatment Order or a residential treatment order in respect of the offender; or

(e) there are substantial and compelling circumstances that are exceptional and rare and that justify doing so.

Section 10A(2A) says ‘Subsection (2)(c)(i) does not apply to impaired mental functioning caused solely by self-induced intoxication’.  The ABC reports that the Magistrate found that the defendant’s ‘impaired mental state that day was not solely due to self-inflicted intoxication’ ie it was not ‘caused solely by self-induced intoxication’ (emphasis added).

I don’t know if gaol would have been, or will be seen to be, an appropriate penalty in this case. Further what is ‘is seen as an appropriate sentence’ by a particular observer and what is an appropriate sentence are not the same thing.  If all we have are media reports then we really know nothing about the offending or the offender, the Magistrate’s reasoning or whether the Magistrate correctly applied the law.  One can only make a sensible comment on the Magistrate’s reasoning if and when those reasons are published (but see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)) or they are subject to review by the Court of Appeal.