Just like the virus reaching the ACT a question was, I suppose, just a matter of time. This question comes from a volunteer with NSW SES who asks about
… an SES Duty Officer asking questions of Residents to identify COVID-19 risks for them and us when managing a Request For Assistance.
The questions are similar to those being regularly asked as initial screening in medical centres and hospitals.
Are we permitted to ask questions about a Resident’s health/travel/etc. for the purposes of evaluating any biological risk to members or possibly posed by members to them?
Are we allowed to record that information in the SES job management system (Beacon)?
Are we allowed to refuse to attend a RFA should we determine that the potential risk to the health of our members is greater than the reported risk posed by the situation the Resident is asking for assistance with?
I’m specifically talking about Storm Response Jobs here, but if any other roles performed by NSW SES would have different answers, I’d be interested to understand that too.
The short answer is ‘no, I don’t think you can, or should, do any of those things’.
You could ask questions about the person’s travel etc but of course they’re under no obligation to answer them.
You could record that information on the SES job management system save that you would then be collecting and storing health information and, as a government agency, would be bound by the Health Records and Information Privacy Act 2002 (NSW), something NSW SES may not be familiar with or have the necessary processes to manage.
It is illegal to discriminate on the grounds of disability. Disability includes ‘the presence in a person’s body of organisms causing or capable of causing disease or illness’ (Anti-Discrimination Act 1977 (NSW) s 4) though ‘Nothing in this Part renders unlawful discrimination against a person on the ground of disability if the disability concerned is an infectious disease and the discrimination is reasonably necessary to protect public health’ (s 49P).
It is also a defence if to provide services to a person would ‘impose unjustifiable hardship on the person who provides the goods or services.’ Accordingly, if would impose unjustifiable hardship on the SES the SES could refuse to provide the service; but that is not the same as saying that the unit can refuse to attend. If it was too hard for the unit, then the matter would have to be escalated and the SES would have to consider (and hopefully is considering) how it will continue to operate and provide its services to people suffering from, or quarantined because of, the covid-19 virus.
Discussion
The covid-19 pandemic is a national emergency being managed by the Commonwealth. The Commonwealth has constitutional responsibility for quarantine (Australian Constitution s 51(ix)) and using powers under the Biosecurity Act 2015 (Cth). That does not mean that the states and territories are merely agents of the Commonwealth, but one can see that like all emergencies there is a chain of authority.
As with all emergencies, we should be looking for one source of truth – in this case the Commonwealth Department of Health and with respect to state responses, the State Department of Health. If a duty officer is asking questions about travel and health and then deciding ‘that the potential risk to the health of our members is greater than the reported risk posed by the situation’ one cannot know where he or she is getting the information to assess that risk. Are they basing their assessment on information provided by the Health Departments or what they read on the latest Facebook post or conspiracy page.
Further, the question of what is ‘reasonably necessary to protect public health’ is not a matter that an individual duty officer can determine but may be something that is decided by SES management in collaboration with NSW Health. Merely asserting that, in the duty officer’s view, ‘the potential risk to the health of our members is greater than the reported risk posed by the situation the Resident is’ facing is unlikely to satisfy the requirements of the Anti-Discrimination Act 1977 (NSW) s 49P.
The State Emergency Service is part of the NSW government and should be part of the whole of government response. It is up to the SES command, in collaboration with government colleagues, to determine what the SES response is to the threat of the virus. If individual duty officers start asking questions and individual units start determining how they will respond then there ceases to be a whole of government response. It would be like an Incident Controller trying to determine the objectives of the response but each individual unit deciding to do it their own way and set their own priorities. If the government sets out how it is going to respond but individual officers, make their own choices there is no whole of government response and there is potential discrimination by the Crown.
The SES has a duty to ensure, so far as is practicable, the safety of its staff and volunteers (Work Health and Safety Act 2011 (NSW)) so should be considering what its policy will be in this crisis and providing relevant PPE and instructions. If a member is concerned about the SES response, then he or she has the right and opportunity to raise those concerns through the consultation process as part of the Work Health and Safety process in place in the organisation. And SES members are volunteers, if you think the SES response is not adequate you can always choose to make yourself ‘unavailable’ for the period of the public health emergency.
Conclusion
A unit controller asking questions about a person’s health or travel status would expose the SES to risk both in how that information was managed and in terms of what decisions were made on the basis of that decision. It is illegal to discriminate against a person when providing services on the basis of ‘the presence in a person’s body of organisms causing or capable of causing disease or illness’. What is a reasonably necessary response to the risk in order to protect public health is not something for a duty officer/unit controller can decide nor with respect could they reasonable determine whether responding would ‘impose unjustifiable hardship on the person who provides the goods or services’ (ie the SES).
Unless, and until, those steps are adopted as part of the SES covid-19 risk management process a unit controller or duty officer:
- should NOT ask questions of residents to identify COVID-19 risks;
- should NOT ask questions about a resident’s health/travel/etc. for the purposes of evaluating any biological risk to members;
- should NOT record that information in the SES job management system; and
- should NOT refuse to attend an RFA if they determine that the potential risk to the health of our members is greater than the reported risk posed by the situation the Resident is asking for assistance with.
A unit controller or duty officer should implement the SES policy on managing the risk and it follows that in due course (ie soon if not already) the SES should be publishing policy on how it wants members to respond and to protect themselves from risk.
A duty officer setting up their own response policy will defeat the idea of a unified command that we all hold dear and is likely to expose the SES to allegations of unlawful discrimination and the community and individuals in need to further risk of fear, unnecessary distress and harm.
Australian Emergency Law 
Does a resident have a duty of care then to notify those providing a service (SES) that they have been in contact with, are infected with or potentially carry coronavirus?
There is no clear answer to this. This would not be an established duty of care so a court asked to determine the matter would have to have regard to all the salient features in the relationship between the plaintiff (the SES member who is infected with Covid-19) and the potential defendant (the person who failed to notify of their exposure). The court would consider, but would not be limited to (Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258, [103]):
(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i) the nature of the activity undertaken by the defendant;
(j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(l) any potential indeterminacy of liability;
(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;
(o) the existence of conflicting duties arising from other principles of law or statute;
(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
The best one could say is that it would be arguable that ‘a resident [has] a duty of care then to notify those providing a service (SES) that they have been in contact with, are infected with or potentially carry coronavirus’ but it will take someone to get Covid-19 and to sue in negligence to actually find the answer to that question.
Great article. Very informative. Building on some of the information, whilst I agree direction should come from the top. But to date there isn’t a lot forth coming and the Units on the front line are the ones being exposed on a daily basis.
Would it be unreasonable/illegal to ask the questions purely so we can prep the team prior to their arrival that someone on the premises may have covid-19 and the heightened risk now associated within the worksite. Allowing the team to take the required extra safety precautions for example wearing a P2 mask, safety glasses and signal use medical gloves prior to knocking on the door?
It’s not illegal to ask the question, the legal issues arise with what do you do with the information. As noted you start collecting a health record but is the SES set up to comply with the Health Records and Information Privacy Act 2002 (NSW)?
And what are the ‘required extra safety precautions’? Offline I had mentioned that it was akin to blood borne viruses to which I got the response
“It is somewhat like a blood-borne disease, but significantly different as COVID is airborne. You can’t catch HIV by sitting beside an infected person for a prolonged period of time, but it appears that you can get COVID from that kind of exposure. Similarly, provided that you do not have any open wounds, your risk of getting infected by a blood-borne disease, even without barrier gloves/goggles/mask is very low as I understand it. Again, that appears to be significantly different with this disease.”
That may be true but when HIV/AIDS first came out there were lots of stories about how you may or may not catch it and many people were subject to intolerable disadvantage and poor treatment as a result.
The problem here as noted in my post is that it is unlawful to discriminate on the grounds of disability which includes disease. When someone rings 132500 they are asking for assistance from the State Emergency Service – ie from the government. It may be local volunteers that turn out but the SES in every state and territory is a government service. It is up to the government service, as part of the whole of government response, to decide what the risks are and what the public health emergency requires. You say ‘the required extra safety precautions for example wearing a P2 mask, safety glasses and single use medical gloves prior to knocking on the door’ but are they required? NSW Health says a close contact is ‘someone who has been face to face for at least 15 minutes, or been in the same closed space for at least 2 hours, as someone who has tested positive for the COVID-19 when that person was infectious’ (https://www.health.nsw.gov.au/Infectious/factsheets/Pages/novel-coronavirus-close-contact.aspx). Are you in close contact with a householder who needs the roof tarped? NSW Health says facemasks are not required except for those that are ill and health care workers – so is is a necessary precaution? (see https://www.health.nsw.gov.au/Infectious/alerts/Pages/coronavirus-faqs.aspx#2-2). If NSW Health is saying one thing and a local unit decides another that is not a ‘whole of government response’, the SES is then seen by those that see it at all to be sending conflicting messages – “NSW Health says wash your hands but masks aren’t required but look at the SES!”
The SES can determine how it will manage the risks. Individual units cannot make that call on behalf of the SES. Of course as volunteers they can make the assessment for themselves and say ‘I’m not going to do that – I’m not going to volunteer’ but they cannot determine that the SES will do something because then they are acting as the government. It’s like firefighting, it’s inherently dangerous and many people say ‘it’s too dangerous for me’ and don’t volunteer to be firefighters. Firefighters say ‘no with all the training, PPE etc I’m willing to take the risk’. Look at the SES response, why you volunteer, the role of the SES in the response (which given s 8 ) may well increase and ask ‘do I want to volunteer’. That’s your call but given the terms of the Anti-Discrimination Act it’s not the call of a local unit to decide how the SES (and by extension a part of the NSW government) will respond. That’s up to the Commissioner in collaboration with NSW Health and the government.
So you can ask the question but what do you do with the information. And if the answer is to wear ‘a P2 mask, safety glasses and single use medical gloves prior to knocking on the door’ then the SES should require that responders do that for everyone, for every job and then you don’t need to ask the question. And if that is not the required precautions then it’s not up to units to determine that they are.