A correspondent has sent me details of a question asked on private paramedic page and I note I was also tagged into the conversation on that page. A paramedic:
… was chatting with a ‘new to private sector’ paramedic’ who in his handover from outgoing medic was told that we can’t transport at all on public roads. This isn’t the first time I’ve heard this.
Can anyone show me where in writing (other than handover notes) this comes from?
I’ve scoured the transport act and the ambulance act and have been unable to find anything pertaining to this activity. Is this just an old wives’ tale that’s being regurgitated sans evidence, potentially dangerously and to the detriment of our patients?
The commentator is right, there is nothing in either ambulance services or road transport legislation that says, specifically, that only a jurisdictional ambulance service can transport patients on a public street. Critically private ambulance companies that provide non-emergency patient transport services transport patients on public streets all the time. What I infer we are talking about are companies that provide event health services or on-site work health services. With respect to work health services I will assume that the relevant providers are employed by a company that contracts to provide on-site services at say, a mine, rather than paramedics directly employed by the mine site. The power of employees of a mine to transport will be the discussion of a second post on this subject.
Private paramedic services
First, in WA and the Northern Territory, there is no ambulance service legislation, so there is nothing to stop private paramedics transporting a patient to hospital if they want to.
In other states there is nothing specific on the subject, but what there are prohibitions on providing ambulance services. Private ambulance services must be licensed or otherwise approved by the relevant Ambulance Commissioner, department of health or Minister – see:
- Emergencies Act 2004 (ACT) s 63 – A person must not provide ambulance services without approval of the Minister. Ambulance services are ‘the provision of medical treatment and pre-hospital patient care, and includes the transport of a patient by ambulance or medical rescue aircraft’.
- Health Services Act 1997 (NSW) s 67E – A person must not, for fee or reward, provide or take part in the provision of transport for sick or injured persons or conduct operations similar to NSW Ambulance without approval from the Secretary of the Department of Health;
- Ambulance Service Act 1991 (Qld) s 43 – A person must not ‘directly or indirectly imply that the person provides or participates in providing ambulance transport without the approval of the Minister’.
- Health Care Act 2008 (SA) ss 57 and 58 – ‘A person must not provide emergency ambulance services’ except with the approval of the Minister. Further a person must not provide non-emergency ambulance services without a licence. A non-emergency ambulance service is the ‘service of transporting by the use of an ambulance a person to a hospital or other place to receive medical treatment or from a hospital or other place at which the person has received medical treatment’ but in circumstances where it is not an emergency ambulance service. An ‘emergency ambulance service’ is a service that
(a) responds to requests for medical assistance (whether made by 000 emergency telephone calls or other means) for persons who may have injuries or illnesses requiring immediate medical attention in order to maintain life or to alleviate suffering; and
(b) is set up to provide medical attention to save or maintain a person’s life or alleviate suffering while transporting the person to a hospital’ (s 3).
- Ambulance Service Act 1982 (Tas) ss 37 and 37A – A person must not provide a service similar to the service provided by Ambulance Tasmania without the consent of the Ambulance Commissioner and must not provide a non-emergency patient transport service unless they hold a relevant NEPT licence.
- Ambulance Services Act 1986 (Vic) s 39 – this section does not prohibit private ambulance services, rather it prohibits any suggestion that the service is affiliated with Ambulance Victoria and the use of the word ‘ambulance’ on the vehicle (see Victorian liberal party’s use of an old ambulance in election campaign (November 3, 2022)). Victoria does provide for licensing of non-emergency patient transport and event health services (see Non-Emergency Patient Transport and First Aid Services Act 2003 (Vic)). A person must not provide a non-emergency patient service without the relevant licence (s 5). A non-emergency patient transport service is (s 3) a ‘service that offers or provides, in exchange for payment, for— (a) the transport of persons on public roads to or from medical services— (i) using a stretcher carrying vehicle; or (ii) where the persons being transported are provided with specialist clinical care or monitoring while being so transported …’.
In short private ambulance services that provide ambulance services at public events or contract to hazardous work places cannot operate without a licence or other authority and it may be that authority that limits their ability to transport on public streets. For example, pursuant to the Emergencies (Service Provider) Approval 2022 (No 2) (ACT)), JW Motorsport Services is authorised to provide ambulance services at events in the ACT. It is a condition of their approval that they must ‘not transport any patient outside the event precinct’. They cannot transport patients to hospital – not because of any general prohibition but because it is a condition of their approval to operate.
Assume a private ambulance is being driven on a public road and the crew come across an accident. Two paramedics, with a well-equipped ambulance and a patient in critical need. Even stopping to render care could be equated with providing ambulance services but no-one wants to prohibit them from rendering assistance and in fact it would be expected of them. What if they thought the best option was to pick the patient up and transport them?
Provided they don’t charge the patient a fee then they are not acting for fee or reward (NSW and Victoria). The ACT has a specific exemption – the prohibition on providing an ambulance service (which includes transport by ambulance) does not apply (s 63(1)(c)) to:
a person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently—
(i) injured or at risk of being injured; or
(ii) is in another way in need of emergency assistance;…
Equally in South Australia the prohibition on providing emergency ambulance services does not apply (s 57(2)(b)) if a licenced NEPT provider has:
… reason to believe that failure to provide such a service will put at risk the health or safety of a particular person, or of a section of the public more generally, and the person providing the service has taken such action as is reasonable in the circumstances to contact SAAS to seek an authorisation
Even without legislation the doctrine of necessity (see The doctrine of necessity – Explained (January 31, 2017)) will help. Stephen’s Digest of the Criminal Law (1st ed, 1887) says:
An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained.
In R v Davidson  VR 667 Menhennit J said ‘The principle of necessity as stated by Stephen contains within it the two elements of necessity and proportion’. The accused has to believe, upon reasonable grounds, that it is necessary to take the action and that the harm done is not disproportionate to the harm to be avoided.
Even if there is a law against private provider’s transporting on a public street that will be forgiven if the patient is at urgent risk of death or permanent injury and the decision to transport rather than wait for a jurisdictional ambulance is a reasonable, professional response in all the circumstances.
There is no simple rule that says private paramedics cannot transport on a public street. To that extent it is either a myth or a useful shorthand given all the other prohibitions.
It has been argued that the prohibition on providing ambulance services is a prohibition on providing transport on public streets but as the provisions discussed above show, that is not the case other than in Victoria. It is only the Non-Emergency Patient Transport and First Aid Services Act 2003 (Vic)) that references transport on a public street as a part of the definition of what is prohibited.
In Paramedical Services Pty Ltd v The Ambulance Service of New South Wales  FCA 548 Hely J said
If there is an on-site medical centre or sick bay, the ambulance may be used to transport the injured person to that location. … But that does not mean that the provision of an ambulance on site is outside the definition of “ambulance services”, nor does it mean that if such an ambulance is used for transport of a sick or injured person, whether to another location on site or to a location off-site, the provision of that transport is otherwise than for fee or reward.
That is even providing transport within the defined site was providing patient transport for fee or reward and was prohibited by the Act as it then was and as it now is in the Health Services Act.
It may be a surprise that there is no simple answer to the question ‘can private paramedics transport patients on public roads?’ Except in the Non-Emergency Patient Transport and First Aid Services Act 2003 (Vic) the issue of public roads does not get a mention. There is nothing in the Road Transport legislation nor ambulance services legislation that says ‘only jurisdictional ambulance services can transport patients on public roads’. The prohibition (if there is one) has to be implied by the various prohibitions on the provision of unauthorised ambulance services and the terms of any licence or approval that the private service has to operate (and see again, as an example the Emergencies (Service Provider) Approval 2022 (No 2) (ACT)).
If there’s a life-threatening emergency and the local private paramedics are on scene, and it is reasonable to transport the patient rather than wait for a jurisdictional ambulance service, then I cannot see how any of the stated prohibitions would be a bar to transporting the patient to the nearest hospital provided that response was reasonable in all the circumstances and provided the patient was not sent a bill for the service.
For related posts see:
- What’s an ambulance service? (May 30, 2017);
- Private emergency service in WA (December 11, 2018);
- Unregulated event first aid in NSW (July 20, 2019);
- Unauthorised ambulance services in the ACT (February 7, 2020);
- Victoria introduces Bill to provide for licensing of first aid service providers (March 21, 2021)
- When is an event first aid/health/medical service an ambulance service in SA? (April 17, 2021); and
- Operating an ambulance service in NSW (June 8, 2022).
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
In my experience, the only form of permission from the government I have ever seen at a mine site is a poisons permit. Could it be that pretty much every contract emergency service provider is doing so illegally?
Quite possibly but it does depend on the jurisdiction (WA and NT do not have ambulance service legislation). See also https://australianemergencylaw.com/2022/11/05/private-paramedics-transporting-patients-on-public-roads-part-2/. And remember we’re talking in these posts about transport on public roads to hospital, not transport around a mine site.