Todays question raises issues regarding the competence and currency of SES Rescue Operators.  My correspondent reports that the available operators in their local rescue squad:

… on most days contains inexperienced operators and operators who have not attended professional development or monthly training for extended periods of time and do not have the knowledge and competence to undertake extrications involving complex extrications or involving vehicles with emerging and current  technologies (Ultra high strength steel, Advanced High Strength steel, Carbon Fibre, EV’s and Hybrids).

Questions have been raised by various concerned operators as to the requirements as to “currency” of training and “competence”. Information has been provided to the unit leadership that all members “are competent” as they have certificates issued in RCR and once “accredited” there is no need to demonstrate ongoing competence or take part in continuing professional development.

The NSW State Rescue Board State Rescue Policy (https://www.nsw.gov.au/sites/default/files/2021-04/state-rescue-policy.pdf) says:

1.17     Currency means the process that recognises member’s skills, training and capabilities, captured via operational activity or skills maintenance, as determined by the agency.

7.02     It is the responsibility of each agency which provides accredited rescue units, to ensure that their rescue operators are trained in accordance with the SRB Policy and their skills are kept current.

NSW RFS service standard 3.1.17 – NSW RFS Rescue Operations (https://www.rfs.nsw.gov.au/__data/assets/pdf_file/0008/99314/3.1.17-NSW-RFS-Rescue-Operations.pdf) says, inter alia:

2.10     NSW RFS Rescue Operator certification will be valid for three years, before a recertification needs to be undertaken. 

2.11     Certified Rescue Operators are required to maintain regular training to ensure operator currency and skills maintenance. 

2.12     A training schedule will be provided by Remote Area Fire and Specialist Operations (RAFSO) to the District for each rescue unit to ensure all components of general land rescue are covered in a 12 month cycle. Targeted training topics will be scheduled on multiple occasions during the 12-month program.

My correspondent says they would be interested in:

My comments in relation to demonstration of competence and also maintenance of currency.

My assessment of the different Standards, Qualifications, Currency and Re-qualification periods between the Volunteer agencies; and

My comments around the legal liability of the Paid Staff (Assistant Commissioner Regional Operations, Zone Commander and Deputy Zone Commander), the Cluster and Unit Leadership Volunteers  (Cluster Commander, Unit Commander, Deputy Unit Commander) and a Rescue team leader at an extrication if the competence and technical ability of a rescue operator who has been allowed to remain “on roster” as a “qualified Rescue Operator” is insufficient (through lack of competence or otherwise) to undertake an extrication and there is injury or death occasioned to a patient as a result of an extended duration extrication.

1 and 2. Demonstration of competence and also maintenance of currency

The issue of competency and currency are always problematic. The idea of training is that a person who has completed training has, at the time of their assessment, demonstrated their competence.  That does not mean they will remain competent or actually be competent when they are called upon to act.  For an agency like the SES or RFS if the training has been conducted properly and assessment has been genuine then the determination that someone is ‘competent’ is evidenced by the issue of the training qualification and in the case of the NSW SRB by their registration as a rescue operator (State Emergency and Rescue Management Act 1989 (NSW) s 57).  If they have passed the training and are registered, they are ‘competent’ but that doesn’t mean that they either must be, or should be, accepted as team leaders.  An agency can have its own hierarchy to determine how much experience is required by a newly qualified operator before they can take on added responsibilities.

As noted, however the State Rescue policy adds another key term – currency.  An operator maintains their currency via ‘via operational activity or skills maintenance’ and it is incumbent on an agency, like the SES to ensure that the skills of their operators are ‘kept current’.

As seen from the documents referred to, the NSW RFS requires its rescue operators to recertify as competent every three years and to undertake ongoing training on an annual basis.  We are told NSW SES has no similar policy.

Fundamentally it is up to each agency to determine how competency and currency are demonstrated subject to the Policy requiring training to be based on SRB policies and currency does need to be maintained. 

My correspondent has been told ‘there is no need to demonstrate ongoing competence or take part in continuing professional development’.  I am not given any document where those precise words have been used so I’m not sure if that’s a quote or a summary of my correspondent’s understanding.  Clearly if it is a verbatim quote, it’s wrong. State Rescue Board policy [7.02] envisages that there must be some process to ensure currency.  For busy rescue units that may be achieved by operational responses ([1.17]) but for others it would require ongoing training.

At the end of the day, it must be up to the agency (the SES) to consider the operational exposure of its members and to have policies in place, that can satisfy the SRB, that they ‘ensure that their rescue operators are trained in accordance with the SRB Policy and their skills are kept current’.

3.         Legal liability

The question of legal liability has been raised many times. The short answer is that there will be no personal liability attaching to the Paid Staff (Assistant Commissioner Regional Operations, Zone Commander and Deputy Zone Commander), the Cluster and Unit Leadership Volunteers  (Cluster Commander, Unit Commander, Deputy Unit Commander) or a Rescue team leader at an extrication if the competence and technical ability of a rescue operator is insufficient and there is injury or death occasioned to a patient as a result of an extended duration extrication.

First officers in a position such as an Assistant Commissioner have to develop policy limited by the resources of the agency and taking into account all of the agency’s functions.  100% of the agency’s budget could be spent on rescue but that would deny it the ability to do anything else; so the budget must be allocated and with it comes trade-offs.   Where decisions are made about training and skills maintenance based on a risk assessment and taking into account the budget and competing demands on the agency, this cannot establish liability even if other decision may have led to different outcomes (Civil Liability Act 2002 (NSW) ss 42 and 43).

Officers below that rank have to implement the policies they are given within the range of their discretion.

If a registered rescue operator is sent to a job but is not up to the task then (hopefully) they are not alone so others may point out errors.  Unit management may have the ability to ask a member not to respond or arrange further training.  The team leader is stuck with the people they have and they have to make the best of the situation with what they have got.

But let us assume the worst-case scenario and a rescue is unnecessarily delayed and it can be shown, conclusively that the delay made the patient’s condition worse than it would otherwise have been.  First in a negligence action that is not the relevant comparator. For a successful action the person in need of rescue would need to show that the rescuer made the situation worse than if they had not come at all.    Presumably if a ‘reasonable’ squad could have extricated the patient in 10 minutes, but the not-so-competent squad took ½ hour the patient is still better off by being rescued in ½ hour than not being rescued at all.  The duty is a duty to not make things worse – see Capital and Counties v Hampshire Council [1997] QB 2004; Stuart v Kirkland-Veenstra [2009] HCA 15; Electro Optics and West v NSW [2012] ACTSC 184; Hamcor Pty Ltd v State of Qld [2014] QSC 224; Ibrahimi v Commonwealth of Australia [2018] NSWCA 321 and see also No duty to prevent a disaster and no duty to rescue (December 26, 2018) and UK case on liability of statutory authorities (June 7, 2019)).

Second, even if the plaintiff could prove negligence by the rescue squad that caused their damage (eg they are injured by the cutting tools) then the liability will belong to the Crown in Right of NSW.  The NSW State Emergency Service is part of central government – the Crown.  The Crown is vicariously liable for any negligence of its staff and volunteers.  Further both the volunteers and the Crown have statutory protection for acts done ‘in good faith’ (State Emergency and Rescue Management Act 1989 (NSW) s 62; State Emergency Service Act 1989 (NSW) s 25).

Good faith requires more than ‘honest ineptitude’ (Mid Density Developments Pty Limited v Rockdale Municipal Council [1993] FCA 408, [34]). In that case the trial judge said (at [24])::

… the statutory concept of “good faith” in the performance of the functions in question, included two criteria. The first was that the act be done bona fide and not maliciously or to achieve an ulterior purpose. The second was that there be “a genuine attempt to perform the function correctly, that is to say that the function should not be performed without caring whether or not it be properly performed”.

In West v NSW [2014] ACTCA 45 (the 2003 Canberra fires case) Katzmann J said (at [596]).         

… a thing may be done (or omitted to be done) negligently but in good faith. Good faith may be made out where the relevant person does or fails to do something honestly, in good conscience, and for no improper or ulterior purpose, even if he or she acted or omitted to act negligently.”

(For a related post, see Meaning of ‘good faith’ (July 3, 2021)).

My correspondent, if told that ‘there is no need to demonstrate ongoing competence or take part in continuing professional development’ or that the SES has to focus on flood response, or that policy decisions are limiting the capacity of experienced operators to attend, may think that is not ‘good faith’.  But if it came to be tested in court I would imagine that the agency would have evidence to put the decisions in the context of the agency’s resources and all of its functions (State Emergency Service Act 1989 (NSW) s 8).  Even if on the ground operators think the agency’s direction is misguided, wrong and dangerous that does not mean that those making the decisions are acting for an ‘improper or ulterior purpose’ or not actually caring whether the agency is an effective rescue agency.  The good faith (or lack thereof) would be a high bar to get over.

In short liability will be very hard to establish because it is not the rescue squad, or lack of rescue squad, that causes the person’s injuries – it is whatever caused them to require rescue in the first place.  Even where it is the rescue squad that causes the injuries (cutting off the patient’s leg instead of the ‘A’ pillar) it is the Crown in Right of NSW that will be liable.

Conclusion

The State Emergency Service has many functions. One of them (s 8(1)(e)) is ‘to carry out, by accredited SES units, rescue operations allocated by the State Rescue Board’.  The Board requires therefore requires the SES ‘to ensure that their rescue operators are trained in accordance with the SRB Policy and their skills are kept current’.  How the SES meets that requirement is a matter for the SES taking into account the other demands on its resources.

It is not a function that can simply be ignored – that would not be acting ‘in good faith’.  But beyond that it is up to the agency to determine using a genuine risk assessment what is required to keep operators current and to ensure its accredited rescue units are up to the task assigned to them.

Where the SES (which includes its paid and volunteer members) fails in that task then, in the unlikely event of legal liability that liability will belong to the Crown in Right of NSW. 

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.