The issue of emergency responders taking photos has been raised on this blog – see the posts you can find here – https://australianemergencylaw.com/?s=%22taking+photos%22.  In one post – US legislation on taking photos at emergency scenes (August 24, 2012) I was asked whether Australia needed specific legislation to stop responders taking photos and then publishing them on social media.  In that post I said:

Do I think such legislation is needed here?  As the author of the article, David Givot, says “As for the new law in N.J., it makes terrific sense. If you don’t want such a law in your state, don’t give your legislature a reason to pass one.”

I’m not familiar of cases where emergency responders have taken photos and then distributed them online.  In the absence of any problem, a legislature is unlikely to see passing such a law as important, but if responders start taking and distributing these sorts of photos, then the need for such a law may become apparent.

There is now a case where a paramedic did take a photo and publish it on social media and that paramedic has been subject to disciplinary proceedings by Queensland Ambulance Service. In Turner v Queensland Ambulance Service [2022] QIRC 471 (02 December 2022) Mr Turner faced two allegations; they were:

Allegation One

On 12 May 2021, you inappropriately captured an image containing confidential information on your personal mobile phone and published this on social media.

Allegation Two

On May 12 2021 [sic], you used a mobile phone whilst operating a QAS vehicle in ‘D’ [drive] mode.

He admitted both allegations ([9]). He was penalised ([2]-[3]) by a reduction in pay grade and time limits on when he could progress back through the lost pay grades. He was also required to ‘complete Code of Conduct and Ethical Decision Making training and meet with his supervisor to discuss his understanding of information privacy and the training’.  He appealed against the severity of the penalty.  He argued both when invited to make submissions on penalty to the decision maker ([14]), and on appeal ([19]), that the appropriate penalty was a reprimand and that the financial penalty was excessive.

Allegation 1

Because the issue was about penalty, and not about whether the action happened, the Commission does not give any detail about what the photograph was.  It is accepted that the breach was inadvertent.  At [54], Commissioner Knight said:

It cannot be disputed that the confidentiality obligations imposed on Mr Turner are for the protection of his patients, and other patients of QAS. Regardless of his intentions or the inadvertence of his conduct, the publishing of confidential patient information on social media is not acceptable.

Reading between the lines I infer that perhaps he took a photo inside the ambulance and accidentally caught information that was being displayed on a data terminal?

Allegation 2

This issue is much more complex and with respect to the Commissioner the reasoning is far less satisfactory.

On 12 May 2021, the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) r 300 said (emphasis added):

The driver of a vehicle (except an emergency vehicle or police vehicle) must not use a mobile phone that the driver is holding in the driver’s hand while the vehicle is moving, or is stationary but not parked.

An emergency vehicle was defined (Schedule 5) as:

a motor vehicle driven by a person who is—

(a) an emergency worker; and

(b) driving the vehicle in the course of performing duties as an emergency worker.

The term ‘emergency worker’ included ‘an officer of the Queensland Ambulance Service’.

In the disciplinary proceedings QAS relied on ‘the Code of Conduct for the Queensland Public Service (‘Code of Conduct’) … standard 3.1(c) in respect of Allegation Two’ ([10]).  The Code of Conduct (1 January 2011) says

3.1 Commit to our roles in public service

Our role is to undertake our duties, and to give effect to the policies of the elected government, regardless of its political complexion. We will:…

c. comply with the laws of State, Australian and local governments.

Mr Turner did not (as far as we know) appear before the Magistrate’s Court charged with a traffic offence. Nor (as far as we know) did he receive an infringement notice. Certainly, in the Commission’s findings there is no reference to proceedings where Mr Turner’s guilt of an offence contrary to r 300 was established.  But Mr Turner admitted both allegations ([9]) so the Commission did not address the terms of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) r 300 and did not consider if the exemption for emergency workers meant that Mr Turner had complied with the relevant law.  At [55] Commissioner Knight said:

Likewise, although the vehicle was stationary at the time, operating a mobile phone while stationary but not parked, is an offence under the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld).

With respect to Commissioner Knight, it appears that it was not an offence from Mr Turner to use the phone as he was a member of QAS. Unfortunately that argument was not made, nor addressed.  One might infer that Mr Turner was admitting that at the time he was not ‘performing duties as an emergency worker’. In the letter from QAS advising that they were satisfied the allegations has been established, the decision maker said (at [16], emphasis added) ‘You chose to operate a vehicle in an unsafe manner, whilst entertaining your own personal agendas rather than the interests of the QAS and your patient’. One might accept that taking photos for social media is not then ‘performing duties as an emergency worker’ whereas using a phone to call ahead to the hospital may be.  It is however an unsatisfactory outcome, given the terms of both r 3.1(c ) of the Code of Conduct and the Transport Operations (Road Use Management – Road Rules) Regulation 2009 r 300 as it was (and as it still is, see below) that the issue of whether or not Mr Turner had in fact failed to comply with the relevant law, was not addressed in the Commission’s reasons.

Outcome

The Commission’s role was to determine whether the original decision was fair and reasonable ([5]). Having considered the decision maker’s reasoning and the various options available to the QAS, Commissioner Knight determined (at [62]-[63]) that:

… the decision to impose the penalty of the reduction in Mr Turner’s pay code to be fair and reasonable.

Although the decision-letter itself is somewhat lacking in detail, I am satisfied QAS has demonstrated an intelligent justification for the penalty, and that it is appropriate in the circumstances.

Conclusion

The issue of taking photos whilst on duty arises regularly on this blog.  This is the first case that I know of where a responder has been disciplined for taking photos and publishing them on social media.

As a lesson learning tool, however, the Commission’s reasoning is unsatisfactory. Without some details of what was captured in the image, readers of the case get no guidance on what is prohibited.  Was it information on a data terminal? The patient’s face? 

With respect to allegation 2 the reasoning is even less satisfactory. The Commission agreed that ‘operating a mobile phone while stationary but not parked, is an offence under the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld)’ but failed to address the terms of r 300 as it then was so did not address why Mr Turner, as the driver of an emergency vehicle had committed that offence when he was, prima facie, exempt from that rule. Again paramedics who might look for guidance are left to infer that using a phone as a camera in these circumstances was not ‘‘performing duties as an emergency worker’ and therefore outside the exemption in r 300.

With respect to both allegation 1 and allegation 2 there is little to guide future practitioners other than a general warning to keep your phone in your pocket whilst at work.

CHANGES TO THE LAW

Rule 300, quoted above, was the law as at 12 May 2021.  The rule was amended by the Transport Legislation (Distracted Driver and Other Matters) Amendment Regulation 2021 (Qld) with effect from 16 July 2021. Rule 300(1) now says that the ‘driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked’.  Rule 300(4) says ‘This section does not apply to the driver of an emergency vehicle or police vehicle.’   The definition of emergency vehicle and emergency worker is unchanged.

At the time of the offence, and now, the prohibition on using a mobile phone did not and does not apply to a member of QAS when ‘driving the vehicle in the course of performing duties as an emergency worker’. 

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.