Evidence of a person’s answer to a question asked by police cannot be used against them if (Evidence Act 1995 (NSW) s 139(1)(c)):

… before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

The question

One hopes that paramedics are not asked questions because they are suspected of committing a criminal offence but s 139 is still relevant to today’s question which comes from a NSW paramedic. They ask:

At times, we are asked to provide police statements. It is my understanding that if someone is asked to provide a police statement, it is within their rights to refuse. Are there any laws that would prevent Ambulance paramedics from refusing to provide a statement if the statement is in relation to an incident which occurred/was witnessed while on duty?

As the Evidence Act 1995 (NSW) s 139 (above) makes clear, a person does not, generally, have to do or say anything to contribute to a police investigation. (Having said that, readers should be aware that there are exceptions to this rule so a driver has to identify themselves, people can be compelled to give DNA samples and there are some circumstances where a person can be compelled to answer questions but police are required to warn people when they are required to comply and those exceptions are not relevant in the context of this question).

There are at least two cases when a paramedic should be hesitant to answer police questions or provide a statement. They are (1) where the paramedic’s statement would incriminate themselves (ie would give evidence that they themselves had committed an offence) and (2) where the statement would infringe the patient’s expectation of confidentiality and privacy.

Privacy principles

The privacy principles, put into NSW law by the Privacy and Personal Information Protection Act 1998 (NSW) and the Health Records and Information Privacy Act 2002 (NSW) impose obligations upon health practitioners to protect and keep confidential personal information provided by a patient.  Information can be released where that is required by law (Health Records and Information Privacy Act 2002 (NSW) s 23; Privacy and Personal Information Protection Act 1998 (NSW) s 25) or where the information is released to law enforcement agencies (such as police) and the disclosure:

… is reasonably necessary for the exercise of law enforcement functions by law enforcement agencies in circumstances where there are reasonable grounds to believe that an offence may have been, or may be, committed… (Health Records and Information Privacy Act 2002 (NSW) sch 1, Health Privacy Principles, item 10(1)(i) and 11(1)(j)).

(It’s also lawful to release private information where it is required to deal with an emergency or to prevent ‘a serious and imminent threat to the life, health or safety of the individual or another person’ (Health Records and Information Privacy Act 2002 (NSW) sch 1, Health Privacy Principles, item 10(1)(b1) and (c) and 11(1)(b1) and (c)). Where those provisions apply, in the context of a paramedic, one would expect police to ask a question and confirm that they need to know the answer now, rather than asking the paramedic to write a statement).

Another reason why a paramedic may not want to give a statement is the common one of not wanting to become involved as a witness.  A paramedic may well form the view that they are there to provide health care, not be a witness for the prosecution.

A paramedic may then have many reasons why they do not want to provide a statement to police, and the general rule is that they are under no compulsion to do so. 

Some other things to think about

When deciding whether to give a statement, or not, paramedics should consider who would benefit from the statement. If they are asked to give a statement that will assist their patient eg a statement that will provide evidence that supports the patient’s claim that they were a victim of crime, then the paramedic should consider their ethical obligation to act in their patient’s best interests.

Equally if the statement from a paramedic will be evidence against their patient consideration needs to be given of balancing the patient’s expectation of privacy and the greater public interest and that, in turn, would require consideration of the offence. A statement from a paramedic that the patient admitted that they self-administered a prohibited drug’ (contrary to the Drug Misuse and Trafficking Act 1985 (NSW) s 12) would be quite different to an admission that the patient had committed a sexual offence against a child or revealed where a missing person may be located.  A paramedic may well refuse to give a statement in the first example given the patient may have made that admission so the paramedic could provide relevant health care and where there is a very limited public interest in the prosecution. In the second and third example, above, the information is not part of the patient’s medical history and there is a much greater public interest in bringing the patient to account.

Finally, a paramedic’s patient care record is available to police using either a subpoena or a search warrant so a prudent paramedic may well take the view that they should not disclose what has been told to them in confidence and leave it to police to determine if they have the grounds to obtain a subpoena or warrant. If the police do have a subpoena or warrant then the agency, and the paramedic, cannot be criticised for handing over the records. 

Conclusion

This was a long question to the answer. The short answer is that there are no ‘laws that would prevent Ambulance paramedics from refusing to provide a statement if the statement is in relation to an incident which occurred/was witnessed while on duty’. 

The longer answer is that a paramedic, when asked to give a statement, should consider both the ethical as well as the legal rules that apply.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.