Today’s correspondent says:

Paramedics who are employed as Paramedics by the Queensland Ambulance Service, and who are performing volunteer duties with an external volunteer organisation (eg. St John Ambulance) may find themselves in the position where they are presented with a patient who they believe meets the criteria for an Emergency Examination Authority (EEA).

Putting aside the logistical and safety issues around how exactly such a paramedic would affect the EEA, I am interested in the legal powers and obligations at play. Under 157B of the Public Health Act (https://www.legislation.qld.gov.au/view/pdf/inforce/current/act-2005-048) an Ambulance officer may detain and transport a person if he or she believes:

(a) a person’s behaviour, including, for example, the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and

(b) the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and

(c) the person appears to require urgent examination, or treatment and care, for the disturbance.

Pursuant to Chapter 4A, Part 1, s157A of the Public Health Act (https://www.legislation.qld.gov.au/view/pdf/inforce/current/act-2005-048) (1), an authorised person means an ‘ambulance officer’. The act clarifies that an ‘ambulance officer’ is employed by the QAS as defined within the Ambulance Service Act 1991 (https://www.legislation.qld.gov.au/view/whole/html/inforce/current/act-1991-036) (2).

QAS paramedics are obviously ambulance officers as defined in both acts, they therefore are subject to the provisions when they are working as QAS paramedics. If however they are performing duties with another organisation, are they still considered Ambulance Officers under the aforementioned Acts and therefore subject to the powers and obligations under both?

There is some confusion here.  A paramedic has the power to ‘detain the person and transport the person to a treatment or care place’ under s 157B. That is not an EEA.  An EEA is made under s 157D. The paramedic must complete the EEA and give it to an employee of the ‘treatment or care place’ (s 157D(4)).  That EEA gives the ‘treatment or care’ place the legal authority to continue the person’s detention (s 157E). A paramedic detains a person under the power vested in them by s 157B. The treatment or care place detains them under s 157D but that depends on them having an EEA completed by the ambulance officer. The ambulance officer does not detain a person under an EEA.

The question I’m really being asked is can the off-duty paramedic ‘detain the person and transport the person to a treatment or care place’ under s 157B.  Putting aside the logistical difficulties of how a QAS employee would transport a patient without the benefit of a QAS ambulance we can look at the law.

Section 157B says

(1) This section applies if an ambulance officer or police officer believes—

(a) a person’s behaviour, including, for example, the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and

(b) the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and

(c) the person appears to require urgent examination, or treatment and care, for the disturbance.

(2) …

(3) The ambulance officer or police officer may detain the person and transport the person to a treatment or care place.

The section falls within Chapter 4A ‘Health of Persons with Major Disturbance in Mental Capacity’.  The section applies to ‘an ambulance officer or police officer’. It does not refer to an ‘authorised officer’ so the definition of that term is not relevant.  Rather s 157A says, that for the purposes of Chapter 4A, for the definition of ‘ambulance officer’ refer to the schedule to the Ambulance Service Act 1991 (Qld).  That schedule says an ambulance officer is ‘an ambulance officer appointed under section 13 and an honorary ambulance officer appointed under section 14’.  

One is ‘employed’ as an ambulance officer even when not at work. If that were not the case a secondary employment policy would be irrelevant if the secondary employment only occurred when not working for the Ambulance Service but that is, of course, exactly when it applies.  When people ask ‘and what do you do for a living?’ they don’t expect you to give an answer – ‘just at the moment, nothing’. They mean ‘what is your employment?’ and everyone understands you have a job even when you are not at work.

As a matter of common sense and logic, a person appointed as an ambulance officer under s 13 retains that appointment even when he or she is ‘off duty’ and volunteering with an organisation such as St John Ambulance Australia (Queensland).

It follows that the paramedic is an ambulance officer for the purposes of s 157B.  But the logistics issues are important. The power under s 157B is the power to ‘detain and transport’.   The off-duty paramedic may detain the patient but have no intention or capacity to transport them.  He or she might then call for QAS assistance and an on-duty paramedic would arrive.  If that paramedic agreed that the s 157B criteria were met he or she could act under the section and to the extent that they took the patient against their will they would be ‘detaining’ and transporting the patient. 

Further a paramedic relying on his or her authority as a QAS paramedic would need to comply with the QAS CPG which may not be possible in the circumstances.

Whilst I don’t have any authority on the point, I would expect that it would be accepted that a paramedic could detain a patient that he or she did not intend to transport if he or she intended to arrange for someone else, ie police or another paramedic, to transport.  It would however be necessary for that second officer to also form the view that the criteria in s 157B are met if they are going to continue the detention.

Conclusion

I think the question then is ‘If a QAS paramedic is performing duties with another organisation, could they detain a person who meets the criteria in s 157B and continue their detention pending the arrival of police or other ambulance officers?’   Given the language of s 157B refers to a person employed as an ambulance officer by QAS and given I would expect the community would want an off-duty officer to be able to exercise that authority to protect a person from harm, a court would be willing to interpret that a decision to detain the person, even if the officer did not intend to transport the person but did intend to call upon QAS or QPS to come and exercise their discretion under s 157B would be within the section.

If it were not an off-duty paramedic could also rely on defences of ‘extraordinary emergency’ (the Queensland version of common law ‘necessity’) and self-defence including the defence of others (Criminal Code 1899 (Qld) s 25 and ss 271-273).

Proudly supported by (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 these supporters.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.