I have previously written on the use of force to enter premises to rescue someone or to provide emergency medical care – see for example:

The issue has arisen again after a South Australian coroner was critical of decision making by a South Australian Ambulance Service (SAAS) paramedic and a South Australian Police (SAPOL) officer – see:

(And I thank my correspondent Gail for drawing this to my decision).

The issue arose after Mr Low was speaking to a support worker, Mr Gibbs, on the ‘phone. What happened is explained at [17] of the reasons given by State Coroner Whittle.

… Mr Low complained of pain in his arms and legs and said that he could not move. Mr Gibbs asked whether Mr Low wanted to ride it out or whether he should call an ambulance. Mr Low became really distressed and was grunting in pain, more and more heavily, before he apparently dropped the phone and the call abruptly ended. Mr Gibbs assumed that Mr Low had hung up in a panic or to call an ambulance. Mr Gibbs was worried and tried to call back a few times, but it kept ringing out. Mr Gibbs called his boss, Valentine Olaleye, who said he would attend Mr Low’s house. Mr Gibbs’ concern was such that he also rang triple zero…

SAAS

Mr Sparrow ‘an Intensive Care Paramedic of 20 years’ experience … duty as a Single Person Response Unit’ was dispatched to Mr Low’s address. Mr Sparrow had the power to force entry to the premises. The Health Care Act 2008(SA) s 61 says:

61—Power to use force to enter premises

(1)            A person who is a member of the staff of SAAS may use reasonable force to break into any place if the person believes that it is necessary to do so—

(a)            to determine whether any person is in need of medical assistance; or

(b)           to provide any person with medical assistance.

(2)            A member of the staff of SAAS acting under subsection (1) must comply with any protocols or procedures established by SAAS for the purposes of this section.

The presence of s 61(2) meant that the SAAS could add details and conditions that must be met prior to the use of that force. The coroner was critical of the SAAS protocols and training; he said (at [135]-[142] emphasis omitted):

I received into evidence a copy of the SAAS policy on forcing entry, titled ‘Procedure – Forced entry to property by ambulance officers’ (the procedure). I find that it is fundamentally flawed, as I now explain. 

Paragraph 3 of the procedure in force at the time of Mr Low’s death provided:

“If an ambulance officer has reasonable cause to believe that a patient in a locked or difficult to access premises requires assistance, the ambulance officer may use reasonable force to gain access to that patient.”

I first observe that the concept of reasonable cause has been introduced where it does not appear in the legislation. The legislation speaks only of a belief, with no standard fixed. SAAS has raised the bar and set a higher standard than the legislation authorises. While SAAS has the power to raise the bar, it ought to carefully consider whether it should. It should carefully consider whether it creates a situation of risk that their paramedics might not enter premises where they should and would be authorised by the Act, if not for the procedure. 

Having made that observation, the most serious concern I have is that the paragraph completely omits an entire aspect of the power provided. That is, limb (1)(a); ‘to determine whether any person is in need of medical assistance’. The SAAS policy suggests that the paramedic must believe the person is inside, prior to exercising the power provided by the section. Of course, the legislation specifically allows for the situation where the paramedic believes it is necessary to break into a place to determine whether someone does need medical assistance. That is precisely the situation that Mr Low’s case has highlighted. Mr Sparrow might not have been sure that Mr Low was inside; he obviously had his doubts, and he gave evidence about those. However, the power allowed him to break in once he believed it was necessary to determine whether Mr Low was inside and in need of assistance or not. The procedure really ought to make that absolutely clear to avoid this situation again. 

The procedure provides an appropriate statement, as follows:

“Duty of care to the patient overrides the potential cost of damage to the property.”

In order to reinforce that forced entry may be necessary without actual knowledge of a patient’s presence, the procedure ought to go further and observe that duty of care overrides the potential cost of damage to the property and also the potential that entry is gained to a place where the patient turns out not to be. 

The next section of the procedure, 3.1, requires paramedics to ‘make every attempt to ensure that there is reasonable cause to break in’ (emphasis added). On its face, this effectively precludes any urgent entry. By saying ‘every attempt’ it requires unending checking and confirmation before exercising the power. This part of the procedure must provide more guidance about what checks should be done and when the urgency of the situation should or must take over from making checks. To draw this concern back to Mr Low’s case, it might be thought reasonable to try to call a family member to see if they have collected the patient, but when that family member does not answer, a paramedic should not think they have to wait to get through to someone. 

The next two dot points reinforce the same problem; ‘make every reasonable attempt to communicate with the patient’ and ‘where possible and appropriate obtain consent’. What is a reasonable attempt? Mr Sparrow thought that was calling hospitals, calling family members and calling the carer back. Others might think that simply means calling out through the window and getting no response or asking if there are next of kin details recorded and, when there are none, being satisfied that it is not possible to obtain consent. The problem I am highlighting with the procedure is that it might allow for that interpretation, but it also might allow for Mr Sparrow’s interpretation, that it is appropriate to obtain consent by spending an hour trying to call family members. Mr Sparrow gave evidence that this was his approach when he said, ‘I guess I was just worried about that I hadn’t exhausted, I guess, every possibility from a point of view of him not being in there’. 

Although Mr Sparrow gave evidence that he had not read this protocol but had learned it by ‘osmosis’ ([145]) his conduct was consistent with it. Rather than enter the premises he spent time trying to ring Mr Low’s phone to see if he could hear it, trying to contact family members. He declined to exercise his powers ‘because he could not rule out that Mr Low had either self-presented to hospital or had been collected by his wife to attend hospital’ ([25]). At [146] His Honour said:

Mr Sparrow’s understanding of what he needed varied throughout his evidence, he said that he had to be ‘convinced’, or have ‘evidence’, or a ‘reasonable belief’, or ‘compelling information’, or to ‘discount other possibilities’, or to ‘exhaust every possibility from a point of view of him not being in there’. When he described what evidence he was looking for, he said he wanted to hear someone yelling out inside or a phone ringing inside, or be told that the person’s car is in the driveway. He said he was looking for something to make it ‘more my belief’ that Mr Low was in there. On that evidence, he had a belief but wanted to elevate the standard of his belief. All of this is, of course, against the background of having been told multiple times over multiple calls that the carer was certain Mr Low was inside, and of having that reinforced by the carers who attended, by the call centre and by Sergeant Weaver. He went against the weight of all of that, which speaks to the magnitude of his misunderstanding of his powers. Mr Sparrow conceded that he had set a threshold that was way too high. I find that this occurred due to a combination of a flawed policy and an obvious lack of training on this issue.

SAPOL

The police also had the power to force entry. The Summary Offences Act 1953 (SA) s 83C says:

83C—Special powers of entry

(1)            Where a senior police officer suspects on reasonable grounds—

(a)            that an occupant of premises has died and his or her body is in the premises; or

(b)           that an occupant of premises is in need of medical or other assistance,

the officer may authorise a police officer to enter the premises for the purpose of investigating the matter and taking such action as the circumstances of the case may require.

(2)            An authorisation under subsection (1) must be in writing unless the authorising officer has reason to believe that in the circumstances urgent action is required, in which case, the authorisation may be given orally.

A senior police officer is ‘a police officer of or above the rank of inspector’ (s 4). 

The senior officer on scene was Sergeant Weaver. She contacted the duty inspector for permission to force entry as required by s 83C(1). Inspector Conway refused to grant that permission notwithstanding the Sergeant’s concerns both as to the safety of Mr Low and what she saw as a unreasonably failure by Mr Sparrow to exercise the SAAS powers. Inspector Conway was of the view that SAAS were the lead agency and she did not have the power to authorise an entry where the SAAS paramedic was not prepared to exercise the powers granted by the Public Health Act ([32]). The coroner said (at [163]):

Sergeant Weaver gave evidence that Inspector Conway told her that because the situation was medical, SAAS were required to use their powers. I accept that this was said. I consider the approach was quite wrong. Parliament gave to SAPOL a power to enter premises using reasonable force for the purpose of getting to someone who needs medical assistance. There is no reason in logic why the first to attend a scene is required to exercise their power first, or why a medical issue can only be dealt with using SAAS’s authority. Each authority has to assess the exercise of their independent powers based on the information known to that agency at the time. The concept that SAPOL might not be the ‘lead agency’ and therefore cannot exercise its powers has no foundation in the legislation. The very fact that Inspector Conway said this leads to me reject the submission made on her behalf that she understood her powers. 

Given those criticisms of Mr Sparrow and Inspector Conway, as well as criticism as to how they gave their evidence (see [122] and [160]) it is worth recording what the coroner said about Sergeant Weaver. He said (at [157]):

It is clear that Sergeant Weaver brought to the scene logic, reason and a sense of urgency. In saying that, I do not mean to dismiss the role of the other police at the scene, I merely highlight Sergeant Weaver in that way as she was the one who took charge, confronted Mr Sparrow with logic and very quickly gave up on that as an exercise in futility. Sergeant Weaver brought the approach which everyone would hope members of police would have when responding to emergencies at their homes. She encountered a block with Mr Sparrow, which she described as ‘almost beyond belief’, so she turned to her next avenue, the District Duty Inspector. When she encountered a block there, she kept going, trying to gather information at the scene to support what was obvious to her, that Mr Low was inside. She was undertaking that task when entry was gained with a key. Following the events, she pushed for the matter to be brought to the State Coroner’s attention. Sergeant Weaver should be commended for her actions on that day, fruitless though they were. 

And at [195], Mr Low’s 

… death was accompanied by particular circumstances of tragedy, in that it is likely that he died within metres of a paramedic trained and able to render potentially life-saving assistance.  Sergeant Weaver’s initial reaction to the incident – to observe that the actions of emergency services fell short of what is expected – was apt.

Cause of death

The cause of death was recorded as ‘ischaemic and hypertensive heart disease (operated) with cardiomegaly with contributing diabetes mellitus and morbid obesity’ ([42]). 

Recommendations

The issue in both cases was not the law, which gave both SAAS and SAPOL power to force entry in the circumstances, but the training and decision making of Mr Sparrow and Inspector Conway. The coroner recommended, one, that the SAAS procedure on forced entry be rewritten to reflect the legislation. He said ([183]) ‘A policy in respect of a legislative power might find its perfect starting point by setting out that legislative power verbatim’; that is if you want to know what the legislation says, the best place to start is to read the words of the legislation! He also recommended, two, that guidance be given on what to do, and how long to take, trying to confirm a belief before forcing entry, ‘For example, if a priority 2 case is under consideration, efforts should be abandoned if they remain unsuccessful after the 16 minute target timeframe is reached’. His recommendation three was that SAAS implement training on the new protocol.

His Honour further recommended (at [186]):

Four      That section 61 of the Health Care Act be amended to supplement the existing power with an express power to enter for the purposes set out in s 61(1)(a) and (b) where force is not required.

I shall return to that recommendation, below. The other recommendations were:

Five        That all ambulances and SPRINT cars be equipped with devices to assist with forcing entry to premises. 

Six           That an immunity from liability be introduced for SAAS to ensure that when exercising powers of entry in emergency situations, time is not lost over concerns about liability. A perfectly appropriate working example of that kind of provision exists in s 67I of the New South Wales Health Services Act 1997.

Seven  That training be implemented specifically focussed on the exercise of the s 83C power to authorise entry in urgent situations, including what factors should be taken into account and what should not be taken into account, as well as training specifically on the scenario where another agency is involved but not appearing to properly exercise its powers. This training should be repeated periodically to ensure that this very important power, which in and of itself has the capacity to save lives, is something that is always exercised in an appropriate way. 

Eight     That SAPOL equip more patrol cars with devices to assist with forcing entry and provide training to operational members in the use of such equipment. 

Recommendation four

Recommendation four was 

That section 61 of the Health Care Act be amended to supplement the existing power with an express power to enter for the purposes set out in s 61(1)(a) and (b) where force is not required.

This recommendation was based on His Honour’s concern that an Act that said a ‘member of the staff of SAAS may use reasonable force to break into any place’ did not necessarily authorise entry where no force was required. With respect to His Honour that makes no sense. His Honour said (at [117]

I observe that there is no express power in the legislation to enter premises when force is not required to be used to achieve that. That is not to observe that there is no such power at all; in fact, it is likely that there is common law authority to enter for the purposes of providing emergency assistance. That is something that I do not need to consider further in the context of these findings… 

And at [184]:

I consider that it is important that there be no impediment to the swift entry to premises where a person in need of medical assistance might be. As I foreshadowed, while legislative power has been provided to use force to enter for those purposes, there is no express power in the legislation to enter for that purpose, where force is not required. There is an argument that authority for the use of force might implicitly carry authorisation to enter without use of force, but that is far from certain. As I discussed, there may be instances where an express power speeds up the process of entering an unlocked door to check whether someone is inside. It would allow for this to be achieved on the basis of no more information than from a caller, that they believe a person is inside particular premises and that the caller believes they are in need of assistance. 

Force is ‘a push or pull on a mass that can change the object’s motion’ (https://sciencenotes.org/force-definition-in-science/). Opening a closed unlocked door still requires the application of force on the door handle. If minimal or no force is required to enter the property then that is the ‘reasonable’ level of force. It is not reasonable to break the glass on an unlocked door. Further in criminal law, ‘To open a closed though unlocked door or window is a breaking’ (Halsbury’s Laws of Australia [130-5280]). To open an unlocked door, which some may think is not applying force, would be covered by s 61.

Also the common law power to enter is beyond doubt – see the various posts listed above and in particular the discussion in The doctrine of necessity – Explained (January 31, 2017). 

Interstate comparisons

The power to force entry is granted to paramedics in some other states – see 

  • Emergencies Act 2004 (ACT) s 34;
  • Ambulance Services Act 1991 (Qld) s 38; and
  • Ambulance Service Act 1982 (Tas) s 14A.

There is no ambulance legislation in the Northern Territory or Western Australia. Victoria and NSW do not provide a statutory authority to enter but I would have no doubt that their reasonable entry would be excused by common law (see Kuru v NSW [2008] HCA 26).

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.