Changes to ambulance legislation in NSW – about time too!

On 4 August the NSW Health Minister, Mrs Jillian Skinner, introduced the Health Services Amendment (Ambulance Services) Bill 2015.

This Bill, if passed, will open the door to allow licensed providers of “supported non-emergency transport”. The scheme will be based on the scheme already in place in Victoria. According to the Minister:

Organisations providing supported transport will be obliged to ensure that the vehicles used are equipped in a manner that ensures patient safety. They will also be required to ensure that clinical care and monitoring is provided in a manner that ensures patient safety. Similarly, hospitals, aged care facilities or other organisations that contract or engage service providers to supply supported transport will be obliged to take reasonable steps to assure themselves the transport provided is safe and appropriate.

These provisions follow developments in other states and make sense to ensure that emergency ambulance crews are not diverted to cases that do not require their specialised skills.

It should be noted that the Bill does not provide for a licensing scheme, that is an operator will not need to apply to the Department or Minister before setting up a transport service. Provided the service meets the prescribed standards it can operate. The Minister has the power to prohibit a person or entity from providing ‘supported non-emergency transport’ if they have previously operated in contravention of the standards and it is necessary to prohibit their future involvement ‘to protect the health or safety of members of the public’.

From my perspective, the more interesting aspect of this Bill are changes to the prohibition on the provision of ambulance services. The Health Services Act 1997 (NSW) s 67E currently says:

(1) A person must not:

(a) directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, or

(b) conduct for fee or reward any operations similar to the operations carried on by the Health Secretary under this Chapter,

without the consent of the Health Secretary and except in accordance with such conditions (if any) as the Health Secretary may from time to time impose.

This section does not say that a person must not take part in the provision of transport to a hospital but other transport is OK. Even though it does not say that many providers of private ambulance services think it does. The idea that private providers can transport around an event, say from the site of injury to a medical centre, was put and rejected in Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548. In that case, Justice Hely ‘concluded that the provision of event prehospital care and patient transport, even if that transport is limited to transportation around the event site, for example from a first aid post to a medical centre, was the provision of ambulance services and was, therefore, illegal without appropriate approval.’ (For a more complete discussion see Michael Eburn and Jason Bendall, ‘The provision of Ambulance Services in Australia: a legal argument for the national registration of paramedics’ (2012) 8(4) Australian Journal of Paramedicine, Article 4 ).

Even so there has been a growth in private event first aid providers and, as Bendall and I noted:

Governments appear to tolerate these activities and many of the private sector providers have government authority to carry and administer medications that are used in prehospital care. The effect is that a number of people and organisations are authorised to carry and use medications for the provision of first aid or transport of the sick and injured even though the provision of those services (in NSW) is prohibited.

The 2015 Bill will change all that. If passed it will no longer ben an offence to ‘conduct … operations similar to the operations’ of NSW Ambulance, rather it will be an offence to provide ‘emergency ambulance services’. ‘Emergency ambulance services’ will be defined to mean

… ambulance services that provide transport to sick and injured persons to or from hospitals:

(a) in response to requests for medical assistance for persons who may have injuries or illnesses that require immediate medical attention in order to save or maintain life or to alleviate suffering, and

(b) using staff who provide attention for the purpose of saving or maintaining life, or alleviating suffering, during transportation.

Ambulance services will continue to mean ‘services relating to the work of rendering first aid to, and the transport of, sick and injured persons’ (Health Services Act 1997 (NSW)).

What will be prohibited under the Bill is transport ‘to or from hospital’. Transport around an event site will not be prohibited.

Why is it about time?

It’s about time these changes came in because it is apparent that for years the prohibition contained in s 67E has been ignored. Legislators should ensure that the law says what they mean it to say, and they say what they mean. The law has said that there is a prohibition on providing ambulance services but clearly no-one really meant it. Bringing the law into line with desired practice is a good idea, but this change may go too far.

Where does that leave event first aiders?

The obvious problem is that an organisation that wants to provide first aid or paramedic services at a community event may be even less regulated than they are now! If they are not providing ‘transport … to or from hospitals or other places where those persons can obtain medical services’ then they are not providing ‘supported non-emergency transport’ nor are they providing an emergency ambulance service.

There is in fact nothing to stop me setting up Eburn’s Paramedic Event Services and sending people out to provide first aid with nothing more than good intentions. If they injure a patient or mislead the event organisers into thinking the are getting a service they are not, then all the remedies will be private in nature, that is the patient or the event provider would have to sue me. I would not be in breach of any provision of the ambulance service legislation and the government would have difficulty regulating my conduct.

If and when the Health Services Amendment (Paramedics) Bill 2015 (NSW) passed, my service could not use the title ‘paramedic’ but apart from that I could continue to operate.

The current prohibition was clearly not enforced on its terms, ie private providers were providing services ‘similar to the operations’ of the Ambulance Service of NSW but at least they needed consent or risked prosecution. Should this Bill become law, it will certainly be easier for event first aid providers to set up with less regulation. I’m sure that is not the intended outcome.

An alternative

I think a better method of regulation can be found in the Emergencies Act 2004 (ACT). Under that Act it is an offence to provide an ’emergency service’, which includes an ambulance service, without the permission of the Minister (s 63). The minister has however granted approvals and these are published on the ACT Legislation Register – see for example, http://www.legislation.act.gov.au/ni/2015-350/current/pdf/2015-350.pdf. It is then possible to see who is approved and what services they can provide. Their services could be non-emergency patient transport, emergency patient transport or event first aid. Requiring prior approval allows the Minister to be satisfied, before patients get treated, that the provider is meeting all the necessary standards as it is better to protect patient safety before, rather than after, they need patient care services.

Conclusion

It is about time that the NSW Government recognised both the need for private providers to help meet the demand for patient transport and to free up NSW Ambulance for emergency work. That is a good step but it is a concern that prior approval is not required before private operators start their business. Having the power to prohibit providers after they have failed to meet prescribed standards is not as secure as requiring them to satisfy the minster before they commence operations that they are meeting those standards.

Removing the blanket ban on the provision of ambulance services, and now having it for emergency ambulance services will also reflect the reality that there are private providers but it has gone so far that those that are providing event first aid, and not transport to and from a hospital, are now unregulated. That may have gone too far.

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14 thoughts on “ Changes to ambulance legislation in NSW – about time too! ”

Hello Michael, I don’t know or understand what this article is saying. I run a Victorian Licensed Patient Transport Service and I provide services to hospitals ( to and from for appointments and or for patient admittance). The question and answer I seek is; If I was to open up my services in NSW would I be able to operate on similar terms (licensing) as I am in Victoria.
I am licensed to operate in SA, though have not. In the past the Ambo’s (sorry Paramedics’s) in NSW became agrieved when the sight of Non-Emergency Patient Transport service entered NSW to operate said Non-Emergency Patient Transport business, And it is alledged that the Union ensured no one operate in NSW in this type of business through their connections and use of NSW police. So if you have NSW ambo’s and the NSW Police stopping any progressive move by Non- Emergency Patient Transport providers (Think Paramedic Services and NPT in past attempts) they would not have a chance.
Non-Emergency Patient Transport Ambulances have been stopped passing through NSW and had their roof lights (usually red or red and blue) removed by NSW police. So where do we go from here? Kind regards Nigel

I’m not sure what part of the article you don’t understand? Will you be able to operate on ‘similar terms’ as you do in Victoria? Yes; if the Bill becomes law you will be able to operate a ‘supported non-emergency transport’ service provided you comply with the standards that are yet to be developed and which will be set out in the Regulations. I don’t see how you can blame ‘the unions … through their connections and use of NSW police’. The legislation in NSW has not allowed for private NEPT providers. As for roof lights, an NEPT provider on current law, could not have red/blue lights on their vehicle save that a vehicle temporarily in NSW and registered in another Australian state or territory does not have to be registered in NSW (Road Transport (Vehicle Registration) Regulation 2007 (NSW) Sch 1 clause 9) and presumably do not have to meet the NSW Standards. Police would not have the power to ‘remove’ the red/blue lights though they could issue a defect notice and of course that could be challenged. So where do we go from here? If the Bill is passed a person will be able to operate a supported non-emergency transport service in NSW. Whether they can have warning lights on the vehicles will depend on the standards and any necessary amendments to the Road Transport (Vehicle Registration) Regulation 2007 (NSW).

See todays Age Newspaper regarding NSW ambulance times and paramedics complaining of not enough paramedics and ambulances.
The new legislation may free up Government ambulances to do more emergency calls and not the stretcher taxi work, maybe.

I’m sure that’s an intended outcome. As the Minister said, in her second reading speech, “The use of ambulance services and vehicles that are designed to respond to emergency situations is an inefficient use of high-cost specialist emergency services that, in turn, can impact on the efficiency of the service… Two of the key objectives of the plan were to establish non-emergency patient transport as a separate service from the urgent, emergency service provided by NSW Ambulance, and to engage a range of providers, including community transport services, the existing ambulance green fleet, local health district transport services and private operators to provide existing and future non-emergency patient transport services”.

The RFDS must, indeed, be an ambulance service. Under the current Act it is an offence to “(a) directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, or
(b) conduct for fee or reward any operations similar to the operations carried on by the Health Secretary …” (Health Services Act 1997 (NSW) s 67E). The RFDS are specifically exempted from this prohibition (s 67E(3)). It must follow that the Department thinks they would be in breach if that exemption was not there, otherwise there would be no need to exempt them. If the new Bill becomes law the RFDS won’t need an exemption to ‘provide or take part in the provision of transport for sick or injured persons for fee or reward, or (b) conduct for fee or reward any operations similar to the operations carried on by the Health Secretary’ because that will no longer be prohibited. They’ll need to comply with relevant standards if they’re providing supported non emergency patient transport. They’ll need an approval if they are providing ’emergency ambulance services’ (recalling that ambulance services are ‘services relating to the work of rendering first aid to, and the transport of, sick and injured persons’; Health Services Act 1997 (NSW) s 3 and Dictionary). Where the RFDS is providing on site clinics they’re providing a medical service but once they get into the business of ‘transporting’ then they are providing an ‘ambulance service’.

I received this comment/question by email: It seems the news on the NSW title protection for paramedics has quieted down a little. Since it passed on the 31st I have read the act and I am a little confused by it to be honest.

Holding out as paramedic

(1) A person who is not a paramedic must not, in any way, hold himself or herself out to be a paramedic. Maximum penalty: 100 penalty units. (2) For the purposes of this section, a paramedic is: (a) a person who holds qualifications, or who has received training, or who has experience, prescribed by the regulations, or (b) a person who is authorised under the legislation of another Australian jurisdiction to hold himself or herself out to be a paramedic, or (c) a member of staff of the Ambulance Service of NSW, or other person, who is authorised by the Health Secretary to hold himself or herself out to be a paramedic.

What is your professional and personal opinion on this? Of course we would need to await the Regulations, however I am not sure what this is meant to achieve and more so how this is meant to improve patient care. Especially since every Ambulance Paramedic is excluded of the qualification requirement. Personally I think this might be missing all the important points of the push behind registration. For employers and event organisers there is still no way to be sure the companies are sending you paramedics. Sure it’s illegal, but so are drugs and using your mobile while driving. In a private business scenario this wouldn’t change anything would it? The trade practices act or state consumer legislation already made it an offence to mislead people since the 70’s and the penalties were much higher. I do not understand the reasoning behind the compromises that were made here. Maybe you could shed some light on this for me? Even if the regulations were to be tough, it would still mean anyone with a Bachelor could work as a paramedic from the day they graduate. It also does not really stop companies from just using another title and giving them the same scope as before!?

(b) a person who is authorised under the legislation of another Australian jurisdiction to hold himself or herself out to be a paramedic, or

The Act is ‘meant to achieve’ that only limited people can use the title paramedic. I have not doubt however that it is ‘missing all the important points of the push behind registration’. It is in part a ‘stop gap’ but given that it’s coming from NSW and I understand NSW is one if not the only stumbling block to registration it must be more than that. Consider the Victorian plan to introduce it’s own registration model (a plan that I now understand is off the table) –Victorian state registration of paramedics (November 4, 2014). That proposal would have required that the Minister approve any standards that ‘may have an adverse impact on the recruitment or supply of paramedics’. One concern for States is that registration will remove their control over their own paramedic workforce, they will have to employ registered paramedics and the standards for registration and practice will be set by someone else. I suspect that NSW is offering this Act as a way to be able to say that they have taken steps to protect the paramedic title but at no risk to their ability to determine the scope of practice of their paramedics and to retain their ability to recruit and train paramedics as they see fit.
As for ‘employers and event organisers’ I think restricting the title will make a difference. Certainly someone may hold themselves out as a paramedic when they are not entitled to do so, and without a register one couldn’t actually check but people are unlikely to check registers and there has to be some assumption that agencies will try to follow the law. As for the Trade Practices type legislation the problem with that is that it requires that someone actually try to mislead someone else (or engage in conduct that might mislead them). With this Act one can prove the offence – that the person held themselves out as a paramedic – whether nor not anyone was mislead and whether or not they were acting ‘in trade or commerce’. It can certainly be more ‘pre-emptive’. It is true that anyone with a Bachelor’s degree in paramedicine could call themselves a paramedic from day one, but how they could work would still be subject to direction from their employer so an employer may still require them to work under supervision and restrict their scope of practice. It certainly does not stop ‘companies from just using another title and giving them the same scope as before’ and that is part of the purpose. Whether they call their staff EMT’s or Advanced Responders or whatever, if they are not using the title ‘paramedic’ you know they are not a paramedic (as defined). The reference to “a person who is authorised under the legislation of another Australian jurisdiction to hold himself or herself out to be a paramedic” could indeed become a loophole given in states other than Tasmania and South Australia, anyone can call themselves a paramedic.

I left my career as an Ambo some years ago following a ‘workplace’ injury. Apart from the grief and depression I experienced at the loss of my much loved career, it became increasingly clear to me that my work prospects in patient care were limited. Once I stepped out from under the Ambulance Service of NSW banner, I was no more qualified than my 15 y.o. son with his first-aid certificate.
Apart from teaching first aid during my recovery years, there didn’t seem any way of my returning to the area of ‘pre’ or ‘out of hospital care’. Registration was talked about when I worked during the 90’s and appears to remain a topic of discussion 20 years later. Why? Certainly ambulance services may, as you say, prefer to train their own, however regardless of an individual’s level of qualification I.e. Diploma or Degree in Paramedical studies, ambulance services still interview, assess and train theses graduates before their let loose on the public.
Registration would provide a base line recognition allowing individuals, such as myself, to work in employment other than in state ambulance services. I currently work as a patient transport officer PTO with Healthshare NSW and am technically little more than a driver; being classified as ‘non-clinical’. My experience, clinical knowledge and expertise go virtually untapped. Why not use individuals like myself to provide a higher level of care to patients that is currently only provided by our registered transport nurses e.g. EMT? Additionally, it may also allow me to set up and provide services as a registered paramedic/EMT to hospitals, nursing homes etc. Simon Mc MOHS. Dip Hlth Sc. (prehospital care)

Good points Simon. And we can note that paramedic registration is no longer a mere matter of discussion but appears to be on the way – the Council of Australian Governments (COAG) Health Council Communique of 7 October 2016 says:

National Registration for Paramedics
Health Ministers agreed to proceed with amendments to the Health Practitioner Regulation National Law (the National Law) that will bring paramedics into the National Registration and Accreditation Scheme (NRAS) for the health professions, alongside 14 other regulated health professions.
Ministers noted that issues concerning the implementation of the recommendations of the NRAS Review, the scope of the paramedic workforce, and the recognition of vocational as well as tertiary pathways for registration as a paramedic have been satisfactorily addressed.
A draft amendment bill is expected to be brought forward to Ministers for approval early in 2017, with a view these being brought to the Queensland Parliament in 2017. The Western Australian Parliament is also expected to consider legislative changes to the Western Australian National Law.
With the agreement of Ministers that paramedics will be registered in all jurisdictions, it was noted that the draft amendment bill will not require the inclusion of an opt-in mechanism.
Ministers noted that the Final report – Options for Regulation of Paramedics September 2015 has been published on the COAG Health Council website.

Thank you for your speedy reply and info. Let’s hope that along with this proposed change the way is paved for private ambo/ pt. transport services to operate effectively and ‘out of the shadows’.
Privatising health and associated services is a hot topic at present, and not the solution to the problems, however it seems the only logical solution to saving tax payers money in this case (NEPT) is to either ‘sack the lot of em’ and start from scratch (with people who at least have a clue) or turn it over to private operators and their ‘workeable’ booking and scheduling models.
Sincerely,
Simon Mc.

I think that pressure from graduates who will find that they are unable to get a job with the state ambulance services, but who will want to work in the industry for which they have trained, will make a private sector ambulance service inevitable. It already exists with event first aid services that, in my view at least, have operated very close if not on the wrong side of the law (given s 67E of the Health Services Act 1997 (NSW)). Certainly I think professional registration and these proposed amendments in NSW will open the door for more private providers in the area of NEPT and event first aid services and with respect to event first aid providers it will be bring the law in line with actual practice.

Hello Michael I have read your comments and views over the years on various issues relating to “ambulance services” in particular Non-Emergency Patient Transport Services (NEPT). My experience in this and related industry spans over 30 years from a practicing paramedic to owner/operator of NEPT services in various states of Australia. My organisation transports some 10,000 patients per year. May I shed some light on NEPT Services within NSW as I hope this information will be of some assistance to those contemplating entering the NSW market. The information I provide is in the whole my opinion resulting from my experience in the NSW, SA and WA NEPT markets and based on discussions with private health funds, Hospital senior executives, State Health departments, State/Federal Ombudsman and other NEPT operators. In the first instance I consider the introduction of The Health Services Act 1997 (NSW) s 67E allowing for private NEPT operators legally required as a result of federal laws relating to monopoly’s and anti-competitive laws. The many and varied other reasons for the implementation of The Health Services Act 1997 (NSW) s 67E are simply well designed smoke screens. In most States and Territories, the respective Governments have comprehensively examined and introduced commercial provider arrangements and in particular, the outsourcing of some Emergency Ambulance services and also non-core Emergency Ambulance Services in an effort to introduce competition, reduce strain on Government infrastructure and funding, reduce costs to the end users and the experience has demonstrated that this is achievable whilst still maintaining regulation and control over the provision of services. This was commented in the Lizard Drinking Pty Ltd – report (South Australia) 2003 In the Eastern States, the introduction and licensing of commercial providers has extended to core Emergency Ambulance Services in line with the Federal Government seeking all States and Territories undertake to examine Competition Neutrality Policies for any government business whereby a monopolisation of services and markets exists. Don’t be fooled, one needs to consider the length of time it has taken state government to implement such opportunities. The outcomes we see today has been strategically researched, developed and implemented over the past 20 years or more, and still some state governments are no better off. Whilst a government is a service provider, administrator and regulator within an industry, the public cannot take advantage of competition in the true sense as described by the ACCC. To say the NSW NEPT industry is open and competitive is false. In NSW, we currently have the following: 1. NSW Ambulance Service – State statutory emergency service
2. HealthShare – Government NEPT service
3. Private NEPT providers – With official Consent As stated above, the implementation of laws allowing private providers was extremely strategic. The following demonstrates the un-competitive market in part; 1. Private health funds do not cover NEPT services when provided by an authorised private NEPT provider 2. Private health funds provide 100% cover for NEPT charges when provided by NSW Ambulance or HealthShare 3. Private NEPT providers are not permitted to collect patients from public hospitals unless they are sub-contractors of HealthShare 4. Private NEPT providers are not permitted to sub-contract. 5. Private Health facilities use authorised NEPT providers as a last resort however, the costs of such services are negotiated outside of the gazzeted fees for NEPT services 6. Authorised private NEPT providers must meet strict service standards and specifications 7. Private facilities can operate there own transport services not required to be licensed or required to meet the same service specification and standard as an authorised private provider 8. Private health facilities are required to pay NEPT services for the transporting of their patients yet still use HealthShare due to their charges being covered by private health funds. And the list goes on. The government has strategically protected their interests in the NEPT market. It is extremely difficult to compete as the opportunities available for a private provider is extremely limited. David

It should be noted that this comment was in response to a post that was written on August 24 2015. The Health Services Amendment (Ambulance Services) Bill 2015 (NSW) was passed but has never been proclaimed to commence so the changes discussed in the original post have never come into effect. It remains the case that, in NSW,
A person must not:
(a) directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, or
(b) conduct for fee or reward any operations similar to the operations carried on by the Health Secretary under this Chapter,
without the consent of the Health Secretary The liberalisation of the NEPT sector that would have come into play had the 2015 Act been commenced has not occured.