The push to give first responders PTSD protection in workers compensation laws

MICHAEL ESPOSITO

First responders have been on a mission to effect legal reforms that would provide stronger protections for emergency service workers who suffer post-traumatic stress disorder.

In 2018, the Commonwealth Senate Standing Committees on Education and Employment conducted an inquiry into the mental health conditions experienced by first responders and came up with 14 recommendations to improve mental health outcomes for emergency workers.

The report acknowledged that first responders are highly skilled people who provide assistance in emergency situations that are often life threatening and time critical.

Due to the high pressure, confronting, physically and mentally demanding, and often harrowing nature of the work, the prevalence of adverse mental health impacts among first responders is significantly higher than in the general community.

A landmark National Mental Health and Wellbeing Study of Police and Emergency Services by Beyond Blue reported that: • 10% of employees have probable

PTSD, while 25% of former employees have probable PTSD. The prevalence of PTSD in the general Australian population is estimated to be four per cent.

• 21% of employees have high psychological distress, and 9% experience very high psychological distress. Among the general population, those figures are 8% and 4% respectively.

• 39% of employees reported having been diagnosed with a mental health condition by a mental health professional at some point in their life, compared to 20% of the general population.

• 51% of employees indicated that they had experienced traumatic events which affected them deeply.

• The risk for psychological distress and PTSD increased with length of service.

Two per cent of employees with less than two years’ service have probable PTSD, while 12% of employees with more than 10 years’ service exhibit signs of probable PTSD.

One of the key recommendation of the Senate report, which was tabled in February 2019 was as follows:

"The committee recommends that the Commonwealth Government establish a national stakeholder working group, reporting to the COAG Council of Attorneys General, to assess the benefits of a coordinated, national approach to presumptive legislation covering PTSD and other psychological injuries in first responder and emergency service agencies. This initiative must take into consideration and work alongside legislation already introduced or being developed in state jurisdictions, thereby harmonising the relevant compensation laws across all Australian jurisdictions."

The Federal Government, in its formal response to the Senate Committee report, noted that it supported “in principle” a nationally consistent approach to covering PTSD and other psychological injuries for first responder and emergency services agencies in workers compensation schemes.

However, it noted that “as workers’ compensation is primarily a state and territory responsibility, any such working group would depend on the cooperation of the states and territories.”

The Australasian Council of Ambulance Unions (ACAU) criticised this response in a report card published in the Autumn/Winter Ambulance Active Journal 2020.

The report card read: This is a key area that needs harmonising across jurisdictions. The Senate Recommendation was based squarely on an ACAU call to coordinate a national approach to presumptive legislation. A number of states and territories have already gone it alone in this area. We need to ensure consistency so that no paramedic is disadvantaged.”

In February this year, SA Best Member of the Legislative Council Frank Pangallo re-introduced a Bill (after it lapsed in 2019) that would presume that a PTSD diagnosis for a first responder was work-related, with the onus shifting on the employer to prove otherwise. The Bill has not progressed beyond the second reading on 20 February this year. Debate on the Bill is scheduled to resume in the Legislative Council on 9 September. However, State Treasurer Rob Lucas indicated in January this year that the Liberal Party was not likely to support the Bill. 1

The Return to Work (Post Traumatic Stress Disorder) Amendment Bill 2019 sought to amend section 9 of the Return to Work Act to include the following provision:

who has been employed as a first responder is diagnosed with post traumatic stress disorder, the disorder is presumed, in the absence of proof to the contrary, to have arisen from employment”

The Bill would cover first responders including: paramedics; police officers; firefighters; nurses; doctors, and SES and CFS volunteers

The Self Insurers Association expressed concerns with the Bill, noting that PTSD was a complex condition that can be misdiagnosed by doctors who do not specialise in the area. SISA’s submission stated: “We see it as a risk to those who are misdiagnosed and would receive treatment for PTSD when in fact they are suffering from a different psychiatric condition. If the Bill were to be progressed we would see it as very important that there be a requirement that any diagnosis of PTSD must be made or verified by a psychiatrist with experience in the diagnosis and treatment of PTSD.”

Ambulance Employees Association of South Australia, in support of the Bill, stated: “Our members are exposed to a significant amount of trauma throughout their career. They are required to walk towards danger, death and suffering. It stands to reason that for those unfortunate enough to develop PTSD, it is most likely as a result of exposure to traumatic events in the workplace. We will continue to advocate for our members to receive support from the Government which will acknowledge the inherently dangerous and unpredictable nature of their work.”

The Police Association of SA has also publicly supported the Bill, with PASA President Mark Carroll saying the Bill was “very significant legislation which, if passed, will greatly assist members recovering from PTSD.”

Endnotes 1 https://www.adelaidenow.com.au/news/southaustralia/proposed-laws-to-help-emergencyservices-personnel-with-ptsd/news-story/ ecd4271482c962330893846cd0a20df8