Transcript legal issues and st john ambulance

LEGAL ISSUES FOR
ST JOHN FIRST AIDERS
Dr Michael Eburn
The University of New England &
The Australian National University
Outcomes
At the end of this session you will:
• Be introduced to important legal rules and
principles and
• Gain an understanding in how the law may
be applied in first aid work.
Our scenario
You are driving with a friend who is also a St John
volunteer. Neither of you are in uniform when you
are involved in a collision. You have hit Nigel, a well
dressed pedestrian who has stepped onto a
pedestrian crossing. Nigel has come out of a pub
that is well known as the favourite watering hole for
the local legal profession. He is affected by alcohol
but, notwithstanding this, you are not meant to hit
pedestrians on pedestrian crossings.
You and your colleague get out.
Questions
• Do you have to assist Nigel?
• Does your friend have to assist?
Who has to assist?
• You have to assist - Road Transport (Safety and
Traffic Management ) Act 1999 (NSW) s 70.
• Your friend? No; there is no duty to rescue another
(Woods v Lowns (1996) Aust Torts Reports ¶81376; Stuart v Kirkland-Veenstra [2009] HCA 15).
Sam
Whilst you are getting over the surprise of having run
someone over, another car stops. The driver is
Samantha (Sam), another St John colleague, this time
in uniform and proceeding ‘on duty’. The duty event
is scheduled to start in ½ an hour and will be delayed
if she is not there to set up the first aid post. Sam
has, in her car, advanced first aid equipment
including pain relief and oxygen therapy equipment.
Does Sam have to help?
• No clear answer.
• Traditionally no duty to rescue but
• Lowns v Woods - a doctor was under a duty
to assist. Key facts: He was
– At his place of practice ready to see patients but not
otherwise engaged;
– Asked in his professional capacity.
– In close proximity to the patient in need;
– Under a professional obligation to provide emergency care
(Medical Practice Act).
• Is Sam in the same position, or different?
Next …
You make your way to the pedestrian; he is adamant
that he is ‘OK’ and does not want your help. He is
sitting in the gutter and is unable to stand. He may
be drunk, but it may be something more. He clearly
has a significant laceration to the top of his head that
is bleeding freely. You have concerns about his
welfare and really think you need to examine him and
provide first aid but he is equally adamant that he is
not going to cooperate with you and does not want
your assistance.
Questions
• Can you treat him?
• What do you do?
• What should you do?
Can you treat him
• To touch a person without consent is an
assault.
• But can everyone refuse consent?
• To refuse consent you need to be
competent, is he competent?
What do you do?
What should you do?
• Just because a person refuses consent does not
mean your duty ends (consider Neal v Ambulance
Service of NSW [2008] NSWCA 346))
• Your duty is a duty to act reasonably, to take
reasonable care?
• What could you do?
• Call an ambulance
– perhaps they will persuade him that he requires treatment;
• Call the police
– they have to be called anyway
As you ponder your next move, Nigel collapses. You
want to treat him but you, and his friends on the
sidewalk, know that he told you, in no uncertain
terms, that he didn’t want your help.
Questions
• Can you treat him?
• What do you do?
• What should you do?
Consent/necessity
• He’s refused consent; can you treat him now?
• Necessity; In Re F [1990] 2 AC 1
(1) [there] must … be a necessity to act when it is not
practicable to communicate with the assisted person, …
[and]
(2) the action taken must be such as a reasonable person
would in all the circumstances take, acting in the best
interests of the assisted person.
• Implied consent is not the lawful justification.
• But necessity doesn’t work if the treatment is
contrary to the patient’s known wishes …
Refusing consent
• In Re T [1992] 4 All ER 649
– Must be competent
– Must be informed;
– Must cover the situation that has arisen
• Does that apply here?
– Did he know how badly injured he was?
– Did he know it was a choice between treatment and severe
consequences?
• If the answers are ‘no’ the apparent refusal doesn’t
apply.
Nigel is transported to hospital. It is discovered that
he has suffered a permanent brain injury. Assume
that the long term consequences would have been
less had he received adequate first aid and oxygen
therapy at the scene of the accident.
Questions
•
•
•
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Can Nigel sue?
Who should he sue?
What for, ie what did they do wrong?
If he sues you, who’s going to defend you and pay
the costs?
• If he sues Sam, who’s going to defend her and pay
the costs?
Can Nigel sue?
• Yes:
– But that’s not a helpful answer
• Look at duty, breach and damage.
• Who should he sue?
• He can sue you (the driver), duty breach and
damage are clear.
• Sam:
– Was she under a duty to help? If no duty, no liability.
– If she’d stopped would it have made a difference?
Consider again Neal v NSW Ambulance.
– Difficult questions.
Who’s going to pay?
• If he sues you?
– CTP (Green slip) insurer.
• If he sues Sam?
– Not so clear. St John? Maybe but maybe not – St John may
be liable if you stop and help, but if you don’t?
– Did she represent St John? Was in uniform, but not yet on
duty.
• Nigel’s lawyers should advise him to sue you, not
Sam – it will be much easier.
Alternative ending
Assume that Sam did stop and render assistance
using her advanced equipment and skills. Even so
the long term brain damage has occurred.
Nigel
• Can still sue you, the driver.
• Did Sam owe a duty of care?
– Yes, if you stop and treat you must act reasonably
• Breach
– What might have gone wrong?
– Is that ‘negligent’? What do you think?
• Damage
– Only liable for the damage caused, but the damage was
caused by being hit by a car. What would not have
happened ‘but for’ Sam’s action/inaction?
If Sam stops to help, she’s a
good samaritan
• “… a "good samaritan" is a person who, in good
faith and without expectation of payment or other
reward, comes to the assistance of a person who is
apparently injured or at risk of being injured.”
• “A good samaritan does not incur any personal civil
liability in respect of any act or omission done or
made by the good samaritan in an emergency when
assisting a person who is apparently injured or at
risk of being injured.”
Civil Liability Act 2002 (NSW) ss 56 and 57
The ‘Good Samaritan’
provisions don’t apply if
1. You caused the injury in the first place (eg you
were the driver at fault) (s 58(1));
2. Your ability exercise reasonable care and skill was
significantly impaired because you have consumed
alcohol or drugs (including medications) (s 58(2));
3. You are impersonating a health care or emergency
services worker or a police officer or otherwise
falsely claiming to have skills or expertise in the
area of emergency assistance (s 58(3)).
Alternative ending 2
Assume the same facts that are set out, above, except
that the accident occurs where Sam is on duty and
she has attended as the ‘on duty’ first aider. She has
administered first aid but again the adverse outcome
occurs.
Sam’s a volunteer
“A volunteer does not incur any personal civil liability
in respect of any act or omission done or made by the
volunteer in good faith when doing community work:
(a) organised by a community organisation, …”
Civil Liability Act 2002 (NSW) s 61.
•If the volunteer isn’t liable, neither is St John.
Civil Liability Act 2002 (NSW) ss 3C and 5Q.
The volunteer provisions do
not apply if
• The volunteer:
– was engaged in criminal conduct (s 62);
– was intoxicated (s 63);
– knew or ought to have known that he or she was acting
outside the scope of their duties or contrary to
instructions (s 64);
– is required to be insured (s 65); or
• The liability is covered by a motor vehicle CTP
scheme (s 66).
So what have we learned…?
1. It’s much easier to sue the person that causes the
accident, than the first aider.
2. Generally speaking there is no duty to go to the
aid of others but that is debatable (do you want to
be the test case?)
3. If you do assist you:
1. Must act reasonably, in accordance with your training;
and
2. Enjoy legal protection as good Samaritans and as
volunteers when ‘on duty’; but
3. Those protections wont help you, if you don’t help the
person in need.
What else?
• Consent is required before you can treat; but
• It’s not ‘all or nothing’. You still owe a ‘duty of
care’ to the patient who refuses your care.
• Treatment of the incompetent is justified by
‘necessity’, not implied consent.
• You cannot give treatment you know the patient
doesn’t want, but in reality, that is not likely to
apply in a first aid situation.
That’s a lot to take in!
• The short message: the fear of legal action is overrated.
• Any questions?
• Thank you for your attention and the chance to
come back to St John.