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 ¶ ; 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 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 over- rated. Any questions? Thank you for your attention and the chance to come back to St John.