1. Clearing up the legal myths
Dr Michael Eburn

2. Clearing up the legal myths Duty of care; Good Samaritan and volunteer protection; and Consent.
Dr Michael Eburn
School of Legal Practice
Australian National University
CANBERRA

3. Duty of care

4. Duty of Care
Except in the Northern Territory, there is no duty to rescue a stranger. (Criminal Code (NT) s155; Stuart v Kirkland-Veenstra [2009] HCA 15).
A duty to take care will arise if you do provide first aid –

5. Donoghue v Stevenson
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? … persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation … ([1932] AC 562 (Lord Aitken)).

6. Donoghue v Stevenson
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? … persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation … ([1932] AC 562 (Lord Aitken)).

7. If there’s no duty to act
Then the only duty can be a duty not to make the situation worse; there’s no obligation to make it better. Capital and Counties v Hampshire County Council [1997] 2 All ER 865.

8. Good Samaritan and volunteer protection

9. Good Samaritan protection
A ‘good Samaritan’ is a person who, without expectation of payment or other consideration, (1) comes to the aid of a person; or (2) being medically qualified, gives advice by phone or radio about the treatment of a person who is apparently— (i) injured or at risk of being injured; or (ii) in need of emergency medical assistance. (Civil Law (Wrongs) Act 2002 (ACT) s 5(4)).

10. Good Samaritan protection
A good samaritan does not incur personal civil liability for an act done or omission made honestly and without recklessness in assisting, or giving advice about the assistance to be given to, a person who is apparently— (a) injured or at risk of being injured; or (b) in need of emergency medical assistance. (Civil Law (Wrongs) Act 2002 (ACT) s 5(1)).

11. Honestly v good faith
‘The statutory concept of "good faith" … calls for more than honest ineptitude. There must be a real attempt …’ (Mid Density Developments Pty Limited v Rockdale Municipal Council [1993] FCA 408, [34] (Gummow, Hill, Drummond JJ).
You don’t have to act within scope and in accordance with training – that’s the whole point! (Consider Carter v Reese Ohio-5395).

12. Volunteer Protection
A volunteer does not incur personal civil liability for an act done or omission made honestly and without recklessness while carrying out community work for a community organisation on a voluntary basis.… (Civil Law (Wrongs) Act 2002 (ACT) s 8(1)).

13. Does not apply if the volunteer
Is involved in a Motor Vehicle Accident (s 8(2)(a));
Is being sued for defamation (s 8(2)(b));
Is intoxicated (s 8(2)(c));
or …

14. Does not apply if the volunteer
… knew or ought to have known that he or she was acting: (a) outside the scope of the activities authorised by the community organisation; or (b) contrary to instructions given by the community organisation. (Civil Law (Wrongs) Act 2002 (ACT) s 8(2)(d)).

15. Event Health Services
There must to be a duty to act. (Lowns v Woods (1996) AustTortsReps ¶81-376).
They’re not good Samaritans, but they are volunteers.
St John is providing a service:
“A supplier guarantees that services are provided:
• with due care and skill …” (Australian Consumer Law, s 60).

16. Consent

17. Consent May be express or implied.
It’s not implied consent that justifies treatment of those that cannot consent,
It is “necessity”.

18. In Re F [1990] 2 AC 1
The basic requirements, applicable in these cases of necessity, that, to fall within the principle, not only
must there be a necessity to act when it is not practicable to communicate with the assisted person, but also
the action taken must be such as a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.

19. In Re F [1990] 2 AC 1
On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

20. In Re F [1990] 2 AC 1
On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

21. In Re F [1990] 2 AC 1
On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

22. A refusal: Was the patient competent? Was their refusal informed?
Does it cover the situation that now arises?
There is no mandatory form (Medical Treatment (Health Directions) Act 2006 (ACT) ss 6, 7(2) and 9).

23. Consider Malette v Shulman
“I do not agree … that the Jehovah’s Witness card can be no more than a meaningless piece of paper. … the instructions in the Jehovah’s Witness card imposed a valid restriction on the emergency treatment that could be provided to Mrs. Malette and precluded blood transfusions. … [She had] chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes, that she does not consent to blood transfusion…” ((1990) 67 DLR (4th) 321,Robins JA).

24. Consider Malette v Shulman
“I do not agree … that the Jehovah’s Witness card can be no more than a meaningless piece of paper. … the instructions in the Jehovah’s Witness card imposed a valid restriction on the emergency treatment that could be provided to Mrs. Malette and precluded blood transfusions. … [She had] chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes, that she does not consent to blood transfusion…” ((1990) 67 DLR (4th) 321,Robins JA).

25. Who’s going to sue? Probably no-one but consider:
The estate of the dead patient?
The patient that survives with no deficit?

26. Who’s going to sue? Probably no-one but consider:
The estate of the dead patient?
The patient that survives with no deficit? Perhaps.

27. Who’s going to sue? Probably no-one but consider:
The estate of the dead patient?
The patient that survives with no deficit? Perhaps.
The patient that is left with permanent ongoing disability – the very thing they wanted to avoid?

28. Who’s going to sue? Probably no-one but consider:
The estate of the dead patient?
The patient that survives with no deficit? Perhaps.
The patient that is left with permanent ongoing disability – the very thing they wanted to avoid? Quite possibly.

29. What else? Thank you for your attention Michael Eburn P: 02 6125 6424E: B: W: