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Duty of Care & The Law

 

Disclaimer:  because of the generalisations made in this article, it should be taken only as guidance.  For further information, consult the United Kingdom Resuscitation Council document “The legal status of those who attempt resuscitation.”  or a legal expert.

One of the most common questions we receive is "Will I get sued if I give first aid to a casualty?"  

This is a reasonable question given the increasingly litigious world we live in.  The following article provides some of the important factors that must be considered to protect both yourself and the casualty.

This article is not intended to frighten or deter a potential First Aider, rather inform potential rescuers of the current legal situation where examples exist.

The most important thing to remember is that to date, no one in the UK has ever been sued for administering life-saving First Aid.  The reasons – and how you protect yourself from litigation – are explained below.

 

Terminology

Duty of Care 

A duty of care is a legal obligation set on an individual requiring that they confirm to a standard of reasonable care while performing any acts that could foreseeably harm others.  It is the first element that must be established to proceed with an action in negligence.

Reasonable care – or the actions of a reasonable person - is a legal basis of Common Law representing an objective standard against which any individual's conduct can be measured.  It is used to determine if a breach of the standard of care has occurred, provided a duty of care can be proven.

What is important to remember is that ones actions would be judged against those of a reasonable person of the same standing in a similar situation; the actions of a First Aider would therefore only be judged against those of someone of similar training and experience, not against the actions or decisions of a paramedic or doctor.

Negligence

Negligence exists when a person breaches their duty of care owed to another through an act or omission which results in an injury or a loss.  This is not the same as carelessness because someone might be exercising as much care as they are capable of, yet still fall below the level of competence expected of them. 

Common Law

Also known as case law or precedent, is law developed through previous cases by judges and through decisions of courts and similar tribunals rather than through legislative statutes.

Statutory Law

Statute law is written law set down by a legislature, as opposed to Common Law.

 

Duty of Care and the First Aider

For a First Aider nominated in the workplace the situation may be different from those who are simply bystanders as it could be argued that they have assumed a heightened duty of care.  

Under the Health and Safety at Work Act 1974 and the subsequent Health and Safety (First Aid) Regulations 1981, an employer is under a statutory duty to provide first-aiders in the workplace for the benefit of their  employees.  These first-aiders must undergo training to an approved standard in a specified list of competencies.  As such, an individual who takes on this role as part of his job description could be argued to owe a duty of care to his fellow employees to render first aid. 

A person, whether a healthcare professional or a member of the lay public, who witnesses a  situation ‘in the street’ where life-saving First Aid might be required is under no obligation to assist, provided the situation was not caused by him.  However, if that person does choose voluntarily to intervene to render assistance they will assume a duty of care towards the individual concerned.  By starting treatment you are accepting a responsibility to the care of that person. 

Rule 1:  Only treat if you are willing and able to do so.

 

Can I choose to do nothing?

Whilst there is no law that forces anyone to treat a casualty this does not mean that one can simply leave a casualty who you know is in danger.  To do so may make you liable through your omission to act.   If  you are not happy to provide First Aid treatment in the 'classic' sense there are several things you can and should do including (but not limited to): 

  • Inform someone else, such as 999 if it is an emergency.
  • Make the area around the casualty safe for yourself, others and the casualty.
  • Monitor the casualty and/or find out what happened.
  • Comfort the casualty.

These are examples of simple but important actions that can be done without 'getting your hands dirty'.

 

What if I injure the casualty?

A person who administers First Aid will only be liable for damages if negligent intervention directly causes injury which would not otherwise have occurred, or if it exacerbates an injury.  

If First Aid is administered inappropriately or negligently and a consequential injury can be proved to have arisen from that  procedure, a First Aider may be held liable for substantial damages if the standard of care he  employed fell below that which could be expected of him in the given circumstances.  This applies whether they are a healthcare professional, a non-professional volunteer first-aider, or simply an unskilled member of the general public. 

For example, if a person inappropriately administered chest compressions where a casualty was not in cardiac arrest, which caused damage to the chest wall or underlying organs, they would be causing damage which would not otherwise have been suffered and, given that the casualty was not in need of emergency resuscitation, would by his intervention be leaving them in a worse position. 

If, however, CPR is performed on a casualty in cardiac arrest, It is difficult to see how a persons intervention could leave someone worse off since a victim would, without immediate resuscitation, certainly die.  Furthermore, if an AED is being used, it will only permit the administration of a defibrillatory shock when it detects a shockable rhythm and, since patients in this state are clinically dead, it is unlikely that any intervention with this device could make the situation worse. 

Attending an accredited First Aid training course not only provides you with life saving skills but skills, knowledge and understanding of current best practice.  A First Aid certificate is not a 'licence to treat' but it demonstrates that the candidate, at the time of the course, was able to perform tasks to a nationally recognised standard.  By treating a casualty to these standards you are protecting yourself against a claim of negligence.

To treat a casualty in a way that goes against the training you have received or to treat a casualty using techniques you have not been trained in but have 'seen it on the telly' exposes you to a claim for negligence.

Rule 2 – Only treat in the manner you have been trained.

 

But what if the casualty does not want to be treated?

This situation is not as strange as it may seem; there are several reasons why a casualty, even with serious injuries may not want you to treat them. 

  • It may be that they don't want you to treat them, but they might want someone else.  
  • Is there personal history between you and the casualty?
  • Is there a gender issue?
  • Is the casualty suffering with a personal or embarrassing issue?
  • Is there a lack of trust?   Could this be how you presented yourself?
  • Is the injury or condition self-inflicted and the casualty is refusing treatment from anyone?

 

Under UK law any form of physical touch without consent could be interpreted as common assault. (although is more accurately described as 'battery' in England and Wales or 'wrongful interference with the person' in Scotland).  Practically this is unlikely to lead to a conviction if - for example - a First Aider were to hold the hand of a casualty to reassure them, without first gaining consent.   A conviction could be made if the First Aider were to use any form of force against the casualty to administer treatment.

Further Reading:  British Medical Association - Consent 

Under the Mental Capacities Act (2005) a person is presumed to have the mental capacity to make their own decisions unless proved otherwise.  On the basis that the casualty has the capacity to choose to refuse treatment this must be respected.  It is important that the casualty is not coerced or pressured into accepting treatment, rather they are helped to make an informed decision: 

  • Can the casualty self-treat?  Do you need to be involved in the treatment?
  • If the casualty does not want you to treat them, will the casualty accept treatment from someone else?
  • Is the casualty aware of the seriousness of their injury or condition?

Further Reading:  British Medical Association - Mental Capacity 

How do I know if they have the mental capacity to make a decision?

The criteria set out by the Act for a casualty to consent / reuse treatment is that they can:

  • Understand the information relevant to the decision
  • Retain the information long enough to make a decision
  • Weigh the information and make a decision
  • Communicate the decision

 

In an emergency situation it could be argued that the First Aider could not be in a position to ascertain this information and make a decision and should therefore not be held liable provided all other actions were in line with those of this article.

 

What if they are unconscious?

If a casualty is unconscious and therefore unable to consent – or indeed they had refused consent and then became unconscious – you are permitted to undertake treatment that is only required for the purpose of saving life.  You are not permitted to undertake non-life threatening treatment, such as treating minor injuries.  

Section 5 of the Act applies in connection with the care or treatment of another person.  If a casualty is found unconscious - and therefore their mental capacity cannot be assessed nor can the casualty express refusal of treatment - it is suggested that a First Aider who administers life saving actions should not incur any liability in relation to their actions (that he would not have incurred if the casualty had capacity to consent and  had consented to treatment) providing that:

  1. before performing a procedure the First Aider takes reasonable steps to establish whether the casualty lacks capacity in relation to the matter in question and 

  2. when performing the act reasonably believes that the casualty lacks capacity in relation to the matter and 

  3. that it will be in the casualty’s best interests for the act to be performed

The best interest of the casualty is usually doing as little as you need to, rather than as much as you can.  This is true whether the casualty accepts or refuses your treatment.

Rule 3 – Act in the best interest of the casualty.

 

Can someone refuse treatment on behalf of someone else?   

No one can refuse Life-Saving treatment on behalf of a capable adult or child over 16.   

 

What is a 'Living Will'?

A Living Will or, more accurately, an Advanced Decision allows a person over 18 years to refuse specified medical treatment for a time in the future when they might nor have the mental capacity to consent or refuse to that treatment.

Advanced Notices are commonly used where a patient with a known or predicted medical condition sets out their wishes – while they have the capacity to do so – regarding future treatment.  Typically this may be that an patient with a degenerative health problem may request that should they suffer a cardiac arrest, they are not resuscitated.

For a patient to refuse life sustaining treatment, the Advance Notice must be:

  • be in writing (it can be written by someone else or recorded in healthcare notes);
  • be signed and witnessed; and
  • state clearly that the decision applies even if life is at risk.

 

In terms of a First Aider responding to a life threatening situation it is unreasonable to assume they would be aware of this written document.   It may be that a person known to the casualty attempts to prevent the treatment of First Aid if the casualty has made an Advanced Notice.  Again, it is difficult and unreasonable  for the First Aider to make a judgement about the validity of this claim.

Should any bystander attempt to prevent life-saving treatment of the casualty, the emergency services should be called as paramedics and other healthcare professionals can – in certain circumstances –  provide life saving treatment without or against consent. 

Further reading:  Morgan Cole - Advance Decisions

 

Children

In the ordinary course of events, a the parents' of a child (a person under 16 years) would refuse or consent to treatment of a child.  If a child required life-saving First Aid and the parents were there and refused consent, it would be difficult to assume implied consent.  Doctors and healthcare professionals are, again, afforded the ability to make decisions regarding life-saving treatment against the wishes of the casualty on the basis of necessity.  Whether this is afforded to a First Aider is legally unclear. 

 

Summary

 

Rule 1:  Only treat if you are willing and able to do so

Rule 2:  Only treat in the manner in which you have been trained

Rule 3:  Act in the best interest of the casualty

 

What would happen if I am sued?

To begin with seek professional legal advice from your solicitor and/or your Union representative as each case is examined individually it is not possible to provide definitive guidance here.

The great benefit of the legal system in this country is that ones actions are measured against 'those of a reasonable person of the same standing'.   This means your actions would be compared against those of a First Aider in the same situation.  You would not be expected to perform in the same way, or be measured against the actions of a paramedic or a doctor.  

If the casualty has experienced damage or loss (i.e. an injury) they may attempt to make a claim against you.  If the casualty dies, the claim may come from their family.

 

Two common situations are often questioned:

1.  Do I move an unconscious casualty, who isn't breathing if they have a suspected spinal injury?  

This dilemma is frequently perpetuated on TV or even in reality (if you have ever been unlucky enough to be at the scene of a car crash) when bystanders scream "Don't move them! They might have a neck injury!"

Remember the 3 Rules:

  1. If you are willing to treat the casualty, being aware of the seriousness of the situation and confident in your abilities, then proceed.

  2. Opening the airway in the manner in which you have been trained limits the potential damage to a spinal injury.

  3. This is a life saving procedure which is in the best interest of the casualty.   

It may be that the casualty has a spinal injury and you might make it worse by opening the airway but an unconscious casualty – especially if on their back – cannot maintain their own airway.  If their airway is blocked s they will not be able to breathe and this take priority over any injury.   If you have treated the casualty in line with your training it is therefore unlikely a claim will be made against you.

 

2.  Am I liable if I break someone's ribs when performing CPR?

Remember the 3 Rules

  1. If you are willing to treat the casualty, being aware of the seriousness of the situation and confident in your abilities, then proceed.

  2. Performing CPR is a skill which needs to be taught to be effective.  Performing CPR as you have been trained will protect you to a greater extent than violently or haphazardly  'jumping on someone's chest' because that is your interpretation of how it should be done.

  3. Whilst a broken rib is undesirable, for a casualty who is not breathing and assumed to have suffered a heart attack, it is largely irrelevant.   Following a call to 999 and locating a defibrillator (if there is one available), perfusion of oxygenated blood to the vital organs through effective CPR is in the best interest of the casualty.

It is certainly possible that a rib can be broken whilst performing CPR, even if trained and practised to the best standards.   A broken rib is not a priority of a casualty in this situation.  Because of these two factors it is unlikely that claim would be brought against you. 

 

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