First Aid & The Law Part 2 - Can I be sued?
7th May 2018
In the previous article we looked at the legal obligations of those who administer First Aid. In this article we aim to provide some reassurance against the concern of being sued following the treatment of a casualty.
When we treat a casualty we take responsibility for both the casualty and also our actions. If the casualty you treat has experienced damage or loss (i.e. an injury) they are entitled to make a claim against you. If the casualty dies, the claim may come from their family.
That said, at the time of writing, no one in the UK has ever been successfully sued following the administration of First Aid to a casualty.
Whilst it is possible that a claim may be brought against you, it is unlikely to be pursued to court for a number of reasons:
1. Common Law
In the event that a civil case were brought against you, negligence, for example, two important legal phrases are used when questioning your actions. Your actions will be judged against those of a reasonable person who is of the same standing.
Importantly your actions will be judged against those of a reasonable person; while the term reasonable is open to interpretation, your actions will not be judged against a perfect person. It is reasonable that someone with limited or no first Aid training will make mistakes. It is reasonable that without training, lay people who have only attended a basic First Aid course will make mistakes when working under pressure. It is reasonable that two or three years after completing your first aid training, you will forget things and suffer from skill-fade.
Furthermore, your actions would be judged against someone of the same standing meaning that a lay person who has attended a First Aid course would be judged against someone with similar first aid training, not against those of a Healthcare Professional.
2. Criminal Law.
In the unlikely event that a criminal case were made against you (such as assault following injuries sustained) one would need to be found guilty beyond all reasonable doubt.
A common concern is that moving a casualty with a suspected spinal injury may aggravate that injury, potentially causing paralysis , however without a clear and open airway the casualty will die. Should the casualty be manhandled in an attempt to clear and open the airway and the casualty survives but is now paralyzed, it would be impossible to determine, without doubt, which action caused the paralysis; opening the airway or the initial injury. It cannot be proved which action caused the paralysis. What is known is that there would have been an initial injury to begin with which the First Aider did not cause.
Bearing in mind Point 1, the greater the responders level of skill, knowledge and experience, the greater degree of care when performing the manoeuvre they would be expected to perform.
3. We are afforded a defence.
In the UK we are afforded the opportunity to defend oneself and argue our case. This is not the case in all countries.
Should a case be made against us we are able to justify our actions - principally by acting in the best interest of the casualty at the time.
Another common concern is that CPR will break ribs. This is highly likely especially with older casualties but it is in the interest of the casualty to maintain oxygen perfusion to the brain while waiting for a defibrillator rather than preserving ribs.
It is possible that moving the casualty into the safe airway position may aggravate injuries but it is in the interest of the casualty to maintain a clear airway.
4. You are following your training.
In any case, the judiciary would look at what you did and why - the causation. If we provide assistance in the manner in which we are trained we have another level of legal defence - we are doing what we were trained to because we are following nationally or internationally recognised, evidence based, best practice.
The minute you attempt an emergency cricothyroidotomy with a pen knife and a biro because you saw it on TV, you do not just lose that level of defence but you may become liable for any loss or injury sustained as a result of your behaviours because you have performed an intervention which you have not been trained to do.
5. You have no money.
Really. You don't. Well...most people don't, at least not the amount that a lawyer would seek for their claimant. Compensation can be sought by claimants for 100's of thousands of pounds and most people simply don't have that kind of money.
Companies on the other hand do have this sort of money and also Public and Employers Liability insurance. As it is often cheaper for an insurance company to pay a claim for damages than it is to defend a case in court, insurance companies often simply pay. For this reason, companies, rather than individuals, are usually sued.
6. Social Action, Heroism and Responsibility (SARAH) Act 2015
In additional to all of these mechanisms within the legal system of the United Kingdom, the Social Action, Heroism and Responsibility Act achieved royal assent in 2015. The purpose of this legislation is to ensure that in a case made against someone who was trying to help an individual, the judge would be obliged to consider the following:
Social action - was the person was acting for the benefit of society or any of its members. ( i.e in the best interest of the casualty )
Responsibility - did the person demonstrate a predominantly responsible approach towards protecting the safety or interests of others. ( i.e. acting i the manner in which they have been trained, to the standard of a reasonable person of the same standing ).
Heroism - was the person was acting heroically by intervening in an emergency to assist an individual in danger. ( This part of the act has raised concern; what is heroism? Is acting 'heroically' out of necessity the same as acting recklessly? Is performing that emergency cricothyroidotomy with a biro heroic or reckless? )
Some have argued that the SARAH Act is unnecessary given the existing mechanisms already in place which are designed to protect both the claimant as well as the defendant in cases such as these. The Act does not prevent a person from being found negligent if the circumstances of a particular case warrants it, nor does it have any bearing on issues of criminal liability. Nevertheless, there now exists formal legislation to reinforce that protection to both parties but especially those who attempt to provide help to others.
The existence of such legislation, together with all of the other factors listed here, should reassure us despite this seemingly litigious age of "Where there's a blame, there's a claim", those who offer help to others are unlikely to be sued...in the UK.
Next Article - The Rest of The World