I’m often asked can I be sued for giving first aid or attempting to resuscitate someone?
There are 4 guiding principles that help to protect the rescuer, these are:-
- Be aware of your duty of care
- Wherever possible gain consent
- Act in the best interests of the person
- Only carry things out that you’ve been trained to do
Duty of Care
I primarily teach Health Professionals who have a duty of care towards their patients. The concept of duty of care also extends to First Aiders if they are the nominated work First Aider. If they have been provided with the relevant training it can be argued that they have a duty of care towards the organisation’s employees.
However, often what concerns us is what happens away from our workplace. There are certain relationships that have been discussed in court and therefore have a legally recognised duty of care, these are discussed in the Resuscitation Council’s document about the legal position of those attempting resuscitation. These tend to be associated with emergency services and health professionals and this is why as a First Aider or Health Professional you may be deemed to have a duty of care. There is no legal liability for an omission to act although there may be professional responsibilities regarding omissions of care. The civil claim for negligence would be based on whether the person acted outside of their duty of care and carried out any interventions incorrectly, this is discussed further below in the section about carrying out only those skills that you’ve been trained to carry out.
The legal claim made would be for that of battery, which is described in this excerpt from the Resuscitation council’s document.
Resuscitation Council (UK)THE LEGAL STATUS OF THOSE WHO ATTEMPT RESUSCITATION5A claim for trespass against the person – assault / batteryA claim may be brought against a rescuer for what is commonly known as assault but, more accurately, is described as battery (in England and Wales). In Scotland, the term is ‘wrongful interference with the person’, and where physical contact is involved, that amounts to an assault, which gives rise to a civil claim in damages. Battery is a form of trespass against the person that is actionable in itself. In other words, in order to succeed in a claim the victim does not have to show that he has suffered any actual physical harm, although it would be necessary for him to show this if he were to be awarded any more than a minimal compensatory sum. Battery is the ‘infliction of unlawful personal force upon another’. Force, which can include even light touching, is unlawful if the person upon whom it is exerted has not given his consent to it. In the context of resuscitation, the contact involved in performing a procedure or in using an AED could clearly constitute battery since, if someone is in cardiopulmonary arrest and unconscious, he will clearly not be in a position to consent to being touched.
This opens the discussion to the issue of consent.
Consent law was updated by The Mental Capacity Act 2005. I’d recommend that you make sure your practise is within the law as the act is not only related to treatment in emergency situations. Again it is discussed in the Resuscitation Council’s document.
Wherever possible we should be seeking consent, therefore if someone is conscious and able to give or withhold consent we should seek informed consent. As discussed in the paragraph above when in a cardiac arrest the person will not be able to give consent. In this case we make the assumption of implied consent, we assume that were they able to consent to life saving treatment that they would. It’s important to remember that in this case we assume implied consent only for life saving treatment, not for example the treatment of minor injuries. This enables us to provide life saving treatment in the best interests of the person.
Best Interests of the Person
If someone suffers a cardiac arrest and resuscitation is not attempted they will certainly die. Therefore we make the assumption that it is in the best interests of the person to attempt resuscitation. However, it can not be assumed that it is in their best interests to provide treatment for minor injuries if they are unable to consent.
We also need to remember that if the person has an Advance Directive that specifies withholding consent for life saving treatment then it would be valid. However, in those first moments it may not be possible to know of its existence and be sure of its validity.
The other important aspect to consent and acting in the person’s best interests is to consider the training of the rescuer.
Carry out those actions you’ve been trained for
As a First Aider you have received a certificate that states that you demonstrated skills in line with a set of competencies on the day of the course, it is not a license to practice. Therefore, it is important that you use skills that you have been trained to carry out. If a claim is made we are judged against the expected actions of someone of similar training in a similar situation, this is known as the Bolam test. This is true for the untrained lay rescuer, First Aider or Health Professional.
Health professionals have an expected standard of care, First Aiders would be judged against the ordinary First Aider and the First Aid manual and the standard for lay people is the ‘reasonable man’. As described here by the Resuscitation Council:-
A member of the general public with no special resuscitation training will only be considered negligent if he performs an act that a reasonable and prudent man in his position would not have done in the same situation, or omits to do something which a reasonable man would have done. The standard by which he will be judged is, therefore, even lower than that of a non-professional first-aider.
The additional expectation is that if someone offers help who is more experienced/trained that they would take over. However, as a health professional you still hold your own professional duty of care so if you feel that something is being done incorrectly you may need to intervene.
It’s important though that the law and the fear of being sued doesn’t prevent people from going to someone’s aid in an emergency whether or not they’ve been formally trained. If you are offering life saving treatment in accordance with what would be considered reasonable then it’s likely that the court will not find you liable.
The law that I’ve discussed here applies to England and Wales. Some countries have laws that place an expectation that a witness will go to someone’s aid. It is therefore important if travelling that you’re aware of any laws that may apply to you. Also this is general guidance and to highlight some of the issues related to this issue, it is not specific advice and if you need further advice I’d recommend contacting your professional bodies and/or seek legal advice.